Wasilenia v DCT

[2003] FMCA 8

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WASILENIA v DCT [2003] FMCA 8

BANKRUPTCY – Application to set aside bankruptcy notice – where service was deemed inadequate by creditor–– extension of bankruptcy notice – order for substituted service – where payments towards debt made after issue but before service of that Notice – overstatement of amount owed in Notice at time of service – whether the validity of the notice should be tested as at the date of issue – whether there is a duty of full and frank disclosure when making an ex parte application for extension of a bankruptcy notice or making an application for substituted service – duty of candour – abuse of process.

Bankruptcy Act1966 (Cth) s.41(5)

Re Sterling; ex parte Esanda Pty Ltd (1980) 30 ALR 77
Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337
Re Lentini; ex parte Lentini v CSR Ltd (1991) 29 FCR
Coyne v Sun Securities Ltd and Commercial Equity Corporation Ltd and Others (1992) 8 WAR 218
Hayden and Others v Teplitzky and Others (1997) FCA 230, BC9701150
TQM Cargo Logistics Pty Ltd & Ors v Drake (Unreported SCNSW 2 September 1998)
Alexander v Pargiter (1998) 86 FCR 108
Lindholdt v Meritt Madden Printing Pty Ltd [2002] FCA 260

Applicant: EUGENE WASILENIA

Respondent: DEPUTY COMMISSIONER OF TAXATION

File No: SZ 1148 of 2002

Delivered on: 15 January 2003

Delivered at: Sydney

Hearing date: 19 December 2002

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr M Churchill

Solicitors for the Applicant: Mr S Smith

Counsel for the Respondent: Mr A Melrose

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Bankruptcy Notice NN 828 of 2001 be set aside.

2. The respondent to pay the applicant’s costs pursuant to the Federal Court Rules, to be taxed if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1148 of 2003

EUGENE WASILENIA

Applicant

And

DEPUTY COMMISSIONER OF TAXATION

Respondent

REASONS FOR JUDGMENT

1. The applicant in this case is a barrister who practices in the courts of New South Wales. On the 23 April 1999 the Deputy Commissioner of Taxation recovered judgment against him in the District Court of NSW, by default, in the sum of $61,580.17 including costs.

2. On 26 June 2000 the Commissioner applied to the Official Receiver of the Bankruptcy District of NSW for the issue of a bankruptcy notice. Notice NN 5216 of 2000 was issued advising Mr Wasilenia (the debtor) that he owed a debt of $68,496.24 which consisted of the original judgment debt together with interest and costs.

3. Notice NN 5216 of 2000 was not served personally upon the debtor.

   
   

   In October 2000 the Commissioner received a report from a process server indicating that attempts to serve the debtor were unsuccessful. On 22 January 2001 the notice was extended under sub-regulation 4.02A(2)(b) of the Bankruptcy Regulations until 26 June 2001. On

   
   

   19 February 2001 a process server left a copy of Notice NN 5216 of 2000 under the door of the debtor’s business address. The…