FEDERAL COURT OF AUSTRALIA

Park (Trustee) v Tschannen (Bankrupt) (No 2) [2016] FCA 361

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.49 of the Federal Court Rules 2011 (Cth), personal service of the First Respondent with the Form 9 Summons for Examination pursuant to s 81 of the Bankruptcy Act 1966 (Cth) attached together with the Notice of Filing and Hearing dated 20 November 2015 (the First Respondent Summons) is dispensed with.

2.    Pursuant to r 10.49 of the Federal Court Rules 2011 (Cth), in lieu of personal service of the First Respondent Summons, the First Respondent Summons together with a sealed copy of the Orders of this Honourable Court on 23 February 2016 and 14 April 2016 (the First Respondent Documents) be served on the First Respondent by:

(a)    sending a copy of the First Respondent Documents together with a covering letter that states the date of the e-mail transmission by email transmission to ‘warren8888@icloud.com’;

(b)    sending a copy of the First Respondent Documents together with a covering letter that states the date of the e-mail transmission by email transmission to ‘888wazza@gmail.com’;

(c)    sending a copy of the First Respondent Documents together with a covering letter that states the date of the e-mail transmission by email transmission to ‘unitydevelopment.cm@gmail.com’;

(d)    sending a copy of the First Respondent Documents by email transmission to Alicia Gorham at ‘geesha01@hotmail.com’ together with a covering letter stating the date of the email transmission and that Ms Gorham must:

(i)    inform the First Respondent that a copy of the First Respondent Documents are available for collection from JHK Legal; and

(ii)    inform the First Respondent that a copy of the First Respondent Documents have been sent to ‘warren8888@icloud.com’, ‘888wazza@gmail.com’ and ‘unitydevelopment.cm@gmail.com’ by email transmission;

(e)    sending a short message service (sms) message to Ms Gorham’s mobile telephone number, being [Redacted], with the following message:

‘Attention Ms Gorham: please be advised that pursuant to an order of the Federal Court of Australia in matter QUD 1053/2015 a Summons issued in the name of Warren Eric Tschannen has been sent by email transmission to geesha01@hotmail.com together with a covering letter to you. Please read these documents carefully. Pursuant to the Order you are required to inform Mr Tschannen that a copy of the Summons is available for collection from JHK Legal and a copy has been sent to ‘warren8888@icloud.com’, ‘888wazza@gmail.com’ and ‘unitydevelopment.cm@gmail.com’ by email transmission. If you have any questions, please contact Alicia Auden at JHK Legal on [Redacted] or alicia.auden@jhklegal.com.au’; and

(f)    sending a copy of the First Respondent Documents by email transmission to Alan Herbert at ‘alan.herbert88@yahoo.com.au’ together with a covering letter stating the date of the email transmission and that Mr Herbert must:

(i)    inform the First Respondent that a copy of the First Respondent Documents are available for collection from JHK Legal; and

(ii)    inform the First Respondent that a copy of the First Respondent Documents have been sent to ‘warren8888@icloud.com’, ‘888wazza@gmail.com’ and ‘unitydevelopment.cm@gmail.com’ by email transmission.

3.    Service is deemed effective 5 business days after service in accordance with paragraphs 2(a), 2(b), 2(c), 2(d), 2(e) and 2(f) is completed.

4.    Service in accordance with these Orders of this Court shall be deemed good and sufficient service of the First Respondent Summons upon the First Respondent.

5.    Costs of and incidental to this application are to be paid from the Bankrupt Estate.

6.    The Examination of Warren Eric Tschannen is listed on 19 May 2016 at 10.00am at the Federal Court, Level 6, Commonwealth Law Courts, 119 North Quay, Brisbane, in the State of Queensland.

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

REASONS FOR JUDGMENT

EDELMAN J:

Introduction

1    On 10 March 2016, I granted the applicant, the Trustee, leave to serve documents, including a summons for examination, on the first respondent, Mr Tschannen, in the Kingdom of Thailand. The order for service of the summons required service by registered mail in accordance with the Convention between Australia and Thailand. The Trustee had also sought orders that the summons be served by substituted service under r 10.49 of the Federal Court Rules 2011 (Cth). I held that some attempt at service needed to be made according to the Convention (the Agreement on Judicial Assistance in Civil and Commercial Matters and Co-operation in Arbitration between Australia and the Kingdom of Thailand, Australia–Thailand, signed 2 October 1997, [1998] ATS 18 (entered into force 29 July 1998)) before substituted service would be ordered under r 10.49 of the Federal Court Rules. The part of the Trustee’s application which sought substituted service was adjourned pending the Trustee’s attempt at service according to the Convention.

2    On 16 March 2016, solicitors for the Trustee sent letters by regular prepaid post to the 18 known creditors who may hold a claim in the bankrupt estate of Mr Tschannen. The purpose of the letters was to put the creditors on notice that the first and second respondents were required to attend the Federal Court Queensland District Registry for examinations pursuant to s 81 of the Bankruptcy Act 1966 (Cth).

3    The Trustee then attempted, but failed, to effect service on Mr Tschannen in accordance with the requirements of the Convention. The Trustee has now amended his application to seek amended substituted service orders at a resumption of the adjourned hearing. He has asked that this application be determined on the papers.

4    For the following reasons, the orders for substituted service that are sought by the Trustee should be made, with minor amendments.

The Trustee’s attempts at service

5    Since the date of my first judgment (Park (Trustee) v Tschannen (Bankrupt) [2016] FCA 137), the Trustee has attempted to effect service on Mr Tschannen in accordance with the Convention in the following ways.

6    On 11 March 2016, the solicitors for the Trustee sent a letter to Mr Tschannen by international registered post. The letter was sent to Hotel Indigo where, for the reasons explained in my first judgment, the Trustee thought that Mr Tschannen was staying in Bangkok. The tracking results of the letter states that delivery was successful on 22 March 2016. The letter enclosed the following documents:

(1)    a sealed copy of the orders I made on 10 March 2016;

(2)    a sealed copy of the Form 9 Summons for Examination attached together with the Notice of Filing and Hearing dated 20 November 2015; and

(3)    a covering letter from the solicitors for the Trustee.

7    On 22 March 2016, a solicitor for the Trustee telephoned Hotel Indigo to enquire whether the letter had been received. The attendant acknowledged receipt of the letter. She said that Mr Tschannen had checked out of the hotel on 16 March 2016, but that he had left his bags at reception. The attendant said she would give the letter to Mr Tschannen when he returned to the hotel, and that she would email the solicitor for the Trustee when she did so.

8    On 22 March 2016, a solicitor for the Trustee telephoned a person who was helping Mr Tschannen with his statement of affairs. That person, Mr Herbert, said that he spoke to Mr Tschannen regularly, and that he emailed Mr Tschannen at 888wazza@gmail.com. Mr Herbert said he was willing to send documents by email to Mr Tschannen.

9    On 24 March 2016, a solicitor for the Trustee emailed 888wazza@gmail.com and unitydevelopment.cm@gmail.com. The solicitor wrote in her emails that the Trustee was trying to contact Mr Tschannen regarding his bankrupt estate, and that Mr Tschannen should advise by return correspondence of his address and telephone number as a matter of priority. No response to either email was received.

10    On 24 March 2016 and on 29 March 2016, a solicitor for the Trustee telephoned Hotel Indigo to enquire whether the registered post letter had been given to Mr Tschannen. The attendant who answered each call said that Mr Tschannen had not yet checked back into the hotel. The attendants said they would give Mr Tschannen the letter when he returned to collect his bags.

11    On 12 April 2016, a legal assistant working with the solicitors for the Trustee telephoned Hotel Indigo to enquire as to whether Mr Tschannen had returned to the hotel and whether he had been given the letter. The attendant responded that Mr Tschannen had not been given the letter, but that he was expected back at the hotel later that same day.

12    On 13 April 2016, the legal assistant telephoned Hotel Indigo again and was told that Mr Tschannen had not returned to the hotel and had not collected the letter.

13    In summary, all reasonable and practicable attempts have been made by the Trustee to effect service on Mr Tschannen as required by the Convention. Those attempts have failed.

The orders for substituted service which are sought

14    The Trustee relies upon r 10.49(a) of the Federal Court Rules that “if service was not successful on a person in a foreign country, in accordance with a convention … a party may apply to the Court without notice for an order”:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)    specifying that the document is taken to have been served:

(i)    on the happening of a specified event; or

(ii)    at the end of a specified time.

15    I am satisfied from the evidence I have described above that my discretion should be exercised under r 10.49(a). Serious efforts have been made to serve Mr Tschannen in accordance with the Convention requirements. The Trustee appears to have exhausted all reasonable and practicable means to serve Mr Tschannen consistently with the Convention.

16    The substituted service that is now sought by the Trustee is service of the Form 9 Summons for Examination, together with the Notice of Filing and Hearing, and a sealed copy of the orders of this Court by:

(a)    sending a copy of the First Respondent Documents together with a covering letter that states the date of the e-mail transmission by email transmission to ‘warren8888@icloud.com’;

(b)    sending a copy of the First Respondent Documents together with a covering letter that states the date of the e-mail transmission by email transmission to ‘888wazza@gmail.com’;

(c)    sending a copy of the First Respondent Documents together with a covering letter that states the date of the e-mail transmission by email transmission to ‘unitydevelopment.cm@gmail.com’;

(d)     sending a copy of the First Respondent Documents by email transmission to Alicia Gorham at ‘geesha01@hotmail.com’ together with a covering letter stating the date of the email transmission and that Ms Gorham must:

i.    inform the First Respondent that a copy of the First Respondent Documents are available for collection from JHK Legal; and

ii.    inform the First Respondent that a copy of the First Respondent Documents have been sent to ‘warren8888@icloud.com’, ‘888wazza@gmail.com’ and ‘unitydevelopment.cm@gmail.com’ by email transmission.

(e)    sending a short message service (sms) message to Alicia Gorham’s mobile telephone number being [Redacted] with the following message:

‘Attention Ms Gorham: please be advised that pursuant to an order of the Federal Court of Australia in matter QUD 1053/2015 a Summons issued in the name of Warren Eric Tschannen has been sent by email transmission to geesha01@hotmail.com together with a covering letter to you. Please read these documents carefully. Pursuant to the Order you are required to inform Mr Tschannen that a copy of the Summons is available for collection from JHK Legal and a copy has been sent to ‘warren8888@icloud.com’, ‘888wazza@gmail.com’ and ‘unitydevelopment.cm@gmail.com’ by email transmission. If you have any questions, please contact Alicia Auden at JHK Legal on [Redacted] or alicia.auden@jhklegal.com.au’; and

(f)     sending a copy of the First Respondent Documents by email transmission to Alan Herbert at ‘alan.herbert88@yahoo.com.au’ together with a covering letter stating the date of the email transmission and that Mr Herbert must:

i.    inform the First Respondent that a copy of the First Respondent Documents are available for collection from JHK Legal; and

ii.    inform the First Respondent that a copy of the First Respondent Documents have been sent to ‘warren8888@icloud.com’, ‘888wazza@gmail.com’ and ‘unitydevelopment.cm@gmail.com’ by email transmission.

Conclusion

17    On the evidence before the Court, the proposed method of substituted service is very likely to bring the documents before Mr Tschannen either directly, or via Ms Gorham or via Mr Herbert. The email account 888wazza@gmail.com is the email address at which Mr Herbert has emailed Mr Tschannen. The email account unitydevelopment.cm@gmail.com was given to a solicitor for the Trustee by an attendant at the Hotel Indigo where Mr Tschannen stayed. And Ms Gorham is Mr Tschannen’s niece with whom he is in contact.

18    It is appropriate that the Trustee be empowered to effect substituted service in accordance with r 10.49 of the Federal Court Rules.

Associate:    

Dated:    14 April 2016