Re Lippingwell, Valerie and Anor (Judgment Debtors) Ex Parte Connaughton, Fred and Anor (Judgment Creditors)

[1996] FCA 1004

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION                 )    No VP 795 of 1996

BANKRUPTCY DISTRICT IN THE STATE  )

OF VICTORIA  )

RE:      VALERIE LIPPINGWELL and

BYRON LIPPINGWELL

(Judgment Debtors)

EX PARTE: FRED CONNAUGHTON and

JOAN CONNAUGHTON

(Judgment Creditors)

CORAM:    Ryan J

DATE:     30 October 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   The issue to be resolved in these proceedings is whether the debtor, Valerie Lippingwell, was personally served with a bankruptcy notice on 14 July 1996.  She claims that she did not become aware of anything related to bankruptcy proceedings until she was served with the creditor's petition on 29 August 1996.

According to her, she then discussed the matter with her son, Jason, who claims to be the only person served with the bankruptcy notice on 14 July 1996.  That date fell on a Sunday when Mrs Lippingwell claimed that she and her husband and one of her sons, Byron, went out to dinner to "The Keg" restaurant at Highett, having been provided with $60 in cash by her other son, Jason Lippingwell, who had chosen to stay at home because he was suffering from toothache.

Mrs Lippingwell claimed to recall the occasion well because it was the only day for some considerable number of months on which she had taken time off from one or other of the two jobs which she was then working.  Evidence was given clearly by Mr Beggs, an experienced process server, who had also served for five and a half years as a member of the Victoria Police.  He claimed to have served Valerie Lippingwell, whom he described as aged in her mid to late 40s, approximately 5 feet 6 inches in height with brown coloured hair.

That description was criticised as inaccurate in cross-examination which was conducted on behalf of Mrs Lippingwell by her son, Byron.  However, having observed Mrs Lippingwell in Court and allowing a measure of gallantry to Mr Beggs in respect of her age and overweight appearance, I regard it as a reasonable description.  There is no suggestion that Mr Beggs had any other opportunity to become acquainted with Mrs Lippingwell or Jason Lippingwell before he saw them in Court today.  With the advantage of that opportunity he positively averred that each of them was served with the bankruptcy notice on 14 July 1996.

It is also to be borne in mind that Mr Beggs gave an accurate description of Mr Jason Lippingwell whom he concededly served with a bankruptcy notice on 14 July 1996, having been induced to believe that he was the co-debtor, Byron Lippingwell.  Mr Beggs was well aware of the need to serve both debtors personally and his written instructions reinforced that requirement.  He had no motive to claim falsely to have effected personal service on Mrs Lippingwell if in fact he had served, as he believed, only one, male, debtor.  Jason Lippingwell swore an affidavit corroborating his mother's denial that she had been served with a bankruptcy notice.  He deposed:

1. I was at home, alone, on the 14/7/96 at 8.07 pm.

1. After answering a knock at the front door I was asked if I was Byron Lippingwell.  I replied that yes I was, and was then served with a bankruptcy notice that was addressed to Byron Lippingwell and Valerie Lippingwell.  I was then asked if my "wife" Valerie was home to which I replied "Just give it to me" and promptly grabbed the second notice out of the servers hand and closed the door.

Jason Lippingwell acknowledged that he was suffering from a toothache and had been drinking.  He claimed that the other members of the family had left at abut 6.30pm on 14 July 1996 with the money which he had provided to them.  Jason Lippingwell's evidence suffers from the immediate difficulty that he had lied to Mr Beggs when he identified himself as Byron Lippingwell.  Moreover, he was not unfamiliar with service of bankruptcy notices and other process.

He had no recollection of what he had done with either of the two petitions with which he claimed to have been served.  No evidence was given by Valerie Lippingwell's husband who was said to have accompanied her and Byron to "The Keg" restaurant on 14 July 1996.  A very laconic affidavit in similar terms to her own was sworn by Byron Lippingwell, but he did not descend to corroborate details of her alibi by seeing to assert that he had also been at "The Keg" restaurant.

In all the circumstances, and having had the advantage of observing the demeanour of each of the three witnesses as their evidence was given, I prefer the evidence of Mr Beggs.  I shall therefore declare that Valerie Lippingwell was served with the bankruptcy notice on 14 July 1996, the creditor's petition will be adjourned until 11 December 1996 and the costs of all parties of this will be reserved.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for Judgment Debtors     :    -

Solicitors for Judgment Debtors   :    Debtors in Person

Counsel for Judgment Creditors    :    Mr J. Nolan

Solicitors for Judgment Creditors :    Mills Oakley

Date of Hearing                  :    30 October 1996

Date of Judgment                 :    30 October 1996