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[2019] FCA 900
Federal Court of Australia
2019-06-12
Smith J
Original judgment source is linked above.
Solicitor for the Applicants: MJ McPhee Barrister & Solicitor
Counsel for the Respondents: The Respondents did not appear
AND: GERALD ERNEST WAGNER First Respondent
JUDGE: BANKS-SMITH J DATE OF ORDER: 12 JUNE 2019
BANKS-SMITH J: 1 The applicants seek review of a decision of a Registrar of this Court to dismiss the applicants' creditor's petition and an associated application for substituted service of the petition. 2 The petition is based on an allegation of an act of bankruptcy, being that specified in s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (Act), namely that the applicant has obtained against the respondents in the District Court of Western Australia a judgment in the sum of $475,526 plus costs and has served on the respondents a bankruptcy notice, and the respondents have not within the time specified in the notice complied with the requirements of the notice. 3 The petition and substituted service application were dismissed on the basis that the Registrar was not satisfied that the bankruptcy notices had been served on the respondents and in circumstances where there were various failures to comply with the strict requirements of the Act. 4 The Registrar referred to the strict service requirements for service of bankruptcy notices and the relevant case law, and found that the applicants could not rely on a given address as the respondents' 'last-known address' in circumstances where it was clear that the respondents no longer resided at that address, have not resided at that address for some time, and where the applicants were well aware of those facts. He found that the evidence tendered on behalf of the applicants did not demonstrate strict proof of delivery of the bankruptcy notices and noted that contrary to requirements the bankruptcy notices did not have attached to them a copy of the judgment. The Registrar said the appropriate course was to apply for orders for substituted service of the bankruptcy notice. 5 The Registrar considered that nothing would be gained by granting leave for the applicants to amend the petition or provide further evidence, and dismissed the creditor's petition and substituted service application. 6 In lieu of the orders made by the Registrar, the applicants seek orders that the petition be amended and adjourned to a date to be fixed, and orders for substituted service. 7 The review proceeds under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) and is in the nature of a rehearing de novo: Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84. 8 The applicants sought to establish on this rehearing that the bankruptcy notices have been duly served and that the issue of the service of the bankruptcy notices is a matter to be addressed at the hearing of the application for a sequestration order based on the petition, and not beforehand. As to the failure to attach the judgments to the bankruptcy notices, they submitted that the bankruptcy notices 'identified' the judgment and that the failure to attach them comprises only a formal defect which does not invalidate the bankruptcy notices. The applicants also sought to establish grounds for substituted service of the petition.
The creditor's petition 9 On 8 May 2018 the applicants obtained default judgment against the respondents in the District Court of Western Australia for the amount of $475,526 plus costs. The applicants applied to the Official Receiver for the issue of a bankruptcy notice against each respondent. Based on the face of the bankruptcy notices in evidence, they were issued against the first and second respondents respectively on 28 June 2018 and 29 June 2018 and bear the numbers 225535 and 225536. The creditor's petition was filed on 28 December 2018. 10 In the creditor's petition of that date the applicants alleged the following act of bankruptcy: The respondent debtors failed to comply on or before 12 December 2018 with the requirements of a bankruptcy notice served on the respondents on 19 November 2018 by registered post to the respondents at their last known address namely [Nepean Place, Willetton] or to a notice sent on 20 November 2018 served by email on the lawyer acting for the Respondents in the said District Court Action namely Ms Rebecca Condor, Principal of the firm Cullen Macleod Lawyers of Level 2, 95 Stirling Highway, Nedlands, Western Australia 6009 or to satisfy that that they had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that they could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained. 11 By a proposed amendment to the petition, the applicants indicated that they no longer rely on service on Cullen Macleod Lawyers. 12 During the hearing before me, the applicants indicated that they again wished to amend the petition, and rely for the purposes of establishing an act of bankruptcy on service of the bankruptcy notices by registered post to three addresses: (a) the Nepean Place, Willetton, address (Willetton address); (b) Level 2, 1 Southbank Boulevard, Southbank, Victoria (Southbank address); and (c) 'The Ready 1 Group', 788A High Street, Thornbury, Victoria (Thornbury address). 13 A minute of proposed amended petition was later provided to that effect. 14 It is admitted that the respondents no longer reside at the Willetton address, but the applicants rely on that address as being the respondents' last-known address. The Australia Post records indicate that the registered post items addressed to each of the respondents at the Willetton address were received by Australia Post on 14 November 2018 and reported as at 16 November 2018 as 'attempted delivery - incorrect address on item' and 'return to sender, not known at this address'. 15 In the alternative to service on the Willetton address, they rely on purported service of the bankruptcy notices by registered post in November 2018 to either the Southbank address or the Thornbury address. Those are addresses where the Australia Post records indicate the registered post items were 'delivered' on 19 November 2018. 16 Prior to the use of registered post, numerous attempts were made to locate and serve the respondents. The evidence indicates: (1) on 22 August 2018 the applicants' lawyer engaged licensed private investigators (Investigators) to locate the respondents and effect personal service on them; (2) on 17 September 2018 process servers engaged by the applicants attempted to find the respondents at an address in Trieste Court, Mindarie, an address that the applicants had referred to the Investigators due to past business dealings with one of the debtors. The respondents could not be found there; (3) on 19 September 2018 process servers engaged by the applicants attempted to find the respondents at the address of an address in Ardross Street, Ardross. Neighbours advised the process servers that the respondents had moved to Melbourne; (4) between 10 and 16 October 2018 the Investigators' agents attended an address in Balwyn, Melbourne (Balwyn address) which was found to be unconnected to the respondents; (5) on 16-17 October 2018 searches were conducted of the records of the Australian Securities & Investments Commission (ASIC) which identified a number of businesses owned by the first respondent; (6) on 18 October 2018 the Investigators' agents attempted to serve the first respondent at the Thornbury address, which was identified as the address of a company related to the first respondent. At that address, process servers engaged by the Investigators met a man who identified himself as the first respondent's accountant but refused to accept service or provide further details; and (7) on 7 November 2018 the Investigators attended the Willetton address and another address in Mount Pleasant.
Form of the bankruptcy notices 17 The first applicant, Mr Abu-Amsha, filed various affidavits relevant to the creditor's petition and the application for substituted service. Under s 47 of the Act, a creditor's petition must be verified by affidavit, and that includes verification of the act of bankruptcy relied upon. In the case of reliance on failure to comply with a bankruptcy notice, an affidavit is required as to service and the affidavit must attach a copy of the bankruptcy notice (r 4.04 of the Federal Court (Bankruptcy) Rules 2016 (Cth)). By an affidavit of 15 February 2019, Mr Abu-Amsha says that on 14 November 2018 he posted copies of the bankruptcy notices by registered mail to a range of addresses, including the Willetton address, the Southbank address and the Thornbury address. Mr Abu-Amsha describes the respective bankruptcy notices as numbers 225536 issued 28 June 2018 to the first respondent, and 225535 issued 29 June 2018 to the second respondent and attaches copies. Mr Abu-Amsha also attached the Australia Post tracking records to which I have referred. Mr Abu-Amsha also attached copies in the same form of the bankruptcy notices to an affidavit of 28 December 2018 filed in support of the application for substituted service of the creditor's petition. 18 Regulation 4.02 of the Bankruptcy Regulations 1996 (Cth) (reproduced below) requires a bankruptcy notice to be in accordance with Form 1. Form 1 requires a creditor to specify the amount of the debt which they claim the debtor owes and to tell the debtor that a copy of the judgment or order upon which the creditor relies is attached to the notice. 19 In both affidavits, the bankruptcy notices attached comprise two pages only and are in accordance generally with Form 1. They include the following table: [The applicants] claim/s that you owe the following debt
20 There is no evidence that the bankruptcy notices had attached to them a copy of the default judgment when they were issued or served (a copy of the judgment was provided separately to the Court by affidavit but there was no suggestion it was attached at any stage to the bankruptcy notices). There is no other reference to the judgment in the bankruptcy notice.
Failure to attach a copy of the judgment to the bankruptcy notices 21 Regulation 4.02 of the Bankruptcy Regulations provides: Form of bankruptcy notices (1) For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed. (2) A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes). (3) Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901. Note: Under section 25C of the Acts Interpretation Act 1901, where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient; see also paragraph 46(1)(a) of that Act for the application of that Act to legislative instruments other than Acts. 22 The applicants did not contest that there was no formal judgment or order attached to the bankruptcy notices that were purportedly sent to the respondents. The lack of evidence to such effect is telling, that matter having been brought to the attention of the applicants by the Registrar. Rather, the applicants submitted that the judgment was 'identified' and that if the final judgment or order was not attached and this constituted a defect, then this was a formal defect or irregularity and did not invalidate the bankruptcy notice. I do not accept that any judgment was 'identified' - at most, the quantum of a sum said to be payable by way of an unidentified judgment was set out at item 1 of the relevant notices. 23 If the copy judgment was not attached to the bankruptcy notice at the time of issue by the official receiver, then the bankruptcy notice would be a nullity. The defect or irregularity would not be cured by s 306(1) of the Act: Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; (2014) 225 FCR 458 at [59]. 24 Further, as referred to in Curtis at [35], there are many authorities that refer to the importance of attaching a copy of the final judgment or order at the time of service: see for example Thompson v Metham [1999] FCA 935 at [26]; Commonwealth Bank of Australia v Horvath (Junior) [1999] FCA 143 at [12]-[14]; Re Scerri (1998) 82 FCR 146 at 149 and American Express International Inc v Held [1999] FCA 321 at [14]. In Curtis, the Full Court, although concerned with attachment at the time of issue, considered such cases stand as authorities for the proposition that attachment at the time of service is also essential: at [63]. 25 It is true that reg 4.02(2) only requires substantial compliance. If there has been substantial compliance, then there is no defect and, accordingly, s 306(1) does not then need to be considered. However, as there is no evidence in this case as to whether or how the judgment was provided or attached at the time of issue and as there is no evidence that it was attached at the time of purported service, I am not satisfied there has been 'substantial compliance'. It then falls to consider s 306(1). 26 In Curtis, the Full Court considered the obligation to attach the judgment at the time of issue was essential, noting the position is the same with the time of service: [62] What is a requirement made essential by the Act? In order to determine that question, one needs to consider the legislative purpose of the Act generally, the purpose of the provisions relating to bankruptcy notices, the purpose of the particular requirement and whether it was the legislative purpose that failure to comply with such a requirement should necessarily invalidate the bankruptcy notice. Further, one needs to evaluate the significance or importance of the defect in the circumstances of the case (Adams v Lambert at [26]-[29]). [63] Generally, it seems to us that the attaching of a copy of the judgment or order to the bankruptcy notice at the time of issue is essential. We have set out the significance of the judgment as a foundation for the issue of the notice and the significance of the judgment debt being properly identified (see [31]-[34]). Further, the authorities referred to at [35] demonstrate such a requirement to be essential at the time of service. Equally, we would consider that the requirement is essential at the time of issue, for that is when validity needs to be assessed. Not to have the copy judgment so attached at the time of issue entails that the foundation for the notice and the basis for the administrative act of issue has not been properly identified. Moreover, the notice on its face would be incomplete and uncertain in an essential respect. 27 The Full Court in Curtis also took into account that a defect is substantive and not formal if the defect is reasonably capable of misleading the debtor: Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34; (1988) 165 CLR 71 at 79, 82. It considered that not to attach a copy of the final judgment or order at the time of issue is reasonably capable of misleading the debtor, and that the fact that the debtor may not have been actually misled, because it was in fact attached at the time of service, but not at the time of issue, is not to the point. It stated: [66] At the time of issue, without the attachment, a reader, let alone the debtor, could not know from the face of the notice what the basis of the debt was, the basis of the administrative act of issue by the Official Receiver or the steps that the debtor could take as identified in paras 4 and 5 on the second page of the notice. By having the identity of the debt and, as a consequence, the subject matter of the notice open, uncertainty is created about the basis of the notice and the steps that might be taken in terms of necessary steps to set aside the judgment or to set up a counterclaim that could not have been set up in the action leading to the judgment; something which is uncertain is capable of misleading (cf Kleinwort at 80). 28 In this case there is no evidence as to attachment of the judgment either when it was issued or when purportedly served. Furthermore, the judgment was a default judgment, and the notice contained no description of it other than the claimed sum. The debt and its subject matter was open, to use the words of the Full Court in Curtis. Even leaving aside the apparent non-attachment of the judgment at the time of issue, I consider attachment of the judgment to the service versions to have been essential. In this case, there was no substantial compliance with the requirements of reg 4.02 and so such a defect is not cured by s 306(1). 29 Accordingly, the petition does not disclose a valid act of bankruptcy. I am therefore being asked to order substituted service of a petition that will inevitably be dismissed. In those circumstances, I do not accept the applicant's submission that substituted service of the petition should be ordered with any question of whether there has been an act of bankruptcy reserved to a further hearing after service. I accept that in most circumstances that may be an appropriate course. These are unusual circumstances. I have the affidavits as to service of the bankruptcy notice and verifying the petition before me. The defect in the notice of bankruptcy is such that the petition will inevitably be dismissed and it is futile for the applicants to be put to the cost and expense of substituted service where such a course will achieve no benefit. I can safely assume that the respondents would not concede any point about the validity of the bankruptcy notice. This approach is consistent with the purpose of carrying out or giving effect to the Act, in that an act of bankruptcy is fundamental to validly invoking the Court's jurisdiction to make orders on a creditor's petition. In this case, a jurisdictional fact for which s 40(1)(g) of the Act provides cannot be established. 30 Having reached that view, it is not necessary to determine the balance of the arguments as to service. However, I will discuss them having regard to the submissions made on behalf of the applicants.
The need for strict compliance 31 There is no precise evidence from Mr Abu-Amsha, as is usually required, as to the bankruptcy notices and any attachment being placed by him into the relevant registered post envelopes. I will put that to the side, however, as there are other difficulties for the applicants. 32 Regulation 16.01 of the Bankruptcy Regulations provides: Service of documents (1) Unless the contrary intention appears, where a document is required or permitted by the Act or these Regulations to be given or sent to, or served on, a person (other than a person mentioned in regulation 16.02), the document may be: (a) sent by post, or by a courier service, to the person at his or her last‑known address; or (b) left, in an envelope or similar packaging marked with the person's name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility; or (c) left, in an envelope or similar packaging marked with the person's name, at the last‑known address of the person; or (d) personally delivered to the person; or (e) sent by facsimile transmission or another mode of electronic transmission: (i) to a facility maintained by the person for receipt of electronically transmitted documents; or (ii) in such a manner (for example, by electronic mail) that the document should, in the ordinary course of events, be received by the person. (2) A document given or sent to, or served on, a person in accordance with subregulation (1) is taken, in the absence of proof to the contrary, to have been received by, or served on, the person: (a) in the case of service in accordance with paragraph (1)(a) or (b) - when the document would, in the due course of post or business practice, as the case requires, be delivered to the person's address or document exchange facility; and (b) in the case of service in accordance with paragraph (1)(c), (d) or (e) - when the document is left, delivered or transmitted, as the case requires. 33 The principles relating to proof of proper service of a bankruptcy notice under reg 16.01 were discussed by Collier J in Mbuzi v Favell (No 2) [2012] FCA 311 at [24]-[31]. The onus rests with the creditor to establish proof of service in accordance with the methods permitted by reg 16.01(1): de Robillard v Carver [2007] FCAFC 73; (2007) 159 FCR 38 at [46]. Strict proof of service of the bankruptcy notice is required. Without such proof the chain of delivery breaks down inconclusively: de Robillard at [68]. The creditor's petition is 'poisoned at its source': Mbuzi at [41]. 34 The justification for the high standard of proof was explained by Lehane J in Re Ferrarese; Ex parte Aloisio (1995) 60 FCR 586: [6] Proper service of process is of fundamental importance, and it is perhaps particularly so in the context of bankruptcy proceedings given their potentially penal consequences. It is of great importance that those whose task it is to effect service perform the task meticulously. It is equally important that the evidence given of service be meticulously accurate. Because it is essential that the Court be able to rely on evidence of service, it must be expected that the Court will regard very seriously any departure from that standard.
The Willetton address - 'evidence to the contrary' 35 Assuming the bankruptcy notices were valid and were contained in the relevant registered post envelopes, the question is whether the applicants have proved service, in circumstances where the Australia Post tracking reports indicate that the two relevant envelopes were not left at the premises but were noted as 'attempted delivery - incorrect address on item' and 'return to sender, not known at this address'. 36 Provisions as to service such as those in reg 16.01 have given rise to detailed consideration of the second limb: that is, whether a party who is said to have been served with a document is restricted under a provision such as reg 16.01(2) to proving a different time of service (that is, different from in the ordinary course of the post), or may by proving non-delivery establish that service itself was not effective. 37 There have been a number of cases which have alluded to the two possible interpretations: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87; Re Rustic Homes Pty Ltd (1988) 49 SASR 41 (favouring the latter view); Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 at [12]-[25]; Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd [2005] SASC 48; (2005) 188 FLR 373; Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; (2011) 278 ALR 538. The position was left open in both Fancourt v Mercantile Credits Ltd (at 96-97) and Skalkos (at [25]). 38 Had it been necessary to do so I would have been disposed to follow the approach in Re Rustic Homes (and see to similar effect Jones v Superannuation Complaints Tribunal [2011] FCA 1255; (2011) 198 FCR 71 at [44]). I am satisfied there is sufficient proof to the contrary that the registered post items were not delivered, such proof comprising the nature of the Australia Post tracking reports that indicate delivery was unsuccessful and that the letters were returned to sender only two days later, taken with the fact that the evidence disclosed that the respondents were not at that time residing or otherwise present at the Willetton address and were apparently residing in Melbourne. I should add that the applicants properly disclosed the Australia Post tracking reports to the Court. 39 I also note that s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 (Cth) in essence recognise the possibility that delivery may not have been effected by post: Deputy Commissioner of Taxation v Josway Hospitality Pty Ltd [2018] FCA 466 at [2] (in the context of s 109X of the Corporations Act 2001 (Cth)).
Were any of the three identified addresses the 'last-known address' of the respondents within the meaning of the rule? 40 Again it is not necessary to determine this question but I will address the submissions on the basis that they may assist on any subsequent substituted service application, if the applicants proceed in that manner. 41 The principles may be stated simply. The phrase 'last-known address' is to be construed taking into account that the purpose of the rule is that the court process should be brought to the person's attention: Skalkos at [33]; Civic Video Pty Ltd v Warburton [2013] FCA 934; (2013) 216 FCR 61 at [74]. A premises may be a person's last-known address even if they do not reside at that address if it is established that they had such a degree of connection with the premises that they may properly be described as his or her last-known address: Skalkos at [37]. The last-known address of the person is the address made known by the debtor, including by public records: Civic Video at [74]; Napiat Pty Ltd v Salfinger; in the matter of Salfinger (No 7) [2011] FCA 1322; (2011) 202 FCR 264 at [61]-[62]. The last-known address may be that supplied to the world at large, or supplied to the creditor personally. It may be that a creditor is obliged to take steps to ascertain the debtor's most recent address as made known by him or her in readily accessible public records: Civic Video at [76]-[78]. A debtor cannot have two or more last-known addresses within the meaning of the regulation: Napiat Pty Ltd v Salfinger at [67]. 42 In Civic Video, it was held that the requirement that a bankruptcy notice be left at 'the last-known address of the person' could not be satisfied by leaving it at an address given to the creditor eight years earlier. The purpose of the relevant rule is that the notice be brought to the debtor's attention; consequently, the creditor ought to take steps to ascertain the debtor's most recent address from readily accessible public records. The debtor was a director of a company (the debt arose by way of a guarantee of the company's liability), and the debtor had disclosed a different and more recent address to ASIC, which was included in publicly available ASIC records for the company. The Court held that service was ineffectual because it was not delivered to the debtor's last-known address, being the address published by ASIC, notwithstanding that the debtor was not living at that address. 43 The application of those seemingly simple principles is difficult in this case, perhaps because the applicants' concern that the respondents are seeking to obfuscate their address may have some substance. 44 The applicants came to the view that the Willetton address was the last-known address of the respondents as it was the address included on a memorandum of appearance filed in July 2017 by solicitors in the District Court proceedings. It is not the address included in the bankruptcy notices and that discrepancy is not explained. However, by 19 September 2018 the applicants were aware from information given via the respondents' former solicitors that the respondents were no longer residing at the Willetton address and the lawyers were unable to contact them at that address. The applicants also had a report from September 2018 from the Investigators that informed them that the respondents did not reside at the address and had moved interstate. I was also told from the bar table that tenants at the residence had refused to disclose the name of the agent that manages the tenancy of the property. Property searches indicate that a company called DMB Digital Pty Ltd is the owner of the Willetton address. An ASIC search indicates that the first respondent is a director of that company. Its registered office is the Thornbury address (based on a search conducted in January 2019). The applicants also obtained information via the Investigators that the respondents were not in fact living at the Willetton address but may be living at the Balwyn address. 45 There are no public records linking the second respondent with the Balwyn address. Further evidence reported to the applicants from the Investigators (having made inquiries of the occupants) was to the effect that the respondents did not have a connection with the Balwyn address, even though some public search records utilised that address. The Investigators relayed their suspicion to the applicants that the utilisation of the Balwyn address was disingenuous on the part of the respondents. 46 In short, all that can be said of the Willetton address is that it is the address notified most recently to the applicants as their address (by the memorandum of appearance) and insofar as the second respondent is concerned, there are no public records that provide a more recent address. However, in my view the address cannot sensibly be relied upon reliably as a 'last-known address' when it is known by the applicants in all of the circumstances that there is no apparent prospect that the respondents are present or attend or have an ongoing connection with that address. The fact that the property is owned by a company apparently related to the first respondent (only) is insufficient in my view to comprise evidence that the address has been made known by the respondents as their address. 47 The Willetton address was a known address but the applicants have known for some time that it is not a reliable address. That is no fault of their own. Indeed, they have taken steps to find addresses that might promote the purpose of the rule that the court process should be brought to the person's attention. As to the first respondent, I would be inclined to take the view that having utilised the Balwyn address in an ASIC return, he must accept the risk of documents being served on him utilising that address. However, there are potential issues as to proof of service on that address within the principles already discussed (undelivered registered mail). But more to the point, the applicants, having considered the issue, have not sought to rely on an act of bankruptcy founded on non-compliance with a notice purportedly served on that address, presumably having had proper regard to the difficulties of proof of service and the fact that their ongoing inquiries have confirmed that it seems the first named respondent in fact had no connection at all with that property. 48 As to the Thornbury address, the applicants rely on ASIC company searches (apparently undertaken in January 2019) that disclose a network of some eleven companies, each of which lists 'The Ready 1 Group' at the Thornbury address as its registered office and states that the first respondent is one of its directors. This network includes two companies that at least at some stage appear to have been holding companies of the others, being Wagner Marketing Pty Ltd and Wagner Ventures Pty Ltd. The other companies include Coffeeland Group Pty Ltd; DMB Digital Pty Ltd; Fresh Influx Holdings Pty Ltd; Influx Group Pty Ltd; Jenopi Pty Ltd (which, it was noted, had the Willetton address listed as a historical place of business); Love Is Group Pty Ltd; and Tactical Online Pty Ltd. The first respondent is also named as the company secretary of Coffeeland Pty Ltd, DMB Digital Pty Ltd, Jenopi Pty Ltd, Wagner Marketing Pty Ltd and Wagner Ventures Pty Ltd. 49 In affidavits filed 27 December 2018 and 29 May 2019 Mr Abu-Amsha stated that he was informed by the Investigators that on or about 18 October 2018 they had attended that address and met a person from The Ready 1 Group who had said 'I'm Gerry's accountant', which the Investigators took to be a reference to the first respondent. However, that person refused to give any further details with which to locate the respondents. 50 The Thornbury address therefore appears to be an office occupied by an accountant and it is not clear whether it is connected with the respondents save that it is the registered office of a large number of companies in which the first respondent appears to have some role. 51 As to the Southbank address, the only evidence of a connection is a trade mark search and business name search for 'INBODA', both of which listed the relevant holding entity as 'Wagner Ventures Pty Ltd ATF Wagner Venture Trust', and stated that the address for that company is the Southbank address. Additionally, one of the companies referred to above, Love Is Group Pty Ltd, had its principal place of business listed as the Southbank address, whilst another, Coffeeland Pty Ltd, had that address listed as a historical principal place of business. An ASIC search of business names reported that until 26 November 2018 the address listed for three business names ('Love Is Group', 'Love Is Co' and 'Love Is Diamonds') was said to be the Southport address. It is unclear whether those three business names are connected to the respondents. 52 There is no evidence of the connection of the second respondent to either the Thornbury or Southbank addresses. The applicants accepted that they put their case as to service solely on the basis that the respondents are spouses or partners and that it should be inferred that the first respondent would provide any bankruptcy notice he received to the second respondent. I do not consider it safe on the limited information before me to draw that inference. 53 I do not consider the task is as simple as asking which of the three addresses is the appropriate candidate for service without regard to the ramifications of the importance of bankruptcy notices. If that were the only task, I would find that in the case of the second respondent, the Willetton address is most likely in that category. In the case of the first respondent, it would be the Balwyn address as provided by him to ASIC as his personal address and which still appears on such records as a current address. However I must have regard to the caveat expressed in Civic Video and Skalkos that the purpose of the relevant service rule is that the notice be brought to the debtor's attention. The practical position is that the applicants do not have any reliable information as to where the respondents were living or carrying on business as at November 2018 or in the period preceding it, or evidence of a sufficient connection with either of the Thornbury or Southport addresses. As the applicants submitted, they are not compelled to seek orders for substituted service. So much is true. But they are then faced with the ramifications of being in a position where proof of service bears a heightened degree of difficulty. 54 This is precisely the type of scenario where an application for orders for substituted service should be entertained by a creditor. Substituted service can be ordered with respect to service of bankruptcy notices as well as creditor's petitions: s 309(2) of the Act. It seems to me that the applicants have laid the foundation for an application for orders for substituted service of a bankruptcy notice (with an attached judgment), although in saying that I am not pre-determining any such application. The evidence already compiled as to steps taken to locate the respondents will be very useful in that regard. Examples where the Court has made orders for substituted service of bankruptcy notices include Re Vincent; Ex parte State Bank of New South Wales Ltd (1996) 71 FCR 58; Silvas (a bankrupt) v Official Trustee in Bankruptcy [1997] FCA 206 and Fletcher (Trustee) v Keating [2017] FCA 1050 at [22].
Conclusion 55 I understand that the applicants feel aggrieved at the level of investigations they have made and the efforts to which they have gone in order to purportedly serve the bankruptcy notices. However, strict compliance with the rules as to attachment of judgments and proof of service is required. As to service, they are not without options. The substituted service provisions can assist creditors where establishing a last-known address is difficult, not just at the point of service of a creditor's petition but also for the purpose of service of a bankruptcy notice. 56 As no act of bankruptcy is established, there is no sense in addressing the question of substituted service of the creditor's petition. I would not make orders as to substituted service of the petition in any of the forms presented to me (the original, the first proposed amendment or the second proposed amendment) in light of the fundamental deficiency that no act of bankruptcy has been established. 57 Accordingly, I affirm the Registrar's decision. 58 For completion, I note that the applicants took all reasonable steps to inform the respondents of this review application and hearing date but there was no appearance.
A postscript 59 Immediately prior to delivering this judgment, I received a supplementary affidavit. 60 The applicants' solicitor, Mr McPhee deposed to two conversations he had earlier that day with representatives from LJ Hooker, who told him they were the leasing agents for the Willetton address. 61 The first person told Mr McPhee that LJ Hooker has received an envelope which appears to contain documents delivered to the Willetton address. The person said the owners are in Melbourne. She said she was unable to give Mr McPhee the phone or address details of the owners. 62 Mr McPhee then spoke to the office manager at LJ Hooker. Mr McPhee states that the person said: 'the owners are DMB Digital, Gerry and Sharon'. She said she was unable to give a forwarding address or contact details for privacy reasons but that at Mr McPhee's request she will forward the package to their home address rather than returning it to Mr McPhee. He asked her to do so. 63 The evidence does not assist on this application. When the envelope was delivered is not disclosed. What it contains is not disclosed. It confirms information already known (that the respondents live in Melbourne and that the owner of the Willetton property is DMB Digital Pty Ltd). 64 However, Mr McPhee suggested the review application should be adjourned so that the respondents might receive notice of the review application via LJ Hooker. 65 I have already heard the review application. As part of the steps referred to at [58] above, notice of the review application was sent to all addresses that the applicants were able to ascertain from ASIC and other sources (including the Willetton address). I do not have any degree of comfort that if informed of any fresh hearing of the review application the respondents would participate in any way, or participate in any way that would assist the applicants. Therefore, I declined to make arrangements to re-hear or otherwise adjourn the review hearing. 66 The fact that LJ Hooker has indicated a willingness to forward documents to the respondents is, however, very useful and relevant to any substituted service application the applicants choose to now bring. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.
Abu-Amsha
Wagner
[2005] SASC 48
(2013) 216 FCR 61
(2014) 225 FCR 458
(2007) 159 FCR 38
(2005) 188 FLR 373
(1983) 154 CLR 87
(1991) 172 CLR 84
(2011) 198 FCR 71
(1988) 165 CLR 71
(2011) 202 FCR 264
(1995) 60 FCR 586
(1988) 49 SASR 41
(1998) 82 FCR 146
(1996) 71 FCR 58
(2004) 141 FCR 107
(2011) 278 ALR 538