Re Webb, P.R. Ex parte Webb, P.R. v Hardie Energy Products Pty Ltd

[1995] FCA 558

CATCHWORDS

BANKRUPTCY  - application to set aside bankruptcy notice - whether bankruptcy notice from previous bankruptcy served on debtor - whether certificate of taxation upon which present bankruptcy notice founded served on debtor

Bankruptcy Act 1966 (Cth) s 309
Bankruptcy Rules rr 101(4) 172(3)

Re McMahon  Ex parte Official Trustee in Bankruptcy  unreported decision of Burchett J 17 November 1986

Re Peter Roger Webb Ex parte The Abovenamed v Hardie Energy Products Pty Ltd
No QN 285 of 1995

Kiefel J  Brisbane 27 July 1995

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND  No. QN 285 of 1995

RE:PETER ROGER WEBB

EX PARTE:THE ABOVENAMED

Applicant

AND:HARDIE ENERGY PRODUCTS PTY. LTD.

Respondent

JUDGE MAKING ORDER:        Kiefel J.

DATE OF ORDER:  27 July 1995

WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application to set aside the bankruptcy notice be dismissed.

1. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND  No. QN 285 of 1995

RE:PETER ROGER WEBB

EX PARTE:THE ABOVENAMED

Applicant

AND:HARDIE ENERGY PRODUCTS PTY. LTD.

Respondent

CORAM:  Kiefel J.

DATE:  27 July 1995

PLACE:  Brisbane

REASONS FOR JUDGMENT
  (Ex Tempore)

I have before me an application to set aside a bankruptcy notice issued by Hardie Energy Products Pty Ltd dated 3 March 1995. The application is made on two bases: first, non-service of the bankruptcy notice which led to a sequestration order in June 1989.  In those proceedings there was a later order for costs which resulted in the certificate of taxation upon which this current bankruptcy notice is founded.  It is said that the original notice was not served despite an affidavit by the bailiff deposing to personal service on Mr Webb in August 1988.

The second point taken is that the certificates of taxation were not served upon Mr Webb prior to issue of the bankruptcy notice in these proceedings.  His point appears
to be that, whilst they may have been addressed to 8 Wilkinson Street, Alice Springs, that was not a residential address or an address to which mail was delivered.

Mr Webb appeared himself and without representation.  With respect to the first point it was never made clear how I was to deal with the bankruptcy, which term had expired, in the event that I found the bankruptcy notice was not served.  The evidence sought to be raised against the affidavit sworn by the bailiff, Mr Dalton, is a statement from a Mr Vennik which suggested that the bankruptcy notice was served upon him in the absence of Mr Webb.  The difficulty in giving any weight to that evidence however, is that this is said to have taken place in late February 1989, whereas Mr Dalton deposes to service in August 1988. The dates are so far apart as not to be accounted for by slight error on Mr Vennik's part.  There was no step taken in the bankruptcy in February 1989 which might account for any such step.  I am left to conclude that the evidence is not credible.  I should also add that this point was taken before Spender J when the matter came before him in December 1993 on an application for annulment, and his Honour apparently declined to accede to a request to annul the bankruptcy on this basis.

It seems to me that there is no sufficient reason to doubt the affidavit sworn by the process server given the lack of any cogent evidence to the contrary.  I am reinforced in that by the view I formed of the evidence and submissions with respect to the second issue.  As I have said, Mr Webb says that the address at 8 Wilkinson Street, Alice Springs, was not a residential address to which mail was delivered.  He said when he
appeared before me that there was only a shed at that address, in which he used to store materials from time to time.

Rule 172(3) of the Bankruptcy Rules does not require personal service of a certificate of taxation, and section 309 of the Bankruptcy Act permits it to be sent by post to the last known address of a person. In his letters, in the nature of applications to the Court in late 1993, Mr Webb disclosed 8 Wilkinson Street, Alice Springs as an address, that is to say, on a letterhead which included reference also to a post office box and fax numbers. In his affidavit filed in support of that application he referred to himself as "of" 8 Wilkinson Street, Alice Springs which usually conveys that if that is not a person's residence, as often it is, that at least they may be contacted there.  Putting to one side the provisions of the Bankruptcy Rules with respect to addresses for service, Mr Webb's reference to this address, together with evidence as to letters subsequently forwarded there establishes he was receiving mail at that address.  The solicitors for the petitioning creditor pointed to the fact that, between the time this address was disclosed and the time when the certificates of taxation were forwarded, two letters were forwarded in June and July 1994.  The first served the bill of costs which was to be taxed and the second related to an adjournment of the taxation of the bill.  Mr Webb denied that he had received the second and says that it was his enquiry of the Deputy Registrar which brought this to his attention.  He did not suggest that he had not received the bill of costs forwarded to this address.  The two certificates of taxation were forwarded to that same address on 26 August 1994 following the taxation which he attended and I consider it likely he reviewed them.  They were not returned.  Although mention was not made during the hearing of
Rule 101(4) of the Bankruptcy Rules this would have provided further support for a conclusion of service providing, as it does, that in the case of an unrepresented person an address stated in a document filed is deemed to be that person's address for service.

The petitioning creditor also submitted, and I accept, that a failure to serve the certificates of taxation in circumstances where Mr Webb had attended the taxation and was in a position to know the amount of it is not fatal to the bankruptcy notice, following the reasoning of Burchett J. in Re McMahon;  ex parte Official Trustee in Bankruptcy (unreported 17.11.86).

The application to set aside the bankruptcy notice will be dismissed with costs.

I certify that this and the preceding three pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:27 July 1995

Applicant:  In person

Solicitors for the respondent:  Whitman & Co.

Date of Hearing:  27 July 1995

Place of Hearing:  Brisbane

Date of Judgment:  27 July 1995