Federal Court of Australia

Quinn v O’Rourke, in the matter of O’Rourke (No 2) [2020] FCA 1156

ORDERS

THE COURT ORDERS THAT:

1.    The estate of Susan Mary O’Rourke be sequestrated under the Bankruptcy Act 1966 (Cth).

2.    The applicant creditors’ costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

3.    The date of the act of bankruptcy is 10 January 2020.

4.    A consent to act as trustee signed by Paul Andrew Leroy has been filed under s 156A of the Bankruptcy Act 1966 (Cth).

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicants (Mr and Mrs Quinn) seek a sequestration order against the respondent (Ms O’Rourke) under s 43 of the Bankruptcy Act 1966 (Cth) (Act).

2    The amended creditor’s petition, filed with leave on 10 August 2020, states that Ms O’Rourke owes Mr and Mrs Quinn the amount of $277,126.95 for a judgment made by the District Court of New South Wales on 6 November 2019 (District Court judgment), after Ms O’Rourke filed an “Acknowledgement of liquidated claim” (acknowledgement of debt) by which she acknowledged the whole of the amount being claimed by Mr and Mrs Quinn.

3    The act of bankruptcy stated in the amended creditor’s petition is as follows:

The respondent debtor failed to comply on or before 10 January 2020 with the requirements of a bankruptcy notice served on her on 20 December 2019 or to satisfy the Court that she had a counter-claim, set off or cross-demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that she could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.

4    The creditor’s petition was amended pursuant to an order made on 10 August 2020, to change the date of the act of bankruptcy, on the basis that the bankruptcy notice was served on 20 December 2019 and not 7 January 2020 as had previously been stated.

5    Ms O’Rourke filed a notice of opposition to the creditor’s petition, which raises five grounds of opposition. The main ground is that there was no act of bankruptcy as described in the creditor’s petition, based on the contentions that the bankruptcy notice was not served on Ms O’Rourke, or was defective for failing to attach the District Court judgment on which it was based, or because the bankruptcy notice was not served on 7 January 2020. The latter issue fell away once the creditor’s petition was amended.

6    The Quinns contend that the bankruptcy notice was served on Ms O’Rourke in the following two ways:

(1)    by being left at 21 Roslyn Gardens, Elizabeth Bay (Elizabeth Bay address); and

(2)    by being sent by email to susan.orourke53@gmail.com email address (gmail53 address).

Legal framework

7    Section 43 of the Act provides:

(1)    Subject to this Act, where:

(a)    a debtor has committed an act of bankruptcy; and

(b)    at the time when the act of bankruptcy was committed, the debtor:

(i)    was personally present or ordinarily resident in Australia;

(ii)    had a dwelling-house or place of business in Australia;

(iii)    was carrying on business in Australia, either personally or by means of an agent or manager; or

(iv)    was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;

the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.

8    Section 52(1) of the Act provides:

(1)    At the hearing of a creditor’s petition, the Court shall require proof of:

(a)    the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)    service of the petition; and

(c)    the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

9    The creditor’s petition must identify the act of bankruptcy on which the petition is founded. Section 40(1)(g) of the Act provides for the commission of an act of bankruptcy by non-compliance with a bankruptcy notice. Section 41(2) of the Act provides that a bankruptcy notice must be in accordance with the form prescribed by the regulations. Regulation 4.02(2) of the Bankruptcy Regulations 1996 (Regulations) provides that a bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes). A copy of the relevant judgment or order must be attached to the bankruptcy notice at the time of service: Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144 at [35]; 225 FCR 458.

10    The Act does not require personal service of a bankruptcy notice. Regulation 16.01 of the Regulations makes the following relevant provision for service of documents under the Act:

(1)    Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be:

…

(c)    left, in an envelope or similar packaging marked with the person's name, at the last-known address of the person; or

…

(e)    sent by facsimile transmission or another mode of electronic transmission:

(i)    to a facility maintained by the person for receipt of electronically transmitted documents; or

(ii)    in such a manner (for example, by electronic mail) that the document should, in the ordinary course of events, be received by the person.

(2)    A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person:

…

(b)     in the case of service in accordance with paragraph (1)(c), (d) or (e)--when the document is left, delivered or transmitted, as the case requires.

Evidence

11    The Quinns’ evidence comprised the following:

(1)    the creditor’s petition and affidavits of each of the Quinns purporting to verify the facts stated in the creditor’s petition;

(2)    affidavits of Andrew Ireland, solicitor of Axon Legal, acting for the Quinns, affirmed 9 March 2020 and 26 May 2020, purporting to prove service of the bankruptcy notice;

(3)    affidavit of Roderick Duncombe, process server, sworn 25 May 2020;

(4)    affidavit of search of Sarah Jones, solicitor, affirmed 9 March 2020;

(5)    affidavit of service of creditor’s petition of Joseph Khoury sworn 14 April 2020;

(6)    affidavit of debts of each of the Quinns made 13 July 2020; and

(7)    affidavit of search of Ms Jones affirmed 13 July 2020.

12    The Quinns also relied on an email chain comprising emails between Ms O’Rourke and a Mr Gould, using the gmail53 address. The earliest email in the chain was sent by Ms O’Rourke on 19 December 2019, the date before Mr Ireland sent the bankruptcy notice to the gmail53 address. The other emails were sent in February 2020.

13    Objection was taken to an email from Australian Legal Support Services to Axon Legal dated 8 October 2019 which purports to record the results of an attendance at a property at Northbridge (Northbridge address), and enquiries as to the occupancy of the property. Counsel for the Quinns, Mr Krochmalik, submitted that the email should be admitted for a non-hearsay purpose, being a record which Mr Ireland took into account in deciding that the Northbridge address was not Ms O’Rourke’s address. I will admit the email on that limited basis.

14    Ms O’Rourke relied on an affidavit sworn by her on 15 May 2020. Ms O’Rourke also tendered correspondence, evidencing that:

(1)    On 9 October 2019, Axon Legal sent an email to Ms O’Rourke’s former solicitor Warwick Heeson of Oppenheim Legal at wheeson@oppenheimlegal.com.au (Heeson email address) and stated an intention to send a letter to him at his address at Level 13, 135 King Street, Sydney (King St address).

(2)    On 4 November 2019, Axon Legal sent a further letter to Mr Heeson by email at the Heeson email address.

15    It was an agreed fact that Mr Heeson did not respond to either of these communications.

Ms O’Rourke’s grounds of opposition

16    Ms O’Rourke’s notice of opposition is lengthy and somewhat repetitive. In relation to the amended creditor’s petition, it raises the following contentions:

(1)    the bankruptcy notice was not effectively served pursuant to reg 16.01(1)(c) because it was not delivered to her last known address but rather to the Elizabeth Bay address, that is not Ms O’Rourke’s address;

(2)    the bankruptcy notice delivered to the Elizabeth Bay address was invalid because no judgment was attached to that notice;

(3)     the bankruptcy notice was not effectively served pursuant to reg 16.01(1)(e) because it was not sent to the “nominated email”; and

(4)    the bankruptcy notice was not effectively served pursuant to reg 16.01(1)(e) because it was not received at the susan.orourke53@gmail.com email address (gmail53 address) to which it was sent.

Ms O’Rourke’s last known address

Case law

17    The “last known address” of the debtor for the purpose of reg 16.01(1)(c) is the last address made known by the debtor: Civic Video Pty Ltd v Warburton [2013] FCA 934; (2016) 216 FCR 61 (Civic Video) at [74]. As to whether the relevant address is that made known by the debtor to the creditor, or to the world at large, in Civic Video Jacobson J concluded (at [76] and [78]):

[76]    In my view that question is to be determined objectively on all of the facts of the case. In some instances, it may be information that has been supplied to the world at large, as for example in QBE Insurance (Aust) Ltd v Mahaffy (No 2) (2012) 271 FLR 1 where the debtor conducted his practice as an accountant at premises on which there was a sign indicating it to be the office of the debtor’s firm. In others it may be the most recent address supplied to the creditor.

…

[78]    … [S]ince the purpose of the rule is that the bankruptcy notice should be brought to the debtor’s attention, it seems to me that ordinarily the creditor is under an obligation to take steps to ascertain the debtor’s most recent address as made known by him or her in readily accessible public records.

18    The latter observation was made where the petitioning creditor relied on an address for service that had been made known to it by the debtor some eight years earlier. His Honour found that a more recent address was easily accessible from a search of the Australian Securities and Investments Commission records.

19    In Napiat Pty Ltd v Salinger (No 7) [2011] FCA 1322; 202 FCR 264, Foster J set out the following relevant analysis (at [64]-[67]):

[64]    In Drake v Stanton [1999] FCA 1635, Tamberlin J considered the meaning of the expression “last-known address of the person...” in reg 16.01(1)(c) of the Bankruptcy Regulations. His Honour observed (at [5]) that, upon the correct interpretation of that expression, it does not matter whether the debtor resides at the particular address or not. I agree. His Honour also said that the expression does not expressly refer to the debtor’s residence or place of abode. I also agree with that observation. At [8], his Honour held that the expression refers to that address which has been made known by the debtor as at the time closest to the date in question. I also agree with that observation although it must be said that it probably does not fully explain the meaning of the expression.

[65]    In Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107, the Full Court cited with apparent approval the observations made by Tamberlin J to which I have referred at [64] above. The Full Court also held that a business address can be a person’s last-known address.

[66]    In Skalkos, at [36], the Full Court concluded that, on the evidence, the debtor was not at the relevant time living at a residential address in Vaucluse, although that was his usual dwelling-house or residence; that the debtor’s current residential address was not known to the creditor; that, in various contexts, the debtor had given the business address of a corporation in Alexandria as his address for service; and that the best prospect of getting a document to the debtor was by sending it to the Alexandria address. In light of those matters, the Full Court then said (at [37] (p 119)):

[37]    The primary judge said that although the debtor did not reside at the Alexandria address, he was using it for business purposes, and that although the premises were occupied by the company rather than the debtor personally, “he had such a degree of connection with the premises that they may properly be described as his last-known address”. Drake v Stanton, Robertson and the cases referred to in the latter establish, in our view correctly, that a business address can be a person’s “last-known address”. The primary judge’s conclusion that the Alexandria address was the debtor’s last-known address was amply open to him on the evidence summarised at [36].

[67]    Skalkos is not authority for the proposition that a person may have two last-known addresses within the meaning of that expression in reg 16.01(1)(c) of the Bankruptcy Regulations. As presently advised, I do not think that a debtor can have two or more last-known addresses within the meaning of that regulation. Rather, Skalkos is authority for the proposition that the last-known address does not necessarily have to be a residential address but may be a business address, including a business address which is not occupied by the debtor personally pursuant to some legal or equitable entitlement. The question may well often be: Does the debtor have such a degree of connection with the premises that they may properly be described as his last-known address?

(Emphasis added)

Relevant facts

20    On 14 December 2018, Ms O’Rourke gave the gmail53 address to Axon Legal as her address for correspondence.

21    By letter dated 15 February 2019, Mr Heeson wrote to Axon Legal and stated, relevantly:

… [O]ur client is making all efforts to obtain the necessary monies to payback the outstanding loans owed to your clients …

Ms Susan O’Rourke again expresses her desire to provide a positive solution for the Quinns.

Our office is the address for all correspondence in regard to this matter.

22    As appears above, on 9 October 2019, Axon Lawyers was aware that the address for Oppenheim Legal had changed to the King St address.

23    Ms O’Rourke’s acknowledgement of debt stated that the address of her legal representative was the King St address. It nominated her own address as 25/277 Crown Street, Surry Hills (Surry Hills address). Ms O’Rourke’s evidence did not verify the statement in her notice of opposition that she had sent the acknowledgement of debt to Axon Legal in November 2019. Mr Ireland’s evidence was that he did not receive the acknowledgement of debt before 7 January 2020.

24    On about 28 November 2019, the District Court issued its judgment and identified Ms O’Rourke’s address as the King St address. Axon Legal obtained a copy of the judgment for attachment to the bankruptcy notice.

25    On 7 January 2020, Ms O’Rourke sent an email to Axon Lawyers from susan.orourke5@icloud.com, in which she stated:

It is not accepted that service of the bankruptcy notice has been effective.

I have not been served in person.

Delivery has not been made to my last-known address. My last known address is the address given by me in my details of filing party on 6 November 2019 when I entered judgment against myself … and filed an acknowledgement of liquidated clam.

That address is 25/277 Crown Street, Surry Hills NSW 2010.

When you filed the Statement of Claim in those proceedings you nominated an address for me of 23 Roslyn Gardens Elizabeth Bay NSW 2011. I have no connection to this address.

Since regulation 16.01 of the Bankruptcy Regulations permits service by email I agree to accept service of the bankruptcy notice to my working email susan.orourke5@icloud.com

If you please send the bankruptcy notice and materials to me at this email I will after receipt confirm back to you the materials I received and are accepted for service of the documents on me.

26    Mr Ireland of Axon Lawyers responded at 1:19 pm that day, asserting that service of the bankruptcy notice had been effected at the Elizabeth Bay address and by sending the notice to the gmail53 address. Relevantly, Mr Ireland said:

•    Several public records confirm the [Elizabeth Bay] address is your residential address

•    It is your residential address as known by our clients

•    Indeed on 20 December 2019 outside the address you met our clients and sat in our clients’ car for an extended period discussing the matter, likely payment, the threat of your bankruptcy and your personal challenges

•    The Court file does not suggest 25/277 Crown Street as your address.

•    The Bankruptcy Notice was sent by email to the email address which you previously directed be used by our firm.

27    Mr Ireland also requested a copy of the acknowledgement of debt.

28    At 2:31 pm, Ms O’Rourke reiterated her contention that service of the bankruptcy notice had been effective; that her last known address was the Surry Hills address; and that she agreed to accept service to her “working email susan.orourke5@icloud.com”. Concerning service at the Elizabeth Bay address and to the gmail53 address, Ms O’Rourke stated:

At 20/12/19 I did not receive any email from you serving bankruptcy notice documents. In that immediate period and in particular late on 19/12/19, 20/12/19 and 21//12/19 my email box … malfunctioned. There were 8 to 12 emails hung and never delivered and the cursor stopped responding. On 21/12/19 I spent several hours at the Apple Genius bar seeking to restore it to functionality. This may explain why I do not have any email from you which served a bankruptcy notice on me.

The bankruptcy notice I am in possession of appears to have been given to my husband at his residential address I found it some days after Christmas on or about 31 December 2019.

29    Mr Ireland’s evidence was that he relied on the following matters to determine that the Elizabeth Bay address was Ms O’Rourke’s address for the purpose of serving the bankruptcy notice:

(1)    He received instructions to that effect.

(2)    He had a White Pages search (done in around December 2018) which recorded the Elizabeth Bay address as Ms O’Rourke’s address.

(3)    A company search showed that Ms O’Rourke was a director and shareholder of the company that is the owner of the property at the Elizabeth Bay address.

(4)    He located four properties owned by Ms O’Rourke including the Northbridge property. Mr Ireland believed the Northbridge property to be “unoccupied and left in disrepair”.

(5)    I infer that Mr Ireland formed the view that the other three properties were not, or were unlikely to be, Ms O’Rourke’s address.

(6)    Mr Ireland did not consider the King St address to be a suitable address for service of the bankruptcy notice because it was a suite of serviced offices and he was concerned that mail delivered to that address may not be passed on to Ms O’Rourke.

(7)    Mr Ireland was unaware of the Surry Hills address because he did not receive the acknowledgement of debt before arranging for service of the bankruptcy notice.

30    The notice of opposition makes the following contentions concerning Ms O’Rourke’s last known address:

(1)    Her last known address was set out in the District Court judgment and was the King St address.

(2)    Alternatively, her last known address was stated in Ms O’Rourke’s acknowledgement of debt and was the Surry Hills address.

31    In closing submissions, Ms O’Rourke also identified the Northbridge address as a possible “last known address” for the purposes of reg 16.01(1)(c). Ms O’Rourke acknowledged that the Quinns did not know that address and the submission was put on the basis that Axon Legal could have conducted searches that would have identified the Northbridge address as Ms O’Rourke’s address.

Consideration

King St address

32    Ms O’Rourke’s evidence did not suggest that she had made the King St address known to the world at large as her address.

33    I am not satisfied that Ms O’Rourke made the King St address known to the Quinns as her address. It was neither her residential address, nor her work address. At most, the King St address was known to the Quinns by Ms O’Rourke as the address of her lawyers, Oppenheim Legal, and the address for service of documents on Ms O’Rourke in the District Court proceeding in which the judgment debt was obtained. That knowledge was subject to doubt arising from the fact that Mr Heeson had not replied to correspondence in October and November 2019.

34    To the extent that Ms O’Rourke contended that her address last known to the Quinns was the offices of Oppenheim Legal, this address was identified to the Quinns only as the address for correspondence in connection with her outstanding loan or loans from the Quinns.

35    In the context of the other evidence concerning Ms O’Rourke’s connection with the Elizabeth Bay address, I do not accept that the King St address was Ms O’Rourke’s “last known address” in December 2019 for the purposes of reg 16.01.

Surry Hills address

36    Ms O’Rourke’s evidence was that this address is “a residential apartment suite used as an office for some of my businesses”. Ms O’Rourke did not suggest that she had made the Surry Hills address known to the world at large as either her work address or her residential address.

37    I am not satisfied that Ms O’Rourke made the Surry Hills address known to the Quinns as her address prior to 7 January 2020 because, on the available evidence, Mr Ireland did not receive notice of that address before that date and the Surry Hills address was not otherwise made known to the Quinns by Ms O’Rourke prior to 7 January 2020.

38    Accordingly, I do not accept that this was Ms O’Rourke’s “last known address” in December 2019 for the purposes of reg 16.01.

Northbridge address

39    Ms O’Rourke’s evidence was that this was her primary residence in December 2019 although she did not suggest that the Quinns were aware of this fact.

40    Although counsel for Ms O’Rourke, Mr Smith, argued that Axon Legal would have identified the Northbridge address as Ms O’Rourke’s address had adequate searches been conducted, the fact is that Axon Legal did identify the Northbridge address as a possible address for Ms O’Rourke, on the basis that a property search revealed that she was a co-owner of the property.

41    The Quinns’ lawyers then undertook further inquiries in about October 2019 to determine whether the Northbridge address was, in fact, Ms O’Rourke’s address. The results of the inquiries were to the effect that the property was uninhabited or inhabited by squatters or Ms O’Rourkes’ children, and that it was in a state of disrepair. It is not necessary to make a finding as to the true state of the occupancy and repair of the property at the Northbridge address. It is sufficient that Mr Ireland had reason to doubt that Ms O’Rourke resided at the Northbridge address and Ms O’Rourke never told the Quinns that she did reside there. In those circumstances, and where there was other information available to suggest that Ms O’Rourke’s address was the Elizabeth Bay address, I do not accept that the Northbridge address was Ms O’Rourke’s “last known address” for the purposes of reg 16.01.

Elizabeth Bay address

42    Ms O’Rourke found the bankruptcy notice (albeit she says it did not have the requisite judgment attached) at the Elizabeth Bay address on about 31 December 2019.

43    Ms O’Rourke did not dispute that she is a director and shareholder of the company that owns the property at the Elizabeth Bay address.

44    Although her evidence was not entirely clear, Ms O’Rourke explained the White Pages listing on the basis that she had previously rented a telephone line at the Elizabeth Bay address pursuant to an obligation as a partner of the law firm Clayton Utz to maintain a landline. Ms O’Rourke also stated that her primary address had been the Elizabeth Bay address from about 2005 to 2010. Ms O’Rourke stated that the line was disconnected in 2010 or 2011.

45    Ms O’Rourke also stated that the Elizabeth Bay address is the residential address of her husband. Ms O’Rourke’s evidence was that she meets with her husband and her children at the Elizabeth Bay address and that she has intermittently slept at that address, but that she regards her primary residence as the property at the Northbridge address.

46    On the available evidence, Ms O’Rourke has had, and continues to have, a significant connection with the Elizabeth Bay address albeit she does not consider it to be her primary residence. The Quinns had a sufficient basis to consider the Elizabeth Bay address to be Ms O’Rourke’s address in December 2019.

47     On the limited material available to them, I am satisfied that the address for Ms O’Rourke, last known to the Quinns in December 2019, was the Elizabeth Bay address, where Ms O’Rourke in fact received the bankruptcy notice (although, she contends, without an attached judgment). This material was:

(1)    The absence of evidence that Ms O’Rourke had informed the Quinns of her residential address or a work address in recent times. To the contrary, Ms O’Rourke’s evidence was to the effect that Mrs Quinn’s most recent knowledge was that Ms O’Rourke lived in Brisbane in February 2012.

(2)    The White Pages listing which demonstrates, as Ms O’Rourke acknowledged, that the Elizabeth Bay address has been her residential address. Further, it is a public record, not corrected by Ms O’Rourke, that the address continued to be her Elizabeth Bay address. I do not accept that the 2018 search was stale. In any event, the evidence was that the listing was still recorded in March 2020;

(3)    Ms O’Rourke’s position as a director and shareholder of the company that owned the property at the Elizabeth Bay address; and

(4)    The fact that Ms O’Rourke’s husband resided at that address.

Was the bankruptcy notice served at the Elizabeth Bay address defective for failing to attach the District Court judgment?

48    In the notice of opposition, Ms O’Rourke stated:

[Ms O’Rourke] opened a sealed white envelope addressed to her which contained the letter and notice BN248145 but it did not contain the Judgment Order.

49    In her affidavit, Ms O’Rourke stated relevantly:

The whole content of the bankruptcy notice which I opened in a sealed white envelope addressed to me on or about 31 December 2019 is annexed as SOR-D. All of the pages in the envelope were stapled together. The envelope was unopened before I opened it. The markings on the enveloped were “Private & Confidential (stamped) Attention – Susan O’Rourke 21 Roslyn Gardens Elizabeth Bay NSW 2011 (written in hand).

50    Annexure SOR-D comprises:

(1)    A letter dated 20 December 2019 from Axon Legal to Ms O’Rourke marked “DELIVERED BY PROCESS SERVER” which states relevantly:

Please find enclosed Bankruptcy Notice 248145 issued on 19 December 2019 and served in accordance with Regulation 16.01. Also enclosed is a copy of the final judgment issued by the District Court of New South Wales.

(2)    The bankruptcy notice.

51    Ms O’Rourke’s evidence was contradicted by the evidence of the process server, Mr Duncombe. Accordingly, it is necessary to decide which evidence is to be preferred.

52    Specifically, Mr Duncombe gave the following evidence:

(1)    On 20 December 2019, his office received a request to serve the bankruptcy notice on Ms O’Rourke that day at the Elizabeth Bay address. The request included the 20 December 2019 letter from Axon Legal to Ms O’Rourke, the bankruptcy notice and the District Court judgment. A copy of the request was annexed to Mr Duncombe’s affidavit.

(2)    Mr Duncombe received the covering letter, bankruptcy notice and District Court judgment, stapled together as one and then placed under a job sheet.

(3)    Mr Duncombe is aware, as a licensed process server with over 20 years’ experiences, that the judgment of the relevant court is required to be attached to and served with a bankruptcy notice. Mr Duncombe said: “It is my consistent practice to check that all documents are included prior to serving. These is no reason why I would not have done so in this case.”

(4)    Concerning service at the Elizabeth Bay address, Mr Duncombe said:

8    On 20 December 2019 at 2:05pm I served the Respondent with [the covering letter, bankruptcy notice and District Court judgment].

9    I served the above documents pursuant to 16.01(1)(c) of the Bankruptcy Regulations 1996 by placing the covering letter, bankruptcy notice and judgment/order in a sealed envelope. The envelope was marked “Private and Confidential” and addressed to the Respondent. I hand wrote the Respondents name address on the envelope at the time of my attendance. I then placed the envelope containing the covering letter, bankruptcy notice and judgment/order (copies of which are attached at RBD-1) under the front door at the address of service listed in the covering letter from Axon Legal dated 20 December 2019, which was 21 Roslyn Gardens, Elizabeth Bay New South Wates.

10    I made a note of the time at which I served the documents which is my usual practice.

11    Immediately after serving the documents, whilst at the front of the service address at 21 Roslyn Gardens, Elizabeth Bay, I called the principal of ALSS, Cale Thurston, and informed him as to the time and manner in which service had been effected as I was instructed to do so.

12    On or around 27 December 2019 I prepared and executed an Affidavit of Service of Bankruptcy Notice as a record of my service of the documents. A copy of the affidavit is attached and marked RBD-2.

53    The affidavit at RBD-2 was sworn on 27 December 2019 and states:

1.    I am a Licensed Process Server.

2.    I am over the age of 16 years.

3.    On the 20th day of December 2019 at 2.05 p.m. I served the within named SUSAN O’ROURKE, with the following documents-

i.    Bankruptcy Notice issued 19 December 2019 together with Judgment/order issued 28 November 2019 under cover letter from Axon Legal dated 20 December 2019 (copies of which are annexed and marked “RBD1”).

4.    I served the above said documents pursuant to section 16.01 (1c) of the Bankruptcy Regulations by placing them in a sealed envelope marked ‘Private and Confidential’ addressed to the Debtor SUSAN O’ROURKE and placing the envelope under the front door at the address of service at 21 Roslyn Gardens, ELIZABETH BAY in the state of New South Wales being the last known address of SUSAN O’ROURKE.

5.    At the time of service there was no person found to be home at the address.

54    Ms O’Rourke cross-examined Mr Duncombe. Ms O’Rourke’s questions identified points between the receipt of the request for service at about 9.00 am and the time when service was effected at which the District Court judgment might have been mislaid or overlooked. Ms O’Rourke also suggested that 20 December 2019 was the last working day before Christmas.

55    Mr Duncombe stated that he placed the documents in the envelope after he had knocked on the door and ascertained that there was no-one home or no-one to receive the documents. He then wrote the address on the envelope. Mr Duncombe also said that it was normal practice for him to have two sets of copies of the documents for service: one to be served and one to be annexed to the affidavit of service.

56    In her oral evidence, Ms O’Rourke strongly maintained that the envelope in which she received the bankruptcy notice did not contain the District Court judgment. She said that she has kept the envelope and its contents intact since she opened it, except when she went to Officeworks to copy the contents for the purpose of “one of the affidavits”. In cross-examination, Ms O’Rourke agreed that she did not make a diary note about the contents of the envelope after she opened it. Ms O’Rourke also volunteered that she is not familiar with bankruptcy laws and did not scrutinise the contents. Ms O’Rourke also accepted that she exchanged multiple emails with Axon Legal in January 2020 and did not state that the District Court judgment had not accompanied the bankruptcy notice.

57    Ms O’Rourke also stated that she had raised the absence of the District Court judgment with a lawyer whom she had consulted in early May 2020.

58    On balance, I prefer the evidence of Mr Duncombe on this point. He is an experienced process server who placed the relevant documents into the envelope himself after ascertaining that no one was available to answer the door at the Elizabeth Bay property. He knew that a bankruptcy notice was required to be accompanied by a court judgment or order.

59    On the other hand, Ms O’Rourke gave the impression of being quite pedantic and well able to identify discrepancies or defects in documents that might adversely affect her. Ms O’Rourke is a solicitor of many years standing. Her 7 January 2020 email to Mr Ireland, referred to at [25] above, included set out the terms of reg 16.01. In this case, she received a letter from Axon Legal which identified the accompanying documents being the bankruptcy notice and the District Court judgment. I do not accept that Ms O’Rourke did not scrutinise the contents of the envelope when she received it, and she did not require familiarity with bankruptcy laws to observe any discrepancy between the covering letter and the contents of the envelope. When she read the covering letter, it would have been immediately obvious to Ms O’Rourke that the District Court judgment was not included in the envelope, if that was the true position.

60    It would not be reasonable to conclude that Ms O’Rourke would promptly draw any such discrepancy to Axon Legal’s attention, because that may simply have caused Axon Legal to rectify any defect to Ms O’Rourke’s disadvantage. However, I would have expected Ms O’Rouke to take prompt steps to ensure that she could prove by contemporaneous evidence that the 20 December 2019 letter was not served by the District Court judgment as the letter stated.

61    It is more likely than not that, in accordance with his usual practice, Mr Duncombe checked that the judgment was included with the documents that he placed in the envelope and addressed to Ms O’Rourke and that his 27 December 2019 affidavit accurately identified the documents that he placed in the envelope on 20 December 2019.

62    It follows that I am satisfied that Ms O’Rourke was duly served with the bankruptcy notice at the Elizabeth Bay address.

63    In accordance with reg 16.01(2), I find that the bankruptcy notice was served on Ms O’Rourke at that address on 20 December 2019.

Was there service of the bankruptcy notice by email?

64    As service of the bankruptcy notice has been proved, it is not strictly necessary to decide whether the bankruptcy notice was also served on Ms O’Rourke at the gmail53 address. However, in case I am wrong as to service of the notice at the Elizabeth Bay address, I have also considered this issue.

65    The notice of opposition states that:

(1)    The email nominated for service in the acknowledgement of debt is the Heeson email address.

(2)    On 15 February 2019, Ms O’Rourke’s then lawyer wrote to the Quinns’ lawyers saying “Our office is the address for all correspondence in regard to this matter”.

(3)    “That overrode my December 2018 instruction to Axon Legal to use my gmail53 email which was given before I had appointed lawyers.”

66    Further the notice of opposition states, in relation to the purported service at the gmail53 address:

Both before and after [20 December 2019] that email account was corrupted possibly by a virus and malfunctioning and not receiving all emails sent to it. Advices were received from other lawyers sending emails to that account advising bounce back from [the gmail53 address] around that time.

67    In her affidavit, Ms O’Rourke states:

2.    The failure of my gmail 53 account to receive emails from time to time is evidenced by a text sent to me on 24/2/2020 by a solicitor David Martell annexed as SOR-B.

3.    The failure of my gmail account to receive emails from time to time is evidenced by an email of JP Gould saying an email he sent me bounced back from gmail 53 at 28.1.20 annexed as SOR-C.

68    SOR-B is a text, apparently received on 24 February 2020, which states:

hi Susan I sent you an email on 29 January with an unconditional contract. I hadn’t heard from you so was requested to email you again but it has bounced. Not sure if you got my email with the contract? ...

69    SOR-C does not match the description in Ms O’Rourke’s affidavit. However, The evidence included an email chain, including an email from Mr Gould sent on 21 February 2020 stating:

We have again attempted to send you an email which was sent to you on 28 January, 2020 and again returned “Invalid recipient”.

Please confirm failing which we will telephone you shortly to clarify with you the email difficulties.

70    The email chain included an email sent from the gmail53 address on 19 December 2019 by Ms O’Rourke to Mr Gould. The email contains a letter from Ms O’Rourke in which she seeks Mr Gould’s consent to the filing of an amended statement of claim. The email seeks a response and says nothing to suggest that a response cannot be provided to the gmail53 address. In cross-examination, Ms O’Rourke stated that, as at 19 December 2020 she had no knowledge that there was “any difficulty in my receipts”.

71    The 19 December 2019 email was followed by a further email sent to Mr Gould on 21 February 2020. In this email, Ms O’Rourke seeks confirmation of Mr Gould’s “instructions to agree to the amended statement of claim”. Again, Ms O’Rourke’s email says nothing to suggest that a response cannot be provided to the gmail53 address.

72    Reg 16.01(1)(e) does not provide for service by email at a nominated address. Rather, it provides for service where a document is sent by a “mode of electronic transmission” either:

(1)    to a facility maintained by the person for receipt of electronically transmitted documents; or

(2)    in such a manner (for example, by electronic mail) that the document should, in the ordinary course of events, be received by the person.

73    The regulation requires the document to be sent in a particular manner; it does not require proof that the document sent by a “mode of electronic transmission” was received.

74    I have proceeded on the basis that, in this case, service would be effected by email if the bankruptcy notice was sent by electronic mail in such a manner that the notice should, in the ordinary course of events, be received by Ms O’Rourke.

75    Mr Smith submitted that the gmail53 address was “stale” and that the appropriate email address for service pursuant to reg 16.01.(1)(e) was the Heeson email address.

76    I do not accept that, as a matter of interpretation, reg 16.01(1)(e) restricts service by email to the last known email address. In this case, the evidence is that (albeit not known to the Quinns), Ms O’Rourke was using the gmail53 address both before and after the bankruptcy notice was sent to that address.

77    Mr Ireland’s evidence was that the bankruptcy notice and the District Court judgment were sent to the gmail53 address on 20 December 2019 at 3:04 pm. He did not receive any notification to suggest that his email was not received at that address.

78    In my view, that is sufficient to prove service under r 16.01(1)(e)(i): the notice and accompanying judgment were sent by electronic mail in such a manner, namely to the gmail53 address, that they should, in the ordinary course of events, have been received by Ms O’Rourke who was contemporaneously sending and receiving emails at that address.

79    Any particular difficulty that Ms O’Rourke may have been experiencing with her gmail53 address around December 2019 does not operate to invalidate service under r 16.01(1)(e) in the evidence in this case.

Other matter: affidavits verifying creditor’s petition

80    Ms O’Rourke referred to the discrepancy in the Quinns’ affidavits as to the date on which they were sworn. The affidavits contain the typed date of 5 March 2020, while the creditor’s petition is dated 9 March 2020 in handwriting.

81    Ms O’Rourke noted that the witness to the affidavits was Ms Jones and therefore argued that Mr Ireland’s explanation (that they were made on 9 March 2020) was of no assistance. Ms O’Rourke argued that there was no evidence demonstrating that the Quinns took steps to ascertain the facts that they purported to verify and that the Court should conclude that the affidavits were signed on the dates that they bear and were signed before the creditor’s petition that they purported to verify.

82    I accept Mr Ireland’s evidence which is plausible. Accordingly, I accept that affidavits were made on 9 March 2020 and not 5 March 2020. There is no reason to doubt the truthfulness of the affidavits. In any event, I note that a sequestration order can be made, at the discretion of the Court, if the necessary evidence is before the Court at that stage even though no affidavit verifying the petition was filed with it: MacDonald v Official Trustee in Bankruptcy [2001] FCA 140; 107 FCR 72 at [31].

Conclusion

83    The requirements for making a sequestration order have been satisfied and a sequestration order should be made against Ms O’Rourke’s estate.

Associate:

Dated:    11 August 2020