Federal Court of Australia

Mohor v Djunaedi [2026] FCA 975

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondents’ costs of the appeal, to be agreed or taxed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    On 27 February 2024, the respondents to this appeal, Julie Djunaedi, Deddy Djunaedi, Antonio DePasquale, Sally DePasquale, Colin Preston and Philip Charlton, filed a creditor’s petition (Creditor’s Petition) against the appellants, Veronika Mohor and Robert Wayne Collins, in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). On 11 August 2025, a judge of the FCFCOA, Judge Brown, made sequestration orders pursuant to s 43(1) of the Bankruptcy Act 1966 (Cth) against the estates of each of Ms Mohor and Mr Collins: Djunaedi v Mohor (No 2) [2025] FedCFamC2G 1282 (primary judgment).

2    On 5 September 2025, the appellants filed a notice of appeal against the orders of Judge Brown made on 11 August 2025. On 20 February 2026, they filed an amended notice of appeal. The appellants now advance four grounds of appeal (numbered grounds 1, 2, 4 and 5; ground 3 was abandoned). They seek orders that the sequestration orders be set aside, that the Creditor’s Petition be dismissed, and that the respondents pay the costs of the appeal and of the proceeding in the FCFCOA. Although the appeal is brought against the orders made by Judge Brown, the first ground of appeal relies on an alleged error which is said to have affected an interlocutory decision made by another judge of the FCFCOA, Judge Lucev.

3    For the reasons explained below, the appellants have established that the decision of Judge Lucev was affected by a denial of procedural fairness. However, I do not consider that the appeal should be allowed on the basis of that error in the interlocutory decision, because that decision has not been shown to have given rise to a substantial miscarriage of justice.

4    Judge Brown’s finding that Mr Collins committed an act of bankruptcy by failing to comply with an amended bankruptcy notice that was served on him on 22 January 2024 was also affected by certain errors. However, in the circumstances of this appeal, it is appropriate that I should determine for myself whether Mr Collins was served with the amended bankruptcy notice on 22 January 2024, on the basis of the evidence that was before the FCFCOA and the further evidence adduced on the appeal.

5    I have reached the view that the finding that Mr Collins was served with the amended bankruptcy notice on 22 January 2024 was factually correct. Therefore, I would not set aside the orders made by Judge Brown on 11 August 2025. The appeal should be dismissed with costs.

Relevant provisions of the Bankruptcy Act

6    The power of the FCFCOA to make a sequestration order is provided for in s 43(1) of the Bankruptcy Act, which states:

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.

7    The power to make a sequestration order thus depends on the petitioner establishing, among other things, that the debtor has “committed an act of bankruptcy”. What constitutes an act of bankruptcy is set out in s 40(1) of the Bankruptcy Act. The case which is germane to the present proceeding is that set out in s 40(1)(g), which relevantly provides:

40 Acts of bankruptcy

(1)    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; or

…

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;

8    Section 41 of the Bankruptcy Act provides for the issuing of bankruptcy notices by an official receiver against a debtor, on application by a creditor. Insofar as it is directly relevant to the present proceeding, it provides:

41 Bankruptcy notices

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

(a)    a final judgment or final order that:

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

(ii)    is for an amount of at least the statutory minimum; or

…

(2A)    The notice must specify a period for compliance with the notice. That period must be:

(a)    if the notice is to be served in Australia—the statutory period after the debtor is served with the notice; or

…

9    The “statutory period” for compliance with a bankruptcy notice served in Australia is 21 days: see s 5(1) of the Bankruptcy Act (definition of “statutory period”).

10    Section 44 of the Bankruptcy Act sets out the conditions which must be satisfied before a creditor may present a creditor’s petition against a debtor. Section 52 sets out the matters of which the Court is to require proof at the hearing of a creditor’s petition. Relevantly to the issues that arise on the present appeal, subss (4) and (5) of s 52 are as follows:

52 Proceedings and order on creditor’s petition

…

(4)    A creditor’s petition lapses at the expiration of:

(a)    subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or

(b)    if the Court makes an order under subsection (5) in relation to the petition—the period fixed by the order;

unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.

(5)    The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor’s petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order.

Background facts

11    There is an extensive history of litigation between the parties, which is set out at [11]-[52] of the primary judgment.

12    To summarise briefly, in 2015, the respondents (as well as several other plaintiffs) were successful in an action against the appellants in the District Court of South Australia. Summary judgment was entered in their favour in a total amount of $423,656.25, together with costs on a party and party basis, to be agreed or taxed. Ms Mohor and Mr Collins appealed to the Full Court of the Supreme Court of South Australia, but the appeal was dismissed: Collins v Djunaedi [2016] SASCFC 48. Shortly thereafter, both appellants became bankrupt on their own petitions. On 4 March 2016, Judge Slattery ordered that the plaintiffs be entitled to recover their costs of the District Court proceeding on an indemnity basis. However, the taxation of those costs did not occur. On 23 May 2016, the Full Court ordered that the appellants pay the costs of their unsuccessful appeal, holding that their bankruptcies did not represent an impediment in this regard: Collins v Djunaedi (No 2) [2016] SASCFC 63.

13    In 2021, following an application by Mr Collins and Ms Mohor to discharge an earlier freezing order, the respondents sought to pursue taxation of the indemnity costs order in the District Court, while the appellants sought to set aside aspects of earlier costs orders. This disputation led to a number of further costs orders in favour of each of the parties.

14    Separately, in January 2022, the respondents applied in the Supreme Court for taxation of their costs of the appellants’ unsuccessful appeal to the Full Court. A deputy registrar of the Supreme Court initially entered a default costs judgment in favour of the appellants, but this was subsequently set aside. On 23 February 2023, Dart A-J made a lump sum assessment of the respondents’ costs of the appeal in the amount of $31,000. It is this debt that formed the basis of the relevant bankruptcy notices that were subsequently issued by the respondents, and the Creditor’s Petition which led to the making of the sequestration orders in the FCFCOA. The appellants sought leave to appeal to the South Australian Court of Appeal against Dart A-J’s decision. On 14 September 2023, leave to appeal was refused and a further costs order was made in favour of the respondents: Collins v Djunaedi [2023] SASCA 97.

15    On 6 November 2023, the respondents filed a first creditor’s petition in the FCFCOA against Ms Mohor alone, based on the judgment debt arising from the orders made by Dart A-J and a bankruptcy notice issued on 10 October 2023. However, the proceeding on that first creditor’s petition was discontinued approximately one month later and an order for costs was made in favour of Ms Mohor.

16    On 27 February 2024, the respondents commenced action ADG 75 of 2024 in the FCFCOA by filing the Creditor’s Petition, this time against both appellants.

17    In the respective bankruptcy notices, Ms Mohor was described as being of an address in Hackham, South Australia and Mr Collins was described as being of Mobilong Prison, where he was incarcerated. The bankruptcy notices each required the appellants to pay the sum of $31,000 to the respondents within 21 days of service of the bankruptcy notices. As mentioned, the debt the subject of the bankruptcy notice relates to the costs order made in favour of the respondents on 23 February 2023.

18    On 13 October 2023, Ms Mohor was served with the bankruptcy notice addressed to her at her home in Hackham, by a process server retained by the respondents’ solicitors. The process server gave evidence by way of affidavit that personal service on Ms Mohor was effected on that date. The service of the bankruptcy notice addressed to Ms Mohor is not in dispute.

19    The circumstances surrounding the service of the bankruptcy notice addressed to Mr Collins were disputed before Judge Brown, and are disputed on the appeal.

20    A process server, Jason Millar, swore an affidavit dated 7 March 2024 which was filed in the FCFCOA proceeding (Millar Affidavit). There is a dispute between the parties as to whether the Millar Affidavit was read into evidence before Judge Brown. According to the evidence of Mr Millar contained in the Millar Affidavit, on 22 December 2023, he met with Mr Collins in person at Mobilong Prison and attempted to give him a copy of the bankruptcy notice, which Mr Collins refused to accept. Mr Collins’s position was that Mr Millar gained personal access to him on the basis of a misrepresentation (to the effect that he was a lawyer, not a process server), and that, consequently, service on Mr Collins was not lawfully effected on 22 December 2023.

21    In light of the fact that Mr Collins had refused to accept service of the bankruptcy notice on 22 December 2023, and in an apparent (though unsuccessful) attempt to avoid dispute as to whether service of the bankruptcy notice on Mr Collins had been effected, the respondents commenced action ADG 15 of 2024 in the FCFCOA on 9 January 2024. In that action, they sought orders authorising substituted service of the bankruptcy notice. On 16 January 2024, a registrar of the FCFCOA made substituted service orders in the following terms:

1.    Service of Bankruptcy Notice No. BN 262835 of 2023 issued on 19 December 2023 and addressed to Robert Wayne Collins (the Respondent) together with a sealed copy of this order may be effected by the following means occurring on or before 19 January 2024:

(a)    By sending by express post addressed to the Respondent at Mobilong Prison, Maurice Rd, Murray Bridge SA 5253; and

(b)    By scanning and sending by email to the Respondent’s solicitor Greg Finlayson at the following email address [email address of Mr Finlayson].

2.    Service in accordance with this order shall be deemed good and sufficient service of the Bankruptcy Notice on the Respondent.

3.    The Bankruptcy Notice shall be deemed to be served on the Respondent on 22 January 2024.

4.    The Bankruptcy Notice be amended by deleting the following words in paragraph 1 on page 3 of the notice “after service on you of the Bankruptcy Notice” and substituting “after 22 January 2024”.

…

22    On 17 January 2024, the solicitor acting for the respondents, Andrew Carpenter of Websters Lawyers, sent a copy of the amended bankruptcy notice addressed to Mr Collins at Mobilong Prison, and also sent an email to the solicitor who had been acting for Mr Collins, Mr Finlayson, attaching a scanned copy of the amended bankruptcy notice – reflecting the two methods of substituted service contemplated by order 1 of the substituted service orders.

23    On 7 February 2025, on the application of Mr Collins, Judge Lucev set aside the substituted service orders: Djunaedi v Collins (2025) 393 FLR 282; [2025] FedCFamC2G 135. His Honour did so on the basis that, in applying for the substituted service orders, the respondents had improperly relied on material disclosed compulsorily by use of the Court’s processes in other proceedings, in contravention of the obligation not to use such material for extraneous purposes: see Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. The consequence of Judge Lucev’s decision (from which the respondents did not appeal) was that the respondents could not rely upon the deeming effect of orders 2 and 3 of the substituted service orders to prove that Mr Collins had been served with the amended bankruptcy notice. It therefore became important for the respondents to establish that Mr Collins had in fact been personally served with the amended bankruptcy notice.

24    Also on 7 February 2025, after delivering judgment on Mr Collins’s application to set aside the substituted services orders, Judge Lucev made an order pursuant to s 52(5) of the Bankruptcy Act, extending by 12 months the date on which the Creditor’s Petition against Ms Mohor and Mr Collins would lapse. The appellants contend that this order was made in denial of procedural fairness. This complaint is the basis of the first ground of appeal in the present appeal. It should be noted that this is the only ground of appeal that relates to both Ms Mohor and Mr Collins; the remaining grounds of appeal only affect Mr Collins.

25    On 12 May 2025, Judge Brown proceeded to hear and determine the Creditor’s Petition. The affidavit evidence on which the respondents relied to prove that service had been effected on Mr Collins included affidavits sworn by their solicitor, Mr Carpenter. In the course of the hearing, counsel for the appellants applied to cross-examine Mr Carpenter. Judge Brown refused to permit him to do so. The appellants contend that they were entitled to cross-examine Mr Carpenter, and that Judge Brown’s refusal to permit cross-examination was a material error amounting to a denial of procedural fairness to Mr Collins. This complaint is the basis of the second ground of appeal.

26    On 11 August 2025, Judge Brown delivered the primary judgment and made the sequestration orders. In the primary judgment at [202], his Honour found that Mr Collins had been served with the original bankruptcy notice on 22 December 2023 and with the amended bankruptcy notice on 22 January 2024. The appellants contend that, where the only act of bankruptcy identified in the Creditor’s Petition was Mr Collins’s non-compliance with the amended bankruptcy notice, Judge Brown erred in also relying on the service of the original bankruptcy notice on 22 December 2023. This is the first aspect of the fourth ground of appeal (noting that the third ground was abandoned).

27    In the primary judgment, Judge Brown had regard to the Millar Affidavit, in which Mr Millar deposed to his attempt to serve the bankruptcy notice on Mr Collins on 22 December 2023. The appellants contend that the Millar Affidavit, although filed in the proceeding, was not read into evidence for the purposes of the hearing before Judge Brown, and that, consequently, Judge Brown erred in relying on it. This is the second issue encompassed by the fourth ground of appeal.

28    As noted above, Judge Brown found that Mr Collins had been served on two occasions, namely on 22 December 2023 and 22 January 2024. The appellants contend that, in determining the question of whether service of the amended bankruptcy notice was effected on 22 January 2024, his Honour took into account his findings about the service of the original bankruptcy notice and about Mr Collins’s conduct on 22 December 2023. The appellants say that those conclusions were affected by error, because they were based on the evidence in the Millar Affidavit, which the appellants say was not admitted into evidence. By the fifth ground of appeal, the appellants contend that Judge Brown’s finding that Mr Collins was served with the amended bankruptcy notice on 22 January 2024 should be set aside because it was affected by his Honour’s reliance on the content of an affidavit that was not read into evidence.

Ground 1 – denial of procedural fairness in connection with order extending the time for expiration of the Creditor’s Petition

Introduction

29    By their first ground of appeal, the appellants contend that the interlocutory order made by Judge Lucev on 7 February 2025, extending the date on which the Creditor’s Petition would lapse, was made in circumstances that gave rise to a denial of procedural fairness. They contend that they were not given a fair opportunity to be heard in relation to the question of whether the date on which the Creditor’s Petition would lapse should be extended or, if so, for how long. The appellants submit that the denial of procedural fairness was material, in that there was a realistic possibility that, had they been afforded a fair opportunity to be heard in relation to that question, the decision-making process could have resulted in a different outcome.

30    The appellants contend that the consequences of the denial of procedural fairness are that:

(a)    the order of Judge Lucev, extending the date on which the Creditor’s Petition was to lapse, is a nullity or void;

(b)    that order must now be set aside;

(c)    the date fixed by s 52(4) of the Bankruptcy Act as the date on which the Creditor’s Petition was to lapse (26 February 2025) having now passed, the Creditor’s Petition must be taken to have lapsed; and

(d)    consequently, the appeal must be allowed, the sequestration order must be set aside and in lieu thereof the Creditor’s Petition must be dismissed.

Facts relevant to the first ground of appeal

31    The Creditor’s Petition was presented on 27 February 2024. In accordance with s 52(4) of the Bankruptcy Act, in the absence of an extension of time, the Creditor’s Petition would have lapsed on 26 February 2025.

32    On 7 February 2025, after delivering his reasons for judgment on Mr Collins’s interlocutory application to set aside the substituted service orders, Judge Lucev indicated that he would not be able to hear further argument on the Creditor’s Petition before it was due to lapse on 26 February 2025. The following exchange occurred:

HIS HONOUR: All right. Well, the normal order in these circumstances would be that pursuant to s 52(5) of the Bankruptcy Act, the period at the expiration of which the creditors petition will lapse, or the creditors petition filed on 27 February 2024 will lapse, be extended to 26 February 2026 – that is, there’s a 12-month extension in accordance with s 52(5).

[COUNSEL FOR THE APPELLANTS]: Well, we would like to be heard on that, and we would like to put on some material that it’s not in the interests of justice that that occur.

HIS HONOUR: Well, [counsel for the appellants], you’re going to have some difficulty, because essentially this matter, the six months before it was allocated to me – it has taken me some time to arrive at the judgment in respect of the other matter. I hadn’t quite appreciated how discrete they were. And it’s de rigueur, I think, for matters such as this – I’ve done it numerous times over the last 18 years, as have other judges of the court – to extend the time at which the – or the period at which the expiration of the creditors petition lapses. I don’t know what you would put in opposition to that other than effectively what you’re going to put on the hearing of the creditors - - -

[COUNSEL FOR THE APPELLANTS]: I would like perhaps an opportunity to reflect on the reasons.

HIS HONOUR: Well, the reasons with respect to Djunaedi v Collins don’t, so far as I can tell, have any overlap with this matter other than in relation to the fact that Ms Mohor is Mr Collins’ wife and that there was a discontinued set of Federal Court proceedings at some stage in relation to Ms Mohor, but that's something which is – apart from its effect in the other matter, where the information was drawn from, it doesn’t have any impact on this matter.

[COUNSEL FOR THE APPELLANTS]: But Mr – the creditors petition, insofar as it proceeds against Mr Collins, I understand, is – was predicated on the order that your Honour has set aside.

HIS HONOUR: Well, that may be so, but if that’s the case, then you would presumably move for an order that insofar as the creditors petition applies to Mr Collins, that it be dismissed, and that can be done when the matter is mentioned before the case management judge in the Adelaide Registry once you’ve read the reasons. Now, whether that happens before or after 27 February is another issue, but the fact that effectively the bankruptcy notice is set aside because it was poisoned at source, one might say, doesn’t necessarily affect the extension of the creditors petition, which has to be extended, with respect, in respect of Ms Mohor’s circumstances, because there’s no prospect of it being heard before 27 February. All right.

[COUNSEL FOR THE APPELLANTS]: As the court pleases. Yes.

33    The transcript demonstrates that the appellants requested an adjournment of the proceedings, in order to allow them to prepare submissions, and to consider whether to file evidence, in opposition to the extension of the date fixed by s 52(4) of the Bankruptcy Act. The adjournment request was refused and orders were made by Judge Lucev, including the following (extension order):

Pursuant to s 52(5) of the Bankruptcy Act 1966 (Cth) the period at the expiration of which the Creditors Petition filed on 27 February 2024 will lapse be extended to 26 February 2026.

34    The extension order was made pursuant to s 52(5) of the Bankruptcy Act, which has been set out at [9] above.

35    The appellants subsequently requested reasons for Judge Lucev’s decision to make the extension order. On 18 February 2025, Judge Lucev provided written reasons: Djunaedi v Mohor [2025] FedCFamC2G 216. At [9] of those reasons, his Honour explained:

The Extension Order was made because the Court considered it just and equitable to extend the period of time at the expiration of which the Creditors Petition would lapse in circumstances where:

(a)    it was almost six months after the filing of the Creditors Petition on 27 February 2024 before the matter was listed for hearing before the presently presiding Judge, and then adjourned consequent upon the hearing and determination of ADG 15 of 2024;

(b)    it was almost a further six months before this matter was listed for a further directions hearing immediately after the delivery of judgment in Djunaedi – Set Aside; and

(c)    the Court will not be able to deal with the application for a Creditors Petition before the time at which the Creditors Petition would ordinarily lapse (that is, 12 months) because the currently presiding Judge is no longer circuiting in the Adelaide Registry, and no other Judge is available to hear the matter before the Creditors Petition lapses: see Transcript, 7 February 2025, pp 2-4.

The appellants are entitled to raise an error made at an interlocutory stage in support of their appeal against final orders

36    The respondents argue that this ground of appeal is “incompetent from the outset” on the basis that the appellants’ appeal is against the orders of Judge Brown made on 11 August 2025, and not against the interlocutory decision of Judge Lucev. The respondents argue that Judge Brown was correct to observe that he had “no authority to quash the decision of Judge Lucev as [he] was not acting as an appeal judge nor as the reviewer of an administrative decision maker”.

37    The power of this Court to hear appeals generally is provided for in s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). In relation to interlocutory decisions, s 24(1A) provides:

24 Appellate jurisdiction

…

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

38    Section 28(1) of the FCA Act confers broad powers on the Court to make orders in the exercise of its appellate jurisdiction, including the powers to “affirm, reverse or vary the judgment appealed from” and to “give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order”.

39    In the present case, the appellants did not seek leave to appeal the interlocutory decision of Judge Lucev at the time of, or shortly after, the extension order was made, as they might have done. Instead, they appeal (as of right) from the final judgment of Judge Brown, relying on what they contend was an error affecting the interlocutory decision of Judge Lucev.

40    The course taken by the appellants in this matter is contemplated by s 24(1E) of the FCA Act, which provides that an interlocutory judgment may be relied upon as a ground of appeal from a final judgment:

(1E)    The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

41    It was open to the appellants to elect not to seek leave to appeal against the extension order shortly after it was made, and to raise their complaint of an alleged denial of procedural fairness by way of a ground of appeal against the final orders made by Judge Brown. The capacity of this Court, on an appeal against the final orders made by Judge Brown, to consider whether the appeal should be allowed because of an error allegedly made by Judge Lucev at an interlocutory stage, is not dependent on whether Judge Brown himself had the authority to review or quash Judge Lucev’s interlocutory order.

42    The respondents’ threshold submission, that the appellants’ first ground of appeal is “incompetent from the outset” must therefore be rejected.

43    It will be necessary to return to s 24(1E) of the FCA Act below, and to give consideration to (a) the appellants’ contention that “a jurisdictional precondition” to the making of the final orders was absent, and (b) the circumstances in which an appeal against final orders should be allowed by reason of an error that is shown to have occurred at an interlocutory stage.

Principles applicable to appeals on the basis of a denial of procedural fairness

44    I next consider the principles that are generally applicable where a party appeals on the ground that they have been denied procedural fairness.

45    In Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead), the High Court considered whether a denial of procedural fairness warranted the setting aside of a decision. In that case, the trial judge had effectively deprived counsel for the appellant an opportunity to present submissions on the issue of causation, and then went on to decide that issue against the appellant. The High Court held (at 147) that “all the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome”.

46    In Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson), the High Court addressed questions of materiality in connection with a denial of procedural fairness in the context of an application for judicial review of an administrative decision. Chief Justice Kiefel, Keane and Gleeson JJ held (at 103 [33]) that “[t]here will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration”. Their Honours further noted that, “[w]here a Tribunal errs by denying a party a reasonable opportunity to present their case, ‘reasonable conjecture’ does not require demonstration of how that party might have taken advantage of that lost opportunity”. In the context of an application for judicial review, the burden on the plaintiff was to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition” (emphasis in original).

47    In Nathanson, Kiefel CJ, Keane and Gleeson JJ also drew an analogy with Stead, noting (at 104 [34]) that the realistic possibility of a different outcome may be demonstrated from the record itself, without the need for a party to adduce evidence as to what might have been said or done had procedural fairness been afforded.

Principles applicable on an appeal against final orders, on the basis of an alleged error made at an interlocutory stage

48    The Full Court has explained the operation of s 24(1E) of the FCA Act on multiple occasions. In Kazal v Thunder Studios Inc (California) (2023) 416 ALR 24; [2023] FCAFC 174 at 49 [99] the Full Court affirmed that:

… no leave is required to appeal the final orders, and on an appeal from final orders an appellate court can correct any interlocutory order that affected the final result, at least where it is shown that the error resulted in a miscarriage of justice: see, Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; … [2002] HCA 22 at [4]-[8] (Gaudron, McHugh and Hayne JJ).

49    The principle was similarly expressed in Revill v John Holland Group Pty Ltd (2022) 295 FCR 269; [2022] FCAFC 178 at 292 [114], where the Full Court stated that s 24(1E) of the FCA Act “reflects the general position that an interlocutory order that affects a final judgment may be the subject of a ground of appeal from the final judgment”.

50    The conditions under which an interlocutory order can be challenged in an appeal against a final judgment were authoritatively addressed by the High Court in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 (Clifton Bricks). In that case, the High Court overturned a decision of an intermediate appellate court which had set aside a judgment on the basis that an interlocutory order dispensing with a jury had been incorrect. The majority (Gaudron, McHugh and Hayne JJ) observed at 483 [6]:

The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley [The Doctrine of Res Judicata, 3rd ed (1996) at 79-80 [170]] where it is said that “on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result”.

(Emphasis added by Gaudron, McHugh and Hayne JJ; footnotes omitted.)

51    This qualification (that is, “which affected the final result”) was said (at 483 [7]) to be necessary “at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice”. To similar effect, in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at 449 [78], Gummow A-CJ, Hayne, Crennan and Bell JJ reiterated that an interlocutory order “which affects the final result” can be challenged in an appeal against a final judgment. In Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; [2016] HCA 41 at 9 [26], Nettle J spoke in terms of an appellate court, on an appeal against a final order, considering whether the making of an interlocutory order “was productive of substantial injustice”.

52    The test articulated in Clifton Bricks was subsequently further explained and applied by Rangiah J in Papas v Westpac Banking Corporation [2014] FCA 290 (Papas). In that case, the appellant challenged a sequestration order made against his estate, contending that the final judgment was fundamentally flawed because the primary judge had erred at an interlocutory stage, by refusing to adjourn proceedings to allow him to obtain legal representation. Justice Rangiah, referencing the passage from Clifton Bricks which is set out at [50] above, considered it “necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice”.

53    The approach of the majority and minority in Clifton Bricks was helpfully discussed at [74]-[75] of Papas:

The minority applied [Stead]. In that case, the High Court held that a departure from the rules of natural justice will not entitle the aggrieved party to a new trial if the new trial would inevitably result in the making of the same order. An order for a new trial in such a case would be futile. However, the Court continued at 147:

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not have possibly have produced a different result.

The majority in Clifton Bricks did not apply Stead. The reasoning of the majority indicates a difference in approach to an appeal from a final judgment brought on the basis that error in an interlocutory judgment affected the final judgment, compared to an appeal from a final judgment which asserts error in the final judgment itself. Where error is demonstrated in the final judgment itself, the appellant need only show the possibility that he or she was deprived of the possibility of a successful outcome. However, in an appeal from a final judgment on the basis of error in an interlocutory judgment, in order to obtain a retrial the appellant must demonstrate that some substantial wrong or miscarriage of justice, in the sense of affecting the final result, has been occasioned by the error.

(Emphasis added.)

54    The appeal in Papas was dismissed on the basis that Mr Papas had failed to adduce evidence demonstrating how the refusal of an adjournment at the interlocutory stage had affected the outcome of the final judgment.

Were the appellants denied procedural fairness?

55    I accept that the course adopted by Judge Lucev resulted in a denial of procedural fairness to the appellants. The question of whether the date fixed by s 52(4) of the Bankruptcy Act should be extended was one which was apt to affect the appellants’ interests. The appellants had not been given prior notice of any intention on the part of the respondents to seek an extension of that date, even if it was quite foreseeable that they were likely to do so. The question of extending that date was (quite properly) raised for the first time by Judge Lucev himself following the delivery of his Honour’s interlocutory judgment setting aside the substituted service orders on 7 February 2025.

56    The basic principle of procedural fairness is that a person whose interests are likely to be affected by an exercise of power must be afforded the opportunity to deal with matters adverse to those interests, prior to the decision being made: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [56]. The Court is required to provide a “reasonable opportunity” to make submissions and (where appropriate) to adduce evidence on an issue: see, eg, Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 at 525 [102]. What constitutes a “reasonable opportunity” is to be assessed by considering “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: see Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at 335 [30] (Kiefel, Bell and Keane JJ).

57    Any order extending the date on which the Creditor’s Petition would lapse was required to be made before 26 February 2025. There was, therefore, a need for any decision on the question of the extension of that date to be made expeditiously, but it was not so urgent that the appellants could not have been given an opportunity to consider what submissions or evidence (if any) they might wish to advance. It is true that, before Judge Lucev, counsel for the appellants was unable to identify convincingly the nature of the evidence or the submissions on which the appellants would wish to rely. However, the issue was raised by Judge Lucev himself, without prior notice having been given to the appellants. Even a short adjournment to allow counsel for the appellants to gather his thoughts and consider what kinds of evidence or submissions he could rely upon might well have been sufficient to afford the appellants procedural fairness in the circumstances of this case. However, no such opportunity was provided.

The extension order was not legally ineffective

58    The next step of the appellants’ argument, at least as initially advanced, is that the effect of the denial of procedural fairness was that the extension order was void and of no legal effect. Consequently, so the appellants submit, the date on which the Creditor’s Petition was to lapse was never actually extended and, accordingly, the Creditor’s Petition lapsed on 26 February 2025. They submit that “the sequestration orders made on 11 August 2025 cannot stand because a jurisdictional precondition to their making – the existence of a validly extended creditor’s petition – was absent”.

59    I do not accept this submission. Section 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:

138 Decisions to be final

A judgment or decision of the Federal Circuit and Family Court of Australia (Division 2) is valid and binding until set aside, even if it is given or made in excess of the Court’s jurisdiction.

60    An order of the FCFCOA which is made in breach of procedural fairness may be liable to be set aside on appeal (or, in an appropriate case, on judicial review), but remains legally effective unless and until it is set aside. The extension order was not invalid, and the Creditor’s Petition did not lapse by operation of s 52(4) of the Bankruptcy Act before the sequestration orders were made. It follows that Judge Brown’s decision to make the sequestration orders was not made without jurisdiction.

Should the appeal be allowed due to the denial of procedural fairness in connection with the extension decision?

61    The remaining question in relation to ground 1 is whether the appeal should be allowed by reason of the fact that Judge Lucev’s decision to make the extension order was affected by a denial of procedural fairness to the appellants.

62    If the only relevant question were whether it could be concluded that the denial of procedural fairness “could not possibly” have made a difference to the making of the sequestration orders, I would conclude that the denial of procedural fairness could possibly have made a difference to whether the sequestration orders were made. That is because, as in Stead and Nathanson, had the appellants been given a reasonable opportunity to adduce evidence and make submissions regarding the extension of the date on which the Creditor’s Petition was set to lapse, then they might have availed themselves of that opportunity and whatever was said by them could have led Judge Lucev to reach a different conclusion. In that case, the Creditor’s Petition would have lapsed on 26 February 2025, and, since the Court was not in a position to hear and determine the respondents’ application for sequestration orders before then, the FCFCOA would not have made the sequestration orders.

63    It would be unsatisfactory for the appeal to be allowed and the sequestration orders set aside on this basis. If the sequestration orders were set aside by this Court on appeal due to the denial of procedural fairness in relation to the interlocutory decision to extend the time fixed by s 52(4) of the Bankruptcy Act, the matter could not now be remitted to the FCFCOA for reconsideration of the question of extension after a hearing at which the appellants were afforded procedural fairness. That is because, if the sequestration orders were set aside, they could not now be re-made, because the last possible date on which the Creditor’s Petition had to lapse (even if extended), 26 February 2026, has now passed. So, if the appeal were allowed and the sequestration orders set aside, then, by a windfall resulting from a procedural error, the appellants would now achieve the same outcome as if Judge Lucev had made a positive decision not to extend the date on which the Creditor’s Petition would lapse. That would seem particularly unfair to the respondents if (as I think is the case) the appropriate course, after affording the appellants procedural fairness and considering any evidence or submissions advanced by them, would have been to extend the date in any event.

64    As explained above, however, I am not bound to allow the appeal and set aside the sequestration orders merely because, but for the denial of procedural fairness at an interlocutory stage, the final orders could possibly have been different. Applying the principles discussed at [48]-[54] above, the appeal should be allowed if, but only if, I am satisfied that a “substantial wrong or miscarriage of justice, in the sense of affecting the final result, has been occasioned”.

65    The appellants have now had an opportunity to identify the reasons why they contend that the date fixed by s 52(4) of the Bankruptcy Act should not have been extended, including, if they wished, by reference to any evidence that they might have sought to adduce on the appeal. They did not clearly identify additional evidence, or additional compelling submission, that they wished to advance. Rather, resting their submission on what was said in Nathanson, they insisted that they were not required to do so.

66    The discretionary considerations in favour of making the extension order, so as to enable the Creditor’s Petition to be determined on its merits, were strong. The respondents had acted promptly in filing the petition after the date on which they purported to serve the amended bankruptcy notice on Mr Collins. The delay in having the petition heard and determined on its merits had been occasioned by the need to determine the appellants’ application to set aside the substituted service orders.

67    Potentially weighing against the grant of an extension was the fact that the application to set aside the substituted service orders was determined in the appellants’ favour, so it could be said that the delay had been at least partially attributable to the respondents’ conduct. However, I would not regard that as a compelling reason to preclude the respondents from relying on personal service of the amended bankruptcy notice on Mr Collins, if they could establish that personal service was effected. The fact that the application to set aside the substituted service orders was not determined until the time had nearly run out was largely due to the workload and listing practices of the FCFCOA (of which no criticism is made).

68    Also potentially weighing against the grant of the extension was the fact that the respondents had filed a previous creditor’s petition against Ms Mohor, which they discontinued when the respondents accepted that it suffered from a technical defect, having been filed one day too early. Again, I would not give great weight to that consideration, as the respondents appear to have acted reasonably in discontinuing the first petition; had foreshadowed at that time that they intended to file a further petition; have been required to pay the costs of the discontinued petition; and acted promptly in filing the further petition. The appellants also referred to the fact that they claimed to have “substantial unquantified set-offs and counterclaims”, and that there were “unresolved service issues”. However, given that those were matters that would fall to be determined on their merits if the extension order were made, I would not regard the fact that those matters were in dispute as a reason against making the extension order. It was just and equitable to grant the extension, and it would have been contrary to the interests of justice had the FCFCOA been unable to determine the petition on its merits because of the elapse of time.

69    In all the circumstances, I am satisfied that the appropriate decision, in the exercise of the discretion conferred by s 52(5) of the Bankruptcy Act, was to extend the date on which the Creditor’s Petition would lapse. It was, moreover, appropriate to extend the period for a time that was sufficient to ensure that the respondents’ application for sequestration orders against the estates of the appellants could be heard and determined within the extended period. Given the difficulty in anticipating all the issues that might arise on what was evidently a vigorously contested application, and the listing practices and general workload of the FCFCOA, the most appropriate exercise of the discretion in this case was to extend the date for the maximum permissible period, to 26 February 2026. It follows that I do not consider that the extension order made by Judge Lucev has given rise to any substantive injustice.

Conclusions

70    For the reasons given above, I accept that the appellants were denied procedural fairness. However, I do not accept that the extension order made by Judge Lucev is a nullity or void. I do not accept that the appeal must necessarily be allowed, the sequestration orders set aside and the Creditor’s Petition dismissed.

71    The appellants, having now had an opportunity, on the appeal, to identify any evidence or submissions on which they would have wished to rely, have not established that the extension order should not have been made. Considering the factors relevant to the exercise of the discretion conferred by s 52(5) of the Bankruptcy Act for myself, I am satisfied that the appropriate course was to extend the date on which the Creditor’s Petition should lapse for such time as was necessary to ensure that the FCFCOA could determine the Creditor’s Petition on its merits. Judge Lucev’s decision to make the extension order did not give rise to a substantial wrong or miscarriage of justice.

72    So, while it should be acknowledged that there was a denial of procedural fairness, the appeal should not be allowed on this ground.

73    This conclusion means that, insofar as the appeal concerns Ms Mohor, it should be dismissed. The sequestration order made with respect to her estate stands. The remaining grounds of appeal, if upheld, would only affect the sequestration order made against the estate of Mr Collins.

Ground 2 – service of the amended bankruptcy notice on Mr Collins

Introduction

74    By their second ground of appeal, the appellants challenge the findings at [200] and [202] of the primary judgment, that a valid bankruptcy notice was served on Mr Collins at Mobilong Prison on 22 January 2024. The relevant paragraphs of the primary judgment are as follows:

[200] It is also incontrovertible that, on two separate occasions, on 22 December 2023 and on 22 January 2024 respectively, Mr Collins was given the opportunity to access the bankruptcy notices issued to him but declined to avail himself of the opportunity to physically inspect those documents.

…

[202] In this sense, Mr Collins was provided the opportunity to access the bankruptcy notices at the [Mobilong] Prison on these two occasions. As such I am satisfied that Mr Collins was served on these two separate occasions, in the sense that he could have accessed the documents in question, if he chose to do so.

75    The appellants contend that Judge Brown erred in refusing to allow them to cross-examine Mr Carpenter in connection with the attempt to serve the amended bankruptcy notice on Mr Collins in January 2024.

76    On 16 January 2024, in action ADG 15 of 2024, the respondents obtained the substituted service orders, the terms of which are set out at [21] above.

77    The substituted service orders contemplated that the bankruptcy notice was to be amended so that it stated that the time for compliance was 21 days from 22 January 2024 – that being the date on which the substituted service orders contemplated the amended bankruptcy notice would be deemed to have been served – rather than 21 days from whatever date the amended bankruptcy notice was actually served. As so amended, the amended bankruptcy notice relevantly stated:

1.    You are required, within 21 days after service on you of the Bankruptcy Notice after 22 January 2024, to either:

(a)    pay to the creditor the amount of the debt claimed; or

(b)    make arrangements to the creditor’s satisfaction for settlement of the debt.

Note: a Bankruptcy Notice served in Australia must be complied with within 21 days after service. The Court may fix a different time for compliance where it gives leave to serve a Bankruptcy Notice outside of Australia.

78    As noted at [23] above, once the substituted service orders were set aside by Judge Lucev, the respondents could no longer rely on the deeming effect of orders 2 and 3 of the substituted service orders as a means of proving that Mr Collins had been served with the amended bankruptcy notice. Given that the amended bankruptcy notice stated, on its face, that the time for compliance was “21 days after 22 January 2024”, it thus became essential for the respondents to establish that service of the amended bankruptcy notice on Mr Collins was, in fact, effected on or before 22 January 2024. Only then could the respondents establish that, by failing to comply with the notice, Mr Collins had committed an act of bankruptcy of the kind contemplated by s 40(1)(g) of the Bankruptcy Act.

Evidence before the FCFCOA regarding the service of the amended bankruptcy notice

79    In an affidavit of service dated 28 February 2024, Mr Carpenter deposed that:

(a)    on 17 January 2024, the amended bankruptcy notice was sent by post to Mobilong Prison;

(b)    on the same date, Mr Carpenter served the relevant documentation on Mr Collins’s solicitor, Mr Finlayson, in accordance with the substituted service orders; and

(c)    on 30 January 2024, the correspondence sent to Mr Collins was returned to Mr Carpenter marked “RTS”.

80    Annexed to Mr Carpenter’s affidavit dated 28 February 2024 is a copy of the letter that was returned to Websters Lawyers. The copy bears the handwritten annotation “RTS”, a date stamp indicating that a copy of the letter had been sent by email on 17 January 2024, and another date stamp dated 25 January 2024 (for which no further description or explanation appears on the face of the document).

81    In a later affidavit dated 13 August 2024, Mr Carpenter deposed that:

(a)    on 12 August 2024, he called Mobilong Prison to enquire about its mail delivery procedures;

(b)    he spoke with a female prison officer regarding the letter sent to Mr Collins;

(c)    the prison officer informed him that the prison maintained a mail register recording that the letter had been received by the prison and provided to Mr Collins;

(d)    the prison officer advised him, and Mr Carpenter believed, that:

(i)    on 22 January 2024, Mobilong Prison had received Mr Carpenter’s letter dated 17 January 2024;

(ii)    on 22 January 2024, staff of the prison personally gave the letter to Mr Collins;

(iii)    Mr Collins advised staff that he would not accept the letter, and directed prison staff to mark it “return to sender”; and

(iv)    due to Mr Collins’s refusal to accept the letter, it was marked “return to sender”, and posted back to Websters Lawyers.

82    Mr Carpenter also filed an affidavit dated 17 March 2025, which set out substantially the same matters as those deposed to in his affidavit dated 28 February 2024. In his 17 March 2025 affidavit, Mr Carpenter states that the letter that had been sent to Mr Collins on 17 January 2024 was returned to Websters Lawyers on 25 January 2024.

The appellants’ application to cross-examine Mr Carpenter

83    The appellants point out that, on the face of Mr Carpenter’s affidavits, one of them appears to suggest that the letter, once rejected by Mr Collins, was received by Websters Lawyers on 25 January 2024, while another suggests that it was not received by Mr Carpenter until 30 January 2024. Further, Mr Carpenter’s affidavit does not explain the meaning of the date stamp of 25 January 2024 which appears on the returned letter. The appellants submit that that stamp could reflect the date on which the letter was received by the prison, rather than the date on which it was received back by Websters Lawyers.

84    The appellants argue that Judge Brown erred in refusing to allow Mr Collins to explore these possible inconsistencies by way of cross-examination of Mr Carpenter. The relevant part of the transcript of the hearing before Judge Brown reads as follows:

[COUNSEL FOR THE APPELLANTS]: … I seek to cross-examine Mr Carpenter on the affidavit of service.

HIS HONOUR: Have you given notice?

[COUNSEL FOR THE APPELLANTS]: Yes.

HIS HONOUR: When was that done?

[COUNSEL FOR THE APPELLANTS]: It was done at the last hearing, and immediately after.

HIS HONOUR: What will that serve?

[COUNSEL FOR THE APPELLANTS]: Well, could I have this discussion perhaps in the absence of the witness?

HIS HONOUR: I’m not going to allow these proceedings to be shanghaied, [Counsel for the Appellants]. What do you want to achieve by cross-examining Mr Carpenter? What application do you have? What forensic purpose will it serve?

[COUNSEL FOR THE APPELLANTS]: Well, we say that there was no service on Mr Collins.

HIS HONOUR: All right.

[COUNSEL FOR THE APPELLANTS]: In accordance - - -

HIS HONOUR: You can make that submission.

[COUNSEL FOR THE APPELLANTS]: In accordance with the material, but could I – could I have – I can be more frank in the absence of the witness.

HIS HONOUR: That’s the issue, so as Mr Carpenter can give evidence about his most recent affidavit?

[COUNSEL FOR THE RESPONDENTS]: I oppose the application to cross-examine Mr Carpenter. Mr Collins himself could have put evidence on, in response to Mr Carpenter’s affidavit. He chose not to, and so there’s no factual, actual factual foundation to cross-examine Mr Carpenter. It’s a – it’s a fishing expedition.

HIS HONOUR: Look, it’s just about his affidavit of 17 March, is it?

[COUNSEL FOR THE APPELLANTS]: 17th of March. Of – I think he’s - - -

HIS HONOUR: Of 2025, I think it is. Yes.

[COUNSEL FOR THE APPELLANTS]: Yes, well, the date on that is different from the date of - - -

HIS HONOUR: But that’s what you – Mr Collins is your client.

[COUNSEL FOR THE APPELLANTS]: Yes, that’s correct.

HIS HONOUR: And you concede he’s in custody.

[COUNSEL FOR THE APPELLANTS]: Yes, he is.

HIS HONOUR: Yes. And I mean, there’s issues about whether it was given to them, whether it was – he declined to accept it. That’s hearsay from Mr Carpenter’s perspective. But the gentleman’s –

[COUNSEL FOR THE APPELLANTS]: Well, we say it’s hearsay - - -

HIS HONOUR: - - - and the documents were mailed to your office, you act for him, they were sent to the prison, and the envelope was returned. Is that the issue you want to examine?

[COUNSEL FOR THE APPELLANTS]: Yes, but I don’t – I wasn’t acting for him. That’s the material before the Court. Mr Carpenter filed an affidavit originally with the creditors’ petition, stating that the material had been returned to him on 30 January. If that’s the case, Mr Collins was not served in accordance with the - - -

[COUNSEL FOR THE APPELLANTS]: I will let you make submissions to that effect. But at this juncture, given the late notice of the request for cross-examination - - -

[COUNSEL FOR THE APPELLANTS]: With respect - - -

[HIS HONOUR]: - - - I’m not inclined to allow you to cross-examine Mr Carpenter about something I regard as a peripheral issue, with respect.

[COUNSEL FOR THE APPELLANTS]: In our submission, the service of the notice of bankruptcy is a matter that has - - -

HIS HONOUR: You don’t act for the gentleman, you said?

[COUNSEL FOR THE APPELLANTS]: No. I - - -

HIS HONOUR: Well, you can’t object to the service if you don’t act for it. You can’t have it both ways. Can you? I don’t think so.

[COUNSEL FOR THE APPELLANTS]: With respect, my submission is, I was not acting – the material shows that I was not acting for Mr Collins at the time that the material was sent to my office. I’m acting for him now in these proceedings.

HIS HONOUR: All right. You can make submissions about that, but I’m not inclined to allow you to cross-examine Mr Carpenter. I have to focus on the time we have available, [Counsel for the Appellants]. …

85    Counsel for the appellants had attempted to explain the forensic purpose of cross-examining Mr Carpenter, submitting that “there was no service on Mr Collins”. Counsel further sought to identify an apparent or arguable inconsistency in the affidavit evidence of Mr Carpenter – namely, whether the amended bankruptcy notice was received “return to sender” on 25 January 2024 or 30 January 2024 – as a basis for the proposed cross-examination. Before counsel could fully develop that submission, Judge Brown intervened, indicating that the point could be addressed in submissions instead of through the cross-examination. Judge Brown appears to have thought that the appellants had been “late” in providing notice that Mr Carpenter would be required for cross-examination, but that would seem to have been incorrect, given that counsel for the appellants had stated that notice had been provided at the previous hearing of the matter (and it was not suggested that that assertion was incorrect).

Cross-examination of Mr Carpenter should have been permitted

86    Section 27 of the Evidence Act 1995 (Cth) provides:

27 Parties may question witnesses

A party may question any witness, except as provided by this Act.

87    Section 29(1) provides that “[a] party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court”. Section 29(1) confers, or alternatively recognises, the power of the Court to give directions in relation to the questioning of a witness. However, when ss 27 and 29 are read together, the difference in language makes it clear that the discretion conferred or recognised by s 29(1) is a discretion to give directions in relation to the way a party may question a witness, not a discretion to prevent a party from being permitted to ask questions of a witness at all (even if that may sometimes be the ultimate effect of preventing a party from asking each of the questions they seek to ask of a witness).

88    In Canberra Residential Developments Pty Ltd v Brendas (2010) 188 FCR 140; [2010] FCAFC 125 at 149 [49], the Full Court explained the operation of these provisions as follows:

Section 27 provides that a party may question any witness, except as provided by the Act. There are several restrictions on the right to cross-examine. For example, s 29(1) assumes that the court can direct a witness not to answer a question put in chief or under cross-examination. Further, s 41 relevantly provides in subs (1)(b) that the court must disallow a question if it is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive. …

89    The respondents argue that, as Mr Collins did not advance any evidence that contradicted the evidence of Mr Carpenter, there was nothing that could have been achieved by cross-examining him on his 17 March 2025 affidavit. The respondents submit that it was therefore open to the Court to decline to allow cross-examination and accept Mr Carpenter’s evidence in the absence of anything to the contrary.

90    In my view, Judge Brown erred in refusing to permit the appellants to cross-examine Mr Carpenter at all. The hearing before Judge Brown was a final hearing of the Creditor’s Petition. The question of whether service had been effected on Mr Collins on 22 January 2024 was not merely a “peripheral” issue. It is true that it was a technical issue, but the question of whether the amended bankruptcy notice was served on Mr Collins on 22 January 2024 was one on which the operation of s 40(1)(g) of the Bankruptcy Act depended, and which Mr Collins had chosen to make central to his case. The apparent difference in the dates on which the amended bankruptcy notice had been returned, which appeared from the face of Mr Carpenter’s two affidavits but was not explained by them, was an issue that the appellants were entitled to explore through cross-examination. In circumstances where the respondents bore the burden of proving that the amended bankruptcy notice had been served on Mr Collins on 22 January 2024, the appellants were entitled to put them to proof on that issue, and to test the evidence on which the respondents relied through cross-examination, irrespective of whether Mr Collins himself had advanced any positive evidence to contradict the respondents’ position.

Addressing the procedural defect arising from the refusal to allow cross-examination

91    Where an appellate court concludes that a party was wrongly denied the opportunity to cross-examine a witness at trial, a common course is to allow the appeal, set aside the order or orders that could have been affected by the error, and remit the matter to the trial court for re-hearing. However, that course is not practically available in the present case. If the sequestration order made against Mr Collins were now set aside, the FCFCOA would no longer have power to make a new sequestration order, even if it were to find that the amended bankruptcy notice had been served on him on 22 January 2024. That is because the extended date on which the Creditor’s Petition was to lapse (26 February 2026) has now passed. In those circumstances, to allow the appeal and set aside the sequestration order would effectively allow Mr Collins to avoid bankruptcy on the basis of a procedural irregularity that had occurred in the FCFCOA, even though, had the FCFCOA permitted the cross-examination of Mr Carpenter, a finding might nevertheless have been made that Mr Collins was indeed served with the amended bankruptcy notice on 22 January 2024.

92    Section 27 of the FCA Act confers a discretionary power on the Court to receive further evidence on appeal. The section provides:

27 Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

93    Once I formed the view that Judge Brown had erred in refusing to allow counsel for Mr Collins to cross-examine Mr Carpenter, I considered that the fairest course was to invite Mr Carpenter to make himself available for cross-examination on the appeal. This would effectively address the procedural defect and would place me in a position to make my own findings about the attempt to serve the amended bankruptcy notice on Mr Collins in January 2024. If, having regard to Mr Carpenter’s evidence, as tested through cross-examination, together with the available documentary evidence, I was satisfied that service of the amended bankruptcy notice had been effected on Mr Collins on 22 January 2024, then the finding of Judge Brown would be upheld. If I were not satisfied that the amended bankruptcy notice had been served by 22 January 2024, it would follow that Judge Brown’s finding must be set aside and the respondents could not rely on the service of the amended bankruptcy notice in support of the sequestration order against the estate of Mr Collins. If Mr Carpenter had declined to submit to cross-examination on the appeal, the finding of Judge Brown in relating to service of the amended bankruptcy notice on 22 January 2024, affected as it was by the procedural irregularity, would have to be set aside.

94    Accordingly, my chambers informed the parties that I had reached the view that the appellants ought to have been permitted to cross-examine Mr Carpenter, and invited Mr Carpenter to indicate whether he was prepared to present for cross-examination on the appeal. Prior to the further hearing, the respondents were given an opportunity to file any further affidavit evidence in chief on which they sought to rely in relation to the service of the amended bankruptcy notice. No further evidence was filed.

95    The appellants also served a notice to produce by which they required the respondents to produce several original documents relating to the attempt to serve the amended bankruptcy notice on Mr Collins in January 2024.

The evidence in relation to the service of the amended bankruptcy notice

96    The matter was listed for a further hearing, at which Mr Carpenter presented for cross-examination. In the course of the cross-examination of Mr Carpenter, the following documents were tendered:

(a)    the notice to produce issued to the respondents on 25 June 2026;

(b)    a bundle comprising the documents produced in response to that notice to produce;

(c)    the affidavit of Andrew Carpenter dated 28 February 2024;

(d)    the affidavit of Andrew Carpenter dated 13 August 2024; and

(e)    the affidavit of Andrew Carpenter dated 17 March 2025.

97    The notice to produce which was served by the appellants sought production from the respondents of:

(a)    the envelope returned to Websters Lawyers which contained Websters Lawyers’ letter to Mr Collins date stamped 25 January 2024;

(b)    the rounds instruction sheet for the posting of the amended bankruptcy notice to Mr Collins; and

(c)    receipts for express postage of the amended bankruptcy notice.

98    In response to the notice to produce issued by the appellants, the respondents produced the original of the envelope that was returned to Websters Lawyers, as well as the contents of the envelope (being a letter from Mr Carpenter to Mr Collins dated 17 January 2024 and its enclosures, including the amended bankruptcy notice, allocatur, record of monetary judgment and substituted service orders).

99    The respondents did not produce a relevant rounds instruction sheet relating to the posting of the amended bankruptcy notice, or a receipt for the express postage of the amended bankruptcy notice. In the course of his oral evidence, Mr Carpenter explained that he had not been able to locate a rounds instruction sheet or receipt.

100    In addition, the respondents produced various documents that were not responsive to the notice to produce, including a rounds instruction sheet and a receipt for postage relating to other correspondence. In the course of his oral evidence, Mr Carpenter explained that, in order to be as transparent as possible, and in case it would assist the Court, he had produced all of the documents of those kinds which related to the present matter and which he had been able to locate. I accept his evidence in this regard. It is possible that a rounds instruction sheet and receipt for express postage in relation to the amended bankruptcy notice existed at one time but, if they did, I accept Mr Carpenter’s evidence that he was no longer able to find and produce them. This does not cause me to doubt his evidence that he sent the envelope containing the amended bankruptcy notice to Mr Collins and that he did so on 17 January 2024.

101    In light of the terms of the substituted service orders, of which Mr Carpenter was endeavouring to take advantage, it is probable that he arranged for the amended bankruptcy notice to be posted to Mr Collins by express post, and emailed to Mr Finlayson, on 17 January 2024, as he says he did.

102    The original envelope produced by Mr Carpenter, which was returned to Websters Lawyers, bears the letters “RTS” on the front. The letters are handwritten in blue pen, and there are two straight lines, also in blue pen, diagonally across the envelope. The two lines cross the clear plastic address window on the front of the envelope, and it is apparent that, at the point when one of the lines was added, the pen slightly tore through the address window. The original of the letter to Mr Collins also bears the letters “RTS”, written in red pen and apparently in different handwriting from the letters on the envelope. Near those letters there is a short straight blue pen line, which is interrupted in the middle. When a comparison is made between the envelope and the letter, it can readily be inferred that the letter was contained within the envelope at the time when the lines were drawn across the envelope, and that the blue pen line on the letter was created when the pen tore through the address window on the envelope.

103    It thus appears that, once the envelope reached Mobilong Prison, it was opened, the letters “RTS” in red pen were added to the face of the letter, the letter was returned to the envelope, the letters “RTS” in blue pen were added to the front of the envelope, and the envelope was resealed and posted back to Websters Lawyers. I infer that this is what occurred. This is consistent with Mr Collins’s having been presented with the letter and with his directing that it be returned to sender. Also on the envelope is a stamp which reads “LEGAL MAIL”, and a five-digit number written in blue handwriting.

104    In response to questioning from counsel for the appellants, Mr Carpenter provided an explanation for the apparent discrepancy in his evidence as to whether the letter was received back by Websters Lawyers on 25 January 2024 or on 30 January 2024. Mr Carpenter explained that he had been on leave during that period and that, although the letter was received by Websters Lawyers on 25 January 2024, it did not come to his personal attention until 30 January 2024, when he returned from leave. He said:

… this letter was in my in-tray when I saw it on the 30th and it was stamped on 25 January which is when our office received it.

105    Mr Carpenter accepted that this explanation for the differing dates in his affidavits had not previously been advanced. Despite that, I accept Mr Carpenter’s evidence about these events. I also accept that it is likely that Mr Carpenter would recognise a stamp used by his firm to identify the date of receipt of incoming mail.

106    There is one aspect of Mr Carpenter’s evidence that I do not accept as accurate. It was put to Mr Carpenter that he had only contacted Mobilong Prison on 12 August 2024 in order to try to obtain evidence of actual service because the substituted service order had by then been set aside. Mr Carpenter denied this, stating that he “just wanted to make sure that we didn’t have any roundabout arguments on this, and I thought it might be a beneficial thing for the court to actually call the prison and try and find out that he actually did receive it, and he refused it”. Given the sequence of events, and the fact that Mr Carpenter made contact with the prison only after Judge Lucev had set aside the substituted services order, I accept that it is probable that Mr Carpenter did so because he understood that it would now be necessary to demonstrate that service of the amended bankruptcy notice actually occurred on 22 January 2024, and, for that reason, was seeking evidence of the date on which service was actually effected. I am not sure that Mr Carpenter fully appreciated the point of the questions he was being asked about this. Although I think Mr Carpenter was probably mistaken about what prompted him to seek further evidence about the service of the amended bankruptcy notice on Mr Collins, that does not cause me to doubt the veracity of his evidence generally. It does serve as a reminder that the events about which he gave evidence occurred some time ago, and that that has the potential to affect the reliability of Mr Carpenter’s testimony, but I nevertheless consider that his evidence regarding the attempt to serve Mr Collins generally, as recorded in his affidavits, is likely to be reliable.

107    Mr Carpenter was questioned about the conversation he deposed to having with a female prison officer on 12 August 2024. He could not provide the name or rank of the prison officer to whom he spoke. Mr Carpenter said that he made the phone call because he wanted to know whether there was a prison mail register in which they recorded incoming mail, and was advised that there was a mail register, that the prison had received Mr Carpenter’s letter dated 17 January 2024, and that Mr Collins had directed prison staff to mark it “return to sender”. Mr Carpenter candidly accepted that he had told the prison officer that the mail had been received back at the office of Websters Lawyers on 25 January 2024. He explained his purpose in providing that information was to determine “if there was a prison mail register [in] which they record incoming mail”. He stated that he was advised such a register existed and that the prison “received [the] letter and that Mr Collins refused to accept it”.

Findings about service of the amended bankruptcy notice on 22 January 2024

108    I accept Mr Carpenter’s evidence that he sent the envelope containing the amended bankruptcy notice, addressed to Mr Collins at Mobilong Prison, by express post on 17 January 2024. I accept his evidence that he believes that the documents were received, marked “return to sender”, by Websters Lawyers on 25 January 2024. That is consistent with the date stamp on the letter, bearing the date 25 January 2024. I find that it is most likely that that stamp was affixed by someone at Websters Lawyers and reflects the date on which the envelope and its contents were received by Websters Lawyers, rather than having been affixed by staff at Mobilong Prison.

109    I also accept Mr Carpenter’s evidence about what he was told by the female prison officer on 12 August 2024, including the information which she said she had obtained by reference to the prison’s mail register. It is unsurprising that the mail register maintained by the prison would record the date on which particular mail was received by the prison and provided to Mr Collins. The fact that the letter itself bore the letters “RTS”, handwritten in red pen, indicates that the letter was opened by prison staff, and I infer that that was done at the prison either before it was shown to Mr Collins or in his presence. The appellants submit that, since the envelope was identified as legal mail, it is improbable that it would have been opened by staff at the prison, and thus that it was improbable that the prison’s mail register would have identified Mr Carpenter’s letter by reference to its date. I understand the submission to be that the statement of the prison officer to Mr Carpenter, confirming that his letter dated 17 January 2024 had been provided to Mr Collins on 22 January 2024, is unreliable, and that there is no proof that any mail that might have been presented to Mr Collins on 22 January 2024 was in fact Mr Carpenter’s letter dated 17 January 2024.

110    However, for the reasons explained above, it is clear that the envelope was opened at the prison before “RTS” was written on the letter itself. It is therefore unsurprising that the prison mail register would be able to identify Mr Carpenter’s letter of 17 January 2024 by reference to its date, and that the prison officer with whom Mr Carpenter spoke was able to confirm the date on which that particular letter was brought to Mr Collins’s attention. To the extent that it was suggested by the appellants that it was not plausible that the prison officer could have known that the letter to which she was referring bore the date 17 January 2024, I reject that submission. In any case, there is nothing to suggest that any other letter from Mr Carpenter or Websters Lawyers was sent to Mr Collins at around the same time, and I find on the balance of probabilities that the letter which was rejected by Mr Collins on 22 January 2024 was the letter sent by Mr Carpenter on 17 January 2024.

111    Given that Mr Collins was physically located at Mobilong Prison and the letter was addressed to him there, it is a small step to infer – and I find – that the letter was presented to him before being returned to sender. I find that it was returned to Websters Lawyers because Mr Collins refused to accept it and directed that it be returned. There is no other apparent reason for mail that was addressed to Mr Collins at the prison where he was residing to have been marked “returned to sender”.

112    The substituted service orders made on 16 January 2024 prescribed the steps that were required to be undertaken before service would be taken to have been effected. Although Mr Carpenter’s affidavit dated 28 February 2024 stated only that the letter was sent by “post”, the evident purpose of sending the letter was to serve the amended bankruptcy notice in accordance with the substituted service orders, so that the respondents could rely upon deemed service. Therefore, I infer that the letter was sent in the manner contemplated by the substituted service orders – that is, by express post.

113    Further the letter itself bears the typed words “BY EXPRESS POST ONLY”, which indicates an intention that the documents were to be sent by express post. This is consistent with an intention to comply with the substituted service orders and provides some further support for the conclusion that express post was utilised. I am conscious that the respondents were unable to adduce evidence of the express post tracking details or a relevant rounds sheet, but considering all the evidence, I am satisfied on the balance of probabilities that Mr Carpenter’s mail was sent by express post on 17 January 2024.

114    Mr Carpenter’s evidence about the documents being sent on 17 January 2024 and returned to Websters Lawyers on 25 January 2024 is consistent with what could reasonably be expected if documents were sent by express post from Websters Lawyers in Adelaide to Mobilong Prison, which is within South Australia but outside the Adelaide metropolitan area, shown to Mr Collins on 22 January 2024 and “returned to sender”. Even allowing for some possible delay between the prison’s receipt of the documents and their provision to Mr Collins, receipt by Mr Collins on 22 January 2024 is consistent with the letter having been posted on 17 January 2024. Although the appellants submit that there is insufficient evidence to conclude that the date stamp of 25 January 2024 refers to the date Mr Carpenter’s mail was received back at Websters Lawyers, rather than the date on which it was received at the prison, I find on the balance of probabilities that that date was stamped on the letter when it was returned to Websters Lawyers.

115    I am mindful that the prison officer’s statement to Mr Carpenter is hearsay. The admissibility of that evidence was not challenged in the appellants’ grounds of appeal, but the appellants submit that the hearsay nature of the evidence affects the weight that should be given to it. Given the function of the prison mail register as a business record of the prison, it is probable that the information contained therein was accurate. It is also improbable, in my view, that the prison officer told Mr Carpenter that the mail register recorded information which it did not in fact record. The information conveyed by the prison officer is plausible, and consistent with what might be expected in relation to a letter sent on 17 January 2024.

116    It is true that the respondents could potentially have produced even better evidence to support the conclusion that the amended bankruptcy notice was served on Mr Collins on 22 January 2024 – including, for example, by obtaining via subpoena the relevant entry in the mail register kept by Mobilong Prison, to which the officer to whom Mr Carpenter spoke had apparently had regard. However, the respondents might well have thought it disproportionate to pursue every possible means of proof.

117    On the evidence before the Court, I am satisfied on the balance of probabilities that the amended bankruptcy notice was presented to Mr Collins, and that he rejected it and directed that it be “returned to sender”, and that this occurred on 22 January 2024. The delivery of the amended bankruptcy notice to Mr Collins personally amounted to service of the amended bankruptcy notice, even though he declined to accept it: see Bankruptcy Regulations 2021 (Cth), reg 102(1)(c); Acts Interpretation Act 1901 (Cth), s 28A(1)(a)(i).

118    I would reach this conclusion even without regard to the fact that Mr Collins could have, but did not, give evidence denying that he had been presented with an opportunity to accept the amended bankruptcy notice on 22 January 2024. However, the failure of Mr Collins to give evidence (or, indeed, to adduce any evidence on this topic) would, in my view, also support an inference that nothing he could say about it would have assisted his case: see Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J), 320-1 (Windeyer J). This would, if it were necessary, allow the conclusion that Mr Collins was served with the amended bankruptcy notice on 22 January 2024 to be more readily accepted.

119    Finally, I make it clear that, in making findings about what occurred on 22 January 2024, I have not had regard to any of the evidence relating to the attempt to serve Mr Collins with the original bankruptcy notice in December 2023, or Mr Collins’s alleged conduct in connection with that attempt, which are the subject of contentions raised by grounds 4 and 5 of the appeal.

Conclusions

120    For the reasons given above, and having regard to the fact that the appellants have now had the opportunity to cross-examine Mr Carpenter which I consider they should have had in the proceeding before the FCFCOA, I conclude that Judge Brown was correct to find that Mr Collins was served with the amended bankruptcy notice on 22 January 2024. It follows that, by failing to comply with the amended bankruptcy notice within 21 days of that date, Mr Collins committed an act of bankruptcy. The making of a sequestration order against his estate was the appropriate course. So, while the appellants have established the error which forms the basis for ground 2 of the appeal, the appeal should not be allowed on this ground.

Ground 4 – error in making findings in respect of service on 22 December 2023

Introduction

121    Mr Collins advances two distinct contentions under ground 4. First, he contends that Judge Brown erred in treating Mr Collins’s non-compliance with the original bankruptcy notice, which Judge Brown found to have been served on 22 December 2023, as relevant to the determination of the Creditor’s Petition, notwithstanding that the petition was founded on the failure of Mr Collins to comply with the amended bankruptcy notice served on 22 January 2024. Secondly, Mr Collins contends that Judge Brown erred in having regard to the Millar Affidavit, because it was not read into evidence at the hearing of the Creditor’s Petition.

Error in relying on non-compliance with a bankruptcy notice that was not relevantly relied on as an “act of bankruptcy” in the Creditor’s Petition

122    Mr Collins contends that the Creditor’s Petition that was relied upon to found the sequestration order relating to his estate identified a single “act of bankruptcy”, namely, non-compliance with the amended bankruptcy notice served on Mr Collins on 22 January 2024. The Creditor’s Petition made no reference to non-compliance with the original bankruptcy notice.

123    In the primary judgment at [202], in the passage set out at [74] above, Judge Brown made a finding that Mr Collins was served with a bankruptcy notice on each of 22 December 2023 and 22 January 2024. Mr Collins submits that Judge Brown erred in relying on Mr Collins’s non-compliance with the original bankruptcy notice, which he found to have been served on Mr Collins on 22 December 2023, as an act of bankruptcy which could justify the making of the sequestration order.

124    The respondents ultimately did not attempt to defend Judge Brown’s reliance on the original bankruptcy notice, given that no reference was made to it in the Creditor’s Petition. I accept that Judge Brown erred insofar as his Honour relied on non-compliance with the original bankruptcy notice that his Honour found to have been served on Mr Collins on 22 December 2023 as a relevant act of bankruptcy that was capable of being relied upon in support of the making of the sequestration order.

Was the Millar Affidavit in evidence before Judge Brown?

125    The parties dispute whether the Millar Affidavit was admitted into evidence at the hearing before Judge Brown. The appellants submit that it was not, and that Judge Brown erred in having regard to it. The respondents contend that it was admitted into evidence.

126    At the hearing of the Creditor’s Petition, counsel for the appellants repeatedly sought clarification as to which affidavits were to be taken to have been read into evidence for the purposes of that hearing. At one point, the following exchange occurred, in which Judge Brown identified, in general terms, the affidavits that he was treating as having been admitted into evidence:

HIS HONOUR: So you’re ready to begin now, [counsel for the appellants]?

[COUNSEL FOR THE APPELLANTS]: I’m still not aware of what has been read.

HIS HONOUR: The petition, the various affidavits of service and the in-depth of the searches that have been made.

[COUNSEL FOR THE APPELLANTS]: Yes.

HIS HONOUR: The conventional documents.

127    In his reasons for judgment, Judge Brown referred to the Millar Affidavit, and made findings about what had occurred on 22 December 2023 on the basis of the evidence in that affidavit. It therefore appears that, at least by the time his Honour completed writing his judgment, his subjective understanding was that the Millar Affidavit was among the affidavits that he had indicated had been read into evidence. However, the question of which affidavits were read falls to be determined objectively by reference to the record of the hearing.

128    For the following reasons, the better view is that the Millar Affidavit was not admitted into evidence before Judge Brown.

129    First, Judge Brown relevantly identified the affidavits that were read as “the various affidavits of service”. There were a number of affidavits which had been filed in action ADG 75 of 2024 (including another affidavit affirmed by Mr Millar himself) which were identified, on their face, using the document title “Affidavit of service”. In contrast, the Millar Affidavit was titled merely “Affidavit”, and was not identified on its face as an “Affidavit of service”. This tends to suggest that the Millar Affidavit should not be regarded as falling within Judge Brown’s general reference to the “various affidavits of service”.

130    Secondly, in the Millar Affidavit itself, Mr Millar does not purport to state that he effected service on Mr Collins. Rather, it is deposed by Mr Millar that:

On 22 December 2023 at 11:10am I attended Mobilong Prison in person to serve the Second Respondent with a Bankruptcy Notice.

I met with the Second Respondent in person and told the Second Respondent that I was serving him with Court documents. The Second Respondent refused to accept the documents and walked out of the room. Service could not be effected due to his refusal.

131    What Mr Millar describes in this passage does appear to have amounted to service of the original bankruptcy notice, but it is clear that he did not believe that he had successfully effected service. The apparent original purpose of the affidavit was to describe what Mr Millar believed to be a failed attempt to serve Mr Collins, in order to support the application for substituted service.

132    Thirdly, as I have explained in connection with my consideration of ground 2 of the appeal, above, the Creditor’s Petition itself identified only Mr Collins’s non-compliance with the amended bankruptcy notice as the relevant act of bankruptcy founding the Creditor’s Petition. In that context, Judge Brown’s reference to “the various affidavits of service” is more naturally understood as referring to the several affidavits describing the service of the amended bankruptcy notice (as well as the affidavit evidence relating to service of a bankruptcy notice on Ms Mohor), not an affidavit containing evidence about a different attempt to serve the original bankruptcy notice on Mr Collins.

133    Fourthly, no direct reference was made to the Millar Affidavit by either the parties or Judge Brown in the course of the hearing of the Creditor’s Petition. No submissions were made that would have put the appellants on notice that the Millar Affidavit was thought to have been read into evidence or that it would be considered by Judge Brown.

134    For these reasons, I accept that, objectively assessed, the Millar Affidavit was not read into evidence on the hearing of the Creditor’s Petition, and the appellants were not fairly on notice that it would be treated as being in evidence. It follows that it was an error for Judge Brown to have regard to it.

Conclusions

135    Mr Collins has established that Judge Brown made the two errors attributed to him pursuant to ground 4 of the appeal. His Honour’s factual finding that Mr Collins was served with the original bankruptcy notice on 22 December 2023 was based principally upon evidence contained in the Millar Affidavit, which was not in evidence. And Mr Collins’s failure to comply with the original bankruptcy notice could not, in any event, be relied on as a relevant act of bankruptcy when it was not identified as such in the Creditor’s Petition.

136    However, Mr Collins’s success on this ground does not lead to the conclusion that the appeal should be allowed, because Judge Brown also found that Mr Collins had been served with the amended bankruptcy notice on 22 January 2024. For the reasons already given above, having heard further evidence in relation to the attempt made to serve the amended bankruptcy notice on Mr Collins in January 2024, I am satisfied on the balance of probabilities that the amended bankruptcy notice was in fact served on him on 22 January 2024. It follows that Judge Brown’s conclusion that Mr Collins committed an act of bankruptcy was correct. The sequestration order against the estate of Mr Collins should not be set aside.

Ground 5 – effect of the December service finding on the January service finding

137    Mr Collins also contends that Judge Brown’s findings with respect to the service of the original bankruptcy notice on Mr Collins on 22 December 2023 also affected his Honour’s consideration of, and findings in relation to, the service of the amended bankruptcy notice on Mr Collins in January 2024. In light of my consideration of ground 2 above, it is unnecessary to decide whether this contention is made out, because I have now made my own findings regarding the service of the amended bankruptcy notice which do not in any way depend on the Millar Affidavit or the events that occurred in December 2023.

Conclusions

138    In summary for the reasons explained above:

(1)    In relation to ground 1, I would hold that the appellants were denied procedural fairness in connection with the decision of Judge Lucev to extend the date on which the Creditor’s Petition would lapse. However, unless and until it was set aside, the extension order was a valid and effective order of the FCFCOA, and the denial of procedural fairness did not mean that the FCFCOA lacked jurisdiction to make the sequestration orders. I consider that the decision to make the extension order was the appropriate decision, and that it did not give rise to a substantive miscarriage of justice affecting the final orders. Having regard to the principles relevant to appeals against final orders that are based on errors made in connection with interlocutory decisions, I would not allow the appeal on the basis of ground 1.

(2)    In relation to ground 2, I would hold that Judge Brown erred in refusing to permit the appellants to cross-examine Mr Carpenter in relation to the service of the amended bankruptcy notice on Mr Collins in January 2024. Now that the appellants have had an opportunity to cross-examine Mr Carpenter on the appeal, and considering the evidence before the Court for myself, I would find on the balance of probabilities that Mr Collins was in fact served with a copy of the amended bankruptcy notice at Mobilong Prison on 22 January 2024. Accordingly, I would not allow the appeal on the basis of ground 2.

(3)    In relation to ground 4, I would hold that Judge Brown erred insofar as his Honour relied on the service of the original bankruptcy notice on Mr Collins on 22 December 2023 as constituting a relevant “act of bankruptcy”, because the only act of bankruptcy identified in the Creditor’s Petition was non-compliance with the amended bankruptcy notice, which was served on him on 22 January 2024. I would also hold that Judge Brown erred in having regard to the Millar Affidavit, because that affidavit was not read into evidence for the purpose of the hearing before Judge Brown. However, since I have found that Mr Collins was in fact served with the amended bankruptcy notice on 22 January 2024, and since he failed to comply with that notice, it follows that he did commit the act of bankruptcy specified in the Creditor’s Petition, and the decision to make a sequestration order against his estate was appropriate. Therefore, I would not allow the appeal on the basis of ground 4.

(4)    It is unnecessary to determine ground 5 because, even if Judge Brown had regard to what had occurred on 22 December 2023 (which was based on the Millar Affidavit) in finding that Mr Collins was served with the amended bankruptcy notice on 22 January 2024, I am satisfied, based on the evidence which is now before the Court (and disregarding the Millar Affidavit), that that finding was correct.

139    It follows that the appeal should be dismissed. The appellants should pay the respondents’ costs of the appeal. The respondents sought indemnity costs in relation to ground 3 of the appeal because it was abandoned in the appellants’ written submissions. However, I would not wish to discourage the abandonment of unmeritorious grounds at an appropriately early stage, and those costs are in any event minor in the context of the appeal as a whole. I do not consider there is sufficient reason to order that any costs attributable to ground 3 be payable otherwise than on the usual party and party basis.

Associate:

Dated:    24 July 2026

SCHEDULE OF PARTIES