Equititrust Ltd v Bosiljevac

REASONS FOR JUDGMENT 1 This is an ex parte application filed 8 January 2007 seeking orders that:

1. Pursuant to s 309(2) Bankruptcy Act 1966 that service of Bankruptcy Notice QN1508/2006 (the notice) be effected on the respondent by: (a) Scanning of the notice and storing it in Adobe Portable Document Format and emailing it to sbosiljevac@ozemail.com.au; and (b) by sending a copy of the notice by ordinary pre-paid post to each of: (i) 1 Marseille Court, Bundall, Qld 4217; and (ii) 124/13 Commodore Drive, Paradise Waters, Qld 4217; and (c) by sending a copy of the notice by prepaid airmail or equivalent to 42 Emirates Towers, Sheikh Zayed Road, Dubai, United Arab Emirates; and (d) by transmitting a copy of the notice by facsimile to 0011 97 143993488, and that service by transmission of facsimile be deemed effective after three bona fide attempts.
2. When effecting service pursuant to para 1 in each case, a copy of the order be served by the same means.
3. Leave be granted to the applicant to serve the notice outside Australia.
4. Service in accordance with this order be deemed good and sufficient service of the notice upon the respondent.
5. The bankruptcy notice be deemed to be served five days after the last act of service referred to in paragraph 1 of this order has been carried out, which is the relevant date.
6. The notice be amended by deleting the words, "after service on you of this bankruptcy notice" in paragraph 3, and substituting the relevant date.
7. Pursuant to section 40G of the Bankruptcy Act, the time for compliance with the notice be fixed at 28 days after the relevant date. 2 The application is brought by Tucker and Cowen solicitors, for the applicant. Mr David Tucker of Tucker and Cowan has filed an affidavit (sworn 22 December 2006) in which he deposes: · He acted for the applicant in proceedings in the Supreme Court against Boscorp Pty Ltd & Ors. The fourth respondent in that matter is the respondent in the current proceedings. · The applicant was successful in obtaining judgment against the respondent in the sum of $2,614,245.92, which is the judgment upon which the bankruptcy notice is based. · The bankruptcy notice was sent to a process server to be served. 3 I understand that the respondent is aware of these proceedings. However, no appearance has been entered by the respondent or material filed by the respondent in this matter. 4 Mr Kevin Mayfield, a commercial agent, swore an affidavit on 22 December 2006 stating that he has been unable to effect service of the bankruptcy notice because he has been unable to locate the respondent. He deposes that on attendance at 1 Marseille Court, Bundall and 13 Commodore Drive, Surfers Paradise, he was informed that the Bosiljevac family no longer resided at either location. 5 Mr Mark McIver, a solicitor, swore an affidavit on 13 February 2007 deposing that a Mr Collier had informed him that the respondent's contact details were Level 42, Emirates Towers, Sheikh Zayed Road, Dubai, United Arab Emirates and that his facsimile number was 0011 97 143993488. 6 Mr Tucker has further deposed that he has had regular email contact with the respondent from the following email address: . 7 Section 309(2) Bankruptcy Act 1966 (Cth) provides: (2) Where a notice or other document is required by this Act to be served on or given to a person, the court may, in a particular case, order that it be given or served in a manner specified by the court, whether or not any other manner of giving or serving the notice or other document is prescribed. 8 The leading authority considering this provision is Ginnane v Diners Club Limited (1993) 120 ALR 375, where Northrop, Shepherd and Einfeld JJ observed: The discretion conferred by s 309(2) is unfettered but the authorities show that in relation to a creditor's petition, the discretion is not to be exercised lightly. Normally, before exercising the discretion in relation to a petition, the court must be satisfied that abnormal difficulties exist in effecting personal service of the petition on the debtor and that there is a reasonable probability that the debtor will be informed of the petition as a result of the form of service identified. 9 In my view, these comments are equally applicable to service of bankruptcy notices. 10 I am satisfied that a number of unsuccessful attempts have been made to serve the respondent personally and at his former residences in Surfers Paradise and Bundall. I am prepared to exercise my discretion in favour of granting the order for substituted service on the ground that there appears to be no other way that the bankruptcy notice can be served upon the respondent. It is impracticable to serve the respondent who appears to be resident in Dubai, by the usual means. 11 I am also satisfied from the affidavits of Mr Tucker and Mr McIver that methods of service proposed, namely by email, fax, and airmail to a Dubai address, will in all reasonable probability be effective to bring knowledge of the proceedings to the respondent. 12 Given that the respondent appears to be outside Australia, it follows that it would be appropriate to grant leave to serve the bankruptcy notice outside the territorial jurisdiction of Australia. 13 Finally, in the circumstances, I am also satisfied it is appropriate to make the consequential orders sought concerning amendment to the bankruptcy notice, and that fixing a time for compliance at 28 days after the date of service is appropriate.