Federal Court of Australia

Storey, in the matter of Britton v Britton [2026] FCA 1021

ORDERS

THE COURT ORDERS THAT:

1.    Service of the:

(a)    creditor’s petition filed 24 April 2026;

(b)    affidavit of Mr Moore sworn 24 April 2026;

(c)    affidavit of Mr Smith sworn 24 April 2026; and

(d)    consent of Mr Lane to act as the Trustee in Bankruptcy dated 24 April 2026

(the Documents),

is taken to be effected on 9 June 2026.

2.    The requirement for personal service of the Documents upon the second Respondent be dispensed with.

3.    By 4pm 3 July 2026, the second Respondent is to file a Notice of Appearance in accordance with rule 2.04 of the Federal Court (Bankruptcy) Rules 2016 (Cth).

4.    Costs of the Application be the Applicant creditors costs in the proceeding.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

1    The Applicants, Mr Joshua Storey and Ms Samantha Storey (Applicant Creditors) seek an order pursuant to r 10.23 of the Federal Court Rules 2011 (Cth) for deemed service of the Second Respondent in relation to:

(a)    the creditors petition filed on 24 April 2026;

(b)    an affidavit of Mr Moore filed on 24 April 2026;

(c)    an affidavit of Mr Smith filed on 24 April 2026; and

(d)    a consent to act as trustee signed by Mr Declan Lane dated 24 April 2026,

(Documents).

2    The application relates to service of the Second Respondent, Mr Andrew Britton. The Applicant Creditors have filed this creditors petition against the First Respondent, Ms Michelle Britton, and the Second Respondent, Mr Andrew Britton. The First Respondent, Ms Michelle Britton, filed a notice of appearance on 17 June 2026. The Applicant Creditors have attempted personal service on Mr Britton without success and have therefore brought this deemed service application.

3    Personal service of the creditors petition is required: see Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321 at [6] and [31] (Sundberg, Finkelstein and Hely JJ). Properly, a distinction should be drawn between an originating application in the court by way of a creditors petition, which must be served personally, and the service of a bankruptcy notice. Also see r 4.05 and r 1.04(2) of the Federal Court Bankruptcy Rules 2016 (Cth) and r 8.06 and r 10.1 of the Rules. To that should also be added s 52(1)(b) of the Bankruptcy Act 1966 (Cth), which requires at the hearing of the creditors petition, proof of service of the petition.

4    The Bankruptcy Rules require service of the matters listed in rr 4.05(a)-(d). In this case, those matters listed are those defined as the Documents. The Applicant Creditors bring this application in circumstances where Mr Britton has corresponded with the parties and the Court regarding these proceedings, by way of email. Mr Britton has also attended Court (by way of an audio (telephone) link) and been heard on this application.

Application for Deemed Service: Relevant Principles

5    Rule 10.23 of the Rules provides as follows:

10.23    Deemed service

A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if:

(a)    it is not practicable to serve a document on the person in a way required by these Rules; and

(b)    the party provides evidence that the document has been brought to the attention of the person to be served.

Note:    Without notice is defined in the Dictionary.

6    The requirements of r 10.23 are cumulative. The requirements of r 10.23(a) are that “it is not practicable to serve a document on the person in a way required by these Rules”. Those words, relevantly, are also the opening words to r 10.24 in relation to an application for substituted service, that “if it is not practicable to serve a document on a person in a way required by these Rules”.

7    As such, an order for deemed service does not require the Court to be satisfied that it is impossible to personally serve the relevant documents; it is sufficient that it is not sensible or realistic to effect personal service, even though it may be possible or feasible to do so: see Nanshan (Aust) Golf Resort Pty Ltd v Earth Fill Group Pty Ltd [2025] FCA 1377 at [7], (Goodman J) and the authorities cited therein; see also Commissioner of Taxation v Caratti (No 2) [2018] FCA 1500 at [10] (Colvin J). This approach is consistent with the requirement that litigation be progressed as quickly, inexpensively and efficiently as possible, as enshrined in s 37M of the Federal Court of Australia Act 1976 (Cth).

This Application for Deemed Service

8    On 22 June 2026, the Applicant Creditors filed this application for deemed service. Mr Britton has attended Court (remotely) on this application and has identified himself as the Second Respondent.

9    Mr Britton made submissions opposing the Applicant Creditors’ application for deemed service. He submitted that the application was filed late, and not in accordance with the orders of the Court of 19 June 2026. Those orders required that any service application be filed by 4 pm on 22 June 2026. Mr Britton identified a date of lodgement of 4:07:38pm on 22 June 2026 and accepted for filing on 24 June 2026. In accordance with r 2.25(3) of the Rules, if the document is received before 4.30 pm on a business day for the Registry, it is taken to have been filed on that particular day. As such, the document lodged on 22 June 2026 is taken to have been filed on 22 June 2026.

10    However, that does not squarely address Mr Britton’s complaint. Mr Britton’s complaint is in essence that it was filed seven minutes or so late and hence is not compliant with order 1 of the Court’s orders of 19 June 2026. What that does inform the Court of is that Mr Britton must have a copy of this application, as he is aware of the precise time that the service application being heard today, was lodged (as recorded on the front cover sheet).

11    Although I accept that the service application was filed seven or so minutes late, and that is certainly not a process which is to be encouraged, in all of the circumstances, and given that Mr Britton has been able to attend today and make submissions, including by reference to the precise time of the document, it is difficult to see what prejudice there is to Mr Britton. Certainly, I do not see that as a reason to not proceed with the hearing of the application for deemed service.

12    Secondly, Mr Britton submitted that he had not in fact received copies of the Documents. Mr Britton is acting for himself and it can become somewhat confusing to understand which documents relate to which particular issue or matter in the proceeding. Mr Britton referred to being “flooded with … emails”. However, in the following circumstances, it does appear that the Documents have come to Mr Britton’s attention and are available to him. The circumstances are as follows.

13    The Applicant Creditors rely on an affidavit of Ms Herlihy dated 19 June 2026, a licensed process server, who deposes to attempting personal service on Mr Britton on a range of dates from 28 April 2026 through to and including 28 May 2026. Some 11 different occasions of attempted personal service are described, which include different days of the week, including weekend days, and at different times of the day, from reasonably early in the morning, lunchtime and after hours. In those circumstances, I am satisfied that it is not practicable to personally serve Mr Britton.

14    The second requirement in relation to r 10.23 is that there is evidence that the documents have been brought to the attention of the person to be served. On 9 June 2026 at 3.24 pm, Mr Britton sent an email to the Court and relevant parties which identified in the subject line, this matter being QUD 233 of 2026. That email noted an email from the First Respondent regarding her current health condition, and requested additional time before the matter was to be mentioned by the Court again.

15    On 11 June 2026 at 8.20 pm, again with a subject line of QUD 233 of 2026, Mr Britton responded on the same email address that he sought to rely on all affidavits filed by the Respondents in matters QUD 960 of 2025 and BRG 1004 of 2025, and that he sought for a copy of all affidavits to be placed on this file, QUD 233 of 2026, and on the file for QUD 960 of 2025.

16    Finally, on 19 June 2026 at 3.41 pm, Mr Britton emailed again, relevantly, using the same email address, to the parties and the Court, with the same subject line of QUD 233 of 2026, in summary stating that the First Respondent had notified him of what had happened in Court on 19 June 2026; that he would be strongly opposing the creditors petition; that he was informed there was an issue of service; and, in the interests of saving the Court’s time and cost, he had no issue in accepting service of the documents by email to his email address; that being the email address which has relevantly been used on 9 June 2026, 11 June 2026 and 19 June 2026.

17    Earlier, the solicitors for the Applicant Creditors on 18 May 2026 sent an email to Mr Britton at the same email address as the previous correspondence was sent, providing the Documents in this matter. On the basis of all of this evidence and the inferences which can be drawn by the engagement by Mr Britton of the subject matter involved in this proceeding, including his express reference to opposing the creditor’s petition and seeking reliance on previous affidavits, I am satisfied that the Documents have come to the attention of Mr Britton.

18    Mr Britton argued that this service application should be dismissed, and, in essence, that it was unnecessary. However, as I have already observed, a creditors petition and the required accompanying documents must be personally served. It was an option available to Mr Britton that he could have filed and served a notice of appearance in these proceedings, in accordance with the Rules, to alleviate the need for this service application. He did not do so and actively opposed the deemed service application.

CONCLUSION

19    In these circumstances, I am satisfied that the orders sought by the Applicant Creditors should be made. The Applicant Creditors sought their costs of this application. However, as both of the Respondents have appeared today, and the matter is also listed for case management, the costs of this application will be the Applicant Creditors’ costs in the proceedings.

Associate:    

Dated:    30 July 2026