Szepesvary v Weston (Trustee), in the matter of Szepesvary (Bankrupt) (No 2)

The applicant, Mr Szepesvary, filed an application seeking the annulment of his bankruptcy and the setting aside of the bankruptcy notice that led to the sequestration of his estate. The respondent, the trustee of Mr Szepesvary’s bankrupt estate, did not appear at the hearing, as his presence was not necessary. Mr Szepesvary, appearing without legal representation, contended that his bankruptcy should be annulled because he did not receive notice of the assignment of the debt from Westpac Banking Corporation to ACM, the petitioning creditor. He also argued that the assignment was defective and that the proceedings were an abuse of process. The central legal issues in the case were whether Mr Szepesvary received the required notice of the assignment of debt, as mandated by section 134 of the Property Law Act 1958 (Vic), and whether these factors justified the annulment of his bankruptcy under section 153B of the Bankruptcy Act 1966 (Cth).

The Court considered evidence from both parties regarding the notice of assignment. Mr Szepesvary swore that he did not receive any notice of the assignment or any agreement concerning it. In contrast, ACM presented evidence through an affidavit from Mr Desmond Curtis, who reviewed Westpac’s computer records and verified that the notice of assignment was sent on 6 October 2011. The Court applied the presumption that a letter posted and not returned would have reached its destination, as per section 160(1) of the Evidence Act 1995 (Cth). Despite Mr Szepesvary’s denial of receipt, the Court found that the presumption of delivery was not sufficiently rebutted. Therefore, the Court concluded that the notice of assignment was effectively served, and the assignment was valid.

As a result of the Court’s findings, Mr Szepesvary’s application was dismissed. The Court ruled that the notice of assignment was validly served and that the bankruptcy should not be annulled. Costs of the proceedings were awarded against Mr Szepesvary.

ORDERS:
1. The applicant’s application filed 24 September 2016 be dismissed, with costs.