Re Leeming, E.C. trading as Eric Leeming Constructions v Plaster Castings P/L

[1994] FCA 299

JUDGMENT No. ........ ...,..,.. ... as4 J 94 .... ...

E~OT SUITABLE FOR DISTR1BW"N.N

IN THE FEDERAL COURT OF AUSTRALIA 1

GENERAL DIVISION BANKRUPTCY DISTRICT ) NB 253 of 1994

DF THE STATE OF NEW SOUTH WALES 1

RE:  ERIC CAMERON LEEMING tradina as ERIC
LEEMING CONSTRUCTIONS

Debtor

ERIC CAMERON LEEMING

Applicant

2 0 MAY 1994	AND :	PLASTER CASTINGS PTY LTD
FEDERAL COURT OF

AUSTRALIA

PRINCIPAL	First Respondent
REGISTRY

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 10 May 1994

REASONS FOR JUDGMENT

BURCHETT J. :

In this matter I am asked to annul a sequestration order. The debtor has sworn an affidavit clearly asserting that he was served with neither the bankruptcy notice nor the petition. On the face of the affidavit, it appears to indicate that he could not have been served because of the nature of his activities at the time, which had taken him elsewhere than the place of service.

The debtor had a solicitor at the time, whose office was actually immediately adjacent to the place where he was	alleged to have been served. He has deposed to the fact that
he would, as one would indeed expect, have handed the bankruptcy notice and petition immediately to that solicitor, had he in fact been served.
On the other hand, there is an affidavit which has been filed in court this morning of the process server, who has not resiled from the proposition stated in his affidavits of service, but has stated the circumstances of service in terms which, to my mind, leave it quite open that there may have been a case of mistaken identity. Consequently, to act on the material presented by the debtor is not to make a finding of perjury against the process server.
At the same time, process servers obviously should take care to avoid that kind of error; and that it should have occurred, if indeed it did occur in the matter, is in itself an event of some seriousness. In the circumstances, I have decided that the proper course is to make an annulment order, but also to direct the registrar to refer a copy of these
Attorney General for such action as he may think proper, remarks and of the relevant material to the New South Wales
having regard to the position of the process server.

I certify that this and the preceding page are a

true copy of the Reasons for Judgment herein of his

Honour Mr Justice Burchett.

Date: 18 May 1994

Counsel for the Debtor:	Mr J. Johnson
Solicitors for the Debtor:	Messrs P.J. Pollack & Co.
Solicitor for the Petitioning	Mr G. Zinn of Messrs
Creditor:	Chapman & Chapman
Solicitor for the Official	Miss Sally Nash of
Trustee in Bankruptcy:	Messrs Sally Nash & CO.
Date of hearing:	10 May 1994