Service of the Bankruptcy Notice
9 Service of the bankruptcy notice was governed by reg 16.01 of the Bankruptcy Regulations . Regulation 16.01 (so far as immediately relevant) provides:
'(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:
(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;'
10 I shall return, in due course, to a discussion of the meanings of 'document exchange number', 'document exchange' and 'document exchange facility' as those terms appear in reg 16.01(1)(b).
11 The primary judge's factual findings on the issue of service of the bankruptcy notice were as follows:
'… I have no doubt that on 16 November 2005 copies of the Bankruptcy Notice with the Extension Notice stapled to it were:
• deposited by Mr Cotsis in the Document Exchange facility at Newtown in an envelope addressed to the Debtor at the Debtor's Document Exchange box DX 1091, Sydney; and
• delivered personally by Mr Cotsis to the receptionist at the address at Level 12, 111 Elizabeth Street, Sydney.
12 There is no issue that the addresses in question were appropriate ones for the purposes of reg 16.01(1)(b) and (c) respectively, but the appellant argues that these factual findings do not go far enough to constitute effective service under either (b) or (c) of reg 16.01(1).
13 The missing elements are said to be:
(a) delivery to the Newtown DX does not complete delivery to the document exchange where the appellant maintains his DX address - there is no proof that delivery to the Sydney DX address occurred on 16 November 2005 so as to provide supporting evidence that an act of bankruptcy occurred, as alleged, 21 days later on 7 December 2005;
(b) there is no proof of all the elements of reg 16.01(1)(c).
14 To examine whether there is any substance in these arguments some scrutiny of the affidavit and oral evidence is required.
15 The bankruptcy notice (and the extension to bankruptcy notice) were both obtained by Mr William Cotsis, solicitor for the respondent. He gave affidavit evidence and was cross-examined by the appellant. He swore two affidavits dealing specifically with service of the bankruptcy notice - 4 May 2006 and 14 June 2006.
16 In his affidavit of 4 May 2006 Mr Cotsis deposed to the following:
'4. On 16 November 2005, I served Christian Roger De Robillard with the following document: Extension of Bankruptcy Notice NN 848/2005.
5. I served the document by sending it to the Respondent's document exchange number at DX 1091 Sydney.
6. On 16 November 2002, I personally delivered the Extension of Bankruptcy Notice NN 848/2005 to the Respondent's business address at Level 12, 111 Elizabeth Street, Sydney. At the time of delivery, I spoke with the receptionist. I said:
"I have some documents for Mr De Robillard, can you give these to him?"
She said:
"Yes, alright."'
17 This affidavit refers only to service of the extension of bankruptcy notice and not the bankruptcy notice, a matter which also has some significance for the fourth contention, earlier set out, which I discuss later.
18 At the hearing before his Honour objection was taken to the word 'served' in paragraphs 4 and 5. His Honour ruled:
'I will not read that as evidence of service.'
and shortly thereafter ruled that he would read paragraphs 4 and 5 as Mr Cotsis saying:
'On 16 November I sent the Extension of Bankruptcy Notice to the respondent's document exchange number DX 1091.'
19 In the affidavit of 14 June 2006 dealing with service of the bankruptcy notice (there was another dealing with the creditor's petition) Mr Cotsis deposed:
'On 16 November 2005, I served Christian Roger De Robillard with the following document: Extension of Bankruptcy Notice NN848/2005 dated 9 November 2005 and Bankruptcy Notice NN848/2005 dated 30 March 2005. The Extension of Bankruptcy Notice NN848/2005 was stapled to the front of the Bankruptcy Notice NN848/2005. Annexed hereto and marked "A" is a copy of the Extension of Bankruptcy Notice NN848/2005 dated 9 November 2005 and Bankruptcy Notice NN848/2005 dated 30 March 2005.
I served the document by sending it to the Respondent's document exchange number at DX 1091 Sydney. Annexed hereto and marked "B" is a copy of covering letter dated 16 November 2005 and mail book register for the date 16 November 2005.
On 16 November 2002, I also personally delivered the Extension of Bankruptcy Notice NN 848/2005 and Bankruptcy Notice NN 848/2005 to the Respondent's business address at Level 12, 111 Elizabeth Street, Sydney. At the time of delivery, I spoke with the receptionist. I said:
"I have some documents for Mr De Robillard, can you give these to him?"
She said:
"Yes, alright."'
20 Similar objections to the word 'served' were taken and it was accepted that they would be read as 'sent'. This affidavit refers to both the bankruptcy notice and the extension of bankruptcy notice. The extract from the mail book register annexed to the affidavit records a despatch on 16 November 2005 to 'Mr C R De Robillard DX 1091 Sydney' in the matter of 'Carver C01/00073R'. C01/00073R was evidently the identifying number for the solicitor's file about the matter. The covering letter, dated 16 November 2005, to the appellant at his DX address, bore the same file number.
21 Before turning to the oral evidence it may be useful to identify the issues which are left unresolved by this affidavit evidence.
22 Paragraph (b) of reg 16.01(1) requires that a document be in an envelope or similar packaging, marked with the person's name and any relevant document exchange number, and left at a document exchange where a person maintains a document exchange facility. Although Mr Cotsis attached to his affidavit of 14 June 2006 the letter dated 16 November 2005 addressed: Mr Christian R De Robillard, DX 1091, Sydney, his affidavit evidence does not explicitly depose that the documents were in an envelope or that any envelope or packaging was marked with the applicant's name and document exchange number. The mail book register extract however supports an inference that there was an envelope or package so marked. It is also important to note, as mentioned earlier, that the appellant's DX number was at Sydney.
23 As to paragraph (c) of reg. 16.01(1), Mr Cotsis' affidavit evidence did not state that the documents he said were personally delivered to the appellant's business address at Level 12, 111 Elizabeth Street, Sydney were either in an envelope or similar packaging or marked with the appellant's name.
24 As the oral evidence is considered, it is convenient to look first at whether reg 16.01(1)(c) was satisfied before turning again to reg 16.01(1)(b).
25 Mr Cotsis was cross-examined about the issue of delivery to the appellant's business address. The following passages occurred in his cross-examination:
'Mr de Robillard, there was a letter with your street address attached onto the extension of bankruptcy notice and bankruptcy notice which I hand-delivered to your street address on 16 November.
When you say the street address what do you mean? - Level 12, 11 Elizabeth Street, Sydney.
and:
'Now, in relation to the extension of bankruptcy notice, I take it it is clear from your evidence that both documents stapled together were, you said, delivered to my office on 16 November?--- That's correct.
And so there is no possibility that you would have one document, bankruptcy notice, and then the extension of that bankruptcy notice?---No, there is - the extension of bankruptcy notice has to be stapled on to the bankruptcy notice. It was served on 16 November which is after the extension was granted. Both documents were served - were delivered to your place of business on 16 November.
I just want to make sure that we are clear that there was no separate service of the extension of bankruptcy notice at any time?---No, they were attached together and they were served on 16 November.
In relation to that, when you say they were attached together, they were in an envelope?---They were in an envelope, they were stapled.
And at no time did you tell the secretary that these were documents regarding a bankruptcy notice or anything to that effect?---No, I didn't advise that they were documents of a bankruptcy notice.
So you simply said, this is for Mr de Robillard?---These documents are for Mr de Robillard, yes.'
(emphasis added)
26 Apart from the two affidavits sworn by Mr Cotsis to deal specifically with service of the bankruptcy notice there were a number of affidavits dealing with other issues. One of them, sworn 5 July 2006, attached a number of pieces of correspondence, including a copy of the letter which was hand-delivered to the appellant at his business address.
27 However, there was no evidence from Mr Cotsis (either affidavit or oral) that the envelope, mentioned by him in his cross-examination, was marked with the appellant's name. There was no corresponding entry in the mail book register. I do not think that gap can be filled by an assumption. Having regard to Mr Cotsis' evidence of the terms of his conversation with the receptionist at the appellant's business address it cannot be concluded that the envelope itself bore the appellant's name when handed to her, as reg 16.01(1)(c) requires.
28 These circumstances lead me to conclude that it was not established that the provisions of reg 16.01(1)(c) were satisfied. The evidence does not supply the final ingredient necessary to conclude that service was effected in accordance with reg 16.01(1)(c). There is no written or oral evidence that the envelope left for the appellant, with the bankruptcy notice inside, was marked with his name as required. I therefore find myself unable to agree with the primary judge that service by this method was proved.
29 Accordingly, it is necessary to see whether the alternative method of service attempted was effective - i.e. whether it can be concluded from the evidence that service was effected at the appellant's document exchange facility before midnight on 16 November 2005.
30 However, before turning to that issue in greater detail it is necessary to deal with the question of the meaning to be attributed to the words 'document exchange number', 'document exchange' and 'document exchange facility'. I have found no authority which bears directly upon these issues. None was cited by the appellant.
31 None of the Bankruptcy Act 1966 (Cth) ('the Bankruptcy Act'), the Bankruptcy Regulations or the Federal Court (Bankruptcy) Rules 2005 (Bankruptcy Rules) define any of the terms. Apart from reg 16.01 of the Bankruptcy Regulations the only other reference to any of them is contained in s 64A(1)(b)(iv) of the Bankruptcy Act which requires notice, by a trustee of a bankrupt, to a creditor known to have any of a number of forms of address, including a 'document exchange number'.
32 By contrast, provision is made in a number of places in the Federal Court Rules (Federal Court Rules) for service at or through a document exchange. Order 1 r 4 contains the following definitions:
'document exchange means a facility or service through which a member of the facility or service may send a document to another member of the facility or service.
document exchange box means a box in a document exchange.'
33 Thereafter, a number of Orders, rules and forms make use of the defined terms (O 1 r 5A, 5AB, 5AC; O 7 r 7 (see also r 4 and 4A); O 41 r 3(b); O 48 r 11; O 52A r 11; Forms 12 and 55CA).
34 Order 1 r 5A permits filing or lodging of documents with the Federal Court itself 'at its box at the Australian Document Exchange'. Order 7 r 7 refers to use of 'facilities of a document exchange'. Some of these provisions seem to suggest that a document exchange facility or document exchange service is a whole network, others that it is a location. They do not govern the use or meaning of similar terms in the Bankruptcy Regulations and, in any event, are inconclusive. I must therefore try to assign a meaning to the terms used in reg 16.01, unassisted, but striving to give the meaning best suited to the purpose suggested by the particular context in which the terms appear.
35 In my view in reg 16.01 'document exchange number' is simply the 'DX' number assigned as a document exchange address for a particular recipient. In the present case the relevant 'document exchange number' is DX 1091. The appellant gave the following oral evidence in cross-examination:
'Mr de Robillard, you're a practicing barrister of the Supreme Court of New South Wales and the Federal Court? - Yes.
You maintain your contact details through the Bar Association website?---Yes.
Your document exchange facility or number, identified through the Bar Association website, is DX1091?---Yes.'
36 As this passage touches upon the meaning of the term 'document exchange facility' it is convenient to deal with that next. As the question to the appellant set out above, and his response, imply the concept is linked to the document exchange address. The document exchange facility referred to in reg 16.01(1)(b) which is maintained by a person is the arrangement whereby documents addressed to the recipient's document exchange number are kept for collection by or on behalf of that person.
37 Greater difficulty arises from the term 'document exchange' in the composite phrase 'document exchange where the person maintains a document exchange facility'. In particular, does the term refer to the overall enterprise or organization (eg the Australian Document Exchange) or does it refer to the locality at which a number of boxes or addresses are physically maintained to permit collection of documents - eg Melbourne, Canberra, Newcastle, North Sydney, Sydney Stock Exchange or, as in this case, Sydney and Newtown.
38 In other words, did the appellant 'maintain(s) a document exchange facility' simply with the document exchange as a network or at Sydney? In my view the context requires that the latter view be taken. I think a location is being referred to. The word 'where' in the phrase adds support to the conclusion. This view is also reinforced by reg 16.02.
39 Reg 16.01(2)(a) provides:
'(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; …'
40 The immediacy which is attributed to service effected in this way (cf Federal Court Rules O 7 r 4(3)(b) where service is deemed effected two days after a document is left at a document exchange box) suggests that delivery to the relevant document exchange number where it will then be available for collection is an integral part of delivery to the document exchange facility.
41 It follows from this excursion into textual analysis that delivery to a document exchange facility maintained at Sydney is not effected simply by leaving documents at some other location. Some further step in the overall process of delivery is required.
42 Mr Cotsis was cross-examined about the manner in which he effected delivery of the bankruptcy notice. One issue concerned the time and manner of delivery to the document exchange. Mr Cotsis' evidence was that, in accordance with his usual practice, on 16 November 2005 he took the documents to the Newtown document exchange 'of a night time'. He also said: 'When the mail is prepared it is entered in the mail book the day that it is prepared and it is put in the envelope. It is then, at the end of the day, taken to the DX.'
43 In my view this oral evidence provided a sufficient further basis to conclude the documents were in an envelope. Although there was still no direct evidence to the effect that the envelope containing the documents was addressed to the applicant, it would be unreal to proceed upon that basis in light of the character of the document exchange. Necessarily, the envelope bore at least the document exchange address of a recipient. The extracts from Mr Cotsis' mail book register indicate that the material was sent to the applicant in his name at his Sydney document exchange address. The evidence as a whole in my view establishes that the documents were left in an envelope marked with the appellant's name and document exchange address.
44 However that does not dispose of the question of time of service. Under reg 16.01(2)(a) service of a document in accordance with reg 16.01(1)(b) is deemed to occur when, in the due course of business practice, the document would be delivered to the recipient's document exchange facility. In written submissions in reply before the primary judge the appellant sought to argue, for the first time, that it could not be assumed documents would be delivered to his Sydney document exchange facility at Sydney on the same day as they were left (at night) at Newtown.
45 The primary judge did not permit the appellant to rely upon this argument for two reasons. The first was that the respondent had been denied an opportunity to lead evidence showing that in the ordinary course of business the documents would have been delivered to the Sydney document exchange later on the evening of 16 November 2005. The second was that the argument would not impugn the service of the bankruptcy notice that his Honour found took place when it was left on 16 November 2005 at the appellant's business address. His Honour made no finding, however, that delivery at Sydney had been, or should be taken to have been, effected on 16 November 2005. It was not necessary that he do so. Because I have concluded that service at the appellant's business address on 16 November 2005 was not proved it will be necessary to consider whether (or when) delivery at the Sydney document exchange was proved, if the appellant is permitted to rely on this point.
46 I think the appellant is entitled to argue the issue that the date of service at Sydney was not proved. Regulation 16.01(2) permits proof of a different date of delivery (or perhaps non-delivery) although it does not permit reliance simply on alleged non-receipt (Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107 at [16] and [25]). However, before the onus shifts to the appellant to prove a different time of delivery (or non-delivery) it must first be established what would happen in the due course of business practice. Although it is true, as the primary judge said, that the respondent had no chance to deal further with this matter in response to the appellant's written arguments, this was in my view an issue where the evidentiary onus always lay on the respondent and was not discharged.
47 The facts of the present case, as they were clearly known to the respondent, themselves throw up the issue for consideration. The appellant's document exchange facility was at Sydney. Delivery was made to Newtown. That delivery occurred at night. Further transport and delivery of the documents was necessary before they could be 'left … at a document exchange where [the appellant] maintains a document exchange facility'. In my view it cannot be assumed delivery would be carried out before midnight. There was certainly no evidence that it would. As I indicated earlier, the primary judge made no finding that delivery at the appellant's document exchange address at Sydney had been effected, or should be presumed, on 16 November 2005.
48 Mr Cotsis' evidence that delivery by him was to Newtown and at night was elicited in cross-examination before the evidentiary case for the respondent to the appeal had closed. Mr Cotsis was not re-examined. I think the appellant is entitled to point to the gap in the respondent's evidentiary case revealed by this cross-examination.
49 The creditor's petition alleged that the act of bankruptcy committed by the appellant was his failure 'to comply on or before 7 December 2005 with the requirements of a bankruptcy notice served on him on 16 November 2005'.
50 Because proof of delivery of the bankruptcy notice to Newtown on 16 November 2005 was not proof that it was delivered on that day to the appellant's document exchange facility it could not sustain a finding of an act of bankruptcy on 7 December 2005 - i.e. 21 days later.
51 Next, it must be asked what the consequence is, for the present appeal at least, of this deficiency in proof of the time at which delivery was taken to be effected in accordance with reg 16.01.(2). One question to be answered is whether the Court lacked jurisdiction to make a sequestration order or alternatively might have declined to do so in the exercise of its discretion. If the latter, should the discretion have been exercised against, or in favour of, the appellant?
52 No submission was made by the appellant as to the legal consequence of a mistaken allegation in the creditor's petition that the relevant act of bankruptcy had occurred on 7 December 2005, whereas it might have in fact occurred, for example, on 8 December 2005 or shortly thereafter. He appeared to think it a sufficient answer to the creditor's petition that the date of the alleged act of bankruptcy was misstated. In my view such a circumstance would not, of itself, deny the Court jurisdiction to make a sequestration order.
53 Section 52 of the Bankruptcy Act provides (relevantly for present purposes):
'52(1) At the hearing of a creditor's petition, the Court shall require proof of:
(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing:
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
(1A) …
(2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a) that he or she is able to pay his or her debts; or
(b) that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition.'
54 The power of dismissal in s 52(2) has been held to be permissive, or facultative, and not mandatory (see Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372 at 377).
55 Section 33(1)(b) of the Bankruptcy Act permits the Court to 'allow the amendment of any written process, proceeding or notice under this Act'. This power was clearly available to the primary judge in appropriate circumstances (MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72 at [25] (MacDonald). It is well established that a petitioning creditor may amend a petition to correctly allege a matter required by the Bankruptcy Act whether before or after the making of a sequestration order (Re Florance; Ex parte Turimetta Properties Pty Ltd (No 2) (1980) 39 FLR 400 at 402; Re Finn; Ex parte Finn v Amoco Australia Ltd (1981) 58 FLR 54 at 60; MacDonald 107 FCR 72 at [27]).
56 A relevant consideration for the court, if a sequestration order has already been made, is the case which would have been disclosed 'had all the true facts been before the Court on the making of the order' (Re Cook (1946) 13 ABC 245 at 259; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 350).
57 It was accepted by the appellant that he was indebted to the respondent in the sum alleged in the creditor's petition and that he had not paid any part of that debt by the time of the hearing. If an act of bankruptcy was extant at the time of filing the creditor's petition and at the time of hearing before the primary judge the Court would not lack jurisdiction to deal with the matter (see Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378 at 381; Re Vella; Ex parte Seymour (1983) 67 FLR 287 at 288-289). It has been authoritatively determined that a creditor's petition may be amended to correctly identify the date of an act of bankruptcy (MacDonald 107 FCR 72 at [36]; see also Jensen v Queensland Law Society Inc (2006) 154 FCR 525 at [29] to [35]).
58 However, those considerations do not arise unless first it is established that service of the bankruptcy notice was proved (or is taken to have been effected) during the extended period for its service. This is an evidentiary question. It may be established in any of the conventional ways: proof by affidavit or oral evidence, presumption, admission or judicial notice.
59 The affidavit and oral evidence was insufficient. The presumption erected by reg 16.01(2) itself requires an evidentiary foundation which was absent. What then of admission or judicial notice?
60 No admission of service or receipt was made by the appellant. He denied receipt of the bankruptcy petition before May 2006 or any knowledge that service had been attempted in the ways described by Mr Cotsis. The appellant swore two affidavits, which were read before the primary judge, and gave oral evidence under cross-examination.
61 In an affidavit sworn on 26 May 2006 he said:
'1. I am the Applicant herein and the Respondent in relation to a Creditor's Petition filed on 19 April 2006.
2. I received a copy of the said Petition by facsimile transmission late on 3rd May 2006.
3. On 5 May 2006 I attended the Registry of the Federal Court and searched file No. SD 735 of 2006.
4. There was no document on the file except for a copy of the said Petition.
5. On 19 May 2006 I attended the offices of the Insolvency & Trustee Services Australia (ITSA) & spoke to Mr Mark Findlay of that office. I was provided with a copy of a Bankruptcy Notice apparently issued on 30 March 2005; that is more than eight (8) months prior to the alleged date of service [16 November 2005] mentioned in paragraph 5 of the Creditor's Petition.'
62 In a further affidavit sworn on 28 June 2006, responding to an affidavit of Mr Cotsis (where, in paragraph 4 as I set out earlier, Mr Cotsis' referred to serving both the bankruptcy notice and extension to bankruptcy notice) the appellant said:
'I did not become aware of any of the documents mentioned in paragraph 4 of the said affidavit until after 3 May, 2006, some time after Mr. Cotsis had forwarded to me by facsimile transmission a copy of the Creditor's Petition.'
63 In cross-examination of the appellant the following passage appears:
'Now Mr de Robillard, finally, the fact is that you did receive the bankruptcy notice and the extension of bankruptcy notice by virtue or through the facility of your document exchange in November 2005, isn't it?---I've never seen that copy of the bankruptcy notice until I went to the trustee and got a copy there.
And it's the fact that you received those documents, upon them being delivered to the office, to the receptionist that was working at the office in November 2005, isn't it?---Well that's false.'
64 No finding was made by the primary judge that the appellant's evidence was not to be believed. Having regard to other findings made by his Honour it was not necessary to either accept or reject it. I can see nothing in the material which contradicts the appellant's assertions. He did concede in cross-examination that he was aware, around 19 April 2005, that 'a bankruptcy notice would have been issued' but on Mr Cotsis' evidence the bankruptcy notice had not been served before 16 November 2005, by which time an extension had been necessary, and it is not possible to transpose the appellant's earlier awareness into a concession on the question of service.
65 Nor does there appear to be any recognized category of judicial notice which could be employed in the present circumstances.
66 Despite the appellant's uncontradicted denials, and even though when documents would be delivered in the ordinary course of business is a fact to be proved like any other, the mind naturally rebels against any suggestion that the Court could not be satisfied the documents were transferred from Newtown to Sydney some time between 16 November 2005 and 28 March 2006 (21 days before the creditor's petition was presented). If this was the fact then the appellant should be taken to have failed to comply with the bankruptcy notice even though service on 16 November 2005 was not proved. However, notwithstanding an instinctive inclination to accept that delivery occurred at Sydney shortly after delivery at Newtown there are, in my view, five reasons at least why I should not yield to it.
67 First, it is appropriate in principle to require strict proof. Before the introduction of reg 16.01 bankruptcy notices were required to be served personally unless an order for substituted service was made. The requirements for service were strictly enforced (Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 per Gummow J at 358). For example, in Clyne v Deputy Commissioner of Taxation (No. 4) (1982) 42 ALR 703, Lockhart J set aside a bankruptcy notice served by post because, although by order of the Court service was deemed effective 14 days after posting and compliance was required 28 days after due service, the alleged debtor could not know when posting had in fact occurred and therefore could not reliably calculate the time for compliance. Although the introduction of reg 16.01 has removed the need for personal or substituted service, a strict approach to satisfaction of the elements of service remains appropriate.
68 Secondly, although reg 16.01(2) casts upon the appellant the burden of displacing a presumption as to time of service, as I earlier pointed out that onus does not arise until, first, proof of delivery in the due course of business practice is available. If there is no proof of that fact then proof of the chain of delivery simply breaks down inconclusively.
69 Thirdly, no admission of service or of receipt was made by the appellant which might constitute evidence of failure to comply with the bankruptcy notice after actual or presumed service of it.
70 Fourthly, there is no category of imputed judicial notice available to supply the missing element, no matter how straightforward or reasonable it might appear to be.
71 The final reason is that I have come to the view that the appellant is entitled to succeed on this first issue on another ground which makes it unnecessary to resolve the dilemma.
72 As will already be apparent I think it should be concluded that the creditor failed at the hearing to prove the elements required by s 52 of the Bankruptcy Act by failing, on the evidence, to prove the specific act of bankruptcy alleged in the creditor's petition. Despite the power of the Court to permit an amendment of a creditor's petition in appropriate circumstances no such amendment was sought in the present case. It is not necessary therefore to decide whether an act of bankruptcy was committed, after 7 December, 2005, as a consequence of service of the bankruptcy notice after 16 November 2005 rather than on that day. The petitioning creditor did not acknowledge or deal with the difficulty which arose from the gaps in its case. In those circumstances the creditor's petition, in the form pressed before the primary judge, invited rejection under s 52(2) of the Bankruptcy Act. I conclude that it would have been open to, and appropriate for, his Honour to find in favour of the appellant for that reason.