FEDERAL COURT OF AUSTRALIA

Taylor v Hatzipapas, in the matter of Hatzipapas [2023] FCA 153

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the applicant be granted leave to serve sealed copies of:

(1)    the application dated 31 January 2023;

(2)    the affidavit of Mr Barry Taylor affirmed on 31 January 2023 (with paragraph 40 and Annexure BAT-19 deleted); and

(3)    these Orders,

(together, the Documents) by taking each of the following actions:

(a)    leaving the Documents in the letterbox at 101 Bridgnorth Street, Carindale QLD 4152;

(b)    leaving the Documents as close as is reasonably practicable to the front door of the dwelling situated at 101 Bridgnorth Street, Carindale QLD 4152;

(c)    sending the Documents by email to the following email addresses:

(i)    sniper002016@gmail.com;

(ii)    georgepapas1@hotmail.com;

(iii)    georgepapas002@gmail.com;

(iv)    john.tomaras@williamroberts.com.au;

(d)    sending or causing to be sent an SMS message to the mobile telephone number 0474 455 529 in the following terms:

“IMPORTANT: YOUR URGENT ATTENTION IS REQUIRED. DO NOT IGNORE THIS MESSAGE.

The Federal Court of Australia has today made orders that directly impact you on the application of your bankruptcy trustee, Mr Barry Taylor of HLB Mann Judd. A sealed copy of these orders has been left the letterbox at 101 Bridgnorth Street, Carindale QLD 4152. Copies have also been emailed to “sniper002016@gmail.com”, “georgepapas1@hotmail.com”, “georgepapas002@gmail.com”, and to Mr John Tomaras of William Roberts, at “john.tomaras@williamroberts.com.au”.

You can also obtain a sealed copy of the orders made today by requesting that they be provided to you from any of the following people:

(i)    your bankruptcy trustee, Barry Taylor, either by email at “btaylor@hlbnsw.com.au” or by calling +61 (2) 9020 4115; and

(ii)    your bankruptcy trustee's lawyer, Jonathan O'Loughlin, by emailing “jonathan@olwlaw.com.au”, or by calling +61 416 772 835.

It is very important that you do not ignore this message.”

2.    Pursuant to r 10.24 of the Rules, service of the Documents is taken to have been effected upon completion of the actions identified in Order (1)(a) to (d).

3.    The proceeding be listed for a case management hearing at 9:30am (AEDT) on 16 March 2023.

4.    Costs be reserved.

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

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION AND BACKGROUND

1    The applicant is, and since 8 May 2020 has been, the trustee of the respondent’s bankrupt estate, following the making of a sequestration order against that estate by Judge Manousaridis of the (then) Federal Circuit Court of Australia: Puddick v Hatzipapas [2020] FCCA 1070.

2    By an application filed on 1 February 2023, the applicant seeks orders pursuant to s 30 of the Bankruptcy Act 1966 (Cth) for the respondent to, amongst other things, serve a duly completed statement of affairs and to comply with demands made by the applicant for information concerning the respondent’s bankrupt estate. The information is sought for various purposes, including the investigation of suspected share trading and investment by the respondent using the names of his children and various corporate entities.

3    The applicant seeks interlocutory orders for substituted service of the application.

4    The affidavit sworn by the applicant in support of this application discloses that he has made numerous attempts to contact the respondent since May 2020 so as to obtain information from him concerning his bankrupt estate. In particular, the applicant has:

(1)    sent (or caused to be sent) letters by post to 101 Bridgnorth Street, Carindale, Queensland 4152 (the Bridgnorth Street Premises). The Bridgnorth Street Premises was the registered address of Havecoat Contractors Pty Ltd (of which the respondent was a director, shareholder and secretary) at the time of the applicant’s appointment as trustee. Other information, discussed at [6(1)] and [8] below, also suggests that it is the respondent’s residence;

(2)    sent (or caused to be sent) emails to the following email addresses, which the applicant has identified as email addresses which he believes belong to the respondent:

(a)    georgepapas1@hotmail.com;

(b)    sniper002016@gmail.com; and

(c)    georgepapas002@gmail.com;

(3)    liaised via post, telephone, email and in person with William Roberts Lawyers, and in particular Mr John Tomaras of that firm, who acted for the respondent in respect of his now dismissed appeal against the sequestration order; and

(4)    attended the Bridgnorth Street Premises personally on 24 May 2022, during which attendance the applicant was told by a female occupant that the respondent did not live there but that she would call him. The applicant left his business card with the female occupant for this purpose. Upon the applicant’s return to the Bridgnorth Street Premises later that day, the female occupant informed the applicant that she had called the respondent but he had not answered the call. The applicant then repeated his request that she draw the applicant’s business card to the attention of the respondent.

5    The applicant’s evidence is that the respondent has not: replied to any of the correspondence directed to him; complied with any of the applicant’s requests for assistance, books, records or information; or lodged a completed statement of affairs as required by the Act despite demands that he do so.

6    The applicant also gave evidence of the following information which appears to have the respondent as its source:

(1)    on or about 17 March 2020, an Evolution Equities Pty Ltd Client Application Form was completed which includes details of a person who has the respondent’s name, whose residential address is the Bridgnorth Street Premises, whose email address is georgepapas002@gmail.com and whose mobile telephone number is 0474 455 529;

(2)    on 20 May 2021, a staff member of the Australian Financial Security Authority (AFSA), spoke with a member of the applicant’s staff. The AFSA staff member informed that member of the applicant’s staff that she had spoken with the respondent over the telephone and that the respondent had used a mobile telephone number 0474 455 529; and

(3)    on 19 October 2021, the respondent sent an email to the Associate to Griffiths J and the other parties to the respondent’s now dismissed appeal against the sequestration order. The respondent sent this email from address: georgepapas002@gmail.com.

7    On 24 June 2021, a licenced process server engaged by the applicant attempted to effect personal service of a notice pursuant to s 77CA of the Act on the respondent at the Bridgnorth Street Premises. The process server knocked on the front door of the Bridgnorth Street Premises and rang the building’s doorbell but there was no answer. About five minutes later he observed a male and a female person inside the premises through a window. He knocked loudly again and tried to communicate with them through the window. The process server was ignored, and the male person waved him away and lowered a blind over the window directly in front of the process server.

8    An Australian Electoral Roll search conducted on 16 January 2023 recorded that a person with the respondent’s name is enrolled to vote with a street address recorded as “Bridgnorth St Carindale QLD 4152”.

CONSIDERATION

9    Rule 8.06 of the Federal Court Rules (2011) (Cth) requires that an applicant personally serve an originating application on each respondent as soon as practicable and at least five days before the return date of the application. Rule 10.01 of the Rules provides that a document that is to be served personally on an individual must be served by leaving the document with the individual.

10    Rule 10.24 of the Rules allows for substituted service. It provides:

If it is not practicable to serve a document on a person in a way required by these Rules, 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.

11    The Court also has the power to dispense with compliance with rr 8.06 and 10.01: r 1.34; Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at 622 [97] (Katzmann J).

12    In the context of the present application, r 10.24 requires consideration of whether it is not practicable to effect personal service of the application upon the respondent.

13    Whether such service is not practicable is determined by reference to the facts of the case at hand: AMD Resources Ltd v AU Gold Pty Ltd, AMD Resources Ltd [2022] FCA 1212 at [5] (McEvoy J); Tax Practitioners Board v Buckland [2022] FCA 1376 at [37] (Charlesworth J); Ross v Cotter [2015] FCA 310 at [1] (Reeves J). In this regard, inconvenience is insufficient but it is not necessary for an applicant to prove that it is impossible or futile to effect personal service: Ford, Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173 at [14] (O’Bryan J). It is also not necessary to adduce evidence of a failed attempt to effect personal service or that such service is not possible: Zeitouni at 616 [66] (Katzmann J).

14    Further, whilst it is not an express requirement of r 10.24 of the Rules, it is appropriate to consider whether the method of substituted service proposed would be likely to bring the document to the respondent’s attention. If so, that is a factor in favour of making an order for substituted service.

CONSIDERATION

15    For the reasons set out below, I am satisfied that it is not practicable for the applicant to effect personal service on the respondent, and that the proposed methods of substituted service would be likely to bring the relevant document to the respondent’s attention.

16    First, the applicant has adduced evidence demonstrating a long history of attempts to make contact with the respondent concerning the respondent’s bankruptcy, and those attempts being ignored or frustrated by the respondent. It seems likely that the respondent would take a similar attitude to accepting service of the application.

17    Secondly, an attempt to achieve personal service on the respondent was unsuccessful (see [7] above).

18    Thirdly, it appears likely that a copy of the application left at the Bridgnorth Street Premises would come to the respondent’s attention. This inference arises from (at least):

(1)    that address being linked to the respondent on the Client Application Form in March 2020;

(2)    the applicant’s evidence that as at the date of his appointment in May 2020, the respondent was a director and secretary of, and shareholder in Havecoat, a company which used the Bridgnorth Street Premises as its registered office;

(3)    the evidence of the applicant’s visit to the Bridgnorth Street Premises in May 2022 and in particular that the female occupant was a person who stated that she was in contact with the respondent; and

(4)    the Australian Electoral Roll search results of 16 January 2023 which recorded a person with the respondent’s name as resident in Bridgnorth Street.

19    Fourthly, it appears likely that a copy of the application sent by email to the email address georgepapas002@gmail.com would come to the respondent’s attention, as this email address appears to be linked to the respondent in: (1) the Client Application Form; and (2) the 19 October 2021 email from the respondent to the Court and other parties in connection with the appeal against the sequestration order.

20    Fifthly, it appears likely that a message sent to mobile telephone number 0474 455 529 would come to the attention of the respondent based upon the Client Application Form, and the communications between the AFSA and an employee of the applicant’s office described at [6(2)] above.

21    Finally, the chances of the application coming to the attention of the respondent are increased by the manifold proposed methods of substituted service.

CONCLUSION

22    For the reasons set out above, I will make the orders broadly in the terms of the orders sought by the applicant.

Associate:    

Dated:    1 March 2023