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

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

CaseChat Overview and Summary

The Federal Court of Australia, in the General Division, heard a case concerning a sequestration order made against Eric Cameron Leeming, trading as Eric Leeming Constructions. The petitioner, Plaster Castings Pty Ltd, sought to enforce the order, while the debtor, Leeming, contested it, claiming that he had not been properly served with the bankruptcy notice or the petition. The Official Trustee in Bankruptcy was also involved in the case as a respondent. The central issue before the court was whether the debtor was correctly served with the necessary documents and, if not, whether the sequestration order should be annulled.

The court considered the conflicting affidavits presented by the debtor and the process server. Leeming's affidavit stated that he had not received the documents, as he was not present at the location where service was alleged to have occurred due to his activities at the time. He also noted that his solicitor's office was nearby, and he would have given the documents to the solicitor had he been served. In contrast, the process server's affidavit maintained that service was carried out as stated, but the court found that the circumstances described left room for the possibility of mistaken identity. The court concluded that acting on Leeming's affidavit did not necessarily imply that the process server was perjured, but the occurrence of such an error was serious and warranted the annulment of the sequestration order.

Justice Burchett decided to annul the sequestration order and directed the registrar to forward a copy of the judgment and relevant materials to the New South Wales Attorney General for appropriate action concerning the process server's conduct. The court's decision was influenced by the potential for mistaken identity and the need for process servers to avoid such errors. The final orders reflected the court's determination to annul the sequestration order while also addressing the implications of the process server's actions.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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