Re Ginn, ex parte Westpac Banking Corporation

[1992] FCA 239

JUDGMENT No. ........ ..... . ...... .... . 23q / 9%

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION

BANKRUPTCY DISTRICT

RE: JULIE MARGARET GINN

, .	RE: GAVIN RODERICK GINN
PE: GAVIN RODERICK GINN and

JULIE MARGARET GINN

EX PARTE: , WESTPAC BANKING

CORPORATION

MINUTES OF ORDER

JUDGE MAKING ORDER:	Cooper J
DATE OF ORDER:	7 April, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The Registrar reject the debtor's petition of Gavin Roderick Ginn and Julie Margaret Ginn.

2.        That the petitioning creditor's costs of and incidental to the reference including reserved costs be the petitioning creditor's costs in the bankruptcy.

REGISTRY

Grant liberty to apply to all parties on one clear day's notice.

Note :	Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.

7 MAY 1992

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT

OF THE STATE OF OUEENSLAND

m. OP 573, 574 and 284 of 1992

RE: JULIE MARGARET GINN RE: GAVIN RODERICK GINN RE: GAVIN RODERICK GINN and

JULIE MARGARET GINN

EX PARTE :  WESTPAC BANKING

CORPORATION

CORAM :	Cooper J
DATE :	7 April, 1992
PLACE :	Brisbane

EX TEMPORE REASONS FOR JUDGMENT

The court has before it a petition seeking the sequestration of the property of Gavin Roderick Ginn and Julie Margaret Ginn. The creditor's petition was filed on 24 January, 1992. The petition relies upon, insofar as the debtor Gavin Robert Ginn is concerned, service upon him of a

bankruptcy notice in December, 1991. There is no issue that	the bankruptcy notice was served on Julie Margaret Ginn.
In an affidavit filed in the proceedings Mr. Gavin Roderick Ginn denies that he was served, nor that he received the document called "Bankruptcy Notice". Mr. Ginn did not give evidence in the proceedings before me. A medical certificate was tendered indicating that he was not fit to give evidence today. The petitioning creditor did not seek an adjournment of the proceedings. Likewise Mr. Ginn did not seek an adjournment of the proceedings to another date in order to enable him to attend and give oral evidence to H supplement his rather short and to the point affidavit.
The bankruptcy notice was allegedly served by Mr. William Lindsay Hartley, a licensed commercial sub agent. Mr. Hartley gave evidence and was cross-examined in relation to affidavit material which he filed deposing to service of the relevant bankruptcy notice. Mr. Hartley gave evidence that it is his practice to take with him a tape recorder and to make a recording as to what occurs on the occasions when service is attempted and to transcribe what is recorded on the tape recorder in written form shortly thereafter. In relation to the debtor, Gavin Robert Ginn, Mr. Hartley has substantial notes covering a number of attempts to serve Mr. Ginn which proved, for a time, ineffective. He gave evidence that on the last occasion the man he served refused to accept the documentation and that in the presence of that person Mr.
.	.
More importantly, Mr. Hartley identifies the person he served Hartley placed the bankruptcy notice at his feet and left.
with the bankruptcy notice as a person who was observed by Mr. Hartley in attendance at the registry of this court on 20 March, 1992 as being one and the same person. It is conceded by Mr. Barbi for the debtor that the person at the registry was indeed his client.

Mr. Barbi took certain objections to the form of the

affidavit in the sense that the affidavit does not set out the detail contained in the notes recorded by Mr. Hartley but that

deficiency does not persuade me that his evidence ought not in v v

all the circumstances to be accepted. I am satisfied that the debtor, Gavin Robert Ginn, was served with the bankruptcy potice as deposed to by Mr. Hartley. No point is taken by Mr. Barbi that the placing of the bankruptcy notice at the feet of the debtor was other than good service in accordance with the rules.

A debtor's petition was tendered on 3 March, 1992, the day before the sequestration order was sought from the Registrar on the creditor's petition filed, as I say, on 24 January, 1992. The petitioning creditor seeks to have a sequestration order made in relation to its debt of $937,446.00 together with interest and costs. The brief submission of the petitioning creditor is that it desires that the relation back date to be the earliest date in point of time because the material filed by the debtor indicates that

there may have been property transferred from out of the

ownership of the debtors into the ownership of another and

that there seems to be an inconsistency in the affidavit of the debtor Gavin Roderick Ginn, as to whether or not he is earning income and the source of that income.

Mr. Barbi submits that the debtor's petition ought to be allowed to proceed because there is no demonstrable prejudice against the creditor. In my opinion, having regard

to the circumstances surrounding the attempts for service, and having regard to the possibility that the property has passed at some period of time in or about August, 1991, there is a W possibility of prejudice to the petitioning creditor if the relation back date is not given effect to by reference to the .act of bankruptcy and filing of the creditor's petition.

In all of the circumstances I am of the view that the Registrar ought not to accept the debtor's petition and that the proceedings of the petitioning creditor in relation to the petition filed on 24 January, 1992 ought to proceed, with regard to both debtors.

I order that the Registrar reject the debtor's petition of Gavin Roderick Ginn and Julie Margaret Ginn. I order that the petitioning creditor's costs of and incidental to the reference including reserved costs be the petitioning creditor's costs in the bankruptcy.

I grant liberty to apply to all parties on one clear

day's notice.

I certify that this and the three (3)

preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: 7 April, 1992

34. I d W .

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