Wandina Holdings Pty Ltd v Duncan and Wandina Holdings Pty Ltd v Cacho (No.2)
[2011] FMCA 176
•23 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANDINA HOLDINGS PTY LTD v DUNCAN and WANDINA HOLDINGS PTY LTD v CACHO (No.2) | [2011] FMCA 176 |
| BANKRUPTCY – Applications for substituted service of Bankruptcy Notice outside Australia – whether steps taken to locate or contact debtors – requirement for making orders for substituted service – whether evidence sufficient to establish that abnormal difficulty exists in effecting personal service on the respondents. PRACTICE AND PROCEDURE – Service of Bankruptcy Notice outside Australia. |
| Bankruptcy Act 1966 (Cth), s.309(2) |
| Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7 Wandina Holdings Pty Ltd v Cacho & Duncan as Administrators of Precast Prestressed Buildings Perth Pty Ltd & Anor (unreported, Magistrates Court of Western Australia, 10693 of 2005 and 13777 of 2005, 3 March 2010) Wandina Holdings Pty Ltd v Duncan and Wandina Holdings Pty Ltd v Cacho [2011] FMCA 49 |
| Applicant: | WANDINA HOLDINGS PTY LTD |
| Respondent: | ADRIAN STEWART DUNCAN |
| File Number: | PEG 3 of 2011 |
| Applicant: | WANDINA HOLDINGS PTY LTD |
| Respondent: | RICARDO CACHO |
| File Number: | PEG 4 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 17 March 2011 |
| Date of Last Submission: | 17 March 2011 |
| Delivered at: | Perth |
| Delivered on: | 23 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr John Panegyres |
| Solicitors for the Applicant: | John Panegyres, Diploma Group Limited |
| Counsel for the Respondents: | Not applicable |
| Solicitors for the Respondents: | Not applicable |
ORDERS
PEG 3 of 2011
Leave is granted to serve Bankruptcy Notice WA 108 of 2010 (“Bankruptcy Notice”) on the respondent outside of Australia in the manner prescribed by these orders.
The Bankruptcy Notice be served on the respondent by way of substituted service and personal service be dispensed with.
Service of the Bankruptcy Notice be effected by:
(a)posting by way of ordinary pre-paid post a copy of the Bankruptcy Notice to the respondent:
(i)at 27 Stanhope Gardens, London, SW7 5QX, United Kingdom; and
(ii)care of Jackal Advisory Limited, Portland House, Bressenden Place, London, SW1E 5RS, United Kingdom;
(b)emailing a copy of the Bankruptcy Notice (as a PDF attachment to the email) to the respondent at the following email address: [email protected].
Service in accordance with these orders be deemed good and sufficient service of the Bankruptcy Notice on the respondent.
Service of the Bankruptcy Notice be deemed to have been effected on the respondent 14 days after the date of posting the Bankruptcy Notice to the respondent in accordance with paragraph 3(a) of these orders.
The applicant to file an affidavit of service by 6 April 2011.
PEG 4 of 2011
Leave is granted to serve Bankruptcy Notice WA 109 of 2010 (“Bankruptcy Notice”) on the respondent outside of Australia in the manner prescribed by these orders.
The Bankruptcy Notice be served on the respondent by way of substituted service and personal service be dispensed with.
Service of the Bankruptcy Notice be effected by:
(a)posting by way of ordinary pre-paid post a copy of the Bankruptcy Notice to the respondent:
(i)at Flat 2, 15 Collingham Road, London, SW5 0NU, United Kingdom;
(ii)care of Jackal Advisory Limited, Portland House, Bressenden Place, London, SW1E 5RS, United Kingdom; and
(iii)care of Armantage Accounting Advisory Limited, BCM Box 80, London, WC1N 3XX, United Kingdom;
(b)emailing a copy of the Bankruptcy Notice (as a PDF attachment to the email) to the respondent at the following email addresses:
(i)[email protected]; and
(ii)[email protected].
Service in accordance with these orders be deemed good and sufficient service of the Bankruptcy Notice on the respondent.
Service of the Bankruptcy Notice be deemed to have been effected on the respondent 14 days after the date of posting the Bankruptcy Notice to the respondent in accordance with paragraph 3(a) of these orders.
The applicant to file an affidavit of service by 6 April 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 3 of 2011
| WANDINA HOLDINGS PTY LTD |
Applicant
And
| ADRIAN STEWART DUNCAN |
Respondent
PEG 4 of 2011
| WANDINA HOLDINGS PTY LTD |
Applicant
And
| RICARDO CACHO |
Respondent
REASONS FOR JUDGMENT
Introduction
Wandina Holdings Pty Ltd[1] has applied to the Court, on an ex parte basis, for:
a)substituted service of a Bankruptcy Notice; and
b)leave to serve in the United Kingdom a Bankruptcy Notice,
on the respondent in each application. The respondents are Adrian Stewart Duncan[2] (in PEG 3 of 2011) and Ricardo Cacho[3] (in PEG 4 of 2011).
[1] “Wandina Holdings”.
[2] “Mr Duncan”.
[3] “Mr Cacho”.
In Wandina Holdings Pty Ltd v Duncan and Wandina Holdings Pty Ltd v Cacho[4] the Court adjourned the hearing of the application and granted Wandina Holdings leave to file further affidavit evidence in support of the applications.[5] Wandina Holdings has subsequently filed two affidavits (one in each matter) of John Konstantinos Panegyres,[6] a legal practitioner, in reliance on the grant of leave to file a further affidavit.
[4] [2011] FMCA 49 (“Wandina Holdings (No 1)”).
[5] Wandina Holdings (No 1) at para.15 per Lucev FM.
[6] “Mr Panegyres’ Affidavits”.
Facts
The relevant facts appear to be as follows:
a)on 3 March 2010 the applicant, Wandina Holdings, obtained judgment in the Magistrates Court of Western Australia[7] against Mr Duncan and Mr Cacho as Administrators of Precast Prestressed Buildings Perth Pty Ltd[8] in the sum of $70,674.03, plus interest payable on the judgment sum, and costs of $436.55;[9]
[7] “MCWA”.
[8] “Precast Perth”.
[9] Wandina Holdings Pty Ltd v Cacho & Duncan as Administrators of Precast Prestressed Buildings Perth Pty Ltd & Anor (unreported, Magistrates Court of Western Australia, 10693 of 2005 and 13777 of 2005, 3 March 2010) (“Wandina Holdings – MCWA”) and Certificate of Judgment dated 26 July 2010.
b)Messrs Galic & Co acted for Mr Duncan and Mr Cacho in the proceedings in the MCWA;
c)on 30 July 2010 the Official Receiver for the Bankruptcy District of Western Australia issued a Bankruptcy Notice for a total debt owing of $72,405.06 against:
i)Mr Duncan, being Bankruptcy Notice WA 108 of 2010; and
ii)Mr Cacho, being Bankruptcy Notice WA 109 of 2010;
d)on 3 November 2010 in respect of each of the Bankruptcy Notices the Official Receiver allowed the time in which each Bankruptcy Notice can be served to be extended to 30 July 2011;
e)at the time of Mr Duncan’s Bankruptcy Notice issuing it gave an address for him as follows:
“c/o Galic & Co, Ground Floor, 64 Fitzgerald Street, Northbridge WA 6003.”
f)at the time of Mr Cacho’s Bankruptcy Notice issuing it gave an address for him as follows:
“32 Tamar Street, Palmyra WA 6157.”[10]
g)in two affidavits sworn prior to the judgment in Wandina Holdings (No 1) by Nicola Domenico Di Latte, a company director of Wandina Holdings, the following facts, which are relied upon, were set out:
i)Wandina Holdings engaged a process server, Shane Shaw, to try and locate Mr Duncan and Mr Cacho;
ii)Mr Shaw reported back to Wandina Holdings that he had “located” Mr Duncan and Mr Cacho as being members of an accounting practice in the United Kingdom called “Jackal Advisory”;
iii)a true copy of an internet search of “Jackal Advisory” which has photographs of Mr Duncan and Mr Cacho was annexed;
iv)from the photographs on the Jackal Advisory internet site Mr Cacho was identified by Ms Di Latte as being the same Mr Cacho that was involved in the action the subject of the judgment debt in the MCWA;
v)Mr Duncan’s photograph was also said to appear on the internet search, but he was not identified in the same way as Mr Cacho was; and
vi)the judgment debt against Mr Duncan and Mr Cacho was in relation to their role as joint administrators of Precast Perth;
[10] “Palmyra Address”.
h)Mr Panegyres’ Affidavits set out the following facts which are relied upon:
i)that Mr Duncan’s former solicitors, Galic & Co, advised Wandina Holdings’ then solicitors in August 2010 that they no longer acted for Mr Duncan, were not in communication with him, were not taking instructions from him, did not know where he was – although they had last heard that he was in the United Kingdom, and that any attempt to serve the Bankruptcy Notice upon him at their offices was not valid service;
ii)that there is no indication of a response from Mr Cacho to correspondence sent from Wandina Holdings’ solicitors to the Palmyra Address;
iii)that Landgate searches disclosed no records of land owned by Mr Duncan or Mr Cacho in Western Australia;
iv)that further internet searches of the firm named “Jackal Advisory” indicated that the company behind the name Jackal Advisory is Jackal Advisory Limited, a company registered in England and Wales (No 5748123) and having a registered address of Level 19, Portland House, Bressenden Place, London SW1E 5RS;
v)that on 3 February 2011 Mr Panegyres had rung Jackal Advisory and inquired with the receptionist whether Mr Duncan or Mr Cacho still worked for Jackal Advisory, and the receptionist declined to answer and terminated the telephone call;
vi)
that on 4 February 2011 Mr Panegyres emailed and posted a letter to each of Mr Duncan and Mr Cacho addressed to the postal (Level 19, Portland House, Bressenden Place,
London SW1E 5RS) and individual email ([email protected] and [email protected]) addresses listed in the internet search of Jackal Advisory referred to above, which letter was relevantly in the following terms:
“I act on behalf of Wandina Holdings Pty Ltd.
Pursuant to a judgment obtained from the Magistrates Court of Western Australia on 26 July 2010 which has remained unsatisfied a Bankrupty Notice has been issued against you. We enclose a copy of the Bankruptcy Notice together with the extension on time for service of a Bankruptcy notice obtained on 3 November 2010.
I write enquiring whether you would consent to leave being granted for the Bankruptcy Notice to be served on you in the United Kingdom.
I look forward to hearing from you.”
No response was received from either Mr Duncan or Mr Cacho to the letter sent to each of them;
vii)Mr Panegyres undertook various searches which showed that:
· Mr Duncan was listed as a director of Jackal Advisory Ltd (No 05748123), appointed on 20 March 2006, with a registered address of “Portland House 2nd Floor Bressenden Place, London, Greater London SW1E 5RS”, not Level 19 at the same address as listed in the internet search, and a residential address of 27 Stanhope Gardens, London SW7 5QX, and a birth date of 20 July 1967; and
· Mr Cacho was listed as a chartered accountant of Armantage Accounting Advisory Limited,[11] appointed on 12 March 2010, with a residential address of Flat 2, 15 Collingham Road, London SW5 0NU, and a birth date of 25 January 1966;
i)that an internet search of Armantage lists Mr Cacho as being part of “The Team”, which appears to consist of Mr Cacho and one other person, with a post box address of “BCM Box 80 London WC1N 3XX United Kingdom” and an email address of “[email protected]”;
j)an ASIC Personal Name Search for Mr Cacho lists his date of birth as being 25 January 1966; and
k)the United Kingdom electoral roll did not list Mr Duncan or Mr Cacho, but that it is not mandatory to vote in the United Kingdom.
[11] “Armantage”.
In the course of the hearing the Court observed that the ASIC Personal Name Search for Mr Cacho indicated that he currently held roles as Director and Secretary of a company named “ACN 133259211 Pty Ltd” whose registered address was the Palmyra Address.
Mr Panegyres’ Affidavits also contained a copy of the Wandina Holdings – MCWA Reasons for Decision. In the course of those Reasons for Decision the Court notes that Cockram M observed as follows:
“That Mr Cacho and Mr Duncan should claim that there was an implied lease or novation, given Mr Cacho’s evidence, suggests that they are prepared to say anything, without regard to its truth, to avoid liability for the outgoings and rent due to the end of the administration of Precast.”[12]
Consideration
[12] Wandina Holdings – MCWA at page 8 per Cockram M.
Requirement for substituted service
In Wandina Holdings (No 1) the Court observed that:
7. As this Court observed in Deputy Commissioner of Taxation v Barnes:
There is no specific bankruptcy provision or rule dealing with service outside the jurisdiction.
8. It is, however, well recognised that s.309(2) of the Bankruptcy Act 1966 (Cth) confers a discretionary power on this Court to order service of a document in a manner specified by the Court.
9. In Barnes this Court said that:
71. Under s.309(2) of the Bankruptcy Act the discretion conferred is unfettered but not to be exercised lightly. The Court must be satisfied that:
(a) abnormal difficulty exists in effecting personal service of the creditors petition on the Respondents; and
(b) there is a reasonable probability that the Respondents will be informed of the petition as a result of the form of service identified.
For present purposes the same considerations apply to service of the Bankruptcy Notices as applied to service of the creditors petition in Barnes.
10. Simply because a debtor is overseas may not be sufficient for an order for substituted service, but it is a factor to be taken into account.[13]
[13] Wandina Holdings (No 1) at paras.7-10 per Lucev FM (footnotes omitted), and cases there cited. The reference to “Barnes” in the above quote is a reference to Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7.
Having regard to the evidence that:
a)Mr Duncan no longer instructs Galic & Co, and that Galic & Co understood that he had left to go to the United Kingdom;
b)it appears that Mr Duncan is, and that Mr Cacho was, and still may be, working at the accountancy firm named Jackal Advisory;
c)Mr Cacho appears to be working at Armantage, either at the same time as, or independently of, Jackal Advisory;
d)each of Mr Duncan and Mr Cacho have London residential addresses;
e)each of Mr Duncan and Mr Cacho have jackaladvisory.co.uk email addresses;
f)Armantage has a corporate email for enquiries; and
g)each of Jackal Advisory and Armantage have London addresses,
the Court is presently satisfied that Mr Duncan and Mr Cacho are resident in the United Kingdom, and particularly London. The Court is therefore satisfied that the respondents are outside of the jurisdiction.
Having regard to the fact that:
a)email and postal letters from Mr Panegyres, in his capacity as Wandina Holdings’ solicitor, to Mr Duncan and Mr Cacho have not been responded to; and
b)in a telephone call to Jackal Advisory the call was terminated by the recipient after Mr Panegyres inquired as to whether Mr Duncan and Mr Cacho were employed there,
the Court is satisfied that Mr Duncan and Mr Cacho are refusing to provide Wandina Holdings with their contact details, or provide an alternative means of service.
The Court is also influenced by the considered reasons of the MCWA in Wandina Holdings – MCWA where it was found that Mr Duncan and Mr Cacho were prepared to “say anything, without regard to its truth, to avoid liability for the outgoings and rent due to the end of the administration of Precast”, that is due to Wandina Holdings. It is an inference reasonably available to be drawn that Mr Duncan and Mr Cacho have removed themselves from the jurisdiction, and remain outside of the jurisdiction, in an endeavour to avoid liability for the judgment debt.
In the above circumstances it seems to the Court that:
a)it is unlikely that Mr Duncan and Mr Cacho will facilitate service of the Bankruptcy Notice, recognising that there is of course no obligation on them to do so; and
b)the combination of their:
i)location out of the jurisdiction;
ii)refusal, or at least lack of co-operation, in facilitating service of the Bankruptcy Notice; and
iii)desire to avoid liability for the judgment debt,
lead the Court to conclude that there is abnormal difficulty in effecting service on Mr Duncan and Mr Cacho.
The Court, in order that its processes not be frustrated, ought to therefore specify a different manner of service. Before it does so, the Court must be satisfied that there is a reasonable probability that Mr Duncan and Mr Cacho will be informed of the Bankruptcy Notice as a result of the form of service specified.
The Court proposes that the manner of service be by way of postal service on:
a)Mr Duncan at his Jackal Advisory office and his London residential address; and
b)Mr Cacho at his Jackal Advisory office, his Armantage office, and his London residential address.
It is also proposed that service be effected by email to the Jackal Advisory email addresses set out above, for both Mr Duncan and Mr Cacho, and, for Mr Cacho, to the general Armantage email address.
If service is effected as proposed by post and email on Mr Duncan and Mr Cacho the Court is satisfied that there is a reasonable probability that they will be informed of the Bankruptcy Notice.
Conclusion
The Court is satisfied that the requirements for service outside of the jurisdiction and for substituted service have been met for the purposes of s.309(2) of the Bankruptcy Act 1966 (Cth) in that abnormal difficulty exists with personal service of the Bankruptcy Notice and that service of the Bankruptcy Notice by the means specified will draw it to the attention of Mr Duncan and Mr Cacho.
There will be orders accordingly.
The Court will hear from the applicant as to costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 23 March 2011
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