Federal Circuit and Family Court of Australia
(DIVISION 2)
Thorp v Hudson [2022] FedCFamC2G 909
File number: PEG 46 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 4 November 2022 Catchwords: BANKRUPTCY – De novo review of decision of Registrar to dismiss application for bankruptcy notice to be set aside – application of extension of time to seek review –extension of time granted – whether bankruptcy notice was sent by courier service to the applicant – whether bankruptcy notice was sent to the applicant at his address last known to the respondent – application for review dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 28A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Bankruptcy Regulations 2021 (Cth) regs 10, 102
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) rr 2.02, 3.02
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.04
Cases cited: Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 26 October 2022 Date of hearing: 11 October 2022 Applicant: The applicant appeared in person Respondent: The respondent appeared in person ORDERS
PEG 46 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOUGLAS HENRY ALBERT THORP
Applicant
AND: PAUL DOUGLAS HUDSON
Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
4 November 2022
THE COURT ORDERS THAT:
1.The time for the applicant to file his application for review of a decision made by a Registrar on 22 August 2022 is extended to 13 September 2022.
2.The application for review is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
The application before the Court is an application for review of a decision made by a Registrar of this Court on 22 August 2022, who exercised powers delegated pursuant to s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth),[1] to dismiss the applicant’s application for a bankruptcy notice to be set aside.
[1] See also, r 2.02(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) and item 1 of Part 1 in Schedule 1 to those Rules.
The application for review of that…
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- AGLC
- Thorp v Hudson [2022] FedCFamC2G 909
- Case
- [2022] FedCFamC2G 909
- Decision Date
CaseChat Overview and Summary
Thorp v Hudson is a case involving Douglas Henry Albert Thorp, the applicant, and Hudson, the respondent, in which the applicant sought to set aside a bankruptcy notice issued by the Official Receiver in Bankruptcy. The dispute arose from the applicant's contention that the bankruptcy notice, which was directed to him and related to a debt of $14,284.34, was not properly served. The matter was initially heard by a Registrar of the Federal Circuit and Family Court of Australia, who dismissed the application to set aside the bankruptcy notice. The applicant subsequently filed an application for review of the Registrar's decision one day outside the prescribed 21-day period, along with a request for an extension of time and an affidavit explaining the delay.
The primary legal issues before the court were whether an extension of time should be granted for the filing of the application for review and, upon conducting a de novo review, whether the application to set aside the bankruptcy notice should be dismissed. The court had to consider the procedural requirements for filing an application for review, including the applicability of any extensions of time, and the substantive grounds upon which the bankruptcy notice could be set aside, such as improper service or the existence of proceedings to set aside the underlying judgment or a counterclaim, set-off, or cross-demand.
In granting an extension of time for the filing of the application for review, the court found that the applicant's explanation for the delay was sufficient to warrant an extension. Upon conducting a de novo review, the court dismissed the application to set aside the bankruptcy notice. The court found that the applicant had not provided evidence to support his claim that the bankruptcy notice was not properly served or that there were proceedings to set aside the underlying judgment or a counterclaim, set-off, or cross-demand. The court noted that the applicant had not met the procedural requirements for setting aside the bankruptcy notice and that the evidence did not support the applicant's contentions.
The court's final orders were to grant an extension of time for the filing of the application for review by one day and to dismiss the application to set aside the bankruptcy notice. The court emphasised that the review was conducted de novo and that the decision was based on the evidence presented before the court.
The primary legal issues before the court were whether an extension of time should be granted for the filing of the application for review and, upon conducting a de novo review, whether the application to set aside the bankruptcy notice should be dismissed. The court had to consider the procedural requirements for filing an application for review, including the applicability of any extensions of time, and the substantive grounds upon which the bankruptcy notice could be set aside, such as improper service or the existence of proceedings to set aside the underlying judgment or a counterclaim, set-off, or cross-demand.
In granting an extension of time for the filing of the application for review, the court found that the applicant's explanation for the delay was sufficient to warrant an extension. Upon conducting a de novo review, the court dismissed the application to set aside the bankruptcy notice. The court found that the applicant had not provided evidence to support his claim that the bankruptcy notice was not properly served or that there were proceedings to set aside the underlying judgment or a counterclaim, set-off, or cross-demand. The court noted that the applicant had not met the procedural requirements for setting aside the bankruptcy notice and that the evidence did not support the applicant's contentions.
The court's final orders were to grant an extension of time for the filing of the application for review by one day and to dismiss the application to set aside the bankruptcy notice. The court emphasised that the review was conducted de novo and that the decision was based on the evidence presented before the court.
Orders
Orders of the court
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Background
Background to the litigation
On balance, I am satisfied that it is appropriate to grant the extension of time to file the application for review. However, having conducted a de novo review of the matter, I dismiss the application for review. My reasons for these conclusions are set out below.Relevant background On 25 August 2021 the Official Receiver in Bankruptcy issued bankruptcy notice BN 254039 (bankruptcy notice) directed to the applicant in this proceeding. The named creditor in the bankruptcy notice is the respondent to this proceeding and the bankruptcy notice relates to a debt in the amount of $14,284.34, comprising costs payable pursuant to an order made by the Supreme Court of Western Australia (Supreme Court), together with interest. On 15 March 2022 the applicant commenced proceedings in this Court seeking the following relief:Bankruptcy Notice BN 254039 issued on 25 August 2021 which was left at the front door step of the premises [address redacted] Balcatta for me Douglas Henry Albert THORP to be set aside on the following grounds.On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:1.An Order hat service of the Bankruptcy Notice has not been affected – s 309(2) of the Bankruptcy Act, and rule 3.01 of the Bankruptcy Rules.2. Alternatively:a)That the bankruptcy notice be set aside on the grounds there are proceedings to set aside the underlying judgement – ss41(6A)(a) and 41(6C) of the Bankruptcy Act and Rule 3.02(4) of the Bankruptcy Rules.b)That the debtor has a counterclaim, set-off or cross demand – s 40(1)(g) and 41(7) of the Bankruptcy Act and Rile 3.02(3) of the Bankruptcy Rules. I pause here to note that I have not reproduced in this judgment the purported service address referred to in the application. The address referred to is an address in Balcatta, Western Australia, which has been referred to in the Court documents filed on behalf of both parties. Throughout this judgment, I will refer to the address as the ‘Balcatta address’ to protect the privacy of the homeowner, who is not a party to this proceeding. On 22 August 2022 the matter came before a Registrar of this Court for hearing. The applicant did not appear at the hearing and the Registrar made several unsuccessful attempts to contact the applicant on the telephone number that he had provided to the Court. The Registrar decided to proceed with the hearing in the absence of the applicant and ultimately made a decision dismissing the application. On 13 September 2022 the applicant filed an application for review of the Registrar’s decision. The application was filed one day outside of the 21 day period prescribed by r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). The application filed by the applicant included a request for an extension of time and the applicant filed an affidavit in support of his application which provided some explanation for the delay in filing the application for review.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Taking into account and balancing these factors, I am satisfied that it is appropriate to grant an extension of time of one day for the filing of the application for review.De Novo Review of registrar’s decision A review of a decision made by a Registrar is to be conducted as a review de novo: r 21.04(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). It is appropriate for the Court to consider for itself whether the bankruptcy notice should be set aside and it is open to me to receive into evidence the evidence that was before the Registrar and to grant leave to the parties to file further evidence: r 21.04(2) of the GFL Rules In the course of the hearing, I referred the applicant to the grounds in his originating application filed on 15 March 2022 and asked him to confirm whether he continues to rely on all of the grounds. The applicant indicated that his two matters in the Supreme Court had ‘lapsed’ because he failed to meet deadlines and that there are no current proceedings before the Supreme Court. I further note that, while the applicant did provide in his affidavits some earlier Supreme Court documents relating to an appeal, those documents did not confirm that the applicant was seeking to set aside or appeal the costs order, which has led to the bankruptcy notice being issued. The applicant has not established that he has any proceedings on foot to set aside the costs debt claimed in the bankruptcy notice. There is no evidence before the Court of the type required by r 3.02(3) of the Bankruptcy Rules to show that the applicant has any counter-claim or set-off to the debt. Although he referred in submissions to a counter-claim that the respondent is aware of, he has not provided any evidence to the Court of this and he has not established that it is appropriate to set aside the bankruptcy notice on the basis of any counter-claim, set-off or cross demand. The main basis on which the applicant asserts that the bankruptcy notice should be set aside is that it was not properly served on him. The submissions of both parties at the hearing focused on whether the bankruptcy notice was properly served on the applicant. In assessing whether service has been properly effected on the applicant in the present case, it is relevant to have regard to reg 102 of the Regulations. This regulation provides:(1)Unless the contrary intention appears, if a document is required or permitted by the Act or this instrument to be given or sent to, or served on, a person (other than the Inspector-General, the Official Receiver or the Official Trustee), the document may be:(a)sent by a courier service to the person at the address of the person last known to the person serving the document; or(b)left, in an envelope or similar packaging marked with the person’s name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility. (2)In the absence of proof to the contrary, the document is taken to have been received by, or served on, the person when the document would, in the due course of business practice, be delivered to that address or document exchange.
Ratio Decidendi
Legal Principle Established
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