Federal Court of Australia

Raine v Islam, in the matter of Islam [2026] FCA 203

ORDERS

THE COURT ORDERS THAT:

1.    The amended interim application filed by the respondent on 3 October 2025 be dismissed.

2.    The order made by Registrar Morgan on 15 July 2025 be affirmed.

3.    The respondent pay the applicants’ costs of the amended interim application as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1    On 15 July 2025, Registrar Morgan of this Court made an order that the estate of Mr Md Rajibul Islam be sequestrated under the Bankruptcy Act 1966 (Cth) (sequestration order).

2    Mr Islam now seeks: (1) an annulment of the sequestration order pursuant to s 153B of the Bankruptcy Act; and (2) review of the Registrar’s decision pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

3    For the reasons set out below, I decline to annul the sequestration order or to disturb that order on review.

B.    Findings of fact

4    On this application, Mr Islam adduced lay evidence from: (1) himself; (2) Dr Sarah Khan (his wife); (3) Ms Achia Begum (his mother); and (4) Mr Mohammad Rafiqul Islam (his father). He also adduced expert evidence from Mr Navid Sobbi, a digital forensic examiner. Only Mr Islam was cross-examined.

5    The applicants adduced evidence from: (1) Mr Walter MacCallum, the solicitor on the record for the applicants; (2) Ms Katherine South, a solicitor in the employ of Mr MacCallum’s firm, Russell Kennedy; (3) Mr Christopher Warburton, Manager – Digital Solutions at Russell Kennedy; (4) Mr Edmund Raine, the first applicant; (5) Ms Celeste Kopps, the second applicant; and (6) Mr Robert Vassallo, a process server. None of the applicants’ witnesses was required for cross-examination.

6    The applicants also tendered some correspondence and a transcript of a hearing in the Supreme Court of New South Wales proceeding 2023/00080562.

7    From that evidence, I make the following findings of fact.

8    On 18 and 20 February 2025, the Official Trustee in Bankruptcy issued two bankruptcy notices addressed to Mr Islam. The notices – for amounts of $72,597.34 (BN276342) and $31,850.02 (BN276344) – related to monies owed by Mr Islam to the applicants pursuant to a series of judgments of the Local Court of New South Wales. Those judgments in turn related to costs orders made against Mr Islam in several sets of proceedings in the Supreme Court of New South Wales.

9    On 11 April 2025, Ms South sent the bankruptcy notices to Mr Islam by email to the address: raji@mortgageplus.net.au. This email address belongs to Mr Islam and he uses and receives email at this address. I will refer to it as Mr Islam’s email address.

10    Mr Islam did not pay the amounts set out in either bankruptcy notice within 21 days of service of the bankruptcy notices (or at all).

11    On 14 May 2025, the applicants filed a creditor’s petition.

12    On 21 May 2025, the applicants made an application for an order for substituted service of the petition.

13    On 6 June 2025, Registrar Stewart of this Court made the following order (substituted service order):

1.    Personal service of the creditor’s petition on [Mr Islam] be dispensed with.

2.    The creditor’s petition be served on [Mr Islam] as follows:

(1)    by leaving the following documents (collectively, the Documents) in an envelope addressed to [Mr Islam] at 1 Taplin Road, Edmonson Park NSW 2174 with any person apparently over the age 16 years at the Address or, if that is not possible, by placing the envelope in the letterbox at that address:

(a)    a covering letter;

(b)    a sealed copy of this order;

(c)    a sealed copy of the creditor’s petition;

(d)    a copy of the affidavit, or affidavits, verifying the creditor’s petition;

(e)    a copy of the affidavit required by r 4.04(1)(a) of the Federal Circuit and Family Court (General Federal Law) (Bankruptcy) Rules 2021;

(f)    a copy of the affidavit, or affidavits, of service of the bankruptcy notice; and

(g)    a copy of any consent to act as trustee;

(2)    by sending an email attaching the Documents in PDF to [Mr Islam’s email address];

(3)     email in sub-paragraph 2(2) is to contain the following text in the body of the email:

EMAIL BY COURT ORDER – A Creditor’s Petition with file number NSD746/2025 has been issued against Md Rajibul Islam and an order for service has been made. The petition is being heard on 10 July 2025 at 9:30am. The documents can be inspected by contacting the Registry at NSWInspections@fedcourt.gov.au. If Md Rajibul Islam fails to attend the hearing they may be made bankrupt in their absence. Instructions on how to appear at the Court hearing can be obtained by contacting bankruptcynsw@fedcourt.gov.au

(4)     by sending an email attaching the Documents in PDF to john.soudah@ljhooker.com.au, including a request that the email and its contents be brought to the attention of [Mr Islam].

3.    Service of the creditor’s petition on [Mr Islam] be deemed to be effected on 20 June 2025 upon condition that the events referred to in paragraph 2 occur by 13 June 2025.

4.    The costs of this application be reserved.

5.    Liberty to apply.

(emphasis in original)

14    On the same day at 1:11pm, Ms South sent an email to Mr John Soudah at john.soudah@ljhooker.com.au, in the following form:

We refer to Order 2(4) of the enclosed Orders made in Proceedings No. NSD746/2025.

In accordance with the Orders, we request that this email and the attached Documents be brought to the attention of Mr MD Rajibul Islam.

(emphasis in original)

15    The attachments to that email, in PDF format, comprised the Documents as defined in paragraph 2(1) of the substituted service order, namely a:

(1)    covering letter from the solicitors for the applicants;

(2)    sealed copy of the substituted service order;

(3)    sealed copy of the petition;

(4)    sealed copy of an affidavit of Ms Kopps verifying the petition;

(5)    sealed copy of an affidavit of Ms South addressing the requirements of r 4.04(1)(a) of the Federal Court (Bankruptcy) Rules 2016 (Cth) sworn 14 May 2025;

(6)    sealed copy of the affidavit of service of BN276342 of Ms South sworn 14 May 2025;

(7)    sealed copy of the affidavit of service of BN276344 of Ms South sworn 14 May 2025; and

(8)    copy of a consent to act as trustee of Mr Alan Ma and Mr Antonio Bagala of DVT McLeods dated 24 April 2025.

16    On the same day at 1:13pm, Ms South sent an email addressed to Mr Islam’s email address:

EMAIL BY COURT ORDER - A Creditor’s Petition with file number NSD746/2025 has been issued against Md Rajibul Islam and an order for service has been made. The petition is being heard on 10 July 2025 at 9:30am. The documents can be inspected by contacting the Registry at NSWlnspections@fedcourt.gov.au. If Md Rajibul Islam fails to attend the hearing they may be made bankrupt in their absence. Instructions on how to appear at the Court hearing can be obtained by contacting bankruptcynsw@fedcourt.gov.au.

In accordance with order 2(2) of the enclosed Orders made in NSD746/2025 dated 6 June 2025 please see the attached Documents.

(emphasis in original)

17    The Documents were attached to that email in PDF format.

18    The evidence of Mr Sobbi and Mr Warburton establishes that this email was transmitted from Russell Kennedy’s email server to the email server that hosted Mr Islam’s email address.

19    The evidence does not establish that this email (or other emails the subject of consideration by Mr Warburton and Mr Sobbi), were (or were not) received into Mr Islam’s mailbox or that those emails were (or were not) read. Mr Sobbi’s evidence is that he was not provided by Mr Islam with the necessary information to be able to make such an assessment.

20    Also at 1:13pm on 6 June 2025, Ms South received an email notification in the following form:

Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server:

raji@mortgageplus.net.au (raji@mortgageplus.net.au)

Subject: EDMUND ANGUS RAINE & ORS v MD RAJIBUL ISLAM | NSD746/2025 …

(emphasis in original)

21    At 1:41pm that day, Mr Soudah forwarded to Mr Islam the email that he had received at 1:11pm from Ms South. Mr Soudah copied Ms South, Mr MacCallum and others on his email.

22    At 1:47pm that day, Mr Soudah sent a further email to the recipients of his 1:41pm email, this time with the attachments to Ms South’s 1:11pm.

23    On 11 June 2025, Mr Vassallo attended Mr Islam’s residence at Edmondson Park (Edmondson Park property) to serve the Documents, arriving at approximately 7:20am.

24    Mr Vassallo parked his car on the opposite side of the road from the Edmondson Park property. He then walked across the road and up the driveway to the front door of that property.

25    Mr Vassallo then knocked on the front door approximately three times. There was no response to those knocks, and after waiting a few moments, he knocked another three or so times. In accordance with his usual practice, Mr Vassallo stood at the doorway and listened for voices or movement within the premises. He heard neither and no one inside the Edmondson Park property opened the door to him.

26    Mr Vassallo does not recall observing a doorbell on or near the front door.

27    Mr Vassallo formed the view that nobody was at home at the Edmondson Park property because: (1) he saw no vehicles in the driveway or on that property; (2) no one answered his knocks; and (3) he could not hear or observe otherwise any movement inside that property.

28    Mr Vassallo then turned and walked down the driveway and placed an envelope addressed to Mr Islam containing the Documents in the letterbox at the front of the Edmondson Park property.

29    The veracity of Mr Vassallo’s evidence was not challenged in cross-examination.

30    I accept Mr Vassallo’s evidence. He is an independent player in these events, the events that he recounts happened in the ordinary course of his employment as a process server, and he has no conceivable reason to recount those events otherwise than in a truthful manner.

31    As stated in paragraph 2(3) of the substituted service order, the hearing of the petition was listed for 10 July 2025. Mr Islam did not appear. The hearing was stood over to 15 July 2025. At 6:31pm on 10 July 2025, Ms South sent an email to Mr Islam at his email address notifying him of the adjournment.

32    On 15 July 2025, as noted above, Registrar Morgan made the sequestration order. Pursuant to that order, Mr Ma and Mr Bagala were appointed as trustees of Mr Islam’s bankrupt estate.

33    On 17 July 2025, Ms Vea Ho, an accountant in the employ of DVT McLeods sent an email to Mr Islam’s email address in the following form (as written):

I hope this email finds you well.

I refer to the appointment of Messrs Alan Ma and Antonio (Anthony) Bagala of dVT Group as Joint & Several Trustees of your Bankrupt Estate pursuant to a Sequestration Order made on 15 July 2025 in the Federal Court of Australia at New South Wales upon the petition of Edmund Angus Raine, Celeste Kopps, and Raine & Horne Holdings Pty Ltd. Please find the attached important correspondence dated 16 July 2025 from the Trustees of your Bankrupt Estate that have been sent via post.

Kindly follow the instructions mentioned in the letters.

As a result of your bankruptcy, you are required to provide books and records pertaining to your financial affairs. Accordingly, please provide the following documents to our office:

•    Your completed Bankruptcy Form within 14 days of notification of your Bankruptcy;

•    Copies of all active and closed bank statements you have for the period from 1 July 2022 to 17 July 2025;

•    Deliver your passport to our office;

•    Please notice that you are required to advise us if any of the circumstances change such as employment, salary, place of residence, or phone number.

Kindly provide our office with your signed acknowledgment copies and the books and records requested above by 4 pm on Thursday, 14 August 2025 (if not, earlier).

Your assistance and compliance in this matter will be greatly appreciated.

Kindly acknowledge receipt of this e-mail and attachments via return e-mail.

Please contact your Trustee to discuss further your bankruptcy, Alan Ma on …

(emphasis in original)

34    On 8 August 2025, a further email was sent from DVT McLeods to Mr Islam’s email address chasing a response to the 17 July 2025 email.

35    On 15 August 2025, Ms Ho sent a further email to Mr Islam’s email address:

…

Please find attached an electronic copy of the Trustees’ Contempt Letter dated 15 August 2025, requiring you to file your completed SOA with the Official Receiver c/AFSA by 5 pm on Monday, 25 August 2025 (if not, earlier).

I look forward to receiving your compliance.

Kindly acknowledge receipt of this e-mail and attachments via return e-mail.

…

(emphasis in original)

36    Mr Islam claims not to have received any of the emails mentioned in paragraphs [16], [21] to [22], [31] and [33] to [35]. He claims to have first learnt of the petition and the associated proceeding on 22 September 2025. I do not accept this evidence for the reasons set out at [67] to [68] below.

37    On 1 October 2025, Mr Islam approached the Court seeking orders to extend the time to make an application for annulment of the sequestration order. On that day Justice Abraham, qua Duty Judge:

(1)    granted leave to Mr Islam to file and serve an amended application seeking relief pursuant to s 153B of the Bankruptcy Act and/or s 35A(5) of the FCA Act on or before 3 October 2025; and

(2)    extended the time for filing an application pursuant to s 35A(5) of the FCA Act to 3 October 2025.

38    On 3 October 2025, Mr Islam filed an amended application.

39    By that application Mr Islam seeks the following orders:

1.    Pursuant to s 153B of the Bankruptcy Act 1966 (Cth), the sequestration order made by Registrar Morgan on 15 July 2025 be annulled on the basis that it ought not to have been made, including because:

(a)    [Mr Islam] was not properly served with the creditor’s petition and was thereby denied procedural fairness;

(b)     the order was made in circumstances where [Mr Islam] was denied the opportunity to be heard on the merits;

(c)     the petitioning creditor’s alleged debt, being based on a costs assessment and certificate, was not truly owing in circumstances where [Mr Islam] had no notice or knowledge of the assessment process, and where the petitioning creditor was not the solicitor on the record in the underlying proceedings in which the costs were purportedly incurred or sought to be enforced;

(d)     the petitioning creditor’s debt was not truly owing or had already been paid;

(e)     in all the circumstances, the sequestration order was obtained on the basis of facts or assumptions which, had the true facts been before the Court, would have led to the order not being made;

2.    That, pursuant to s 35A (5) of the Federal Court of Australia Act 1976 (Cth), the Court review the sequestration order made by the Registrar on 15 July 2025;

3.    That, to the extent necessary, [Mr Islam] be granted an extension of time and/or leave to file and proceed with the application for review of the Registrar’s sequestration order out of time; and

3.    Such further or other orders as the Court considers appropriate.

C.    application for annulment under section 153b of the Bankruptcy Act

40    I turn now to the application for an annulment of the sequestration order.

41    Section 153B of the Bankruptcy Act provides, in so far as is presently relevant, that:

153B    Annulment by Court

(1)     If the Court is satisfied that a sequestration order ought not to have been made … the Court may make an order annulling the bankruptcy.

…

42    The principles concerning s 153B of the Bankruptcy Act are well-established.

43    In Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307 at [12], Justice Tracey provided the following oft-cited conspectus of relevant principles:

Section 153B(1) of the Act relevantly provides that:

If the Court is satisfied that a sequestration order ought not to have been made …the Court may make an order annulling the bankruptcy.

Section 153B(1) and its predecessors have been considered in many decisions of this and other Courts. These authorities establish a number of relevant propositions. They are:

(1)    An order can be made under s 153B(1) of the Act notwithstanding that the applicant has been discharged from bankruptcy; Re Oates; ex parte Deputy Commissioner of Taxation (1987) 17 FCR 402.

(2)    An applicant who seeks an annulment of his or her bankruptcy “carries a heavy burden”. It is incumbent on an applicant “to place before the Court all relevant material with respect to his or her financial affairs so that the Court may be properly informed and may make a judgment that is based on the actual circumstances of the applicant”: Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531.

(3)    In determining whether or not a sequestration order “ought not to have been made” the Court is not confined to a consideration of whether the order should have been made on the facts known to the Court at the time at which it was made. The Court must take account of facts, known at the time at which the sequestration order was made and at which it determines an annulment application, even if those facts were not before the Court at the time at which the sequestration order was made: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243; Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426.

(4)    A sequestration order “ought not to have been made” if, on the facts known at the time of the annulment application, the Court would have been bound not to make the sequestration order: Re Frank; ex parte Piliszky (1987) 16 FCR 396.

(5)    The Court will be so satisfied if it is established that the debtor was not, at the time the sequestration order was made, indebted to the petitioning creditor: Re Deriu (1970) 16 FLR 420 at 422.

(6)    If the Court is so satisfied, it is not precluded from annulling the bankruptcy because the bankrupt had not sought to have the default judgment set aside or failed to oppose the creditor’s petition or failed to seek a review of the sequestration order: Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426.

(7)    The power conferred on the Court by s 153B(1) is discretionary in nature. Even if persuaded that the sequestration order ought not to have been made, the Court can, in appropriate circumstances, decline to annul the bankruptcy: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243.

(8)    Considerations which may have a bearing on the exercise of discretion include unexplained delay in the making of the application, whether or not the applicant is solvent, whether or not the applicant has made full disclosure of his or her financial affairs and a failure by the bankrupt to oppose the creditor’s petition and attend the hearing at which the sequestration order was made: Re Williams (1968) 13 FLR 10 at 24-5; Boles at 247; Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7]. Additional considerations are collected in D. A. Hassall, “Annulment of Bankruptcy and Review of Sequestration Orders” (1993) 67 ALJ 761 at 766.

44    See also Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [16] (Rares, Flick and Bromberg JJ).

45    Thus, for Mr Islam to succeed he needs to satisfy the Court that: (1) the sequestration order ought not to have been made; and (2) the Court should exercise its discretion favourably to him: see Bulic; Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] (Carr, Finn and Sundberg JJ); and Rigg v Baker [2006] FCAFC 179; (2006) 155 FCR 531 at 543 [59] and 544 ([61] to [63]) (French J, with whom Spender J agreed).

46    As to (1), in Re Frank; Ex parte Piliszky (1987) 16 FCR 396 at 403, Justice Fisher explained, by reference to the predecessor of s 153B of the Bankruptcy Act:

In the light of the various contrasting avenues open to a bankrupt to approach the court to have the sequestration order set aside, it is in my opinion necessary to attach significance to the “careful provisions” of s 154, and in particular the words “ought not to have been made”. In my opinion it can be said that a judge “ought” not to have made an order only if he was “bound” not to make the order. In circumstances where it was open to a judge to make an order in the exercise of his discretion, it can only be said he “ought not to have made the order” if none of the circumstances could justify the making of an order. Alternatively it can be established that an order “ought” not to have been made because subsequent evidence discloses that all of the true facts were not before the court when the order was made: Re Cook (1946) 13 ABC 245 at 249.

…

It is trite to say, as the above excerpts acknowledge, that the appropriate meaning is determined by the context. In my opinion “ought” in s 154(1)(a) is of imperative significance and an order should not be annulled unless the judge was in the circumstances bound not to make it and even then there is a residual discretion not to annul.

(emphasis added)

47    As to (2), in Zaghloul v Jewellery & Gift Buying Service Pty Ltd trading as Nationwide Jewellers [2020] FCA 1045 at [12] Justice Banks-Smith identified the following factors as important to the exercise of the direction:

(a)     whether the applicant debtor is solvent;

(b)    whether the applicant has made full disclosure of his financial affairs, a matter as to which the applicant carries a heavy burden (see Biluc at 12; Re Papps; Ex parte Tapp (1987) 78 FCR 524 at 531);

(c)    unexplained delay in any application;

(d)    a failure by the bankrupt to oppose the creditors’ petition and attend the hearing at which the sequestration order was made;

(e)    whether the applicant debtor has made any proposal for the payment of fees and disbursements of his or her trustee in bankruptcy; and

(f)    the basis for any finding that a sequestration order ought not to have been made.

48    As Justice Tracey noted in Bulic at [12(2) and (8)], and Justice Banks-Smith noted in Zaghloul at [12(b)] a matter of importance in the exercise of the discretion is the extent to which the party seeking to annul the sequestration order has placed before the Court all relevant material concerning their financial position. In the seminal authority, Re Papps; Ex parte Tapp [1997] FCA 1031; (1997) 78 FCR 524, Justice O’Loughlin stated at 531:

In my opinion the test to be applied when a person comes before the court seeking an annulment of his or her bankruptcy is one that is akin to ‘‘full and true disclosure’’. It is incumbent upon such an applicant to place before the Court all relevant material with respect to his or her financial affairs so that the Court may be properly informed and may make a judgment that is based on the full facts and the actual circumstances of the applicant. A person who seeks an annulment carries a heavy burden. …

49    See also Thompson v Lane (as trustee of the bankrupt estate of Thompson) [2023] FCAFC 32; (2023) 410 ALR 439 at 456 to 457 ([99] to [100]) (Downes J) and 478 [229] (Goodman J).

50    Mr Islam’s case is, in essence, that he was not served with the petition because it did not come to his attention and as he was not served the Court lacked jurisdiction to make the sequestration order.

51    Contrary to the submissions of counsel for Mr Islam, service may be taken to have occurred in some circumstances without the petition having come to the attention of the debtor. In this regard, s 309(2) of the Bankruptcy Act provides:

Where a notice or other document is required by this Act to be served on or given to a person, the Court may, in a particular case, order that it be given or served in a manner specified by the Court, whether or not any other manner of giving or serving the notice or other document is prescribed.

52    One such manner of achieving service is by way of compliance with a substituted service order: r 10.24 of the Federal Court Rules 2011 (Cth).

53    Service in accordance with a substituted service order is established when the terms of that order are satisfied. In other words, it is sufficient to prove each element of the substituted service order and it is not necessary to prove that the documents required to be served in fact came to the attention of the person to be served whether by means of personal service or otherwise: see Vonidis v BMW Australia Finance Limited [2011] FCA 589 at [36] (Foster J).

54    Of course, this may in some cases lead to a position in which the person to be served is in fact unaware of the proceeding in respect of which service was to occur. As Justice Lehane explained the Bright v Femcare Ltd [1999] FCA 1377; (1999) 166 ALR 743 at 751 to 752 [21]: “… provisions for substituted service… are a recognised part of the judicial process and, though the purpose of substituted service is to bring a document to the notice of the person to be served, it is inherent in substituted service that the purpose may not be achieved; but a party served in accordance with an order for substituted service will nevertheless be bound by a subsequent judgment or order”. See also Vonidis at [37].

55    Such cases ought be rare in view of the well-established practice of considering – in the exercise of the discretion to make substituted service orders – whether the proposed substituted method of service will likely bring the document to be served to the attention of the person to be served.

56    The law tolerates the possibility of such exceptional cases because of the greater good to be achieved in the vast majority of cases in which a substituted service order is made. In Bishop v Helps (1845) 2 C.B. 45 at 57; 135 E.R. 857 at 862, Tindal CJ – in relation to a comparable provision which also had an inherent possibility that the document would not come to the notice of the person to be served – stated:

It was probably considered that the public convenience would be promoted by the present provision, and that its advantages would greatly outweigh the inconvenience which, in some few cases, might possibly arise from it.

57    That passage has been quoted with evident approval by the High Court of Australia (Mason, Murphy, Wilson, Deane and Dawson JJ) in Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 at 96 and the Full Court of this Court (Sundberg, Finkelstein and Hely JJ) in Skalkos v T&S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 at 117 [29]. The latter case involved the operation of reg 16.01 of the Bankruptcy Regulations 1996 (Cth), which relevantly permitted service by post to a person’s last known address. The Full Court explained that provisions such as reg 16.01 contemplated the possibility of something less than actual receipt by the person to be served and the possibility of “harsh results”, but reconciled this to the above-quoted passage from Bishop v Helps.

58    In the present case the substituted service order:

(1)    dispensed with the requirement for personal service;

(2)    provided for the petition to be served in three other ways; and

(3)    stipulated that if such other methods of service had occurred by 13 June 2025, then service was deemed to be effected on 20 June 2025.

59    I am satisfied that service was effected in accordance with the three other methods of service, for the following reasons.

60    First, for the reasons set out at [23] to [30] above, I am satisfied that on 11 June 2025 Mr Vassallo left the Documents in an envelope at the Edmondson Park property (after it was not possible to leave the Documents with a person apparently over the age of 16 at that property). Thus, paragraph 2(1) of the substituted service order was satisfied.

61    Secondly, for the reasons set out at [16] to [19] above, I am satisfied that on 6 June 2025 Ms South sent an email to Mr Islam’s email address attaching the Documents in PDF and containing, in the body of the email, the text in paragraph 2(3) of the substituted service order. That email was sent by Ms South and received by the email server hosting Mr Islam’s email address. Thus, paragraphs 2(2) and (3) of the substituted service order were satisfied.

62    Thirdly, for the reasons set out at [14] to [15] and [21] to [22] above, I am satisfied that on 6 June 2025 Ms South sent an email attaching the Documents in PDF to john.soudah@ljhooker.com.au. That email included a request that the email and its contents be brought to the attention of Mr Islam. Thus, paragraph 2(4) of the substituted service order was satisfied.

63    Finally, as each of the methods of service occurred before 13 June 2025, paragraph 3 of the substituted service order operated to deem service of the petition to have been effected on 20 June 2025.

64    Thus, Mr Islam’s contention that he was not served with the petition must be rejected.

65    If, contrary to the above analysis, it was necessary for the petition to have come to the attention of Mr Islam, then I am persuaded that this had occurred, for the following reasons.

66    First, as to the 6 June 2025 (1:13pm) email to Mr Islam’s email address described at [16] above, the evidence established that the email was sent and received by the email server hosting Mr Islam’s email address. Further, s 161 of the Evidence Act 1995 (Cth) operates to create a presumption that the 6 June 2025 email was received at the destination to which it appears to have been sent and at the time it appears to have been sent.

67    Mr Islam’s evidence that he did not receive that email (and the other emails sent to his email address identified at [21] to [22], [31] and [33] to [35] above) cannot be accepted in circumstances where:

(1)    he retained Mr Sobbi, an expert, who provided evidence as to the transmission of the email from Ms South to the email server hosting Mr Islam’s email address, but Mr Sobbi was not instructed to determine whether the email was also received by Mr Islam’s mailbox or read. As noted above, Mr Sobbi noted that he had not been provided with the requisite information to determine these issues;

(2)    Mr Islam made an affidavit to which he attached a screenshot purportedly of all emails received at his email address around the time of the 6 June 2025 email, but that screenshot was only of his inbox and not of his deleted items, spam, junk or other repositories of email;

(3)    Mr Islam was during the relevant period otherwise receiving emails; and

(4)    Mr Sobbi was not asked to opine on why Mr Islam was (on his version) receiving some emails but not others, this being a matter that can only be considered to have been a remarkable anomaly in the operation of the mailbox for Mr Islam’s email address.

68    In sum, Mr Islam’s evidence concerning the non-receipt of the 6 June 2025 (1:13pm) email is not credible. As counsel for Mr Islam fairly acknowledged, Mr Islam’s performance as a witness of truth was far from convincing. In reaching this conclusion, I have taken into account that Mr Islam was fasting for Ramadan and claimed to have been stressed by the Court environment (albeit that stress may have been reduced somewhat by having the assistance of an interpreter in circumstances where it was apparent that Mr Islam was well capable of understanding and speaking English and appeared to want the interpreter so as to provide more time to consider the questions asked of him). Nevertheless, for the above reasons, I am unable to accept his evidence that he did not receive the emails described at [16], [21] to [22], [31] and [33] to [35] above.

69    Secondly, as to the service of the envelope containing the petition, there is again no reason to doubt the unchallenged evidence of Mr Vassallo that the envelope was placed in the letterbox at the Edmondson Park property; and I cannot accept the evidence of Mr Islam that he did not see the envelope in light of his evidence concerning the emails discussed above. The evidence of Mr Islam’s wife and parents does not assist him. At its highest, it is evidence that they did not see Mr Vassallo at the Edmonson Park property or receive the envelope addressed to Mr Islam.

70    Thus, if it had been necessary to prove that the petition came to Mr Islam’s attention, I would have found that it did.

71    In any event, assuming contrary to all of the above analysis that the sequestration order ought not to have been made, I would decline to exercise the discretion so as to annul the sequestration order in circumstances where Mr Islam has adduced no evidence of his present financial position (see [48] and [49] above).

D.    Application for review under sECTION 35A of the FCA act

72    I turn next to the application for review under s 35A of the FCA Act. That section provides, in so far as is presently relevant, that:

35A     Powers of Registrars

(1)     Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:

…

(h)     a power of the Court prescribed by Rules of Court.

…

(5)     A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

(6)     The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

…

73    An application for the review of a Registrar’s decision to make a sequestration order involves an entirely different procedure to an application for the annulment of such an order. The review application involves a hearing de novo of the petition so as to determine whether or not a sequestration order should be made by the Judge on the evidence then available: Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at 176 [27], 185 to 186 [74], 189 to 190 [88] and 190 [92] (Allsop CJ, Markovic and Colvin JJ); Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143 (2021) 286 FCR 494 at 502 [21] (Allsop CJ) and 525 ([151] to [152] per Colvin J).

74    Section 43 of the Bankruptcy Act provides, in so far as is presently relevant:

43     Jurisdiction to make sequestration orders

(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.

…

75    Section 40(1)(g) of the Bankruptcy Act provides in so far as is presently relevant:

A debtor commits an act of bankruptcy in each of the following cases:

…

(g)      if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i)      where the notice was served in Australia—within the time fixed for compliance with the notice; …

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

76    I am satisfied that Mr Islam has committed an act of bankruptcy within the meaning of s 40(1)(g) of the Bankruptcy Act, in that: (1) he was served on 11 April 2025 with the bankruptcy notices which were founded upon final orders made by the Local Court of New South Wales; (2) as a result he was required to pay $104,447.36 within 21 days; and (3) he failed to make such payment within time, or at all.

77    I am also satisfied that when that act of bankruptcy was committed Mr Islam was personally present and ordinarily resident in Australia. It follows that each of s 43(1)(a) and (b) of the Bankruptcy Act is satisfied.

78    Section 52 of the Bankruptcy Act provides, in so far as is presently relevant:

Proceedings and order on creditor’s petition

(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.

…

(2)     If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

(a)     that he or she is able to pay his or her debts; or

(b)     that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

79    I am satisfied that each of the matters specified in s 52(1)(a) to (c) has been proven. I am also satisfied that each of the remaining formal requirements necessary to enliven the Court’s discretion to make a sequestration order has been proven. I note that no submission to the contrary is made on behalf of Mr Islam.

80    Thus, the Court’s discretion to make a sequestration order against Mr Islam’s estate has been enlivened and it is necessary to consider how the discretion ought be exercised.

81    The only ground advanced by counsel for Mr Islam on the review application was the contention that Mr Islam had not properly been served with the petition. For the reasons discussed above, I reject that contention. Further, in circumstances where the review involves a de novo hearing by reference to presently available evidence, it is pellucid that Mr Islam is aware of the petition.

82    I note for completeness that counsel for Mr Islam did not contend that Mr Islam is able to pay his debts (cf s 52(2)(a) of the Bankruptcy Act) or that there was any other reason why a sequestration order ought not be made, apart from the question of service (cf s 52(2)(b) of the Bankruptcy Act). Again, I note that Mr Islam adduced no evidence of his present financial position.

83    Thus, I am satisfied that as at the date of the hearing of the review application a sequestration order is appropriate. It follows that the application for review should be dismissed and the Registrar’s sequestration order affirmed.

E.    An aside

84    The above analysis addresses the case identified in the amended application, in the opening written submissions of counsel for Mr Islam and in the opening written submissions of counsel for the applicants, namely: (1) an application pursuant to s 153B of the Bankruptcy Act for the annulment of the sequestration order; and (2) an application pursuant to s 35A(5) of the FCA Act for review of the decision to make the sequestration order.

85    In oral closing submissions, counsel for Mr Islam made a series of submissions seeking to impeach the substituted service order on the basis that such an order should never have been made on the evidence before Registrar Stewart.

86    As is apparent from the amended application ([39] above) no relief to such effect is sought.

87    I also accept the submission made by counsel for the applicants that the applicants had conducted their case on the basis that the relief sought was that set out in the amended application and that there was no challenge to the substituted service order. So much is confirmed by paragraph 4 of the applicants’ written outline of opening submissions where counsel for the applicant stated: “[o]n 6 June 2025, this Court made orders for substituted service. Those orders are not challenged. The sole complaint of Mr Islam is that he was not served with the creditor’s petition”. This statement was not challenged by counsel for Mr Islam in her oral opening and she relied only upon her written opening submissions for the purposes of that opening.

88    Further, the cross-examination conducted by counsel for the applicants did not focus upon facts germane to the question whether the substituted service order ought be set aside.

89    I also accept the submission made by counsel for the applicants that had the applicants been aware that Mr Islam was seeking to impeach the substituted service order then the applicants would have adduced evidence focussed upon that issue, and thus the raising of the issue for the first time in oral closing submissions is prejudicial to the applicants.

90    Thus, the belated attack on the substituted service order was outside the case as presented on behalf of Mr Islam at all times prior to closing oral submissions. The applicants would be prejudiced if Mr Islam were allowed to pursue it now.

91    For the above reasons, the attack upon the substituted service order formed no part of the case for determination by the Court.

F.    Concluson

92    For the reasons set out above, the amended interim application must be dismissed and the sequestration order affirmed. There is no apparent reason why costs should not follow the event. I will make orders accordingly.

Associate:

Dated:    5 March 2026