Theodor Silvas (a bankrupt) v Maureen Silvas

[1997] FCA 206

CATCHWORDS

BANKRUPTCY -  application for substituted service - whether personal service ineffective - whether proposed service reasonably likely to bring knowledge of proceedings home to debtor - whether order for substituted service required.

Bankruptcy Act 1966, s 309(2)
Bankruptcy regulations, reg 16.01

Re Cook (1946) 13 ABC 245, cited
Re Williams (1968) 13 FLR 10, cited

THEODOR SILVAS (A Bankrupt) and THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF THEODOR SILVAS (Applicant) and MAUREEN SILVAS (Respondent)
No NG 7238 of 1997

Tamberlin J
Sydney
4 April 1997

IN THE FEDERAL COURT OF AUSTRALIA )                 
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 7238 of 1997
GENERAL DIVISION                 )

BETWEEN:          THEODOR SILVAS
  A Bankrupt

AND               THE OFFICIAL TRUSTEE IN
  BANKRUPTCY AS TRUSTEE OF
  THE BANKRUPT ESTATE OF
  THEODOR SILVAS
  Applicant

MAUREEN SILVAS
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       4 APRIL 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. Personal service of bankruptcy notice No NN3610 of 1996 be dispensed with.

1. Service of the above notice addressed to Maureen Doina Silvas may be effected by sending the bankruptcy notice  together with a sealed copy of this order by pre-paid ordinary post addressed to the debtor at 2 Wells Street, Thornleigh and in addition by delivering a copy to a person over the age of sixteen years at that address.

1. Service in accordance with this order shall be deemed good and sufficient service of the bankruptcy notice upon the debtor on 30 April 1997.

1. Copies of the bankruptcy notice to be served pursuant to these orders are to be annexed to any affidavit proving service.

1. The bankruptcy notice be amended by deleting the words "Service of this Notice on you excluding the day on which this Notice is served on you" and substituting "30 April 1997".

1. A copy of this order shall be given to the Official Receiver in Sydney.

1. Costs of this application are reserved.

NOTE:     Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 7238 of 1997  GENERAL DIVISION              )

BETWEEN:          THEODOR SILVAS
  A Bankrupt

AND               THE OFFICIAL TRUSTEE IN
  BANKRUPTCY AS TRUSTEE OF
  THE BANKRUPT ESTATE OF
  THEODOR SILVAS
  Applicant

MAUREEN SILVAS
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       4 APRIL 1997

REASONS FOR JUDGMENT

TAMBERLIN J:
This is an application for substituted service of a bankruptcy notice on the respondent, under s 309(2) of the Bankruptcy Act 1966 as amended ("the Act").

The principles are well settled and in substance are to the effect that an order should not be made unless, as a matter of practical reality, personal service cannot be effected and the method of substituted service sought will, as a matter of reasonable probability, be effective to bring knowledge of the proceedings home to the debtor. See Re Cook (1946) 13 ABC 245; Re Williams (1968) 13 FLR 10 at 21.

In this matter the bankruptcy notice was issued in early December 1996. There is evidence from a licensed process server that she received a bankruptcy notice for service in early December 1996. On 8 December 1996 she attended 2 Wells Street, Thornleigh where the debtor is registered as owner of an interest as tenant in common. There was no-one present at the premises. On 3 January 1997 she again attended the premises with the same result. On 28 January 1997 she attended the premises and spoke to a male who said that the debtor was not there. There were four further attendances with the same result in the period 30 January 1997 through to 11 February 1997. On 20 March 1997 the process server attended the premises and the person responding said he had contact with the debtor but would not say when and where. In addition inquiries of the Hornsby Shire Council, made on behalf of the applicant, indicated that rate notices were sent to the premises in the name of the debtor.

It is proposed to effect substituted service by sending a copy of the bankruptcy notice by ordinary pre-paid post to the debtor at 2 Wells Street, Thornleigh and in addition by delivery to a person over the age of sixteen years at that address.

I am satisfied that as a practical matter personal service has proved ineffective and also that the proposed form of service is reasonably likely to bring home to the debtor notice of the relevant procedures.
Accordingly, I am prepared to grant the application.

As an alternative submission the applicant has submitted that an order for substituted service may not be required in view of the recent amendments to the Bankruptcy Act and Regulations which commenced operation on 16 December 1996.

In view of the orders which I propose to make in respect of substituted service it is not necessary for me to express a concluded view on this matter. However, prima facie, it does seem to me that the effect of Regulation 16.01 of the Bankruptcy Regulations enables non-personal service of a bankruptcy notice to be effected. However, this is prima facie evidence of service, it is open to the debtor, in due course, to adduce evidence to the contrary (Regulation 16.01(2)).

Accordingly, the orders I make are that :

1. Personal service of bankruptcy notice No NN3610 of 1996 be dispensed with.

1. Service of the above notice addressed to Maureen Doina Silvas may be effected by sending the bankruptcy notice  together with a sealed copy of this order by pre-paid ordinary post addressed to the debtor at 2 Wells Street, Thornleigh and in addition by delivering a copy to a person over the age of sixteen years at that address.

2. Service in accordance with this order shall be deemed good and sufficient service of the bankruptcy notice upon the debtor on 30 April 1997.

1. Copies of the bankruptcy notice to be served pursuant to these orders are to be annexed to any affidavit proving service.

1. The bankruptcy notice be amended by deleting the words "Service of this Notice on you excluding the day on which this Notice is served on you" and substituting "30 April 1997".

1. A copy of this order shall be given to the Official Receiver in Sydney.

1. Costs of this application are reserved.

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

Associate:

Date:  4 April 1997  

Solicitor for Applicant:                   Sally Nash & Co

Date of Hearing:  25 March 1997  

Date Judgment Delivered:                   4 April 1997