Tucker, K.J. v Esanda Finance Corporation Ltd

[1992] FCA 799

JUDGMENT Na m%

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) No VP 194 of 1992
)
BANKRUPTCY DIVISION	1

RE:  KENNETH JOHN TUCKER AND
VALAMAI LORRAINE TUCKER

EX PARTE:  ESANDA FINANCE
CORPORATION LIMITED

Coram:

Place	:
Date:

RAL COURT OF

9USTRALIA

PRINCIPAL

Rvan J:
oppose the making of a sequestration order in this matter is
that the bankruptcy notices which found the petition were not
served on either of them. In the original affidavit of
service sworn on 25 September 1991 it was deposed in relation

to service on the first-named debtor:

"On the 25th day of September 1991 I served KENNETH JOHN TUCKER w ~ t h
a copy of the Bankruptcy Notice slgned and stamped by the Deputy
Registrar Issued on the applicatron of ESANDA FINRNCE CORPORATION
LIMITED by delivering it to hIm personally at 36 Mount Gambier Road,

notice. In an affidavit of the same date in relation to	service on the second named debtor the same process server,
Robert Leslie McIntosh, deposed:

Casterton m the said State.

2.    I Identified the person I served by asking him at the time of

servlce -

(a) "Are you KENNETH JOHN TUCKER the person referred to in this document as the Judgment Debtor?"

He replied, "Yes"

(b) "Do you acknowledge the amount of $16,484.47 to the Judgment Creditor?"

He replled, "No, but it 18 somewhere around that.""

The deponent annexed to the affidavit a copy of the bankruptcy

"1. On the 25th day of September 1991 I served VALAMAI LORRAINE TUCKER with a copy of the Bankruptcy Notice srgned and stamped by the Deputy Registrar issued on the application of ESANDA FINANCE CORPORATION LIMITED by deliverrng it to her personally at 36 Mount Gambler Road, Casterton in the said state.

2.     I identified the person I served by asking her at the time of

service -

(a) "Are you VALAMAI LORRAINE TUCKER the person referred to in this document as the Judgment Debtor?"

She replred, "Yes, I am in the shower and I can't come out."

i (b) "Do you acknowledge the amount of $16,484.47 to the Judgment

Credrtorl"

She replred, "No, but Ken would know."

Again annexed to the affidavit is a copy of the bankruptcy notice.

By a further affidav~t	sworn on 24 Aprll 1992 Mr McIntosh has
deposed:

"1.	I refer to my affidavit of service of bankruptcy notice upon Valamal Lorrarne Tucker sworn September 25, 1991 and filed herein ("the affidavit"). In particular, I refer to paragraph
2 of the affrdavlt.
2.	On the 25th day of September, 1991 when I attended the res~dential address of the judgment debtors, 36 Mount Gambier Road, Casterton, I met the judgment debtor Kenneth John Tucker ("Mr Tucker") outs~de the house situated at the said address
("the house").
3.	Mr Tucker asked me what I wanted to whrch I replled that I had come to serve a bankruptcy notice upon both hlm and hrs wife. Thereafter, I followed Mr Tucker into the house and stood immedrately lnside the doorway of what appeared to be a krtchen and l~ving room area. After I had completed servlce upon Mr Tucker, I asked him if I could also see Mrs Tucker in order to serve a bankruptcy notice upon her.
4.	Mr Tucker told me that he was not sure where h ~ s wife was and
then called out "Val, are you here?"
5.	I then heard a female voice call out in response "I am ln the shower". I noticed that I could hear a shower operating and believe that the bathroom was located next to the kltchen and lrving room area.
6.	Mr Tucker then called out, "There's somebody here to see you about the bankruptcy", to which I heard the same female voice reply with words to the effect that Mr Tucker would know anythlng that was needed to be known about the bankruptcy.
7.	Mr Tucker then sard to me that srnce hrs wife was rn the shower that I should leave the bankruptcy notlce with hrm and that he would pass it to her when she stepped from the shower. Accordrngly, I left the bankruptcy notrce to be served upon Valamar Lorrarne Tucker wlth her husband Mr Tucker.''

For some reason that amplifying affidavit was not filed until

7 July 1992 by which date two affidavits by the debtors as to

the alleged service of the bankruptcy notice had been sworn on 3 July 1992 and filed on 6 July 1992. In his affidavit the first-named debtor deposed, as far as is relevant:

"2. I deny having commrtted an act of bankruptcy as described m

paragraph 4 of the Petrtron.

3.     I have no recollection whatsoever of havrng been served with a Bankruptcy Notice on the 25th September, 1991 or at all. Had I been served with the Notice I would have reallsed the importance of such a document and would have immediately contacted my solrcrtor.

...

6.     I at no time recerved from the Petitioning Creditor a wrrtten demand for payment of the monies the subject of the Compla~nt and the Pet~troning Credrtor has not provrded details of calculatron of my alleged indebtedness to the Petrtioning Credrtor despite requests made by me."

In somewhat similar terms the second-named debtor has sworn, again so as is relevant:

"2.	I deny that I have committed an act of bankruptcy as described
in paragraph 4 of the Petrtron.
3.	I deny that I was served with a Bankruptcy Notice on the 25th September, 1991 or at all.
...
5.	I have not at any tune received a written demand for payment of
monies from the Petrtioner and the Petitioner has at no time provided me with any particulars of any indebtedness."

The petitioning creditor relies on a corroborating affidavit of Norman Charles Mengler sworn on 7 July 1992, but not filed until today. I have been informed from the Bar table that a

copy of that affidavit was handed to the solicitor for the debtors at the hearing in this Court on 8 July 1992. I have ruled as ~nadmissible paragraph 6 of that affidavit. The remaining paragraphs are in these terms:

"1. I was a member of the Vlctorla Pollce for approximately 35
years, and was stationed in the Hamilton dlstrict for

approx~mately 29 and a half years. I retlred from active duty

ln the Vlctoria Pollce approximately 11 years ago. From my

time in the Ham~lton distrlct I am fam~l~ar w ~ t h and know the

judgment debtors herein.

2.     I refer to the aff~davlt of Raymond Leslie McIntosh sworn April 24, 1992 and filed herem. In particular, I refer to paragraphs 2 and 3 thereof.

3.     On 25th day of September, 1991 I attended the res~dentlal

address of the judgment debtors, 36 Mount Gambier Road, Casterton ("the premlses") In company with Raymond Leslie McIntosh ("McIntosh"). The purpose for my accompanying McIntosh was in order to provide physlcal protection as on a previous occasion I had seen the firstnamed judgment debtor man-handle McIntosh whlle McIntosh was attempting service of documents.

4.     I was standing behind McIntosh when the firstnamed debtor came

to the door of the premises. I saw McIntosh hand a bankruptcy notice in thls proceeding to the flrstnamed debtor and I heard McIntosh say to the firstnamed debtor that he had to ask him some quest~ons even if they seemed stupid. I then heard McIntosh ask the firstnamed debtor if his name was Kenneth John Tucker, to wh~ch the flrstnamed debtor replled "yes" and some other questions the details of which I cannot recall.

5.     As the situation appeared relatively peaceful, I wandered away from where McIntosh and the f~rstnamed debtor were standing and went to the drlveway at the premlses. McIntosh and the flrstnamed debtor continued to have a conversat~on although I could not hear what they were saying."

The petitioning creditor also sought to rely on an alleged	admission by the first-named debtor, which was deposed to by
Robert Duncan, a recovery supervisor for the petitioning creditor, but I consider that material, so far as relevant, to be inadmissible because of the unsatisfactory and elliptical way in which the deponent purported to identify the maker of the alleged admission.
A direction was given by Olney J on 8 July 1992 that any notices requiring the attendance of witnesses for cross- examination be served not less than 14 days before trial. This matter was originally set down for trial on 9 October 1992, That trial date was vacated and the matter was refixed for hearing today.
Although by 8 July 1992 it was clear that the question of service of the bankruptcy notice was a major issue in relation to the debtors' opposition to the making of the sequestration orders, no notices were given on either side. Accordingly, the Court is left in the unsatisfactory position of having to resolve a conflict of testimony without the benefit of seeing any of the witnesses or hearing any of them cross-examined.
Doing the best I can in the face of these difficulties, I am satisfied on the balance of probabilities that service of the bankruptcy notices was effected on each of the debtors on 25 July 1991. I reach that conclusion primarily because I am
the debtor's residence at 36 Mt Gambier Road, Casterton in the satisfied that Mr McIntosh on 25 September 1991 attended at company of Mr Mengler. Mrs Tucker has contented herself with
merely denying service on that day or at all. Mr Tucker has deposed that he has no recollection whatsoever of having been served with a bankruptcy notice on 25 September 1991 or at all. Neither of them has condescended to particulars making the account of Mr McIntosh and Mr Mengler less probable, for example, by deposing that they were or one or other of them
was not present at their home on that day or that Mrs Tucker was not spoken to by her husband when she was in the shower as sworn by Mr McIntosh in his second affidavit. Secondly, it was clear by the time of service of the petition on 16 March 1992, which service is not disputed, that the petition was founded on a bankruptcy notice allegedly served on 25 September 1991, but no assertion contradicting that allegation was made until early July 1992.
Accepting, as I do, that a copy of the bankruptcy notice was left with her husband after she orally invited that to be done, although she was not seen by Mr McIntosh, I regard what was done as amounting to personal service on Mrs Tucker within rule 15 of the Bankruptcy Rules. By contrast with Re Long: Ex parte Fraser Confirmina Ptv Ltd (1975) 12 SASR 130, the finding which I have already indicated includes the fact that the bankruptcy notice came to the notice of Mrs Tucker shortly after it was left with her husband at her invitation. As well, I am satisfied that although he did not see her, Mr
Accordingly, the sole ground of attack on the petition fails. McIntosh orally acquainted Mrs Tucker with the effect of the notice. Since I am satisfied that the rules have otherwise been complied with by the petitioning creditor, there should be a sequestration order.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of his Honour

Mr Justice Ryan

Associate:	/h dw
Date : 2\ &	~SU

Counsel for the debtor:	Mr A Ellis
Solicitor for the debtor:	George Schifter, Johansson
& CO
Counsel for the
petitioning creditor:	Miss A Mendes da Costa
Solicitor for the
petitioning creditor:	Dunhill Madden Butler