Federal Court of Australia

Britten v Grant, in the matter of Britten [2026] FCA 625

ORDERS

THE COURT ORDERS THAT:

1.    The application for annulment of the applicant’s bankruptcy, filed on 24 November 2025, be dismissed.

2.    The bankrupt estate of the applicant and the applicant personally pay the respondent’s costs of the application for annulment of the applicant’s bankruptcy on a joint and several basis.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The applicant, Cathy Jayne Britten, formerly known by other names including Cathy Jayne Hogben and Cathy Jayne Staker Hogben, seeks an order under s 153B of the Bankruptcy Act 1966 (Cth), annulling a sequestration order (Sequestration Order) which was made on 13 July 2022 by a registrar of the Federal Circuit and Family Court of Australia (FCFCOA) in action BRG 196 of 2022 (FCFCOA Proceeding). Ms Britten asserts that the fact that she had been made a bankrupt was only “discovered” by her in early 2025, and that the bankruptcy should be annulled on the basis that the Sequestration Order ought not to have been made.

2    The respondent, Ian Graham Grant, is the trustee of Ms Britten’s bankrupt estate. He opposes the annulment of the bankruptcy.

3    For the reasons that follow, Ms Britten’s application must be dismissed.

Relevant legal principles

4    Section 153B(1) of the Bankruptcy Act provides:

Annulment by Court

(1)    If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.

5    As was explained in Rigg v Baker (2006) 155 FCR 531; [2006] FCAFC 179 (Rigg v Baker) at 543 [59], the decision whether to make an order annulling a bankruptcy pursuant to s 153B(1) involves a two-stage process. The first stage requires the Court to determine whether it is satisfied (relevantly) that the sequestration order “ought not to have been made”. This is a threshold requirement and (contrary to a submission advanced by Ms Britten) the discretion to annul the bankruptcy is not enlivened unless the Court is so satisfied. The second stage of the exercise requires the Court to consider whether, in all the circumstances, the discretion should be exercised in favour of annulling the bankruptcy.

6    In determining whether an applicant has met the threshold requirement to satisfy the Court that the sequestration order “ought not to have been made”, the Court must consider all the facts as they existed at the time the sequestration order was made, irrespective of whether those facts were known to the court that made the sequestration order at that time: Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 (Bulic) at [12(3)]; Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239; [2001] FCA 639 at 243 [16]; Re Raymond; Ex parte Raymond (1992) 36 FCR 424 at 426. If an applicant demonstrated that they were unaware of the bankruptcy proceedings in which a sequestration order was made, that could support a conclusion that the sequestration order ought not to have been made.

7    Factors relevant to the exercise of the discretion conferred by s 153B(1) of the Bankruptcy Act were identified by Banks-Smith J in Zaghloul v Jewellery & Gift Buying Service Pty Ltd [2020] FCA 1045 at [12] as including:

(a)    whether the applicant is solvent;

(b)    whether the applicant has made full disclosure of their financial affairs;

(c)    any unexplained delay in the making of the application;

(d)    any failure by the applicant to oppose the creditor’s petition and attend the hearing at which the sequestration order was made;

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

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

Factual background

Events giving rise to the relevant debt and the issue of the Bankruptcy Notice

8    On 15 December 2021, Elevare Pay Easy Pty Ltd (Elevare) commenced action BS14938/21 in the Supreme Court of Queensland (QSC Proceeding). Ms Britten was the second respondent to the QSC Proceeding. Ms Britten’s mother, Judy Staker, was the first respondent. The QSC Proceeding arose out of a statutory demand issued by a company of which Ms Britten was the sole director, Cathy Jayne Again Pty Ltd (Cathy Jayne Again), on 29 November 2021.

9    Elevare was also party to two other proceedings in the Supreme Court of Queensland which related to other statutory demands issued by Cathy Jayne Again.

10    On 10 January 2022, Ms Britten also commenced action CIV-22-000132 against Elevare in the Magistrates Court of South Australia (SAMC Proceeding).

11    On 10 February 2022, Williams J made orders in the QSC Proceeding, including orders to the effect that Cathy Jayne Again be included as the third respondent to the QSC Proceeding and that Ms Britten and Cathy Jayne Again pay Elevare’s costs of and incidental to the amended originating application filed in the QSC Proceeding, on an indemnity basis, fixed in the sum of $41,000 (Costs Order).

12    On 24 February 2022, a solicitor acting for Elevare, Millicent Russell of Russells Lawyers (Russells), received a copy of a further statutory demand, signed by Ms Britten (in her capacity as a director of Cathy Jayne Again and in her personal capacity), seeking repayment of a debt of $154,628 which Ms Britten claimed was owed by Elevare. The statutory demand identified Ms Britten’s address for service as an address in Morphettville (Morphettville Premises). The statutory demand was sent by Ms Britten to Ms Russell via email using the email address cathyhogben@gmail.com. The statutory demand was accompanied by an affidavit affirmed by Ms Britten on 24 February 2022 in which she stated that her address was the Morphettville Premises.

13    On 1 March 2022, Magistrate Fotheringham made orders dismissing the SAMC Proceeding. The record of outcome states that the matter was called on but Ms Britten did not appear, and that Elevare had noted the inadequacy of Ms Britten’s claim and asked that it be dismissed for failure to attend.

14    On 4 March 2022, Elevare issued a bankruptcy notice seeking payment of $41,000 from Ms Britten, in reliance on the Costs Order (Bankruptcy Notice).

15    On 4 March 2022 at 4.29pm, Ms Russell sent a copy of the Bankruptcy Notice and the orders made by Williams J on 10 February 2022 (including the Costs Order) to Ms Britten via email to the address cathyhogben@gmail.com.

16    At 6.25pm on the same day, an email was sent to Ms Russell, from the address cathyhogben@gmail.com. That email stated:

Thankyou please be advised that I have just been diagnosed and have 3 months to live

Sent from my iPhone

17    Despite its having been sent from an email address associated with Ms Britten, Ms Britten claims that she did not send this email. It will be necessary to return to this issue below.

Forms sent by email but not filed

18    On 7 March 2022, a further email was sent from cathyhogben@gmail.com to the Applications List Manager of the Supreme Court of Queensland and Ms Russell. That email included, as attachments:

(a)    a Form B4 notice of appearance (Unfiled Form B4);

(b)    a Form B5 notice stating grounds of opposition to application, interim application or petition (Unfiled Form B5); and

(c)    a notice of appeal against the judgment of Williams J dated 10 February 2022 in the QSC Proceeding.

19    Each of these three documents was a typed form which included handwritten details. The handwriting on each form is the same and the handwritten details on the form are all clearly in the same handwriting that Ms Britten acknowledged to be hers. Notably, despite disputing the authorship of many emails, Ms Britten did not assert that any of the handwriting that appears in documents filed in these proceedings (which were filed in her name in other proceedings) was not her handwriting. Although they were sent to the Supreme Court of Queensland and to Ms Russell, and not to the FCFCOA, the Unfiled Form B4 and the Unfiled Form B5 do not relate to the QSC Proceeding but are, rather, forms used by the FCFCOA in its bankruptcy jurisdiction. They do not identify an action number.

20    Each of the Unfiled Form B4 and the Unfiled Form B5 refers to Elevare and (in the case of the Unfiled Form B4) to Russells. The Unfiled Form B5 states that the “grounds of opposition” are “appeal is in progress” and “I have a claim against the creditor greater than amount in bankruptcy”. Each of the Unfiled Form B4 and the Unfiled Form B5 states (in Ms Britten’s handwriting) that it was “Filed on behalf of … Cathy Hogben” (that is, Ms Britten) and “Prepared by … self”. Each identifies Ms Britten’s mobile number as the telephone number of the filing party. In each of the Unfiled Form B4 and the Unfiled Form B5, the email address for Ms Britten is twice identified as “cathyhogben@gmail.com”, and the Morphettville Premises are identified as the “Address for service”. The Unfiled Form B4 is also signed in the name of “Cathy J Hogben”. Both forms are undated. Although the two forms are imperfectly completed, the inference that they were created by Ms Britten is irresistible.

21    None of the Unfiled Form B4, the Unfiled Form B5 or the notice of appeal appears ever to have been filed in court. Nevertheless, both the fact that the Unfiled Form B4 and the Unfiled Form B5 were prepared by Ms Britten and the fact that they were sent to Ms Russell from the email address cathyhogben@gmail.com are relevant to assessing whether Ms Britten has established, as she claims, that emails and documents later sent from cathyhogben@gmail.com were not sent by her and were sent without her knowledge.

Continuing email correspondence regarding the QSC Proceeding

22    On 16 March 2022 at 5.54pm, a further email was sent to Ms Russell from cathyhogben@gmail.com. That email stated:

Where is the opportunity to withdraw this

Also I have issued bankruptcy proceedings on Gino [the director of Elevare] please refer to South Australian notice and judgement

Additionally I am now not contactable on this email address

Sent from my iPhone

23    On 17 March 2022 at 8.03am, Ms Russell responded to this email, requesting that Ms Britten provide her new email address. Ms Russell’s email stated:

Dear Ms Hogben

Thank you for your email below.

Do you wish to withdraw the statutory demand issued on 24 February 2022? If so, please confirm and I will seek my client’s instructions about that.

If you have issued proceedings in South Australia, please email me a copy.

If you will no longer be contactable on this email address, would you please advise a new email address?

24    On 17 March 2022 at 8.21am, a further email was sent to Ms Russell, again using the address cathyhogben@gmail.com. It read as follows:

Yes I withdraw all

I am going into hospice and won’t be contactable at all on any email

Sent from my iPhone

The commencement of the FCFCOA Proceeding and the first attempt to serve Ms Britten

25    On 12 May 2022, Elevare commenced the FCFCOA Proceeding against Ms Britten by filing a creditor’s petition (Creditor’s Petition). On 18 May 2022, Elevare filed a supporting affidavit sworn by Ms Russell on that day (Russell Affidavit). The act of bankruptcy relied upon in the Creditor’s Petition was Ms Britten’s failure to comply with the Bankruptcy Notice.

26    On 18 May 2022, a process server unsuccessfully attempted to serve a copy of the Creditor’s Petition and the Russell Affidavit on Ms Britten at the Morphettville Premises.

Further email correspondence

27    Between 29 and 31 May 2022, there was further email correspondence between Ms Russell and cathyhogben@gmail.com, much of which related to the QSC Proceeding. I refer only to such of those emails as appear to have relevance to the FCFCOA Proceeding.

28    On 19 May 2022 at 2.38pm, an email was sent to Ms Russell from the address cathyhogben@gmail.com. That email stated:

You have misunderstood I am not seeking legal advice

I am requesting the withdrawal of any bankruptcy proceedings if there is one and I will withdraw this statutory demand.

Otherwise i do not consent to an adjournment

Thanks

29    Notably, the author of this email referred to “bankruptcy proceedings”, while also adding the words “if there is one”. The inference is open that that form of words was chosen in an apparent attempt to avoid admitting that the author was aware of the FCFCOA Proceeding, while simultaneously requesting that it be withdrawn.

30    Later on 19 May 2022, in reply to the email sent from cathyhogben@gmail.com at 2.38pm, Ms Russell sent an email to cathyhogben@gmail.com. Relevantly, Ms Russell’s email:

(a)    stated that, on 4 March 2022, Russells had served Ms Britten with a bankruptcy notice seeking payment in the sum of $41,000 in accordance with the Costs Order;

(b)    attached a copy of the Bankruptcy Notice and the Costs Order;

(c)    asserted that Ms Britten had failed to pay the sum of $41,000 to Elevare in accordance with the Costs Order or the Bankruptcy Notice;

(d)    advised that, on 12 May 2022, Elevare had filed a creditor’s petition in the FCFCOA;

(e)    attached a copy of the Creditor’s Petition and the Russell Affidavit; and

(f)    explained that the Creditor’s Petition was a separate proceeding from Elevare’s application in the Supreme Court of Queensland to set aside one of the statutory demands issued by Ms Britten; and

(g)    advised that Russells did not hold instructions to withdraw the Creditor’s Petition.

31    A reply to this email was provided at 5.00pm the same day, by email from cathyhogben@gmail.com. The latter email stated:

Thank you for being clear but to be clear that is not consented by me

32    Later that evening, at 6.54pm, in reply to a different email from Ms Russell about material relating to a proceeding in South Australia, another email was sent to Ms Russell from cathyhogben@gmail.com. This email stated:

Sure I will have it served on you.

Likewise as to my opposing and appealing the judgement and notice of bankruptcy and any bankruptcy proceedings

33    On 20 May 2022, Ms Russell sent an email to cathyhogben@gmail.com, advising that Elevare’s application to set aside the statutory demand issued to Elevare on 24 February 2022 had been set down for hearing on 3 June 2022. On 24 May 2022 at 1.21pm, a reply was sent from cathyhogben@gmail.com to Ms Russell, which stated:

Millie I had been prepared to only due to my circumstance but it would seem that you intend to bankrupt me and are not prepared to make any concessions, as that’s the case it won’t matter if I incur any further costs at all . Accordingly I will be pursuing legal remedy and you shall be advised of same . To be clear I will not be withdrawing

Sent from my iPhone

34    On 26 May 2022 at 3.47pm, Ms Russell sent an email to cathyhogben@gmail.com attaching a sealed order of Brown J made on 20 May 2022. In response to that email, on 26 May 2022 at 11.40pm, an email was sent from cathyhogben@gmail.com in the following terms:

Please be advised that I am in hospital and very sick

Sent from my iPhone

35    On 27 May 2022 at 11.15am, Ms Russell sent an email to cathyhogben@gmail.com, which stated:

We are sorry to hear you are unwell and in hospital.

We note that if you are too unwell to attend the hearing on 3 June 2022 (and if you remain unrepresented), there is a risk that the Court will make orders in your absence, including orders setting aside the Fourth Demand and that you pay our client’s costs.

Please let us know if you would prefer that hearing on 3 June 2022 is adjourned and, if so, what date might be convenient to you.

We look forward to hearing from you.

36    At 12.18pm on the same day, an email was sent from cathyhogben@gmail.com in reply to Ms Russell’s email, which was in the following terms:

Thankyou I would really appreciate it being adjourned for at least two weeks . I can give medical support

Sent from my iPhone

37    On 31 May 2022 at 9.18am, an email was sent on behalf of Ms Russell to cathyhogben@gmail.com, stating that Elevare was prepared to adjourn the hearing in the Supreme Court of Queensland for two weeks, and attaching a draft consent adjournment form for Ms Britten to sign. It is apparent that the consent adjournment form was signed and returned because, on 1 June 2022, Ms Russell sent an email confirming that the signed form had been filed in the Supreme Court of Queensland, and attaching a sealed copy.

Further attempts to serve the FCFCOA Proceeding on Ms Britten

38    On 1 June 2022, Ms Russell received an email from cathyhogben@gmail.com, in response to her email of 31 May 2022, which stated:

Thankyou

Millie note I have had to put my address down as [the Morphettville Premises] but I am actually now homeless

Regards

39    On 2 June 2022, a solicitor from Russells received a telephone call from Ms Britten, in which she stated that she was homeless, had no address for service of documents, and was available via her mobile number.

40    On 2 June 2022 at 5.54pm and on 3 June 2022 at 5.56pm, a process server again unsuccessfully attempted to serve Ms Britten with the Creditor’s Petition and the Russell Affidavit at the Morphettville Premises.

41    On 6 June 2022, the process server called Ms Britten on her mobile phone and spoke to her. According to his affidavit dated 10 June 2022, he told Ms Britten that he had documents that needed to be given to her, and asked whether she could provide him with her address or let him know a suitable place to meet. Ms Britten then said words to the effect of, “I will not meet with you and I do not have a current address. I have only just gotten out of hospital and have been very unwell.”

42    The process server was unable to obtain further details from Ms Britten. I note that Ms Britten’s assertion in the phone conversation that she had been in hospital is consistent with what had been said in the email sent from cathyhogben@gmail.com on 26 May 2022 at 11.40pm, and is generally consistent with claims in other emails to the effect that Ms Britten was unwell.

The application for substituted service in relation to the FCFCOA Proceeding

43    On 14 June 2022, Elevare filed an interim application in the FCFCOA Proceeding, seeking an order permitting substituted service of the Creditor’s Petition and the Russell Affidavit by email to cathyhogben@gmail.com, by text message to Ms Britten’s mobile number, and by ordinary post to two other addresses. Those addresses were obtained from the ASIC records for C&D Motels Pty Ltd, a company of which Ms Britten was director and shareholder. One was an address at Chopin Road, Somerton Park which was listed in ASIC’s records as Ms Britten’s address (Chopin Road Premises), and the other was an address at Brighton Road, Somerton Park (Brighton Road Premises) which was the registered address of C&D Motels Pty Ltd.

44    On 14 June 2022 at 3.54pm, an email was sent on behalf of Ms Russell to cathyhogben@gmail.com, attaching a copy of the interim application for substituted service and an affidavit in support, and stating that:

(a)    the interim application for substituted service was to be heard by the FCFCOA on 15 June 2022 at 9.00am,

(b)    the hearing would proceed whether or not Ms Britten attended;

(c)    the FCFCOA may facilitate Ms Britten’s attendance by telephone or video link, and

(d)    if she wished to arrange to attend the hearing remotely, Ms Britten should contact the registry and provide them with the action number of the FCFCOA Proceeding.

45    On 14 June 2022 at 5.29pm, Ms Russell sent another email to cathyhogben@gmail.com, attaching an additional affidavit relevant to the application for substituted service.

46    On 14 June 2022 at 5.35pm, an email was sent from cathynoreplyhogben@gmail.com to the email address for the Queensland registry of the Federal Court, which was also used by the registry of the FCFCOA (Queensland registry). That email stated:

Dear Parties

Quite by accident I see the above matter is listed for substituted service at 9am Brisbane time, for which I would like to request a 4 week adjournment for

This is because of the following reasons that are not all inclusive

1.    I have never done business with Elevare Pay in Queensland and the result of same is a judgement which has been appealed

2.    I have no fixed address and unfortunately am a victim of the pandemics homelessness crisis and so am unable to be effectively served

3.    Because of same I have no internet facilities and no longer use the cathyhogben@gmail.com email address nor have access to facilities to read or print any documents as any of my goods are storage [sic]

4.    I am also NOT contactable on my number [mobile phone number] as have recently broken my phone

5.    Similarity [sic] the address of [the Chopin Road Premises] is a half built property and it would not come to my attention

6.    The address at [the Brighton Road Premises] is my ex accountant and they no longer attend to my affairs and it most definitely not come [sic] to my attention

7.    I did wish to lodge an appose [sic] the creditors petition in any event but because of all of the above could not put in the official paperwork

8.    Elevare and there [sic] are purely acting out of spite and viscousness [sic] as I had a bad review on there [sic] page

9.    I am also, as explained to the process server sick and in and out of hospital

10.    I wish to get legal representation regarding the matter

11.    There are matters on foot with South Australian Courts regarding Elevare Easy Pay

12.    Please note this is not a monitored email address

Regards

Cathy Staker Hogben

47    On 15 June 2022 at 10.28am, a copy of the email of 14 June 2022 was forwarded from cathynoreplyhogben@gmail.com to Ms Russell (without any additional content).

48    On 15 June 2022, a registrar of the FCFCOA made substituted service orders, including that service of the Creditor’s Petition and the Russell Affidavit was to be effected by sending the documents by email to both cathyhogben@gmail.com and cathynoreplyhogben@gmail.com, by sending them by express post to each of the Morphettville Premises and the Brighton Road Premises, and by telephoning Ms Britten’s mobile or, if the phone was not answered, by sending a text message to her mobile number.

49    On 15 June 2022, Ms Russell served the documents in accordance with each of the methods provided for in the substituted service orders. Letters accompanying the documents, attached to Ms Russell’s email and sent to each of the Morphettville Premises and the Brighton Road Premises by express post, stated that the hearing of the Creditor’s Petition was listed for 29 June 2022 at 9.30am. The text message Ms Russell sent to Ms Britten’s mobile number also contained this information.

Documents apparently filed by or on behalf of Ms Britten in the FCFCOA Proceeding

50    On 20 June 2022 at 4.24pm, an email was sent from cathyhogben@gmail.com to the Queensland registry. The body of the email read:

Please file as soon as possible and send back by return email so that I can serve the other side

URGENT

51    This email attached three documents bearing the action number of the FCFCOA Proceeding:

(a)    a Form B4 notice of appearance (Filed Form B4);

(b)    a Form B5 notice stating grounds of opposition to application, interim application and petition (Filed Form B5); and

(c)    an affidavit of Ms Britten dated 31 May 2022 (31 May Britten Affidavit).

52    On 21 June 2022, the Queensland registry sent an email in reply to cathyhogben@gmail.com with the subject “Confirmation of Filing Material”. The email confirmed that the Filed Form B4, the Filed Form B5 and the 31 May Britten Affidavit had been “accepted for filing and processed accordingly”, and attached sealed copies of each of the three documents.

53    Both the Filed Form B4 and the Filed Form B5 are mainly typed, and also contain some handwriting and a signature. The handwriting is the same as the handwriting that appeared on the Unfiled Form B4 and the Unfiled Form B5. It is Ms Britten’s handwriting. The Filed Form B4 is dated 21 June 2022 and the Filed Form B5 is undated. Both identify that they are filed by the respondent (ie, Ms Britten). Both identify a unit in Barmera as the address for service (Barmera Premises), and “cathylegalcjsph@gmail.com” as the email address for service.

54    The Filed Form B5 contains the following statement under the heading “Grounds of opposition”:

I Cathy Jayne Staker – Hogben , intends [sic] to oppose the [*]application [*or] petition on the following grounds:

1.    I have a claim against the creditor far greater than the amount of bankruptcy

2.    All claims and any business all arose in South Australia and so should be managed by the South Australian Courts and not the Queensland Courts with respect . I have not been in Queensland for some 14 years

55    Both the Filed Form B4 and the Filed Form B5 contain the same signature which reads “Cathy J Hogben”. These signatures match the signature on the Unfiled Form B4. Each of the Filed Form B4 and the Filed Form B5 records, in handwritten text in the footer, that it was filed on behalf of “Cathy J Hogben (Staker)” and was prepared by “self”. The handwriting matches Ms Britten’s handwriting. In each case the telephone number provided is Ms Britten’s mobile phone number and the address for service recorded in the footer is the Barmera Premises. In the footer of the Filed Form B4 and the Filed Form B5, the email address stated is “cathylegalcjsph@gmail.com”.

56    The 31 May Britten Affidavit was completed by hand using a standard form used for affidavits in the FCFCOA. The handwriting is Ms Britten’s. The footer on the front page of the affidavit, written in Ms Britten’s handwriting, contains the Barmera Premises as the “contact address”, and Ms Britten’s mobile phone number. The email address stated, again in Ms Britten’s handwriting, is “cathyhogben@gmail.com or cathylegalcjsph@gmail.com”. Under the heading “Evidence”, the following three paragraphs are set out, in Ms Britten’s handwriting:

1.    The claim I have against the applicant far exceeds the amount of bankruptcy.

2.    All claims and business arose in South Australia and should be manged [sic] there accordingly

3.    I have recently submitted an appeal requesting leave for the original application.

57    The 31 May Britten Affidavit was signed by Ms Britten in the name “Cathy J Hogben”.

Further email correspondence regarding the FCFCOA Proceeding

58    On 21 June 2022 at 12.28pm, an email was sent from cathyhogben@gmail.com to Ms Russell. That email had no textual content but simply forwarded the email from the Queensland registry sent earlier that day, including its attachments (ie, sealed copies of the Filed Form B4, the Filed Form B5 and the 31 May Britten Affidavit).

59    I note that, although the email address for service for Ms Britten in the FCFCOA Proceeding had been identified as cathylegalcjsph@gmail.com, the email address used to communicate on behalf of Ms Britten with the Queensland registry, to lodge for filing the Filed Form B4, the Filed Form B5 and the 31 May Britten Affidavit, and to serve the sealed copies of those documents on Ms Russell, was cathyhogben@gmail.com.

60    On 28 June 2022, Ms Russell sent an email to cathyhogben@gmail.com, which read:

Dear Ms Hogben

We understand that you have been communicating with the Court today in respect of tomorrow’s hearing and that you intend to appear.

Would you please advise whether you intend to serve any further material and, if so, when we may expect to receive it?

We will serve you with our client’s outline of submissions, affidavits of search, debt and service tomorrow morning.

61    In reply to that email, Ms Russell received an email sent on 28 June 2022 at 5.40pm from cathyhogben@gmail.com, which read:

Dear Millie

As I have not received nor read the material I am seeking an adjournment to obtain legal advise [sic]. On that basis please don’t send me anything further

Regards

Cathy

62    On 29 June 2022, before the listed hearing of the FCFCOA Proceeding, Ms Russell sent, to cathyhogben@gmail.com and cathynoreplyhogben@gmail.com, two emails attaching three affidavits filed by Elevare in the FCFCOA Proceeding on which it proposed to rely at the hearing.

63    On 29 June 2022, a registrar of the FCFCOA adjourned the hearing of the Creditor’s Petition to 13 July 2022. The Court made orders requiring that Ms Britten advise Russells whether she intended to obtain legal representation and, of so, file and serve a notice of appearance, and that, by 11 July 2022, Ms Britten file and serve any amended notice stating grounds of opposition and any further material on which she intended to rely on the hearing of the Creditor’s Petition.

64    On 29 June 2022, at 3.08pm, after the hearing of the FCFCOA Proceeding, Ms Russell sent, to cathyhogben@gmail.com, cathynoreplyhogben@gmail.com and cathylegalcjsph@gmail.com, an email which stated that the hearing of the Creditor’s Petition had been adjourned to 13 July 2022 at 2.15pm, and which attached a list of material, an outline of written submissions and a copy of the orders made on 29 June 2022. I note that a copy of the orders, including the order fixing the hearing of the Creditor’s Petition for 13 July 2022, was thus sent to the email address which had been identified in the Filed Form B4, cathylegalcjsph@gmail.com.

65    Also on 29 June 2022, a staff member in the Queensland registry sent an email to cathyhogben@gmail.com, and copied to Ms Russell, which stated that the matter had been adjourned to 13 July 2022 at 2.15pm (AEST) and attached a copy of the orders made on 29 June 2022. The email also stated that, if Ms Britten required to appear by telephone, she should email the Queensland registry.

66    On 4 July 2022, Ms Russell sent a further email to each of cathyhogben@gmail.com, cathynoreplyhogben@gmail.com and cathylegalcjsph@gmail.com, forwarding her own email sent at 3.08pm on 29 June 2022, pointing out the effect of the orders of 29 June 2022, and stating that Russells looked forward to receiving any further material and amended grounds from Ms Britten by 11 July 2022. Again, I note that this email was sent to the email address identified in the Filed Form B4.

67    On 4 July 2022 at 3.05pm, an email was sent from cathyhogben@gmail.com to Ms Russell (and also to query@fedcourt.gov.au), copying in cathynoreplyhogben@gmail.com and cathylegalcjsph@gmail.com. The email read:

I am still in hospital from when I came to emergency visa [sic] ambulance during our hearing last week and because of this have not been able to make Enquiry. I am hoping to be discharged in the next few days so can only do what my health allows

68    On 8 July 2022 at 3.30pm, an email with the subject “stat dec block of dirt” was sent from cathyhogben@gmail.com to the email addresses for Elevare and its director. The email had no text content but attached a statutory demand addressed to Blocks of Dirt Pty Ltd (a company of which the director of Elevare was also a director), asserting that it owed Ms Britten $154,753, and an accompanying affidavit of Ms Britten. Both the statutory demand and the affidavit were signed in the name “Cathy J Hogben”. The signatures on each matched the signatures on all the other documents in evidence that were signed by Ms Britten.

More documents apparently filed by or on behalf of Ms Britten in the FCFCOA Proceeding

69    On 11 July 2022 at 9.33am, an email was sent from cathyhogben@gmail.com to the Queensland registry. The email read:

Can you please file this and return it sealed so I can serve the other side

Also can you please advise the honorable judge with the greatest of respect I have been in and out of hospital with my mother, myself and my child and I am unable to make tomorrows hearing

I request a longer adjournment so I can attend to my affairs and in light of my affidavit I hope you can understand

Regards

Cathy Staker Hogben

70    Included as an attachment to this email was an affidavit of Ms Britten dated 4 July (4 July Britten Affidavit). The first and last pages of the 4 July Britten Affidavit were a standard printed form used for affidavits in the FCFCOA, onto which case-specific information had been added in handwriting. The handwriting is Ms Britten’s.

71    The handwritten portions of the affidavit included the action number of the FCFCOA Proceeding, the names of the parties, the name “Cathy Jayne Staker Hogben” as the deponent, the address of the Barmera Premises as the deponent’s address, and the date of the affidavit. In the footer on the first page of the affidavit, it identified (in Ms Britten’s handwriting) that it was filed on behalf of Cathy Jayne Staker Hogben and was prepared by “self”. The telephone number written (in handwriting) was Ms Britten’s mobile number, the address for service stated was the Barmera Premises, and the email address stated was cathyhogben@gmail.com.

72    The middle three pages of the affidavit took the form of typed written submissions. On the third of those pages, the affidavit ended with the typed heading “Legal position”, below which, in Ms Britten’s handwriting, appeared the words “as follows”. The affidavit included an additional 31 pages comprising various documents.

Further email correspondence regarding the FCFCOA Proceeding

73    On 11 July 2022 at 4.27pm, a Senior Legal Case Manager replied to cathyhogben@gmail.com using the email address for the Queensland registry, copying in Ms Russell. The email stated that the 4 July Britten Affidavit had been filed, attached a sealed copy of the 4 July Britten Affidavit, and advised that the hearing on 13 July 2022 would not be adjourned unless Elevare consented to the adjournment.

74    On 12 July 2022 at 3.00pm, the Senior Legal Case Manager sent a further email to cathyhogben@gmail.com, which read:

Good afternoon

I refer to my email below.

Can you advise whether you intend appearing at the hearing tomorrow at 2.15pm? If so, I note you are located in South Australia and as such you would need to make a request in writing to this email address to appear via telephone.

Please note if you choose not to appear tomorrow orders may be made in your absence.

75    On 12 July 2022 at 5.27pm, an email in reply was sent from cathyhogben@gmail.com to the Senior Legal Case Manager, copying in Ms Russell. The email stated:

Thankyou

Given my locale and my current circumstances I would request leave to please appear by phone

In the event that I am unable to due to it is not intended to have disrespect to the court

I request that my defense and affidavit be acknowledged and my circumstances with regards to this

In addition i can prove myself to have my illnesses confirmed with medical authorities

My treatment (24th of July) will be completed at the end of next week and I shall be able to attend to my affairs

And in addition my sisterfrom interstate will be taking over caring duties for my mum

With respect I request an adjournment until august

Regards

Cathy

76    Later in the evening of 12 July 2022, Ms Russell replied to the email sent on 12 July 2022 at 5.27pm. Ms Russell’s email referred to the 4 July Britten Affidavit and the emails of 11 and 12 July 2022 to which reference has been made above, stated that Russells were instructed to oppose any further adjournment of the FCFCOA Proceeding, attached by way of service a further affidavit, and identified the documents that Elevare proposed to rely upon at the hearing of the FCFCOA Proceeding on 13 July 2022.

77    On 13 July 2022 at 9.27am, in reply to Ms Russell’s email of the previous evening, an email was sent from cathyhogben@gmail.com to Ms Russell and the Queensland registry, copying in cathynoreply@gmail.com and cathylegalcjsph@gmail.com. This email stated:

Dear Millie

I am in hospital having treatment with my dying mum and I think the court will see your being unreasonable

I am not bankrupt

If the court or you want me to put the money of $41000 ( reluctantly in trust to prove that I am not insolvent I will do that. I dispute the claim , the juristriction [sic], the method, the service, the technicalities etc

In any event even if you are successful it will not achieve what you are after which is not the purpose of this email

If you want to have without prejudice discussions as to how to resolve for both parties then I am open to that given the circumstances but it will require a consent to adjourn for at least 2 weeks and I will give you my undertaking to discontinue any actions on behalf of Judy Staker as well which is extremely relevant. Alternatively please feel free to email me an offer to resolve

Regards

78    On 13 July 2022 at 9.31am, the Senior Legal Case Manager sent an email to cathyhogben@gmail.com, stating that her “telephone request” had been approved, and providing a link and telephone number to enable Ms Britten to appear remotely at the hearing to be held later that day. The email then stated:

Any further request for an adjournment will need to be made in open Court and supported by affidavit material. I note there is presently no medical evidence before the Court.

In the event that you fail to appear at the hearing then orders will be made in her [sic] absence, including a sequestration order.

The making of the Sequestration Order and the appointment of Mr Grant as trustee

79    Later on 13 July 2022, the Creditor’s Petition was heard before a registrar of the FCFCOA. Ms Britten did not appear at the hearing. The registrar made the Sequestration Order. In the notes contained in the sealed order of the Court, it is stated that the date of the act of bankruptcy was 25 March 2022. The Official Trustee in Bankruptcy was appointed to administer Ms Britten’s bankrupt estate.

80    On 13 July 2022 at 4.40pm, the Senior Legal Case Manager sent an email to cathyhogben@gmail.com, copying Ms Russell, attaching a sealed copy of the orders made by the registrar, including the Sequestration Order.

Post-sequestration email correspondence relating to Ms Britten’s bankruptcy

81    On 19 July 2022, Lachlan Gunn of the Australian Financial Security Authority (AFSA) sent an email to cathyhogben@gmail.com. In that email, Mr Gunn advised that he had been appointed as the case officer for Ms Britten’s bankrupt estate. The email attached a letter regarding her bankruptcy, a statement of affairs (SOA) form which Mr Gunn said Ms Britten was required to complete and return, and a link to an online blank copy of the SOA form.

82    On 22 July 2022 at 5.17pm, an email was sent from cathyhogben@gmail.com in reply to Mr Gunn’s email, confirming Ms Britten’s correct date of birth and identifying “Staker / hogben” as names by which she was known.

83    On 25 July 2022 at 1.58pm, Sarah Mills of AFSA sent an email in reply to cathyhogben@gmail.com. In her email, Ms Mills thanked Ms Britten for her email, advised that Ms Mills had been appointed as Ms Britten’s new case manager, attached another copy of the SOA form, and encouraged Ms Britten to reach out if she had any questions completing the form. On 9 August 2022, Ms Mills sent a further email to cathyhogben@gmail.com, in which she inquired how Ms Britten was going with completing the SOA form and asked her to provide her postal address for AFSA’s records.

84    On 9 August 2022 at 4.53pm, an email was sent from cathyhogben@gmail.com in reply to Ms Mills’s second email. This email stated, “Yes I’ve sent them back but I have no fixed address”.

85    On 23 August 2022 at 9.02am, Ms Mills sent another email in reply to cathyhogben@gmail.com, the substantive content of which read as follows:

I hope you are well.

I refer to your email below confirming that you have returned the completed Bankruptcy Form.

I note that the form has not yet been received. I understand that Australia Post can be a little slow at times, but just wanted to confirm what date you sent the form?

If you have a copy of your completed Bankruptcy Form, feel free to scan and return it to me via email.

Should you have any questions, please do not hesitate to contact me.

86    On 16 September 2022, Ms Mills again sent a further email to cathyhogben@gmail.com, the substantive content of which read as follows:

Further to my email below, I note that your completed Bankruptcy Form has not been received.

Do you have a copy of the completed form you could scan and email to me?

Should you have any questions, please do not hesitate to contact me.

87    On 6 October 2022, Ms Mills sent an email to cathyhogben@gmail.com, attaching a letter stating that AFSA’s records indicated that Ms Britten had not lodged her completed SOA form, that she could complete the form online (at a URL which she provided), that it was an offence under the Bankruptcy Act not to complete and file her SOA form and that, if she did not do so within 14 days, Ms Britten may be referred for criminal prosecution and could be fined up to $11,000. The letter also stated that bankruptcy normally ends three years and one day after the SOA form is accepted, and that, if Ms Britten did not file the SOA form, she would “stay bankrupt forever”.

88    It appears that no response was received to Ms Mills’s emails of 23 August 2022, 16 September 2022 and 6 October 2022.

89    On 17 March 2025, Ms Britten, using a different email address, sent an email to AFSA, stating that she had recently been advised that she had been made bankrupt in 2022, “but this was done by fraud of” her former partner, without her knowledge. She claimed that learning about the bankruptcy was “a complete shock as I never lived at the address that was quoted as [the Morphettville Premises]”, and that she needed “to sort this out to get it annulled”.

90    On 23 April 2025, Mr Grant was appointed in place of the Official Trustee as trustee of Ms Britten’s bankrupt estate.

Ms Britten’s claims that she was unaware of the FCFCOA Proceeding, the Sequestration Order, and communications sent from her email addresses

Ms Britten’s contention that she was unaware of the use of her email addresses

91    Ms Britten’s position is that the use of her email by another person was part of a course of abuse and coercive control to which she was subjected in 2022. The affidavit evidence filed by Ms Britten contains various descriptions of kinds of behaviour that could amount to coercive control or financial or other forms of abuse. Ms Britten’s evidence does not identify specific incidents in detail. I am, however, conscious of the difficulties that a person in Ms Britten’s position might experience in connection with providing more detailed evidence of these events. Ms Britten provided no entirely independent evidence for these claims, but did adduce evidence of documents which demonstrate that she herself has made allegations of this kind over time, including in family law proceedings and reports to police and other government agencies.

92    I have not found it necessary to make any finding as to whether Ms Britten was subject to abuse or coercive control. In circumstances where the person against whom the allegations are made is not before the Court and has not been heard in relation to any of them, it is preferable not to make any such findings. Rather, for the purposes of the present proceeding, I am prepared to assume, in Ms Britten’s favour, that her general evidence about those matters having occurred is or may be true. In particular, I am prepared to assume that Ms Britten’s former partner may have been capable of gaining access to some of her personal accounts.

93    It may be accepted, as an abstract possibility, that Ms Britten’s email accounts could have been accessed or manipulated by her former partner at some point. However, it is not sufficient for Ms Britten merely to identify that possibility. Ms Britten bears the onus of proving the facts on which her application to annul the bankruptcy depends. She must satisfy the Court that the Sequestration Order “ought not to have been made”. Relevantly, it is for Ms Britten to establish, on the balance of probabilities, that she was unaware of the hearing on 13 July 2022 at which the Sequestration Order was made.

94    For the reasons that follow, I am not prepared to make findings on the basis of Ms Britten’s evidence. When the nature and content of the emails sent from the three email accounts associated with Ms Britten are considered in context, Ms Britten has not satisfied me on the balance of probabilities that any other person engaged in any relevant activity using any of the three email accounts associated with her.

Affidavit evidence relied on by Ms Britten

95    At the hearing of the application to annul her bankruptcy, Ms Britten relied on two affidavits.

96    In the first of those two affidavits, dated 3 March 2026, Ms Britten claimed that she had never lived at the Morphettville Premises, that that address was under the control of her former partner, and that the service of documents to the Morphettville Premises “materially contributed” to her “lack of awareness of proceedings” (evidently a reference to the FCFCOA Proceeding). The case advanced by Ms Britten is reflected in the following paragraphs of her affidavit dated 3 March 2026:

37.    The bankruptcy notice and creditor’s petition were purportedly served at [the Morphettville address].

38.    I never resided at that address.

39.    That address was occupied by [Ms Britten’s former partner].

40.    I did not receive mail at that address.

41.    I did not authorise service at that address.

42.    I did not receive the bankruptcy notice.

43.    I did not receive notice of the petition hearing.

44.    I did not attend any hearing because I was unaware of it.

45.    A sequestration order was made in July 2022 without my knowledge.

46.    I was not contacted by the trustee never received any letters or emails advising me and was not provided with a statement of affairs

47.    Proper service is fundamental to procedural fairness and I was deprived of the opportunity to defend the proceedings, dispute insolvency, seek time to pay, negotiate settlement, or apply for annulment promptly.

(Emphasis in original.)

97    Ms Britten thus sought to present her alleged unawareness of the FCFCOA Proceeding as following from the fact that there had been unsuccessful attempts to serve her at the Morphettville Premises. It is noteworthy that the Morphettville Premises had been identified by Ms Britten herself, as her own address for service, in a statutory demand and affidavit which she served on Elevare on 24 February 2022, and in the Unfiled Form B4 and the Unfiled Form B5, both of which were completed in Ms Britten’s handwriting. The subsequent attempts by Elevare’s solicitors to serve Ms Britten at that address were entirely reasonable, and were not due to any conduct on the part of Ms Britten’s former partner.

98    In any case, the Creditor’s Petition was ultimately served using multiple methods, in accordance with the orders for substituted service. Other documents relating to the FCFCOA Proceeding were not served at the Morphettville Premises at all, but were generally sent by email to cathyhogben@gmail.com. Notice of the hearing at which the Sequestration Order was made was sent by email to cathyhogben@gmail.com. The Sequestration Order itself was not served at the Morphettville Premises but was, rather, sent directly by the Senior Legal Case Manager by email to cathyhogben@gmail.com on the day it was made. Mr Grant did not place any reliance on any attempt to serve Ms Britten at the Morphettville address.

99    Ms Britten asserts in her affidavit dated 3 March 2026 that her email addresses “were also changed during this period to protect my privacy and in connection with my name change”. This is a vague assertion. The “period” to which Ms Britten was referring is unclear. I note that Ms Britten continued to refer to herself as “Cathy Jayne Hogben” or “Cathy Jayne Staker Hogben”, including in parts of documents that were handwritten by her, until at least 4 July 2022. In any event, for the reasons explained below, whatever name she might otherwise have been using, I am satisfied that Ms Britten continued to use the email address cathyhogben@gmail.com until at least 9 August 2022.

100    The second affidavit on which Ms Britten relied, dated 1 April 2026, was filed after Mr Grant filed affidavit evidence setting out the extensive history of proceedings and communication that has been recounted at [8]-[90] above. In that affidavit, Ms Britten stated that “communications purporting to come from [her], or activity appearing under [her] name, cannot be assumed to be authentic without careful forensic examination”. She repeatedly made similar claims, such as that “records in [her] name could be manipulated, … addresses associated with [her former partner] were unsafe, … email communications could not be assumed to be secure”, that “there were risks associated with” the cathyhogben@gmail.com account, and that “this was not a secure and reliable method of personal service on me”.

101    Ms Britten’s affidavit evidence is extensive, but exceptionally vague when it comes to the addressing the specific documents which appear on their face to suggest that she did have knowledge of the FCFCOA Proceeding, including the hearing at which the Sequestration Order was made. At no point does she state clearly and directly in her affidavit evidence that any particular email sent to any of the email addresses associated with her was not, in fact, received or seen by her. Nor does she state clearly and directly in her affidavit evidence that any particular email sent from one of those addresses was not, in fact, sent by her.

102    In her affidavit dated 1 April 2026, Ms Britten does state at one point that “it was [her former partner] who was communicating with the bankrupting creditor … and at times the trustee”. This appears to amount to an assertion that every communication between Ms Russell and any of the three email addresses associated with Ms Britten was, in reality, communication between Ms Russell and another person. For the reasons that follow, I do not accept this.

103    Ms Britten has repeatedly stated in these proceedings that she never lived at the Morphettville Premises. That is inconsistent with her twice providing the Morphettville Premises as her address for service, and with her statement, made in the 4 July Britten Affidavit, that “[w]e were temporarily residing at [the Morphettville Premises] until February 2022 when we escaped a domestic violence situation”. I make no finding as to whether Ms Britten did in fact reside at the Morphettville Premises at any time, but I find that her inconsistency regarding this question damages her credibility.

104    Several of the submissions advanced by Ms Britten were inconsistent with her position that she had no knowledge of the FCFCOA Proceeding. Notably:

(1)    In support of a submission that the Sequestration Order ought to have been served on her at the Barmera Premises, Ms Britten referred on the fact that the Filed Form B4 identified the Barmera Premises as her address for service. Ms Britten stated in her oral submissions that “at that point in time, I was aware of something happening … and I did notify them that [the Barmera Premises] address was an address for service”. Ms Britten’s acceptance that she filed the Filed Form B4 in the FCFCOA Proceeding cannot be reconciled with a submission that she was unaware of the FCFCOA Proceeding.

(2)    Relatedly, the Filed Form B4 was filed as a consequence of its being sent by email to the Court on 20 June 2022 at 4.24pm from the cathyhogben@gmail.com address. Ms Britten’s reliance on the Filed Form B4 is inconsistent with her repeated assertions that the cathyhogben@gmail.com address was no longer in use by her.

(3)    One of the grounds on which Ms Britten contends her bankruptcy should now be annulled is that she is not insolvent. In support of that contention, she sought to rely upon the fact that, before the Sequestration Order was made, she had offered to place $41,000 in trust. This is a reference to a statement contained in the email sent from cathyhogben@gmail.com to Ms Russell and the Queensland registry on 13 July 2022 at 9.27am. Implicit in Ms Britten’s submission that that offer was evidence of her solvency is that the email containing the statement was sent indeed by Ms Britten. This confirms that Ms Britten herself was using the cathyhogben@gmail.com account on the very morning of the hearing at which the Sequestration Order was made, was corresponding about the FCFCOA Proceeding with Ms Russell, and was actively attempting to have the hearing adjourned. That is entirely consistent with the whole course of conduct reflected in the emails sent from cathyhogben@gmail.com over the preceding months, and it is inconsistent with the proposition that Ms Britten was unaware of the FCFCOA Proceeding or the fact that the Court had informed her that, should she not appear at the hearing on 13 July 2022, orders, including a sequestration order, may be made in her absence.

Ms Britten created the Filed Form B4, the Filed Form B5 and the 31 May Britten Affidavit

105    In the course of oral submissions, Ms Britten was asked to clarify which particular emails she claimed had not been written or sent by her.

106    Ms Britten maintained that she did not recall ever being aware of the FCFCOA Proceeding, but accepted that the signature on the Filed Form B4 was her signature, and that she had in fact filed the document. The Filed Form B4, the Filed Form B5 and the 31 May Britten Affidavit were all sent to the Queensland registry as attachments to the same email. All contained the same handwriting and signature. I am satisfied that each of those documents was created and signed by Ms Britten, and that, on 20 June 2022, she sent the email by which those documents were lodged for filing, using the address cathyhogben@gmail.com.

107    This finding (based on Ms Britten’s own admission) is inconsistent with the claim that Ms Britten was unaware of the Creditor’s Petition or the FCFCOA Proceeding. The fact that Ms Britten persistently made that claim until the hearing seriously undermines the credibility and reliability of her evidence generally. The finding is also inconsistent with any suggestion that Ms Britten had ceased using the cathyhogben@gmail.com email address, or that she was not receiving emails sent to that address.

Assessment of the emails sent in light of documents admittedly created by Ms Britten

108    The signatures and handwriting on the Filed Form B4, the Filed Form B5 and the 31 May Britten Affidavit match the signature and handwriting on other relevant documents that were attached to emails sent from cathyhogben@gmail.com, including, in particular:

(a)    the email sent on 8 July 2022 at 3.30pm, with the subject “stat dec block of dirt”, attaching the statutory demand addressed to Blocks of Dirt Pty Ltd and an affidavit of Ms Britten; and

(b)    the email sent on 11 July 2022 at 9.33am (two days before the hearing at which the Sequestration Order was made) to the Queensland registry, attaching the 4 July Britten Affidavit, including statements to the effect that Ms Britten had been in hospital, and Ms Britten’s submissions in opposition to the making of the Sequestration Order.

109    In the course of oral submissions, Ms Britten asserted that, although she accepted that it was her handwriting and signature that appeared on the 4 July Britten Affiadvit, Ms Britten had not “prepare[d] the inserts” – meaning the typed written submission forming the middle three pages of the 4 July Britten Affidavit. When pressed, Ms Britten insisted that she had not “seen the inserts” at the time the affidavit was filed. She could not explain why her handwriting also appeared on one of the pages of the written submission.

110    I asked Ms Britten to consider the three-page written submission in detail and pointed out that much of its content appeared to be remarkably consistent with the case she was now advancing in this Court. Ms Britten perused the first page of the written submission and stated that there was “nothing in that email [sic: submission] that I don’t agree with as such, but I do not recall writing it”. After perusing the second page of the submission (in which it had been asserted, among other things, that Ms Britten was undergoing treatment for cancer) Ms Britten volunteered, “I certainly didn’t write that I was in the middle of treatment, that I have cancer. That, I definitely didn’t write that.”

111    Ms Britten was ultimately driven to submit that she may have written some of the written submission but not all of it – the implication being that, although she had prepared the affidavit of which the written submission formed a part, and had written parts of the submission, other parts (which were plainly calculated to benefit her, even if they contained statements that may not have been true) had been inserted without her knowledge or consent by her former partner.

112    Ms Britten’s position regarding the 4 July Britten Affidavit is incoherent and implausible, and I reject it. I have no doubt – and I find – that the 4 July Britten Affidavit (including the typed written submissions comprising the middle three pages thereof) was created, written on, and signed, by Ms Britten and only by Ms Britten.

113    The content of the 4 July Britten Affidavit is consistent with the content of other emails sent from cathyhogben@gmail.com, and with emails sent from cathynoreplyhogben@gmail.com and cathylegalcjsph@gmail.com. In particular:

(a)    in the emails, as well as the submissions contained in the 4 July Britten Affidavit, Ms Britten repeatedly claimed that she was unwell and that she was, or had been, in hospital;

(b)    in the emails, as well as the submissions contained in the 4 July Britten Affidavit, Ms Britten repeatedly claimed that she had no address, and that various apparently available means of contacting her were ineffective, or would no longer continue to be effective, for a host of reasons;

(c)    the emails – especially the email sent on 14 June 2022 at 5.35pm from cathynoreplyhogben@gmail.com – and the submissions contained in the 4 July Britten Affidavit sought to set up objections to the Creditor’s Petition which are essentially the same as the considerations on which Ms Britten now seeks to rely in support of her application to have her bankruptcy annulled;

(d)    the emails and the submissions contained in the 4 July Britten Affidavit frequently adopted the distinctive technique of asserting that relevant evidence existed and could be provided, while failing to provide such evidence (an approach which Ms Britten also reprised in her conduct of the present proceedings); and

(e)    the emails sent from all three accounts were generally written in a consistent style.

114    It is implausible that a person maliciously controlling Ms Britten’s email account without her knowledge would continually correspond with Ms Russell or the Queensland registry in a manner that was calculated to advance Ms Britten’s interests, and which was so consistent with Ms Britten’s own attempts to avoid bankruptcy.

115    In the course of her oral submissions, Ms Britten specifically claimed that she did not write and send:

(a)    the email from cathyhogben@gmail.com to Ms Russell on 4 March 2022 at 6.25pm, in which she claimed that she had “just been diagnosed” and had three months to live; or

(b)    the email from cathyhogben@gmail.com to Ms Russell on 17 March 2022 at 8.21am, in which she claimed that she was “going into hospice and won’t be contactable at all on any email”.

116    Ms Britten pointed out that these two emails included the words “Sent from my iPhone”. She claimed that she never sent emails from her phone, and that these emails were sent by someone else from her son’s phone. I reject this submission. It is unsupported by any evidence. The emails which Ms Britten now disavows are in the same vein as Ms Britten’s repeated attempts, through various means, to avoid engaging with the FCFCOA Proceeding; with her frequent reliance on claims about her health; and with her repeated claims that she would no longer be contactable by any means. Several other emails advancing the course of conduct in which Ms Britten was engaged also contained the words “Sent from my iPhone”.

117    Ms Britten also specifically claimed in her oral submissions that she did not send the email from cathyhogben@gmail.com to Ms Russell and the Queensland registry on 13 July 2022 at 9.27am. I reject this submission. This email was copied to both cathynoreplyhogben@gmail.com and cathylegalcjsph@gmail.com. The latter email address was acknowledged by Ms Britten to have been used by her. It is improbable that a person who was maliciously using cathyhogben@gmail.com to impersonate Ms Britten without her knowledge or consent would copy in another email to which she had access. It is also improbable that such a person would attempt to prevent Ms Britten becoming a bankrupt, offer to put $41,000 in trust, or attempt to negotiate an adjournment on the bases that Ms Britten was in hospital, that her mother was ill, and that Ms Britten might discontinue separate actions brought on behalf of her mother. In short, in the context of Ms Britten’s other conduct, it is implausible that the email of 13 July 2022 at 9.27am was written or sent by anyone other than Ms Britten herself.

Conclusions

118    The only sensible inference from a consideration of the entire history of communications to Ms Russell from cathyhogben@gmail.com, cathynoreplyhogben@gmail.com, and cathylegalcjsph@gmail.com is that they represent a consistent course of conduct on the part of Ms Britten, starting from early March 2022, to place barriers in the way of service of legal proceedings being effected, to evade service, to attempt to remove herself from the reach of the courts, and to delay the determination of the FCFCOA Proceeding.

119    This is perhaps most transparent when consideration is given to Ms Britten’s email sent to the FCFCOA on 14 June 2022 at 5.35pm (and forwarded to Ms Russell on the following day), in which she asserted that she had no fixed address “and so [was] unable to be effectively served”, her statements that she has no internet access, that she no longer uses the cathyhogben@gmail.com email address, that documents left at other addresses associated with her “most definitely [will] not come to [her] attention”, that she could not be contacted on her mobile phone number, and that the cathynoreplyhogben@gmail.com email address, from which the 14 June 2022 email itself was sent, “is not a monitored email address”.

120    For all the reasons given above, I am not prepared to act on Ms Britten’s assertions (in her affidavit evidence and in her written and oral submissions) to the effect that one or more of her email accounts were controlled by another person, or that any of the emails sent between March and September 2022 were written or sent by another person without her knowledge.

121    In oral submissions, Ms Britten acknowledged that she did use the email address cathylegalcjsph@gmail.com, but claimed that she had never used the email address cathynoreplyhogben@gmail.com. I reject this submission. In particular, the email from cathynoreplyhogben@gmail.com, sent on 14 June 2022 at 5.35pm, advanced Ms Britten’s interests in a manner that was consistent with all of her other conduct. It was clearly sent by Ms Britten. The evident purpose of using that email address was to provide Ms Britten with a means by which she could communicate by email with Ms Russell (at a time when she was aware that attempts were being made to serve her with the Creditor’s Petition) while maintaining that the account she was using “is not a monitored email address” and that she also could no longer be contacted at cathyhogben@gmail.com. Several emails sent from cathyhogben@gmail.com after 14 June 2022 copied in cathynoreplyhogben@gmail.com, as well as cathylegalcjsph@gmail.com (which Ms Britten acknowledged was used by her).

122    I find, on the balance of probabilities, that every one of the emails sent from cathyhogben@gmail.com, cathynoreplyhogben@gmail.com and cathylegalcjsph@gmail.com to which reference has been made at [12]-[84] above was written by Ms Britten, and was sent by her. I find that Ms Britten was fully aware of the nature and content of all of the attachments to every one of those emails.

123    The emails sent from the three email addresses associated with Ms Britten in the lead-up to 13 July 2022 exhibit an awareness of what was happening in connection with the FCFCOA Proceeding, and many of the emails that were sent were in reply to, or were responsive to, emails that had been sent to one or more of the three email addresses associated with Ms Britten. I find, on the balance of probabilities, that Ms Britten received (at the least) all emails sent to those three email addresses in the period between 24 February and 9 August 2022 which related to the Bankruptcy Notice, the Creditor’s Petition and the FCFCOA Proceeding.

124    I find that Ms Britten in fact received notice of the Sequestration Order shortly after a copy of it was sent to cathyhogben@gmail.com by the Senior Legal Case Manager using the email address for the Queensland registry, on 13 July 2022 at 4.40pm. It follows that Ms Britten’s contentions that she was unaware, until early 2025, of the fact that a sequestration order had been made on 13 July 2022 must be rejected.

The Court cannot be satisfied that the Sequestration Order ought not to have been made

125    In light of these findings, I turn to the threshold issue that arises on Ms Britten’s application, namely whether she has established that the Sequestration Order ought not to have been made.

126    In circumstances where it was clear that Ms Britten had actual knowledge of the Creditor’s Petition and the FCFCOA Proceeding, it was appropriate for the FCFCOA to make the orders for substituted service which were made on 15 June 2022.

127    Once the Creditor’s Petition and the Russell Affidavit were sent in accordance with the substituted service orders, it was reasonable for the FCFCOA and Ms Russell to proceed on the basis that Ms Britten had in fact been served with those documents, and that she had received the further documents sent to cathyhogben@gmail.com.

128    Ms Britten submits that the Sequestration Order should not have been made, and her bankruptcy should be annulled, because Ms Russell was “on notice” that the cathyhogben@gmail.com email address “was not a reliable communication channel”. In her affidavit dated 1 April 2026, Ms Britten states:

132.    The email account used, being cathyhogben@gmail.com , was not a reliable communication channel.

133.    That account generated an automated response stating:

“Please be advised that this email is no longer in use.”

134.    That auto-response is critical.

135.    It placed any sender on express notice that the email account was not being used.

136.    In those circumstances, continued reliance on that email address could not reasonably be expected to bring communications to my attention.

129    Apart from Ms Britten’s own assertion, there is no evidence that cathyhogben@gmail.com was set up to generate an automatic response stating that the email was no longer in use – or, if it was, for what period of time that automatic response was active. In any event, even assuming that Ms Britten did set up an automatic reply at some point, that would simply have been consistent with her repeated attempts to avoid service, to maintain spuriously that she had not received notice of the FCFCOA Proceeding and to prevent a sequestration order being made, by claiming that every apparently available means of contacting or serving her would be ineffective. If the cathyhogben@gmail.com account did generate an automatic response stating that it was no longer in use during the relevant period, that response was deceptive, because Ms Britten continued to use the account, including to send multiple documents relating to the FCFCOA Proceeding which contained Ms Britten’s own handwriting and signature.

130    I have found that Ms Britten continued to use the cathyhogben@gmail.com email address until at least 9 August 2022, and that she did in fact receive all relevant emails sent to that address. In those circumstances, the fact that Ms Britten purported to put Ms Russell “on notice” that cathyhogben@gmail.com would no longer be used by her is of no significance. Further, Ms Russell continued to receive emails from cathyhogben@gmail.com in relation to the FCFCOA Proceeding which were apparently (and which were in reality) being sent by Ms Britten, many of which were sent in reply to, and in the same email chains as, emails sent by Ms Russell.

131    Ms Britten also claims that she was solvent at the time when the Sequestration Order was made. However, there is no reliable evidence before the Court which demonstrates Ms Britten’s financial position at that time (or at any time). The fact that Ms Britten made an offer to pay $41,000 into trust, communicated in her eleventh-hour email to Ms Russell on 13 July 2022 at 9.27am (which, paradoxically, Ms Britten categorically denied having written, but later appeared to accept she had written) was not accompanied by any attempt on her part to pay any money into trust, and does not demonstrate solvency.

132    By the time of the hearing on 13 July 2022, at which the Sequestration Order was made, Ms Britten:

(a)    was aware of the Creditor’s Petition and the FCFCOA Proceeding;

(b)    had effectively delayed the hearing of the FCFCOA Proceeding by refusing to identify a means by which the Creditor’s Petition and the Russell Affidavit could be served on her;

(c)    had sought and obtained an adjournment of the hearing of the FCFCOA Proceeding listed on 29 June 2022;

(d)    was notified of the hearing, listed on 13 July 2022, at which the Sequestration Order was ultimately made, and was subjectively aware of the listing;

(e)    was on notice that a sequestration order may be made at that hearing, and would be made in her absence if she failed to attend the hearing;

(f)    had been provided with all the material on which Elevare relied in support of the making of a sequestration order;

(g)    on 11 July 2022, had filed affidavit evidence, which incorporated written submissions, in opposition to the making of a sequestration order;

(h)    on 12 July 2022, had requested and, on the morning of 13 July 2022, had been provided with, details to allow her to connect to the hearing by telephone or video link;

(i)    failed to attend the hearing on 13 July 2022;

(j)    was provided with a copy of the Sequestration Order by email on the afternoon of 13 July 2022 and thus likely became aware of the fact that it had been made shortly thereafter;

(k)    received further confirmation from AFSA that she was a bankrupt in July and August 2022; and

(l)    took no action to contact Ms Russell or the FCFCOA, or otherwise to have the Sequestration Order set aside, or the bankruptcy annulled, at any time before the commencement of the present proceedings on 24 November 2025.

133    In these circumstances, it was undoubtedly reasonable and appropriate for Elevare to ask the FCFCOA to make a sequestration order in Ms Britten’s absence, and for the registrar of the FCFCOA to make the Sequestration Order. It follows that Ms Britten has not established that the Sequestration Order ought not to have been made.

In any event, the bankruptcy should not be annulled in the exercise of the discretion

134    Ms Britten relies on the following matters, in combination, in support of her contention that the bankruptcy should be annulled:

(1)    Had Ms Britten been aware of her bankruptcy in or soon after June 2022, she would have filed an SOA form at that time, and would have been discharged from bankruptcy by now. Because she did not learn of the bankruptcy until early 2025, she did not file the SOA form until March 2025. The extension of the bankruptcy to 2028 “arises solely from defective service not being given the statement of affairs and lack of awareness”.

(2)    Ms Britten is not insolvent.

(3)    Elevare’s proof of debt lodged in the bankruptcy has not yet been adjudicated.

(4)    There are no funds in the bankrupt estate from which creditors could be paid. Ms Britten holds “no real property, investments, or liquid funds capable of vesting in the trustee for distribution”. Her income consists of social security payments. Ms Britten may be entitled to a distribution from her late mother’s deceased estate but any such entitlement is contested and distribution of the deceased estate has not yet occurred. In these circumstances, Ms Britten submits that the bankruptcy serves no practical purpose.

(5)    The debt to Elevare which gave rise to the Bankruptcy Notice, the Creditor’s Petition and the Sequestration Order is disputed, on two bases: first, that the debt created by the Costs Order was owed by Ms Britten jointly and Ms Britten was not liable for the whole of the debt; and secondly, that Ms Britten’s mother had made payments to Elevare in satisfaction of the debt.

(6)    Ms Britten says she was suffering from financial and domestic abuse from her former partner and housing instability, and that these matters should be taken into account by the Court in its discretion.

135    For the reasons already explained above, I do not accept that Ms Britten was unaware of the Sequestration Order or the fact that she was a bankrupt. I find that she received emails from AFSA in July 2022 which informed her of the requirement to complete the SOA form, and that she acknowledged that requirement in her own email sent on 9 August 2022. To the extent that Ms Britten relies on what she contends was defective administration of her bankrupt estate by the Official Trustee between 2022 and 2025, I would give no weight to that consideration in circumstances where I have found that Ms Britten was aware of the Sequestration Order and the requirement to complete the SOA form.

136    Ms Britten has not adduced any clear evidence of her current financial position – let alone made full disclosure of her financial affairs. She has not established that she is presently solvent, or that she was solvent at the time when the Sequestration Order was made. Ms Britten’s contention that the bankruptcy should be annulled because she is solvent is in tension with her contention that the bankruptcy serves no purpose because her estate has no assets and no means to satisfy her creditors. Although there has as yet been no adjudication of proofs of debt lodged in the bankruptcy, the Australian Taxation Office (ATO) claims to have been owed $105,512.65 by Ms Britten, which is consistent with her being insolvent at the time when the Sequestration Order was made. In any event, Ms Britten has persistently failed to pay the judgment debt claimed by Elevare which was the subject of the Bankruptcy Notice, noncompliance with which gave rise to the Creditor’s Petition and the Sequestration Order. Ms Britten continues to dispute that debt, and the Court could have no confidence that it would be paid were the bankruptcy to be annulled.

137    The debt on which the Bankruptcy Notice and the Creditor’s Petition relied was created by the Costs Order itself: Shaw v Yarranova Pty Ltd (2017) 252 FCR 267; [2017] FCAFC 88 at 282 [62]. Although Ms Britten created a draft notice of appeal against the Costs Order, there is no evidence that an appeal against the Costs Order was ever filed, and it appears that no appeal was filed. In any event, Ms Britten accepts that the Costs Order has not been set aside. The existence of the debt cannot seriously be disputed.

138    Ms Britten contends that the debt arose from a matter involving a company, Cathy Jayne Again, and her mother, and that “[t]his raises questions about quantum and who is actually responsible for the debt”. The only relevant debt in the bankruptcy proceedings is the debt that was identified in the Bankruptcy Notice, which was directly attributable to the Costs Order made on 10 February 2022. The order was to the effect that Ms Britten and Cathy Jayne Again were to pay the costs of Elevare. The effect of such an order is that the two parties ordered to pay costs are jointly and severally liable for the debt that is thereby created: see, eg, Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 at [2], [13]; citing Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660 at 663. Ms Britten has provided no basis to doubt that she was personally was liable to pay the whole of the debt, and that Elevare was entitled to pursue Ms Britten for it.

139    Ms Britten also submits that she believes that the debt was paid by her mother. This submission was advanced for the first time in oral submissions. When asked whether there was any evidence of her mother’s paying the debt, Ms Britten stated that she did have evidence but that it had not been submitted. Ms Britten’s claim that her mother may have paid the debt in full is surprising, given that the Costs Order required Ms Britten and Cathy Jayne Again, but not Ms Britten’s mother, to pay Elevare’s costs. Ms Britten has not established any basis to find that the debt had been, or may arguably have been, paid by Ms Britten’s mother.

140    Six creditors have lodged proofs of debt in the bankruptcy, the most substantial being those of the ATO and Elevare. I would place no weight on the fact that Elevare’s proof of debt has not yet been the subject of adjudication. Insofar as Ms Britten suggests that the amount of the debt claimed by Elevare in its proof of debt is overstated (because, inclusive of interest, the amount exceeds $41,000), that can be addressed in the usual way in the course of the administration of the bankruptcy. It does not bear on the exercise of the discretion to annul the bankruptcy.

141    Mr Grant has provided affidavit evidence addressing the deceased estate of Ms Britten’s mother. There is reason to suspect that real property that was held by her mother may be held on trust for Ms Britten. Mr Grant’s investigations regarding the expected distribution of Ms Britten’s mother’s deceased estate are ongoing, but he has deposed to the fact that a distribution from the estate is expected. The evidence before the Court in these proceedings does not establish that there is no realistic prospect that a distribution may not be due to Ms Britten. In any event, even if Ms Britten’s estate has few or no assets, that would not usually be a basis on which the Court would exercise the discretion to annul a bankruptcy. In the circumstances of this case, it is certainly not a compelling consideration in favour of the annulment of Ms Britten’s bankruptcy.

142    I have not found it necessary to make findings in relation to Ms Britten’s claims that she was the subject of financial and other abuse. I have assumed in her favour that those claims are or may be true. In the circumstances of the present case, they are not matters that should be given much, if any, weight in the exercise of the discretion to annul the bankruptcy.

143    In any event, in my view, it would be quite inappropriate to exercise the discretion to annul Ms Britten’s bankruptcy pursuant to s 153B(1) of the Bankruptcy Act in the circumstances summarised at [132] above.

Conclusion

144    For the reasons given above, Ms Britten’s application must be dismissed. Ms Britten accepted that it was appropriate that she pay the costs of this proceeding in any event. In all the circumstances, it is appropriate to order that Mr Grant’s costs of the proceeding be jointly and severally payable by Ms Britten personally and out of the assets (if any) of her bankrupt estate.

Associate:

Dated:    20 May 2026