FEDERAL COURT OF AUSTRALIA

Lu v A.C. & R. Commercial Kitchens Pty Ltd [2013] FCA 671

THE COURT ORDERS THAT:

1.    The Interlocutory Application filed by the applicant on 27 June 2013 be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to that Interlocutory Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 6 June 2013, the NSW District Registrar dismissed an application by the applicant for an order setting aside Bankruptcy Notice No BN 158987 issued on 19 March 2013 against the applicant (the Bankruptcy Notice).

2    By Interlocutory Application filed on 27 June 2013 (the Interlocutory Application) the applicant sought orders that:

1.    The Orders made by Registrar Wall on 6 June be set aside.

2.    Pursuant to section 30 Bankruptcy Act 1966 the Bankrupcty Notice BN 158987 issued 19 March 2013, which was served on the Applicant on 5 April 2013, be set aside.

3.    Pursuant to section 30 Bankruptcy Act 1966 the Bankruptcy Notice BN 158987 issued 19 March 2013, which was served on the Applicant on 19 April 2013, be set aside.

3    The applicant also sought costs and such other relief as the Court deemed appropriate.

4    In effect, the applicant seeks a review of the Registrar’s decision and a consequential order setting aside the Bankruptcy Notice. Under the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011, a review of a Registrar’s decision is a hearing de novo. The relevant principles governing hearings de novo in this Court were recently explained by Kenny J in Deputy Commissioner of Taxation v Australian Securities and Investments Commission [2013] FCA 623 at [32]–[38].

5    In support of her Interlocutory Application, the applicant read an affidavit sworn by her on 30 April 2013. This is the same affidavit upon which the applicant relied at the hearing before the Registrar. In addition, she sought to add to the evidentiary material before the Court by tendering a bundle of documents. I rejected that tender. The documents sought to be tendered were marked as “MFI-1”. They will remain with the Court file.

6    The respondent relied upon an affidavit sworn by Christopher Eric Macphillamy on 8 May 2013.

7    The grounds relied upon by the applicant in support of her Interlocutory Application are set out in paragraph 8 of her affidavit. In that paragraph she said:

I ask the Court to declare that the bankruptcy notice is invalid on the grounds that:

(a)    The first notice did not have attached to it the judgment.

(b)    I cannot know whether the second notice is the same as the notice issued by the Official Receiver.

(c)    Neither notice specifies a proper address for a place for me to pay the claimed amount.

8    As to the first of the grounds relied upon by the applicant, the relevant facts embedded in the ground are not disputed. That is, that on 5 April 2013, the applicant was served with a version of the Bankruptcy Notice which comprised only the first two pages of the Notice and which did not have attached to it a copy of the Default Judgment entered against the applicant in the Supreme Court of the Australian Capital Territory which was the judgment upon which the Bankruptcy Notice was founded. The respondent recognised that service of only part of the Bankruptcy Notice might not be effective service of the Bankruptcy Notice. For that reason, it re-served the Bankruptcy Notice on 19 April 2013. There is no dispute that, on 19 April 2013, a complete copy of the Bankruptcy Notice was served upon the applicant. A creditor who has realised that there is a potential defect or irregularity in the service of a bankruptcy notice upon his or her debtor cannot be prevented from re-serving the bankruptcy notice in order to remedy that defect or irregularity. Although service on the first occasion may not be good service, that circumstance, taken on its own, does not render the subsequent attempt at service ineffective. The subsequent attempt at service must stand or fall on its own merits.

9    In the present case, I am satisfied that service of the Bankruptcy Notice was validly effected on the applicant and that it was effected on 19 April 2013. The fact that the respondent had served an arguably incomplete version of the Bankruptcy Notice on an earlier occasion does not provide any basis for setting aside the Bankruptcy Notice. I reject the first ground relied upon by the applicant.

10    As to the second ground, there is no evidence to support a conclusion that the Bankruptcy Notice issued by the Official Receiver was in any form other than the form which was served on the applicant on 19 April 2013 and which is annexed to her affidavit as Annexure JL2. All of the evidence points to the opposite conclusion (see, in particular, the affidavit of Mr Macphillamy and the documents annexed to that affidavit).

11    Frankly, I do not understand the point sought to be made by the second ground. The Bankruptcy Notice itself is obviously the same Notice as was served on the first occasion. The only difference between the two documents served was that, on the second occasion, the relevant Default Judgment was attached to the Notice whereas, on the first occasion, it was not. There is nothing in the second ground and I reject it.

12    The third ground relied upon by the applicant raises the question of whether or not a bankruptcy notice which requires payment at a Post Office box is defective. I do not think that a bankruptcy notice which contains such a stipulation is invalid. This view is consistent with the relevant part of the ratio decidendi of my decision in Croker v Commonwealth of Australia; In the Matter of Croker (2010) 8 ABC(NS) 424; [2010] FCA 1031 although the precise point in that case concerning the stipulation of a Post Office box as the place for payment was not the same as the point argued by the applicant in this case.

13    Accordingly, for the above reasons, the applicant has failed to satisfy me that the Bankruptcy Notice should be set aside and I decline to do so. The applicant’s Interlocutory Application will be dismissed with costs.

Associate:

Dated:    10 July 2013