Singh v New Zealand Breweries Limited

[2009] FMCA 1097

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v NEW ZEALAND BREWERIES LIMITED [2009] FMCA 1097

BANKRUPTCY – Where condition in order made by Registrar extending time for compliance with a bankruptcy notice not met – personal service of bankruptcy notice – reg.16.01 of the Bankruptcy Regulations.

Bankruptcy Act 1966 (Cth), s.41
Bankruptcy Regulations 1996 (Cth), regs.4.02, 16.01

Hacker v The Owners – Strata Plan No. 17572 [2005] FCA 1936

Applicant: JUGESHINDER SINGH

Respondent: NEW ZEALAND BREWERIES LIMITED

File Number: SYG 2460 of 2009

Judgment of: Barnes FM

Hearing dates: 23 October 2009 & 27 October 2009

Delivered at: Sydney

Delivered on: 27 October 2009

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms K Dawson

Solicitors for the Respondent: Mallesons Stephen Jaques

ORDERS

1. Order 1 made by a registrar of this court on 12 October 2009 extending the time for compliance by the applicant with the requirements of bankruptcy notice NN4818 of 2007 be discharged.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2460 of 2009

JUGESHINDER SINGH

Applicant

And

NEW ZEALAND BREWERIES LIMITED

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 12 October 2009 Jugeshinder Singh filed an application seeking that a bankruptcy notice be set aside.

2. A Registrar of this Court made the following orders:  

   1. Pursuant to subsection 41(6A) of the Bankruptcy Act 1966 and rule 3.03 of the Federal Magistrates Court (Bankruptcy) Rules 2006, on condition that Bankruptcy Notice No. NN4818 of 2007 was served on the Applicant on 21 September 2009, the time for compliance by the Applicant with the requirements of the Bankruptcy Notice is extended up to and including 27 October 2009.

   2. There be liberty to any party to apply to vary or discharge Order 1, on 24 hours notice. 

3. Prior to the first hearing date of 23 October 2009 the respondent, New Zealand Breweries Limited, exercised such liberty, seeking that Order 1 be discharged on the basis that the condition in that Order that the bankruptcy notice was served on the applicant on 21 September 2009 had not been met.  In effect, the respondent’s contention is that the bankruptcy notice was served on Mr Singh on 15 September 2009 and hence was not served on him on 21 September 2009. 

4. The Order of 12 October 2009 was made pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) as well as the applicable Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth). Under s.41(6A), where before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice proceedings to set aside the judgment have been instituted by the debtor or an application has been made to the court to set aside the bankruptcy notice, the court may, subject to s.41(6C), extend the time for compliance with the bankruptcy notice. The underlying issue in this case is whether the application to set aside the bankruptcy notice was made before the expiration of the time fixed for compliance with the bankruptcy notice.

5. At this stage of the proceedings the only matter before the court is whether I am satisfied that the condition that Mr Singh was served with the bankruptcy notice on 21 September 2009 was met. 

6. The application to set aside the bankruptcy notice filed on 12 October 2009 referred to bankruptcy notice NN3997 of 2009 issued on 31 August 2009 in which the respondent claimed that Mr Singh owed it a debt of over $900,000.  In his application and a short affidavit in support, Mr Singh stated, without elaboration, that the bankruptcy notice was served on him on 21 September 2009.  He claimed that he was applying to set aside the judgment and referred to an attachment and also claimed to have a counter-claim “to be filed in 10 days”.  There was, however, no attachment to the affidavit and there is no evidence before the court of any application to set aside the judgment forming the basis for the bankruptcy notice (which is a judgment of the High Court of New Zealand registered in the Supreme Court of New South Wales under the Foreign Judgments Act 1991 (NSW)). 

7. In the bankruptcy notice (and see reg.4.02 and Form 1 in Schedule 1 to the Bankruptcy Regulations 1996 (Cth)) the time fixed for compliance was 21 days after service on the debtor of the bankruptcy notice. If the bankruptcy notice was served on the debtor on 21 September 2009 as claimed, his application to set aside the bankruptcy notice was filed within the requisite 21 days and the time for compliance could be extended. If, as the respondent contended, the notice was served on 15 September 2009, the condition in the Order was not met and no extension of the time for compliance would be operative.

8. In support of the contention that the condition in the Order was not met, New Zealand Breweries Limited relied on two affidavits of Andrew Ng Saad, a licensed commercial sub-agent.  The first of those affidavits is an affidavit of service sworn on 23 September 2009 in which Mr Ng Saad stated that on 15 September 2009 at 3.23 pm he served Mr Jugeshinder Singh with a bankruptcy notice (a copy of which is annexed to the affidavit) by handing the documents to him personally at his usual place of abode at a specified address in Elizabeth Bay.  A copy of bankruptcy notice NN3997 of 2009 is annexed to this affidavit.  Mr Saad attested that he identified the person served, by reason of the fact that he said to him:

   “Are you Jugeshinder Singh?”  And he replied “Yes.”  I handed him the document.

9. In addition, on 16 October 2009 Mr Ng Saad swore an additional affidavit, filed on 19 October 2009, in which he referred to his affidavit of service and stated that in addition to the service referred to in the earlier affidavit, he had also served Jugeshinder Singh with documents on approximately eight occasions within the last 18 months; that from records supplied to licensed commercial agents for whom he had subcontracted, he was aware that within the last 12 months he had personally served Jugeshinder Singh with documents on 5 February 2009, 1 July 2009 and 29 July 2009; and that on 15 September 2009, when he claimed he served Jugeshinder Singh with the bankruptcy notice, he recognised him as the same person that he had served on each of the previous occasions referred to above.

10. For his part, Mr Singh relied on his initial affidavit which stated simply that he was served with the bankruptcy notice NN3997 of 2009 on 21 September 2009 and an affidavit of his brother, Mr Adityaman Singh (Mr A Singh), sworn on 20 October 2009 and filed on that day, in which Mr A Singh stated that he had been helping his brother with his business located at the Elizabeth Bay address, that over the past 14 months he had received a number of what he describes as “court documents related to the matters of claim of my brother against 5 major business entity’s (sic) in Australia” and that:

    In the said matter I was handed over a document by the courier (incidentally the same courier had delivered some documents to me before over the past 12 months) on the afternoon of 15^th September 2009 (Tuesday) who used words to the following effect “are you Mr Singh?”. 

    I said yes and the courier as was the past practice handed me a document. 

11. Mr A Singh also attested that:

    As per the schedule with my brother I handed all the weekly mail on the following Monday 21^st October 2009.

12. When the matter came before the court on 20 October 2009 the applicant sought the opportunity to put further affidavit evidence before the court in relation to the issue of the time of service of the bankruptcy notice.  An order was made for any further affidavit evidence to be filed and served by the applicant on or before 4 pm on 22 October 2009.  While a further affidavit was filed, it referred to Supreme Court proceedings and did not relate to the issue of service, other than to dispute what were described as the “facts” of the bankruptcy notice Mr Singh said he received on 21 September 2009.  Mr Singh claimed, without elaboration, that there was a false affidavit in relation to the person served, incorrect service, that the service was by way of personal service per the service affidavit, that the procedures followed in relation to personal service had been ignored and that the plaintiff should “go back and re serve correctly”. 

13. There is nothing in the affidavit evidence before the court, or the oral evidence of the applicant to establish that he was not at his address in Elizabeth Bay on 15 September 2009 at the time that the process server claimed he served him at that address.  In oral evidence the applicant’s brother was asked if he had been “home” on 15 September 2009 between 10 am and 7 pm, to which Mr A Singh replied “Yes”.  The applicant also asked his brother whether he, that is, Mr Jugeshinder Singh, had been home at all during that time, to which his brother replied, “No”.

14. Apart from his brother’s claim that “[a]s per the schedule with my brother I handed all the weekly mail” to the applicant on 21 October 2009, there is no evidence from the applicant to elaborate his claim that he was served on 21 September 2009. 

15. In submissions the applicant referred to what he claimed was a contemporaneous annotation made on the bankruptcy notice attached to his original application.  There is a handwritten annotation on the bankruptcy notice circling the word “service” and stating “21^st/9/2009 TO My brother!!”.  However there is no evidence before the court as to how and when such annotation came to be on the bankruptcy notice attached to the affidavit filed on 12 October 2009.

16. The applicant also tendered a bundle of documents which he submitted established that he was not or could not have been at his home address in Elizabeth Bay at the time the respondent said that he was served (that is at 3.23 pm on 15 September 2009).  However those documents do not establish that the applicant was not or could not have been at home at that time. 

17. The first of these documents is a copy of a document headed “Project Organisation” in relation to a structure relating to the NRMA SDOS Project Board.  One of the persons listed on that organisational document (under the heading Project Management) is named as Robbie Singh.  The applicant said from the bar table that he was known as Robbie Singh.  There is no evidence in that respect but, in any event, all that this document indicates is that a person named Robbie Singh is said to be a “Project Manager, Technopolitan”, who has the role of “Project Lead”. 

18. In addition, there is what, taken at its highest, appears to be a copy of an email with a header bearing the name Samuel Lehoang and the subject, “Continuation session - clarification on SDS business requirements – document attached”.  It refers to a document (which is not attached), a meeting room and states “Start:  Tue 15/099/2009 1:00 PM” “End:  Tue 15/09/2009 2.30 PM”.  There is no reference to Mr J (or Mr R) Singh. 

19. The next document appears to be a copy from a diary page for 15 September 2009.  At the bottom of that page the typed name Samuel Lehoang and the date and time, 21.10.2009, 2.48 pm appears.  The only event listed on that diary page is between 1 and 2.30 pm within marked lines described as “Continuation session - clarification on SDS business requirements - document attached”.  No document was attached.  The diary entry referred to the same meeting room and seat described in the email.  It also bears the name “Daisy Lam” but contains no reference to the applicant.

20. Finally a copy of what appears to be, and according to Mr Singh is, a copy of an email to “Sam” which commences: “More information on SDS Reports” (which is not attached) and states “We aim to finalise reporting requirements after the product structure workshop on 13 Nov.  Thanks   Regards, Daisy Lam”.  

21. Even taking these documents at their highest, they do not establish that the applicant was not, or could not have been, at his home in Elizabeth Bay at 3.23 pm on 15 September 2009, the time when Mr Ng Saad said that he served him personally.  Indeed they do not establish that he attended a meeting on that day.  Nor do these documents establish or support a conclusion that the applicant was served with the bankruptcy notice on 21 September 2009 (the condition on which the Order of 12 October 2009 was made). 

22. Hence there is a factual dispute as to when the applicant was served with the bankruptcy notice, although it appears from his initial affidavit that the applicant does not dispute that he was served with bankruptcy notice NN3997 of 2009. 

23. Each witness maintained his account in cross-examination, although clearly the evidence for one party or the other must be incorrect.  Mr Ng Saad was cross-examined by the applicant and confirmed that he gave the bankruptcy notice in question to the applicant personally on 15 September 2009 at 3.23 pm.  He confirmed that he asked the person served if his name was Jugeshinder Singh (as he said that he always did) and served the bankruptcy notice on the applicant at 3.23 pm on 15 September 2009.  

24. Mr Ng Saad also confirmed that distributing documents was his normal profession.  When the applicant put to him that he (Mr Singh) could not have been present at that time, Mr Ng Saad maintained that he had served the applicant at 3.23 pm on 15 September 2009 and that he had asked him his full name.  When the question as to whether Mr Ng Saad had served him (the applicant) was reiterated by the applicant, Mr Saad repeated, “I believe so, yes.” 

25. In cross-examination the applicant maintained his denial that he was served personally at 3.23 pm on 15 September 2009 by Mr Ng Saad. 

26. Finally, Mr A Singh was asked by the applicant whether he had received any “courier” around 3.20 pm or 3.23 pm on 15 September 2009.  Mr A Singh said yes and that he “collected it”.  Mr A Singh confirmed in cross-examination that “it” was the bankruptcy notice that he said he had received.  He claimed that when handed the document he was asked if he was “Mr Singh”.

27. Having regard to the affidavit and oral evidence and having observed the deponents and heard their evidence in cross-examination, I prefer the evidence of Mr Ng Saad to that of the Messrs Singh.  Apart from the fact that Mr Ng Saad claimed that he had personally served Mr Jugeshinder Singh on 15 September 2009, there are a number of other factors.  Mr Ng Saad has no personal interest in the case.  Importantly, in addition to his evidence that he served the applicant on 15 September 2009 he gave evidence that he had also served the applicant (Mr J Singh) personally on approximately eight other occasions within the last 18 months, including on three specified and relatively recent occasions in the last 12 months, and that he recognised him as the same person he had served previously.  He was not challenged on that evidence, which is of significance in regards to whether or not Mr Ng Saad also served Mr A Singh with documents during that time.  Mr Ng Saad also confirmed in cross-examination by Mr J Singh, that it was Mr J Singh whom he had served with the bankruptcy notice on 15 September 2009. 

28. Nothing emerged in the cross-examination of Mr Ng Saad to provide any basis for casting doubt on the truthfulness or accuracy of his affidavit of service of the bankruptcy notice or his supporting affidavit.  In particular I accept Mr Ng Saad’s evidence that, in accordance with his usual practice, he asked if the person receiving the document was Mr Jugeshinder Singh.  I am satisfied that at 3.23 pm on 15 September 2009, Mr Ng Saad personally served Mr J Singh with bankruptcy notice NN3997 of 2009. 

29. Accordingly, as I am satisfied that the applicant was served personally with the bankruptcy notice on the date attested to by the process server, (that is on 15 September 2009), I am not satisfied that he was served with that bankruptcy notice on 21 September 2009.  Hence the condition on which the Order of 12 October 2009 was made has not been satisfied. 

30. In these circumstances it is not necessary for me to determine the alternative argument relied on by the respondent that if the applicant had been served personally he was served under reg.16.01(1)(a) or reg.16.01(1)(c) of the Bankruptcy Regulations on 15 September 2009. While there may be some force in the contentions of the respondent in relation to reg.16.01(1)(a) in relation to sending a document by courier service (although cf the decision of Emmett J in Hacker v The Owners – Strata Plan No. 17572 [2005] FCA 1936) it is not necessary for me to determine whether the facts in this case can be distinguished from Hacker, given my finding in relation to personal service. 

31. Nor is it necessary for me to determine whether the requirements of reg.16.01(1)(c) (in relation to a document being left in an envelope or similar packaging marked with the person’s name at the last known address of the person) are met. There is, however, much force in the contentions of the applicant about the absence of an envelope or other packaging, contrary to the respondent’s suggestion that the bankruptcy notice itself met those requirements.

32. In any event, the basis for my determination is that I am not satisfied that the applicant was served with the bankruptcy notice on 21 September 2009.  Given this finding it is not necessary to consider whether if the bankruptcy notice came to the applicant’s attention on 21 September 2009 that would meet the requirements of service.  The issue before the court is not whether the applicant was served at all, but simply whether I am satisfied that he was served with the bankruptcy notice on 21 September 2009.

33. As the applicant was not served on 21 September 2009, the conditional extension of time to comply with the requirements of the bankruptcy notice would not come into effect.  The respondent seeks an order, which I consider appropriate, that Order 1 made by a registrar of this court on 12 October 2009 extending the time for compliance by the applicant with the requirements of the Bankruptcy Notice be discharged. 

34. While this disposes of the extension of time for compliance with the bankruptcy notice, it leaves on foot the application to set aside the bankruptcy notice.  I will hear the parties in relation to directions sought in this respect.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  16 November 2009