TOPALIDES v EDEY
[2011] FMCA 556
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOPALIDES v EDEY | [2011] FMCA 556 |
| BANKRUPTCY – Application for Review – suggestions of procedural faults and of misleading conduct – allegations of improper service or no service at all – consideration of statutory requirements – determination of no fault or error arising from service or otherwise. |
| Bankruptcy Regulations 1996, rr.16.01(1), 16.01(1)(e)(ii), 16.01(c), 16.02 Bankruptcy Act 1966 (Cth), s.40(1)(g) |
| Kleinwort Benson Australia Ltd v Crowl [1998] 165 CLR 71 |
| Applicant: | ANASTASIOS TOPALIDES (AKA ANASTASIOS TOPALIDIS) |
| Respondent: | DEANNE JOY EDEY (FORMERLY HILL) |
| File Number: | BRG 1108 of 2010 |
| Judgment of: | Coker FM |
| Hearing date: | 13 July 2011 |
| Date of Last Submission: | 13 July 2011 |
| Delivered at: | Townsville |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| For the Applicant: | In Person |
| For the Respondent: | In Person |
ORDERS
That the Application for Review filed 24 December 2010 in all respects be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRG 1108 of 2010
| ANASTASIOS TOPALIDES (AKA ANASTASIOS TOPALIDIS) |
Applicant
And
| DEANNE JOY EDEY (FORMERLY HILL) |
Respondent
REASONS FOR JUDGMENT
On 8 December 2010, Registrar Baldwin made orders in Brisbane with regard to the sequestration of the estate of Anastasios Topalides, also known as Anastasios Topalidis, hereinafter referred to as ‘the Applicant’. The order was in the normal form. The terms of the orders were as follows:
1.A sequestration order be made against the estate of ANASTASIOS TOPALIDES AKA ANASTASIOS TOPALIDIS.
2.The applicant creditor’s costs, including reserved costs, if any, be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Within a matter of days, an application for review of the decision of Registrar Baldwin was filed by the Applicant. The details of the orders sought to be reviewed and the orders sought were in these terms:
Bankruptcy notice is filed ([sic] – filled) out fraudulently; the address on the notice is not were ([sic] – where) the applicant lives.
Applicant’s father is the one persuing ([sic] – pursuing) the Bankruptcy Notice, without leave of the court. Aff A7, para 3, 4 I did not receive the Bankruptcy Notice which Greg Crowther said on 19 August 2010 he served me the letter dated to Macdonnells law 3rd August 2010.
And then, orders sought:
Bankruptcy Notice be dismissed.
Bankruptcy Notice was not complied with the requirements of the Act.
Sequestration order dated 8th December be dismissed.
Judgement amount to have it costs assessed. Cost order 23/9/2008.
With respect, it is somewhat difficult to follow exactly what orders might be sought by the Applicant as a result of the information contained within the application for review. However, further material has been filed in relation to the proceedings, and I have been particularly assisted by the submissions that have been made in relation to this matter.
Quite simply, the position taken by the Applicant in relation to this matter is that the bankruptcy notice has been served inappropriately or not at all, and, additionally, there have been a number of other issues which have given rise to concerns in relation to the sequestration order which was made by Registrar Baldwin on 8 December 2010.
In the first instance, Mr Topalides says that he did not receive the bankruptcy notice by way of post and email from the legal representatives for Ms Hill, now Edey, hereinafter referred to as ‘the Respondent’, on 30 July 2010. An affidavit of service in relation to service by electronic means was filed on 1 November 2010 in support of the creditor’s petition. The affidavit of service, under the hand of Tanya Mary Roneberg, deposes to service on the Applicant by electronic means. The affidavit is in these terms:
I emailed them to the address for service of the person at (email address) [email protected] Annexed hereto and marked with the letters “TMR1” is a true copy of the email dated 30 July 2010.
And the email from Ms Roneberg to that address is in these terms:
Subject: Hill v Topalides.
Good afternoon. Please find attached correspondence from Tanya Roneberg. Many thanks.
And then, addressed specifically to Anastasios Topalides, (aka Topalidis), is:
Hill v Topalidis
Supreme Court claim number 624 of 2007.
Please find enclosed Bankruptcy Notice by way of service upon you.
Attached to that correspondence, and obviously also attached to those documents forwarded to the Applicant, is a copy of the Bankruptcy Notice, which has a date for official use of 26 July 2010. It also annexes a copy of the order of the Honourable Justice Jones of the Supreme Court of Queensland, dated 23 July 2009, which is in these terms:
It is ordered that:
(1)The Respondent to pay the Applicant’s costs of and incidental to these proceedings, fixed at $75,000.00.
The Applicant says that service by electronic means was not effected correctly or at all because, in particular, he indicates that his email address was down and non-operational from 29 July 2010, and was not operational as there was a “bug” in the computer system. Further he says that because of non-payment to Virgin broadband, the account did not receive service pursuant to regulations 4.02(a) and 16.01(1)(e)(ii). I assume that the Applicant is in that instance referring to the Bankruptcy Regulations 1996. Regulation 16.01(1) is headed, “Service of Documents”. Regulation 16.01(1)(e)(ii) is in these terms:
Unless the contrary intention appears, where a document is required or permitted by the Act or these regulations to be given or sent to or served on a person (other than a person mentioned in regulation 16.02) the document may be: …
(e)sent by facsimile transmission or another mode of electronic transmission:
…
(ii)in such manner (for example by electronic mail) that the document should in the ordinary course of events be received by the person.
The contention on the part of the Applicant is that because of the non-payment of the Virgin broadband account, and the fact that his account was not operative because of that and/or a bug within the system, that service has not been effected. Quite simply, that is an incorrect proposition in relation to the matter, because it is clear that the service of documents is effective, if the document is sent by facsimile transmission or another mode of electronic transmission in such a manner, “that the document should in the ordinary course of events be received by the person” (my underlining).
It does not anticipate or require any form of confirmation with regard to an assurance that service has not only been attempted by electronic means, but that the document in its entirety has been received. The requirement is simply that the transmission is in the normal course to the person’s electronic address, and that is sufficient for service to be proven.
The affidavit by Ms Roneberg confirms that that occurred and I am satisfied therefore that there is no default in the form of service that has been effected in relation to this matter.
It appears that there is also objection taken to an additional attempt made in relation to service, in that an affidavit of service, under the hand of Gregory John Crowther, which affidavit of service is dated 6 December 2010, deposes to service being effected upon the Applicant on 19 August 2010. There, reference is made specifically to service in the more traditional manner, being an envelope delivered in the person’s name at the last known address of the person.
In a further affidavit, filed in response to the application for review on 23 February 2011, Tanya Mary Roneberg makes reference to such instructions being provided to the process server. At paragraph 4 of her affidavit, she says the following:
On or about 19 August 2010, I instructed Greg Crowther of Allnorth (QLD) Services to place the Bankruptcy Notice in a sealed envelope addressed to the Respondent in the letterbox for Unit 5, 282 Lake Street, Cairns, Qld 4870. I am informed by Greg Crowther and I verily believe that Greg Crowther did attend and place a copy of the Bankruptcy Notice in a sealed envelope addressed to the Respondent in the letterbox for Unit 5, 282 Lake Street, Cairns, Qld 4870. Exhibited hereto, and marked with the letters “TMR3” is a true copy of a letter from Greg Crowther of Allnorth (QLD) Services confirming his attendance as instructed.
In particular, in a letter interestingly dated 3 August 2010 but having a date stamp of 24 August 2010, and I assume that there has been through typographical error the omission of the inclusion of the first number “2” such that the date of the correspondence would be 23 August 2010, Mr Crowther says the following:
Following further instructions from your office, the agent re-attended at the address on 19th August 2010 at 2.30pm. The documents were placed in a sealed envelope addressed to Mr Topalides and placed in the letterbox for Unit 5.
It is noteworthy that this is service therefore effected pursuant to the Bankruptcy Regulations 16.01(c), which is in these terms:
16.01.Unless the contrary intention appears, where a document is required or permitted by the act or these regulations to be given or sent to or served on a person (other than a person mentioned in regulation 16.02) the document may be:
…
(c) left in an envelope or similar package marked with the person’s name at the last known address of the person;
Quite clearly, therefore, service has also been effected in that more traditional manner. It is, however, noteworthy that that manner of service is in fact referred to by the Applicant as giving rise to a basis upon which it could be found that service had not been effected. Quite simply, the Applicant refers to the outline of submissions relied upon by the legal representatives for the Respondent at the hearing where, at paragraph 3(b), under the heading, Basis of Creditor’s Petition, the following is said:
(b)The Respondent has committed an act of bankruptcy as defined in Section 40(1)(g) of the Bankruptcy Act 1966 (Cth) by failing to comply with Bankruptcy Notice QN 1040/2010, on or before 23 August 2010.
In other words, again there appears to be an error within the submissions because it is suggested that the act of bankruptcy has occurred not by allowing the passing of 21 days, but rather by allowing the passing of only four days. However, it is noteworthy and, in particular, here relevant that service has already properly been effected pursuant to electronic means on 30 July 2010. The date of the act of bankruptcy therefore is 20 August 2010 and whether or not there may have been some error within the outline of submissions is irrelevant.
In particular, of course, the outline of submissions does not in any way comprise part of the material relied upon in relation to the proceedings, but could perhaps more accurately be described as, an aide-mémoire. It is clear that service has been effected. It is clear that there has not been compliance with the requirements of the Bankruptcy Act, in that the Applicant has failed to comply with the payment required pursuant to the Bankruptcy Notice within 21days, whenever that may have been calculated from, though I find specifically that it has been calculated as and from the 30th day of July 2010.
Accordingly, there is no legitimacy or basis upon which the Bankruptcy Notice could be found to be deficient in regard to its service upon the Applicant.
Additionally, the Applicant seeks to suggest that the Bankruptcy Notice has been filled out fraudulently in that the address on the notice is not that of the Applicant in the Creditors Petition. In particular, the Bankruptcy Notice specifically makes reference to the fact that the address of the creditor Deanne Joy Hill is:
c/- Gerry Hill 6 Tamarind Street Holloways Beach Qld 4878.
There is no confusion, there is no illegality and there is nothing of a misleading nature in providing the address for the applicant as one “care of” a person intimately connected to them.
In any event, it is noteworthy, of course, that in the notices accompanying the Bankruptcy Notice, it is specifically noted that the payment of the debt to the Respondent here, is care of her solicitors, MacDonnells Law, Corner Shields and Grafton streets, Cairns, Queensland 4870. It is not an error, nor is it an attempt to in any way act in a fraudulent or misleading manner, and there is no position at law which could possibly suggest that a residential address is the only address which can or should properly be used, for the purposes of proceedings before any of the courts in the land.
The suggestion, therefore, of some fatal flaw arising from the use of an address of convenience for the Applicant is without base and it is clear that the application for review must fail on that matter.
Further, the Applicant seeks to rely on what he says is misleading conduct on the part of the Respondent here, in that he indicates that the Respondent is not in fact the person “driving the application”, but rather that it is her father. In that regard, the Applicant refers to a communication with the Respondent at 10.52am on 4 October 2010 at which time the Respondent apparently indicated to the Applicant that the application was being pushed by her father, Mr Gerry Hill.
In fact, the Applicant seeks to rely upon the outline of case filed by the Respondent in relation to these proceedings, where, at paragraph 6, the Respondent says the following:
My father, Gerry Hill took over this bankruptcy for me in the past. My father employed MacDonald’s ([sic] – MacDonnells) Law to work with him to take some of the pressure off me. It is true however that I basically said to Mr Topalides that. “My father is doing the bankruptcy, so it has nothing to do with me at the moment.” I said this because; I have to do two 2 change overs a week with Mr Topalides to deliver our child and then pick her up from him. Mr Topalides continuously intimidates me and I fear for my daughter and my son when I have to face Mr Topalides and I fear for Tatiana in this angry persons care. So I felt I needed to say this to try to reduce conflict. After over four years of constant court cases and over five years of harassment. I have had to develop coping strategies. One of them is to out source so I can reduce how much I have to deal with him. I believe there is no law that I have broken by doing this.
What the Applicant contends is that in fact by suggesting, truthfully or not, that the proceedings were being “driven” by her father that he has been misled. In particular, the Applicant refers to a presentation by Sally Nash of the Television Education Network in June 2006, in which at para 6.1 Ms Nash says the following:
It is clear that a Bankruptcy Notice will be a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice in such case the notice is a nullity whether or not the debtor is in fact misled.
Reference is made then specifically to the decision of the High Court in Kleinwort Benson Australia Ltd v Crowl [1998] 165 CLR 7. However, the element that is said to be misleading, is whether in fact the claim was being brought by the Respondent or in fact by her father, Mr Hill.
The nonsensical nature of that particular aspect of the matter, however, is clear when one is aware that the judgment that is used for the purposes of supporting the Bankruptcy Notice is a judgment in favour of the Respondent. If the bankruptcy notice were brought in the name of Mr Hill, it would be invalid as there is no basis upon which the claim could be made.
The indications given by the Respondent as to the reasons why she would have given indications to the Applicant of the proceedings being driven by her father are understandable, but, by the same token, they in no way could be seen to be misleading.
The Applicant was served properly with the Bankruptcy Notice. More particularly, he was served with the creditor’s petition in good time for the proceedings before the court, and whether, in fact, he may or may not have misunderstood, but I would find unreasonably if he suggested that he did so, is irrelevant, because the proceedings have been brought in the name of the person who holds the debt, and it is clear that there is and should be no confusion arising, in relation to that particular aspect of the matter.
I find that there is no basis upon which it could be suggested that there has been some possibility of the Bankruptcy Notice served in this matter being a nullity.
Finally, it is contended by the Applicant that there is a basis upon which this court should go behind the judgment of the Supreme Court of Queensland, in relation to the costs orders. The Applicant suggests that that arises here because of the situation of fraud, collusion, or generally a miscarriage of justice. In particular, he says that there is some degree of confusion that arises as a result of the orders being made by consent to have some assessment of costs of proceedings within the Supreme Court of Victoria, rather than or additional to an assessment of costs arising from Family Court proceedings, as well as from the Magistrates Court in Queensland.
There is, however, no basis upon which it could be suggested that there has been fraud, collusion, or a miscarriage of justice, and it is not a situation where there should, under any circumstances, be an inclination on the part of this court to go behind the decision of Jones J and of the Supreme Court of Queensland.
The costs orders have been made and the appeal process open there was in fact, as I understand it, utilised by the Applicant and in a unanimous decision, though separate reasons were given by each of the members of the Court of Appeal, the application for an extension of time to appeal was refused, and the application to adduce new evidence was refused.
It is clear that there is no proper basis whatsoever upon which this court would or should seek to go behind the decision properly made by the Supreme Court of Queensland.
Accordingly, in each instance, the application and the basis for review sought to be relied upon by the Applicant fails. The application for review should be dismissed and I intend to make such an order in relation to this matter.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 22 July 2011
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