FEDERAL COURT OF AUSTRALIA

Via Sanantonio Pty Ltd v Commonwealth Bank of Australia [2019] FCA 58

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant must pay the respondent's costs, as agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

3.    The applicant must pay the respondent's costs, as agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The amended application be dismissed.

4.    The applicant must pay the respondent’s costs, as agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The amended application be dismissed.

2.    The applicant must pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J

1    These four proceedings were all heard together. Two involve applications to set aside statutory demands under s 459E of the Corporations Act 2001 (Cth) (Corporations Act) (NSD 1281 and 1282 of 2018). The other two applications seek to set aside bankruptcy notices issued by the Official Receiver at the request of the respondent, the Commonwealth Bank of Australia (CBA) against Ms Claudia Mastronardo (NSD1286 of 2018) and Mr Antonio Mastronardo (NSD 1287 of 2018) respectively. The statutory demands were issued by CBA.

2    The parties agree that the proceedings relating to the statutory demands must now be dismissed, following the High Court’s recent rejection of the applicants’ applications for special leave to appeal against a decision of the Court of Appeal of New South Wales (Mastronardo v Commonwealth Bank of Australia Ltd [2018] NSWCA 136 (unreported, 22 June 2018). It will be necessary to make an order for costs in favour of the respondent in NSD 1281 of 2018 and NSD 1282 of 2018.

3    That leaves for determination the remaining two proceedings relating to the bankruptcy notices, to which I now turn.

4    Mr and Mrs Mastronardo claim that the bankruptcy notices are a nullity. The applicants do not contend service of the bankruptcy notices by CBA was defective, or that the final judgment or orders supporting the notices were not provided with service of the notices. Instead they allege that the relevant judgment which supported each bankruptcy notice was not “attached” at the time the bankruptcy notices were issued by the Official Receiver, as required by s 41(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and reg 4.02 of the Bankruptcy Regulations 1996 (Cth) (Bankruptcy Regulations) (see Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144: 225 FCR 458 (Curtis) at [29]-[42]). It is desirable to set out those provisions:

41 Bankruptcy notices

(1)    An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

(a)    a final judgment or final order that:

(i)    is of the kind described in paragraph 40(1)(g); and

(ii)    is for an amount of at least $5,000; or

(b)    2 or more final judgments or final orders that:

(i)    are of the kind described in paragraph 40(1)(g); and

(ii)    taken together are for an amount of at least $5,000.

(2)    The notice must be in accordance with the form prescribed by the regulations.

(3)    A bankruptcy notice shall not be issued in relation to a debtor:

(a)    except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;

(b)    if, at the time of the application for the issue of the bankruptcy notice, execution of a judgment or order to which it relates has been stayed; or

(c)    in respect of a judgment or order for the payment of money if:

(i)    a period of more than 6 years has elapsed since the judgment was given or the order was made; or

(ii)    the operation of the judgment or order is suspended under section 37.

…

5    Regulation 4.02 of the Bankruptcy Regulations provides:

Form of bankruptcy notices

(1)    For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed.

(2)    A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes).

(3)    Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901.

Note:     Under section 25C of the Acts Interpretation Act 1901, where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient; see also paragraph 46(1)(a) of that Act for the application of that Act to legislative instruments other than Acts.

6    Form 1 requires specified information to be set out, including the “Amount as per the attached final judgment/s or final order/s (note A)”. Note A states:

If an attached final judgment or final order is expressed in an amount of foreign currency, you may pay the amount in that foreign currency or pay an equivalent amount in Australian dollars that has been calculated using the telegraphic transfer rate of [name of institution]…as at [date]…

7    The applicants acknowledge that their primary argument is inconsistent with the Court’s judgment in Curtis at [51]-[53] and [57]. The applicants contend that those passages in Curtis are wrong. Alternatively, and presumably in recognition of the fact that this Court is bound by Curtis, they submit that the passages are distinguishable. They say that is because there were express statements on behalf of the Official Receiver in each covering letter attached to the emails dated 27 June 2018, when the relevant bankruptcy notices were issued to the respondent, that it was necessary for the respondent to serve the final judgment or order with the bankruptcy notices. The applicants contended that an inference should be drawn from those express statements that the Official Receiver was aware that the final judgment or order was not relevantly “attached” to the bankruptcy notices sent by the Official Receiver to CBA for service upon the applicants, for the purposes of compliance with the relevant requirements in s 41 of the Bankruptcy Act and reg 4.02 of the Bankruptcy Regulations. They emphasise that the prescribed form expressly requires that the judgment or orders be attached.

8    Accordingly, the applicants submitted that both bankruptcy notices were a nullity or void, citing James v Federal Commissioner of Taxation (1955) 93 CLR 631 at 644, Pillai v Comptroller of Income Tax [1970] AC 1124 at 1131, Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34; 165 CLR 71 (Crowl) at 79-80 and Adams v Lambert [2006] HCA 10; 228 CLR 409 (Adams) at [28]-[29]. They also contended that the non-compliance was incapable of being cured by the operation of s 306 of the Bankruptcy Act.

9    It is unnecessary to summarise the submissions of the CBA in response to these contentions because they are substantially reflected in my reasons for dismissing the relevant applications.

Consideration and determination

10    In Curtis, the Full Court addressed an argument that the effect of s 41(2) and reg 4.02 and the prescribed form was to require a copy of the final judgment or order to be attached to the bankruptcy notice at the time of issue, which was the administrative act of the Official Receiver which generated the bankruptcy notice which was then emailed to the recipient. As here, it was also contended that if a bankruptcy notice was defective at the time of its issue in relation to a matter made essential by the legislative terms, it could not be cured by dint of s 306(1) of the Bankruptcy Act.

11    It is desirable to set out some relevant passages from the Full Court’s decision in Curtis at [50]-[57] inclusively:

50.    His Honour (at [24]) dealt with the question of “attached” by referring to various dictionary definitions. The Oxford English Dictionary gives various meanings to the transitive verb, being:

“To tack on; to fasten or join” (item 5a)

“To connect or join on functionally” (item 6a)

Further, “attached” does not necessarily mean physically fastened (Stroud’s Judicial Dictionary of Words and Phrases (8th ed, Sweet and Maxwell, 2012) at p 239). His Honour in this context also referred to Practice Note CM 6, although we do not find this of much assistance in the present context.

51    The question is whether the pdf of the copy judgment could be treated as “attached” to the pdf of the bankruptcy notice, both being attached (together with the letter) to the email. Now clearly they were both attached to the email. The question is whether they were attached to each other. In our view, they were so attached. They were attached to the same email and electronically proximate to each other. Both were sent together rather than separately. Moreover, the one electronic communication (the email and attachments) was not divisible electronically at the time of issue or immediate receipt. Later, of course, one could choose to separately open each pdf and print hard copies separately. But at the time of electronic issue, the bankruptcy notice and the copy judgment or order were together and not separated. In one sense they were electronically “glued” together. They were electronically “fastened” to each other. Short of the two documents being constituted in the one pdf, they were as close electronically as they could be. Further, if they had been constituted in the one pdf, then it might have been argued that they were one and the same document, rather than being a notice with an attachment. Moreover, the fact that each pdf was itself attached to the email does not entail that each pdf could not also be attached to each other.

52    It was put that as the accompanying letter was also attached to the email in a separate pdf, that the above reasoning might suggest that the letter was attached to the bankruptcy notice. In one sense it may have been, but that did not invalidate the bankruptcy notice; that was not a defect, alternatively s 306(1) would apply to cure such a formal defect or irregularity. In any event, such an argument does not appear to have been run below.

53    In summary, in our view, at the time of issue the copy judgment was attached to the bankruptcy notice. That conclusion is sufficient to dispose of this appeal.

Has there been substantial compliance in any event?

54    Alternatively, even if the copy judgment was not, strictly speaking, attached, reg 4.02(3) makes it plain that strict compliance is not required. Substantial compliance is sufficient (see s 25C of the AIA and also Bank of Melbourne Ltd v Hannan (1997) 78 FCR 249 at 251-252 per Northrop ACJ, Trustees of the Franciscan Missionaries of Mary v Weir (2000) 98 FCR 447 at [16] per Beaumont, Burchett and Hely JJ and Australian Steel Company at [88] per Lee J and [110]-[111] per Gyles J).

55    In other words, the mandatory obligation of reg 4.02(2) only requires substantial compliance. If there has been substantial compliance, then there is no defect and, accordingly, s 306(1) does not then need to be considered.

56    To the same effect, one could also argue, as an anterior point to any consideration of reg 4.02(2)-(3), that the words “in accordance with” in s 41(2) as distinct from just the word “in” permits of some degree of flexibility, so that only substantial compliance with the form is required. And if this is accepted, one never gets to reg 4.02(3) (see Farrugia v Farrugia (2000) 99 FCR 16 at [61]-[68] per Katz J). But for present purposes, it matters little which route is used. The short point is that only substantial compliance is required.

57    In our view, even if it is said that the copy judgment was not strictly attached to the notice at the time of issue, nevertheless there has been substantial compliance. The act of issue electronically delivered the copy judgment together with the bankruptcy notice. It is as if two documents had been physically handed over the counter and it being said “here is the bankruptcy notice with the copy judgment referred to”. They were electronically together. Indeed, the only way they could have been closer, electronically, is for one pdf to have been used or, perhaps, for the bankruptcy notice to embody a hyperlink to the copy judgment. The latter course would be problematic for two reasons. First, it would change the face of Form 1. Second, on service of the physical notice, there would be absent the physical attachment; hyperlinks are only relevant in an electronic medium. As to the one pdf question, in our view, using two pdfs rather than one pdf is substantial compliance. We do not see a substantial difference between using two pdfs rather than one pdf; indeed, as we have said, it might be said that if you had used only one pdf, then you would have had only one document and not a notice with the copy judgment attached. As we have said earlier, there has been literal compliance. But if we are wrong, in our view there has been substantial compliance. Accordingly, the bankruptcy notice is valid without any need to rely upon s 306(1).

12    The body of the text of the covering letters from the Official Receiver which accompanied the bankruptcy notices which were issued to the respondent in this case were in substantially similar terms. Using the covering letter relating to Mr Mastronardo (NSD 1287/2018) as an example, it stated (emphasis added):

ISSUE OF A BANKRUPTCY NOTICE

Bankruptcy Notice number:    225496

Debtor/s:     Antonio MASTRONARDO

Your application for the issue of a bankruptcy notice in respect of the debtor/s specified above has been accepted.

The bankruptcy notice 225946 was issued on 27 June 2018.

Please find enclosed the bankruptcy notice that you need to serve on the debtor/s, in addition to any judgments, orders and other documents supporting its issue.

Please contact our National Service Centre on the number below is you have any enquiries or require further information. Please make note of your reference number and ensure you quote it when contacting us.

Yours sincerely

13    Both covering letters from the Official Receiver were accompanied by a two page bankruptcy notice and a copy of the judgment/order dated 21 August 2017 against Mr and Mrs Mastronardo respectively.

14    The applicants confirmed that the relevant sentence which they say distinguishes their cases from the circumstances in Curtis is the sentence which is emphasised in the passage in [12] above.

15    The CBA relied upon the rejection of a similar argument which was put in Kessly v Benjamin & Khoury [2018] FCCA 2918 (Kessly) and, in particular, what Baird J stated at [43]-[46]:

[43]    I do not accept that the additional paragraph of the AFSA’s letter suffices to distinguish Curtis v Singtel. In context, the paragraph does no more than act as a reminder that all of the named documents need to be served. It does not change the fact of the one electronic communication (email and attachments) being sent, nor the character of the documents, the manner and circumstances of issue, or make not-attached what the Full Court held was attached for the purposes of reg.4.02 and Form 1: see the Full Court’s discussion of the meaning of “attached” at [50].

[44]    The documents and circumstances of issue with which the Full Court was concerned in Curtis v Singtel are the same as the documents and circumstances of issue before me: a cover email from AFSA with portable document files accompanying the email and identified as attachments - comprising a cover letter from AFSA, the form of bankruptcy notice, and copy order(s) of the Supreme Court (see Curtis v Singtel at [17], and above at [6]). The cover emails are in the same terms.

[45]    The Full Court held that the act of issue of the bankruptcy notice was the sending of the email by AFSA with the attachments. The email and portable document files were delivered as the one transmission. At [51]–[52] the Full Court stated that at the time of electronic issue the bankruptcy notice and copy of judgment were together and not separated, they were electronically “glued” together, they were electronically “fastened” together, short of being in one pdf, they were as close electronically as they could be, noting that if they had been constituted in the one pdf the argument may have been put that they were one and the same document. At [53], the Full Court held that at the time of issue the copy judgment was attached to bankruptcy notice. This satisfied the legislation (at [43]–[53]), alternatively, strict compliance was not required, there was substantial compliance, and that was all that was required (at [54]–[56]).

[46]    Curtis v Singtel was concerned with almost precisely similar facts. I consider that it is indistinguishable, and I am not convinced or persuaded that it is wrong. It follows that this Court is bound by it, and that Ms Kessly’s ground 2 fails.

16    I respectfully agree with Baird J’s reasons for rejecting the argument that Curtis is distinguishable on the basis contended for by the applicants here. The covering letter in Kessly contained the same sentence as that which is highlighted in [12] above. The authorities relied upon by the applicants do not assist their case either (see above at [8]). Those cases and the passages cited are concerned with the applicable principles for determining whether a defect is a ‘formal defect’ for the purposes of s 306 of the Bankruptcy Act. As the Full Court explained in Curtis at [54]-[57], that question does not arise in the present circumstances where the obligation in reg 4.02(2) only requires substantial compliance to be satisfied (this view was subsequently affirmed by Kenny, Tracey, Robertson and Mortimer JJ in MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25; 237 FCR 156 at [40]. This means that even if the applicants were to succeed on their “attachment” submission, there would be no defect under s 41(2) and therefore no occasion for the operation of s 306(1). I am bound to apply the relevant reasoning of the Full Court in Curtis (even if I considered it to be clearly wrong, which I do not). I shall treat the applicants’ contention that the relevant passages in Curtis are wrong as a formal submission which is designed to preserve the applicants’ legal rights elsewhere.

17    For completeness, I should also indicate that, if necessary, I would have accepted CBA’s contention that the contents of the covering letter from the Official Receiver are not relevant in circumstances where there is no legislative requirement to serve a covering letter on any person, including the debtor. Rather, the requirement is to serve the bankruptcy notice. The applicants did not contend that the terms of the bankruptcy notices here were in any way materially different from the notice in Curtis.

Conclusions

18    For these reasons, each of the four applications will be dismissed, with costs.

Associate:

Dated:    1 February 2019