FEDERAL COURT OF AUSTRALIA

Drake v Stanton [1999] FCA 1635

BANKRUPTCY – application for sequestration order – whether bankruptcy notice was served at last known address of the judgment debtor – the address which has been made known by the applicant as at the time closest to the date in question

Bankruptcy Regulations reg 16.01(1)(c)

Federal Court Rules O 77 r 19(3)

IN THE MATTER OF JOSEPH ANTHONY STANTON

TREVOR HOWARD DRAKE TRADING AS T H DRAKE & ASSOCIATES v

JOSEPH ANTHONY STANTON

N 7106 of 1999

TAMBERLIN J

SYDNEY

5 NOVEMBER 1999

IN THE MATTER OF JOSEPH ANTHONY STANTON

THE COURT ORDERS THAT:

1.         The necessity to file evidence of search in accordance with O 77 r 19(3) of the Federal Court Rules be dispensed with.

2.         A sequestration order is made in the estate of Joseph Anthony Stanton.

3.         Max Christopher Donnelly is appointed as Official Trustee of the estate.

4.         A copy of the sequestration order is to be sent to the Official Receiver within 48 hours.

5.         The respondent pay the applicant’s costs, including any reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF JOSEPH ANTHONY STANTON

REASONS FOR JUDGMENT

1                     In this matter the only question for determination by the Court is whether a bankruptcy notice was served on 4 December 1998 in accordance with the requirements of regulation 16.01(1)(c) of the Bankruptcy Regulations.  That regulation provides that unless the contrary intention appears, where a document is required or permitted to be served on a person, the document may be left in an envelope or similar packaging, marked with the person's name at the last known address of the person.  The issue turns on the words: "at the last-known address of the person". 

2                     Regulation 16.01(2) provides that a document given or sent to or served on a person in accordance with sub-regulation (1) is taken in the absence of proof to the contrary to have been received by or served on the person.  In the present case the question arises as to whether the envelope was left at the last known address of the person.  The evidence establishes that it was left in an envelope at 396 Grey Street, Glen Innes, and was marked with the person's name.

3                     The Bankruptcy Notice which was issued on 9 November 1998 shows the address of the debtor, who is the respondent in this matter, on the first page as 292 Grey Street, Glen Innes, New South Wales.  The Creditor's Petition which was verified by Mr Drake, the judgment creditor and applicant in this matter, also states, in paragraph 1, that Joseph Anthony Stanton resides at 292 Grey Street, Glen Innes.  Evidence has been given by Mr Kekatos, who is the solicitor acting for the judgment debtor, to the effect that in November 1998 he assisted the debtor to draft a Request to State a Case, and that he had previously assisted the company, J Stanton Enterprises Pty Limited, to file a Request to State a Case, and that he used a form in which he gave the former address of the debtor.

4                     Mr Kekatos states that as far as he is aware the usual place of abode of Joseph Stanton is 292 Grey Street, Glen Innes and all correspondence is forwarded to that address.  He says that due to the urgency in filing the Request to State a Case the address 396 Grey Street, at the bottom of the Request was not amended and this was by reason of an oversight by him. 

5                     The references to “usual place of abode”, of course, and to “resides”, refer to the residential address of Mr Stanton.  That is not the expression which is used in the relevant provision, as Mr Skinner points out for the judgment creditor.  The relevant expression is “the last-known address of the person” and it does not matter whether the debtor currently lives or resides there or not.  The expression is difficult on one view in the sense that it does not indicate to whom the address must be known in order to satisfy the requirements of the person.  On one view of it, it could be taken to be the knowledge of the creditor.  Alternatively, as advanced by Mr Skinner, the words could mean the last-known address of the person in an objective sense, namely that address at which the debtor could be said to be located.

6                     The evidence which has been adduced by the judgment creditor in the matter indicates that a number of statements have been made by Mr Stanton himself as to his address.  One of these is a statement in the Request to State a Case which is signed by Mr Stanton, to the effect that the address for service is J Stanton Enterprises Pty Limited at 396 Grey Street, Glen Innes.

7                     Another matter which is relied upon for the judgment creditor is an Affidavit sworn by Mr Stanton on 11 December 1998 and filed in the Local Court in which he gives his address as 396 Grey Street, Glen Innes in the State of New South Wales.  Attached to that is a copy of the request to which I have referred earlier together with a copy of a recognizance entered into on 3 December 1998 on behalf of Mr Stanton.  Other evidence which has been adduced is a transcript of proceedings on 6 May 1998 wherein Mr Stanton stated his address to be 396 Grey Street.  This inconsistency, it is said for the debtor, throws up a real doubt as to whether the Bankruptcy Notice has been served at the last-known address.

8                     In my view, on the language of reg 16.01(1)(c), the reference to “last-known address of the person” is to that address which has been made known by the applicant as at the time closest to the date in question.  In the present case the evidence indicates clearly that the address which was last asserted by the applicant was the address at 396 Grey Street.  The applicant has not been called to give any evidence to the contrary. 

9                     There is no explanation given as to why the applicant has not appeared or given evidence.  Some limited evidence has been given by his sister but in my view this does not advance the matter any further.

10                  I think the weight of the sworn evidence which has been placed before me favours the conclusion that the Bankruptcy Notice has been served at the last known address of the judgment debtor.  The evidence from the process server was that he placed the envelope or tucked the envelope under the front door of the premises at 396 Grey Street.  This does indicate, by the form of expression, that there was some difficulty in placing the envelope under the door and there is some suggestion that there may have been some form of stopper behind the door.  It is inferentially suggested that the process server may in some way have been in error.  In my view I accept the evidence of Mr Turner that the envelope was left at the premises in a package marked with the name of Mr Stanton.

11                  Accordingly, I do not accept that the document has not been served.

12                  On the question of costs I do not think it is appropriate to split the costs.  I think the Petitioning Creditor’s application has been successful in substance and that the costs ought to follow the event.  It is not a case where they ought to be apportioned.  On application made by counsel for the Petitioning Creditor, I dispense with the necessity to file evidence of search and I note that an undertaking has been given that the consent to act as trustee will be filed as required by O 77 r 19(3) of the Federal Court Rules today.  Accordingly, I dispense with the requirement that this be done before the making of the order.

13                  I make a sequestration order against the estate of Joseph Anthony Stanton and I appoint Max Christopher Donnelly as Official Trustee of the estate.  I direct that a copy of the sequestration order be sent to the Official Receiver within 48 hours, and I order that the judgment debtor pay the creditor's costs, including any reserved costs, without any apportionment.

Associate:

Dated:              23 November 1999