Fuller JR, in the matter of Alford v Alford

2.1 Witnesses 7 The creditor relied upon the following affidavits and annexures thereto which were read without objection: (1) two affidavits of Taryn Guyatt, solicitor, affirmed 1 August 2016; (2) a further affidavit of Taryn Guyatt affirmed 20 March 2017; (3) the affidavits of Christopher Allen Stevens, solicitor, sworn 20 September 2016, 11 October 2016, 8 February 2017, 24 February 2017 and 20 March 2017; and (4) the affidavit of Hugh Dean Fuller of 18 March 2017. 8 Mr Stevens was cross-examined on certain aspects of his evidence. 9 In addition, the creditor relied upon incoming and outgoing immigration declarations made by the debtor which were obtained under subpoena issued to the Department of Immigration (exhibit A1). 10 The debtor relied upon his affidavit sworn on 9 February 2017 in support of the submission that the Court did not have jurisdiction under s 43 of the Act, together with the Annexures to that affidavit, which was read save for the second sentence of paragraph 7. The debtor was also cross-examined.

2.2 Findings as to credit 11 While such findings are not made lightly, I formed a poor view of the debtor's credibility. His evidence was in certain respects at worst misleading or at best incomplete. For example, he gave a street address in his affidavit as his address in Singapore and said that he and his family "live in rental premises in Singapore". However, until it was put to him in cross-examination he did not disclose that that was the address of the Regis Hotel and that he did not maintain a room there when he was absent from Singapore (see below at [36]). I also formed the strong impression that, consciously or subconsciously, he sought to give evidence on key issues that he considered would best advance his case and to blame others unconvincingly when the contemporaneous evidence did not support his evidence. Examples include blaming his accountant for affixing the debtor's electronic signature to an application for registration of a company on 3 September 2016 allegedly without his permission, his business associate for speaking allegedly without his permission to Ms Guyatt, a solicitor for the creditor, (see below at [15]-[20]], and a process server for not taking good notes of a conversation (see below at [38]). I also formed the impression that he was evasive such as when confronted with evidence of assurances to process servers about when he would return to Australia from overseas. Overall, I cannot accept his evidence as a reliable in the absence of corroborative evidence.

3. RELEVANT STEPS IN THE PROCEEDING AND RELATED FINDINGS

3.1 Service of the bankruptcy notice 12 The bankruptcy notice was issued by the Official Receiver on 12 April 2016 in the sum of $701,207.00 comprising a final judgment obtained by the creditor against the debtor and a company associated with him, Jolimont Resources Pty Limited (Jolimont), from the New South Wales District Court dated 11 December 2015, together with accrued interest. The District Court proceedings in turn involved a debt arising out of the deed of settlement and release dated 15 June 2015 between the debtor in his personal capacity and on behalf of Jolimont and the creditor (the Settlement Deed). Mr Alford was previously a director of Jolimont which has since been deregistered. 13 On 6 June 2016, Ms Guyatt sent an email to the debtor attaching a cover letter, a copy of the bankruptcy notice and a sealed copy of the judgment obtained in the District Court proceedings (the service email). The email was sent to two email addresses associated with the debtor: (1) the first email address was to an address with which the solicitors for the creditor had corresponded with the debtor during the course of the District Court proceedings, "[…]@mail.com", being the mail.com iphone app; (2) the second email address was the email address that appeared on the debtor's LinkedIn profile as at 6 June 2016, namely, "[…]@fernshaw.com.au". 14 With respect to the second email address, the debtor was identified on his LinkedIn profile as "Corporate Advisor at Fernshaw Securities". Fernshaw Securities Pty Ltd (Fernshaw Securities) was one of many Australian companies of which the debtor was then a director and secretary. The website at "www.fernshaw.co.au" referred to the debtor as the Managing Director at Fernshaw Securities. 15 After sending the emails, Ms Guyatt immediately received Outlook delivery receipts confirming delivery of the service email to both email addresses. The following day she received a telephone call from a person identifying himself as Michael Erdogan who said that he was Tim Alford's business partner and that "Tim received the bankruptcy notice you sent yesterday". Mr Erdogan had not been copied in on the service email. 16 The debtor accepted that Mr Erdogan is a business associate of his, and that he had some investments with Mr Erdogan. The debtor said that Mr Erdogan worked on behalf of "a company I have in Singapore", Duga Resources, and works on behalf of Fershaw Group, a Singapore Registered company. He also accepted that Mr Erdogan had appeared in court on his behalf both in the course of the District Court proceeding and the bankruptcy dispute. Furthermore, he accepted that Mr Erdogan had access to his emails while he was travelling. 17 The debtor variously denied receiving the service email or that he did not recall receiving it, said that he did not recall any conversation with Mr Erdogan in relation to the bankruptcy notice, and that he did not authorise, instruct or direct Mr Erdogan to liase with the creditor's solicitors. He further said: I recall that at some time the email was purportedly sent I was most likely travelling by plane or in transit. I recall that I left Singapore late on 05 June 2016 to travel to China. 18 A stamp in a photocopy of the debtor's passport discloses that he departed somewhere on 5 June 2016 but the place of departure is illegible. A stamp in his passport also discloses that he entered Singapore on 13 June 2016. In the circumstances, it can be accepted that he left Singapore for China on 5 June 2016, as he claims, and returned to Singapore on 13 June 2016. However, the debtor's attempts to explain in cross-examination why the fact that he may have been mid-flight when the emails were sent meant that he did not receive them were unconvincing, as was his evidence that Mr Erdogan had been acting without his instructions in speaking with the process server following the emails. Notwithstanding the seriousness of the allegation he made against Mr Erdogan of acting without his authority, the debtor said that he not taken the matter up with Mr Erdogan for reasons he could not explain. Further, the fact that the debtor was uncontactable during the flight does not mean that he would have been uncontactable when the flight landed in China; nor that he would not have received emails there. In the circumstances, I accept the evidence of Ms Guyatt as to the content of her conversation with Mr Erdogan, her evidence being admitted without objection and unchallenged. Nor did the debtor call Mr Erdogan. 19 Furthermore, I accept Mr Steven's evidence that on 30 June 2016, Mr Erdogan spoke with him by telephone call and "patch[ed] in" the debtor who joined the call. Mr Stevens spoke with them in relation to the debt which is the subject of the bankruptcy notice. 20 Given the evidence of the process server, the debtor's actions subsequently, and my concerns as to the debtor's credibility, I do not accept the debtor's denials of receiving the emails from the process server and find that he received those emails and the attached documents shortly after his arrival in China. I also find that he spoke with Mr Erdogan about those documents before Mr Erdogan spoke with Ms Guyatt on 7 June 2016.

3.2 The creditor's petition 21 The creditor's petition was lodged on 1 August 2016 and listed for first directions hearing on 7 September 2016. It alleges that the outstanding amount owed by the debtor to the creditor is comprised of the following: (1) the sum of $682,840.09 obtained on 11 December 2015 from the District Court of New South Wales by the Creditor against the Debtor (the judgment debt); and (2) interest accruing on the judgment debt in the sum of $41,404.18 as at 25 July 2016 pursuant to section 101 of the Civil Procedure Act 2005 (NSW) and rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW). 22 As earlier mentioned, the District Court proceedings involved a debt arising out of the Settlement Deed. 23 On 5 October 2016, the Registrar made orders dispensing with personal service of the creditor's petition and providing instead that the petition and affidavits verifying the petition and of service of the bankruptcy notice, together with any consent of a registered trustee, be served by scanning them and sending them by email to the debtor at his fernshaw.com.au and mail.com email addresses and the applicant's authorised representative, Mr Cameron Horne. The Registrar also directed that an amended creditor's petition be lodged to bear the new hearing date, then 9 November 2016. On 7 October 2016, Mr Stevens sent an email to the debtor using the email addresses referred to and attaching copies of: (1) the orders made by the Registrar dated 5 October 2016; (2) the creditor's petition filed 1 August 2016; (3) the affidavit of service of the bankruptcy notice affirmed by Ms Guyatt on 1 August 2016; (4) the affidavit of bankruptcy search affirmed by Ms Guyatt at 1 August 2016; and (5) the trustee consent to act declaration dated 3 August 2016. 24 Mr Stevens received a delivery confirmation receipt of the email sent to the fernshaw.com.au address immediately thereafter. He also sent the same documents on 7 October 2016 to Mr Horne at the email address referred to in the Registrar's orders and immediately thereafter received a delivery confirmation receipt of email from the email address of Mr Horne.

3.3 The debtor's amended notice of grounds of opposition 25 By a notice of grounds of opposition filed on 29 November 2016 the debtor raised a number of grounds of opposition. On 10 February 2017, the debtor filed an amended notice of grounds of opposition adding two additional grounds including that the Court lacks jurisdiction to make a sequestration order against the debtor's estate (ground 1); and that the respondent was not served with the Bankruptcy Notice BN 189301 issued on 12 April 2016 (ground 2).

4. JURISDICTION TO MAKE A SEQUESTRATION ORDER UNDER s 43 OF THE ACT (GROUND 1, AMENDED GROUNDS OF OPPOSITION)

4.1 The issue 26 The Court has jurisdiction to make a sequestration order under s 43(1) of the 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; 27 It was not in dispute that s 43(1)(b) contemplates that a debtor may commit an act of a bankruptcy whilst out of Australia: Battenberg v Restrom [2006] FCAFC 20; (2006) 149 FCR 128 (Battenberg) at [17] (the Court). 28 The creditor's petition alleges that, at the time when the act of bankruptcy was committed (i.e. 27 June 2016), the debtor: • was ordinarily resident in Australia; • had a dwelling house or place of business in Australia; and • was carrying on business in Australia either personally or by an agent or manager. 29 While admitting that he is an Australian citizen holding an Australian passport, the debtor denies these allegations and says that he has resided permanently in Singapore since October 2015. 30 For the reasons set out below I find that, while one ground would have sufficed to found jurisdiction, I am satisfied that the Court has jurisdiction under each of the grounds on which the creditor's petition relied to establish jurisdiction under s 43 of the Act.

4.2 Was the debtor ordinarily resident in Australia?

4.2.1 What is meant by ordinarily resident in Australia? 31 First, as the creditor submitted, the terms "resident" and "ordinarily resident" are not defined in the Act and have no special or technical meaning for the purposes of the Act. Rather they bear their ordinary meaning: Re Taylor; Ex parte Natwest Australia Bank Limited ("Re Taylor") (1992) 37 FCR 194 (Taylor) at 197 and 198 (Lockhart J). Thus Lockhart J in Taylor held that: The concept of 'ordinary residence' for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression 'ordinarily resident in' connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene v Commissioners of Inland Revenue (1928) AC 217 at 232 and Commissioners of Inland Revenue v Lysaght (1928) AC 234 at 245. As Lord Warrington said in Levene at 232: "'Ordinarily resident' means according to the way a man's life is actually ordered." The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231. 32 Secondly, it follows that whether a debtor is ordinarily resident in Australia is a question of fact and degree based upon the totality of the evidence: In Re Brauch (A Debtor); Ex parte Britannic Securities & Investments Ltd [1978] Ch 316 at 330 and 334 (Goff LJ (Orr LJ at 335 and Buckley LJ relevantly agreeing)); Re Vassis; Ex parte Leung (Re Vassis) (1986) 9 FCR 518 at 525 (Burchett J); Taylor at 197 and 198. The question of where a person is "ordinarily resident" is not therefore tied to "the accidents of a day" as otherwise, the word "ordinarily" would have no work to do: Re Vassis at 524. Rather, as Lockhart J explained in Taylor at 198, "[t]o say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word 'ordinarily' connotes a comparison, a measure of degree." 33 Thirdly, with respect to possibility that a person may be ordinarily resident in more than one place of residence, Lockhart J explained in Taylor at 198: A person may have two places of residence; for example, a city flat and a country house. He may regularly live in each. He cannot be physically present in both at the same time, but he may be resident (or ordinarily resident) in each at the same time. People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree. 34 Equally, a person can ordinarily be resident in more than one country at the same time where she or he customarily or regularly lives in more than one place, "each of which has an element of permanence about it and is not merely a place of casual or intermittent resort": Taylor at 198. Thus in Mathai v Kwee [2005] FCA 932 (Mathai), Graham J in holding that Mr Mathai was, at the time of commission of the relevant act of bankruptcy, ordinarily resident in Australia despite his ties also with Malaysia, observed that: 125. In the era of wide bodied jet aircraft it is not quite so unusual for people to be ordinarily resident in more than one country. One only has to contemplate the position of tennis and golf professionals who travel away from the place or places where they are ordinarily resident so as to pursue their livelihoods and earn their incomes. Much the same can be said in respect of (say) concert pianists on the world stage who may ordinarily reside in Australia but travel extensively overseas to earn their incomes. Much the same could be said in relation to a taxation consultant ordinarily resident in Australia whose business or employment takes him to places such as Hong Kong, Singapore, Kuala Lumpur, India and England so that he may exploit his expertise. One might say of them that they "still call Australia home".

4.2.2 Was the debtor ordinarily resident in Australia at the time of the alleged act of bankruptcy? 35 The debtor gave evidence that for most of his adult life he had lived in Australia in Sydney and Melbourne as a corporate advisor. However, he said that he left Australia on 10 October 2015 for Singapore with the intention of pursuing an employment opportunity there as a corporate advisor. It was his evidence that he has resided permanently in Singapore with his wife since October 2015 and with his daughter following her birth in Singapore on 22 December 2015. He further gave evidence that he was currently employed in Singapore as the Managing Director/Corporate Advisor with Fernshaw Group Pte Ltd and was issued with a work visa by the Ministry of Manpower in Singapore on 30 December 2015. He said in his affidavit that he does not own any property in Singapore but that he and his family "live in rental premises in Singapore" and gives his place of business at an address in Singapore. He further deposed that "it is my intention to remain in Singapore with my family in the immediate future. There are no employment opportunities for me in Australia. I have no intention of returning to Australia to either reside or work." He said that he had not resided at the Macquarie Street address in Sydney for at least three years notwithstanding ASIC records to the contrary and that he has given instructions for the ASIC records to be updated. 36 However as the debtor conceded in cross-examination, the so-called "rental premises" at which he said he lived with his family in Singapore are the Regis Hotel, Singapore. While the debtor said that he lived there pursuant to a long-term arrangement with the hotel, no documentary or other corroborative evidence of any such arrangement was led. Furthermore while he said that he had belongings stored with the hotel at cost, he also accepted that no room was kept for him while he was away and that he had not been paying the Hotel in Singapore for his premises in the five month period since his return to Australia in October 2016. 37 When the debtor's alleged permanent residency in Singapore at the time of his bankruptcy was challenged in cross-examination, I did not find convincing the debtor's attempts to support that claim based upon the fact that his child was born there and the expensive costs of being in Singapore. Rather, I accept as true the statements by the debtor in correspondence with the creditor and Mr Stevens in October and November 2016 that he was held up in Singapore while a transaction involving the listing of a company based in Asia was being completed. In this regard, the debtor accepted in cross-examination that he had expected the transaction in question to conclude much more rapidly than it has and that the transaction was still awaiting settlement at the date of trial. He alleged that the transaction needed to settle so that he could settle with the creditor. 38 Consistently with that correspondence and the debtor's evidence as to the Singapore transaction, an email from a process server to the creditor's solicitors advises of a conversation between the process server and the debtor in April 2016 in which the debtor allegedly said that "he is overseas" but "he will return in two weeks". The debtor's evidence when the email was put to him was inconsistent, with him variously, and in my view unconvincingly, responding that "I don't recall saying two weeks" and "I don't recall the conversation. And he obviously doesn't take his notes very well if he didn't take my email address down right." I accept the accuracy of the record of the conversation in the process server's email (save for any error as to the email address) given that the process server had no interest in the outcome of the proceeding in contrast to the debtor, but every reason to be careful in accurately conveying the tenor of such conversations to the creditor's solicitors. Moreover, that evidence is consistent with similar representations made repeatedly by the debtor to the effect that he was temporarily in Singapore and returning shortly to Australia in correspondence, text messages and telephone conversations with the creditor, the creditor's solicitors and process servers both before and after the April 2016 conversation. I also accept Mr Steven's unchallenged evidence that, before filing his grounds of opposition, the debtor had never informed Mr Stevens or anyone else at the creditor's solicitors that he resided outside Australia. 39 Added to this, the debtor has consistently given an Australian address as his address before and after his alleged relocation to Singapore. In particular: (1) he gave an address on Macquarie Street, Sydney, New South Wales (the Macquarie Street address) as his personal address in the Settlement Deed to which the debtor was a party in his personal capacity as well as on behalf of his company, Jolimont Resource Pty Limited, and which gave rise to the debt underlying these proceedings; (2) the Macquarie Street address was given as his address as at April 2016 in relation to fourteen Australian companies of which he was a director or secretary and continues to be identified as his address in relation to all eight corporate entities of which he remains a director; (3) the debtor's LinkedIn profile stated as at June 2016 that he was a corporate advisor of Financial Securities and that he was based in Sydney, Australia; (4) the debtor declared his Macquarie St address on documents dated 3 September 2016, i.e. almost a year after he allegedly moved to Singapore, and filed with the Australian Securities and Investment Commission (ASIC) in relation to the registration of a company called Billyst Holdings Pty Ltd which also gives the Macquarie Street address as the registered address for the company; and (5) the debtor's signature block at the base of an email dated 19 September 2016 referred generically to "Fernshaw" and provided an Australian address (Chifley Square, Sydney), an Australian mobile telephone number and land line, and gave a link to the Fernshaw Australian website, as well as providing Singapore contact details. 40 While the debtor sought to rely upon the process server's evidence that the concierge at the Macquarie Street address said that the debtor "has not occupied these premises for 5 or 6 years", that evidence is hearsay only and, as such, I do not take it as evidence of the truth asserted. 41 Furthermore, the applicant declared as true, correct and complete, information filled out on outgoing passenger cards dated 10 February 2015 and 10 July 2015 that he was an Australian resident departing temporarily and that he lived in NSW and Victoria respectively. He also declared on incoming passenger cards in July 2015 and October 2016 that he was a resident returning to Australia. I do not accept his attempts to explain the declarations as errors. As the applicant accepted in cross-examination, these were important declarations to the Department of Immigration and he took care to fill them out. Nor do I accept that he gave an Australian mobile telephone number in those declarations that he did not have at the time because he thought he might be able to get it back when he got to Australia. That number was also the same number given in the signature block at the base of his email of 19 September 2016 and, in the absence of any corroborative evidence for the debtor's evidence, I accept the contemporaneous evidence that it was his Australian mobile telephone number until at least October 2016. 42 In short, the weight of the evidence overwhelmingly suggests that the debtor was ordinarily resident in Australia before, after and at the time of the alleged act of bankruptcy (and service of the bankruptcy notice), irrespective of whether he might also at that time have been a resident of Singapore.

4.3 Did the debtor have a dwelling house or place of business in Australia at the time of the alleged act of bankruptcy? 43 Further and in any event, even if the debtor were not ordinarily resident in Australia at the time of the alleged bankruptcy, I would find that he had a dwelling house in Australia at the time of the alleged bankruptcy. 44 In this regard, the first question is what is meant by the phrase "had a dwelling house… in Australia" in s 43(1)(b)(ii) of the Act. That is a question of statutory construction. Counsel for the debtor submitted that that phrase should be interpreted as meaning that the debtor had a house in which he dwelled in Australia, as opposed to a house in which he could dwell. On this construction, counsel for the debtor pointed to evidence that, despite the unit on Macquarie Street being referred to in various documents by the debtor as his address and correspondence from him identifying it as his address, the debtor's evidence was that he had not lived in the Macquarie Street unit for at least three years: Alford affidavit sworn 9 February 2016 at [21]. 45 Counsel for the creditor on the other hand submitted that the phrase should be interpreted as meaning a house in which the creditor may reside should he so decide. This construction accords that adopted by Graham J in Mathai. In that case his Honour summarised the relevant authorities as follows: 111. It is possible for a debtor to have a dwelling-house in Australia even though he has not in fact been in occupation of it at any time during a given year (per Goff LJ, with whom Buckley and Orr LJJ agreed, in In re Brauch (A Debtor); Ex parte Britannic Securities & Investments Limited ("In re Brauch") [1978] 1 Ch 316 at 335). 112. To have a dwelling-house in Australia it is not necessary that a debtor has a legal or equitable estate in the property in question. A licence to occupy a dwelling-house may suffice (per Goff LJ in In re Brauch at p 334). 113. A debtor who took five furnished rooms on two floors in a house in Piccadilly Circus, London, for three months and who occupied them together with his wife and a servant was found to "have a dwelling-house" in England. He was not a passing or casual visitor making a journey through the country for the purpose of seeing it. He was not like a person living at rooms in a hotel in the ordinary way (per Lord Esher, MR in In re Hecquard; Ex parte Hecquard (1889) 24 QBD 71 at 74; see also per Lindley LJ at p 75). 114. Where a debtor owns a house in Australia, does not occupy it although he could reoccupy it at any time, but has abandoned its use as a residence, he will not have a dwelling-house in Australia (per Wilcox J at first instance in Re Boles [2000] FCA 1782 at [48]). 115. If a debtor is away from his dwelling-house for a temporary purpose but with an intent to return, he may still have a dwelling-house. The more there is actual occupation, the easier it is to conclude that he has a dwelling-house (per Goff LJ in In re Brauch at p 335). 46 His Honour concluded at [116] that "… a debtor will have a dwelling-house in Australia if there is a house in Australia which he uses or has used and may use as his residence and to which he may repair at his whim at any time." 47 It was not submitted that that decision was plainly wrong. To the contrary in my view the construction accords with the ordinary meaning of the words in the subsection. If the Parliament had intended the meaning for which the debtor contended, there is no reason why the Parliament would not have said so. 48 The irresistible inference arising from paragraph 21 of the debtor's affidavit deposing that he has not resided at the Macquarie Street unit for at least three years and his place of residence will be updated is that the debtor had resided at that address prior to those three years. Nor did the debtor suggest that the Macquarie Street unit was not available to him to reside in thereafter, should he so decide, as is suggested at the very least by his continued identification of this address as his Australian address. As to the latter, the debtor gave that address as his address in email correspondence in 2006, as his address in the deed of settlement dated 15 January 2015 with Jolimont Resources Pty Ltd and the creditor, and in the various ASIC records to which I have already referred. In this regard it matters not whether he could reside at that location because he owns the unit, holds a lease, or holds a mere licence. 49 In those circumstances, I am satisfied that the Court has jurisdiction also under s 43(1)(b)(ii) of the Act.

4.4 Was the debtor carrying on a business in Australia at the time of the alleged act of bankruptcy? 50 Finally and in any event, I agree with the applicant that the evidence was more than sufficient to establish that the debtor was also carrying on a business in Australia at the time of the act of bankruptcy. As the creditor accepted, a distinction must be drawn between a debtor carrying on business on her or his own account, on the one hand, and a debtor managing and even controlling the business of a company, on the other hand, which will not in general suffice to establish that the person is carrying on business in Australia: Turner v Trevorrow (1994) 49 FCR 566 (Turner) at 572 -574 (following In re Brauch (a debtor) ex parte Briannic Securities & Investments Ltd [1978] 1 Ch 316 (Re Brauch)). Thus in Re Brauch, the Court of Appeal held based upon the totality of the evidence that the debtor was not merely employed in another's business, but was carrying on his own business as a property developer. As Goff LJ held at 329 (with whose reasons Orr LJ agreed), the evidence: … in the light of all the circumstances, compels one to find that the debtor was carrying on personally the business of promoting companies, or acquiring shell companies, to speculate in land, or alternatively that of finding suitable sites for development or investment, negotiating a price, including of course obtaining all necessary valuations, and financing the purchase. He then caused the properties to be vested in companies, which the "one company per project" scheme shows that he must have promoted or required for the purpose. Once the property came to the company, its future management, development and realisation was, of course, the business of the company, and any liabilities which it incurred… would be the company's liability, not the debtor; but all the preliminary stages I have described above, were in my judgment, his business. (See to similar effect Buckley LJ at 335-336) 51 That decision was distinguished by the Full Court in Turner. First, the Full Court held that while as a matter of management the debtor clearly controlled the company of which he was a director and secretary, that did not make the company's business his own business (at 573). Secondly, the evidence was consistent only with the view that no separate business was carried on by the debtor: "There was only the one company. It carried on a typical small building business. It dealt with suppliers in its own name. It does not appear that [the debtor] provided guarantees to the two suppliers… or any other creditors of the company, although, even if he did, the provision of guarantees to creditors would not of itself point to the existence of a separate business carried on by the guarantor." Furthermore, while the evidence suggested that the debtor provided working capital for the company out of his own pocket, there was no evidence to show that the debtor incurred contractual liabilities as a principal, like the debtor in (at 574). 52 Notably, while as at the date of the bankruptcy (27 June 2016), the debtor was a director, and in most cases, secretary, of twelve Australian companies, he did not describe his work as a company director or executive. Rather, the debtor described himself as a "corporate adviser", which he explained meant "advising clients on different aspects of investment banking, structured finance and capital raising". He also said that he had pursued this as his career in Australia and subsequently in Singapore. However, as the creditor submitted, it is apparent that both before and after the date of bankruptcy, the debtor was seeking to promote his Australian entities to the Australian market. This included the proposed public listing of two of those companies, Asia Pacific Infrastructure Limited and Woolwich Capital, on the Australian Stock Exchange in September and October 2016, being companies in which he had invested significant funds personally. This demonstrates, in my view, that he did not cease carrying on the business of a corporate adviser in Australia when he went to Singapore. This is also consistent with my finding earlier that the debtor's intentions in going to Singapore was not to move there permanently, but to finalise a particular transaction before returning to Australia. As a consequence I accept the creditor's submission that the respondent was carrying on business in Australia as at 27 June 2016 and that the Court would have had jurisdiction under s 43(1)(b)(iii) of the Act in any event.

5.1 The issues 53 The substantive grounds of opposition contained in the amended notice of opposition to the creditor's petition allege that the bankruptcy notice is a nullity on the following grounds: (1) the debtor was not served with the bankruptcy notice issued on 12 April 2016 (ground 2); (2) the bankruptcy notice was served without leave at a place outside Australia or within a time fixed for service within Australia despite knowing that the debtor resided outside Australia (Grounds 3-4); (3) the bankruptcy notice fails to specify a correct address because it failed to state the level of the building in the address for service and payment and as such: (a) fails to meet a requirement made essential by the Act; or (b) is confusing and could reasonably mislead the debtor as to what is required to be done in order to comply with the bankruptcy notice. (Grounds 5-8); (4) the bankruptcy notice is confusing and could reasonably mislead the debtor or is contrary to law because it refers to the Federal Magistrates Court of Australia instead of the Federal Circuit Court of Australia thereby rendering the bankruptcy notice a nullity (Grounds 9-10)

5.2 Principles governing the validity of a bankruptcy notice 54 Subject to an important caveat explained below, the principles to be applied in determining the validity of a bankruptcy notice were common ground between the parties. 55 First, s 306(1) of the Act provides that: Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court. 56 It is well settled that a bankruptcy notice is a "proceeding" for the purposes of the Act notwithstanding that it is not a curial process: Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409 (Adams) at [17]); see also the discussion of the history of s 306 and its application to a bankruptcy notice in Nilant v Macchia [2000] FCA 1528; (2000) 104 FCR 238 at [12]-[25] (Hill J). A failure to comply with a requirement in the Act or regulations, such as a failure to comply with a requirement to furnish information, is a defect or irregularity: Adams at [24]. 57 Secondly, as is apparent from the terms of s 306(1), only defects or irregularities that are "formal" are capable of being "remedied" under the provision. As such, a distinction is drawn between a formal defect or irregularity, on the one hand, and a defect or irregularity that renders a bankruptcy notice a nullity, on the other hand. 58 Thirdly, with respect to formal defects or irregularities in a bankruptcy notice, the High Court held in Adams at [18] that: (1) in its application to a bankruptcy notice, s 306 assumes the possibility of some failure to comply with the statutory requirement, that is, some defect or irregularity; (2) in the event of a failure to comply with a requirement of the Act, it must be asked whether the defect or irregularity is a formal defect or irregularity within the scope of s 306; and (3) if the defect is within the purview of s306, it is necessary to consider whether substantial injustice has been caused by the defect or irregularity, and whether the injustice cannot be remedied by an order of the court. 59 As such, the High Court emphasised that: 18. …The questions whether the defect or irregularity is a formal defect or irregularity, and whether substantial injustice has been caused and cannot be remedied, are separate and distinct, the latter question arising only if the former is answered in the affirmative. It may be accepted that, if a defect could cause substantial injustice, it may not easily be classified as a formal defect or irregularity. But the absence of claimed injustice does not conclude the separate question that arises under s 306 about whether the defect or irregularity is a formal defect or irregularity. 60 In the fourth place, where the defect or irregularity is substantive, a strict approach is taken. As Deane J stated in an oft-cited passage in Kleinwort Benson Australia v Crowl ('Kleinwort') [1988] HCA 34; (1988) 165 CLR 71 at 81-82: It has long been a fundamental precept of the law of bankruptcy that "a bankruptcy notice, which is the foundation of a bankruptcy, attended as a bankruptcy is with penal consequences, is a matter in which great strictness is required" per Cozens-Hardy M.R., In re A Judgment Debtor, 530 of 1908 [[1908] 2 KB 474 at 476-477]… A defect in a bankruptcy notice will invalidate it "except in the case of a merely formal defect": per Vaughan Williams L.J., In re O.C.S. (A Debtor); Ex parte The Debtor [[1904] 2 KB 161 at 163 … If a defect in a bankruptcy notice is other than a formal one, the notice itself is defective and failure to comply with it does not constitute an act of bankruptcy. It is true that the strictness of these rules leaves open the possibility for abuse by unscrupulous debtors. That is, however, an unavoidable concomitant of the protection of ordinary people faced with the threat of being made bankrupt. (emphasis added) 61 Conversely where the bankruptcy notice is valid and not an abuse of process, there is no discretion to set it aside, as Emmett J pointed out in Australian Securities and Investments Commission v Forge [2003] FCAFC 274; (2003) 133 FCR 487 at [27]. As his Honour continued: 27. …The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. 62 Fifthly, a bankruptcy notice is a nullity in two circumstances, namely, "if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice": Kleinwort at 79 (Mason CJ, Wilson, Brennan and Gaudron JJ). As to the first circumstance, the High Court held in Adams at [26]-[28] that the question whether a requirement is essential for these purposes raises the question of construction identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at 390, namely, "whether it was a purpose of the legislation that an act done in breach of a provision should be invalid…" That purpose in turn must be determined having regard to "the language of the relevant provision and the scope and object of the whole statute": Project Blue Sky at 391 (quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24 with approval). Thus, the Court held that: 27. If, as in the present case, what is in question is an error in the form of a misdescription of a statutory provision, then a consideration of the general purpose of the Act, and the particular purpose of the legislative scheme relating to bankruptcy notices, leads readily to a conclusion that if the error could reasonably mislead a debtor as to what is necessary to comply with the notice it is not merely a formal defect or irregularity. … 63 As to the second circumstance, in cases where the notice could reasonably mislead the debtor as to what is required, "the notice is a nullity whether or not the debtor is in fact misled": Kleinwort at 80. Thus, for example, in James v Federal Commissioner of Taxation (1955) 93 CLR 631 at 644 the Court (Williams, Kitto and Taylor JJ) held a bankruptcy notice invalid on the ground that it was "capable of misleading the debtor" (emphasis added), stating further that: The court cannot inquire whether the debtor has in fact been misled or not. In this case it is probable that he was not misled. It is sufficient that he could be misled. 64 Finally, notwithstanding that the test for determining whether a bankruptcy notice is misleading is an objective one, the question of whether the notice is misleading is not determined in a vacuum. Rather, the Court may have regard to facts extraneous to the notice itself, including relevantly the surrounding circumstances from the perspective of the actual debtor served with the notice as opposed to a hypothetical debtor: Re Crisafulli; ex parte National Commercial Banking Corporation of Australia Ltd (1985) 11 FCR 272. Thus, for example, in Northam v Commonwealth Bank of Australia [1999] FCA 544, Weinberg J at [22] said that "a bankruptcy notice must, while being read strictly, also be read sensibly, and not perversely. It must also be read as a whole, and may be read in light of facts extraneous to the notice itself".

5.3 Is the bankruptcy notice a nullity because it was served outside Australia? (Grounds 2, 3 and 4, Amended Grounds of Opposition)

5.3.1 The parties' submissions 65 The second, third and fourth grounds of opposition rely upon s 40(1)(g) of the Act which provides that: (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 specified in the notice; or (ii) where the notice was served elsewhere - within the time fixed for the purpose by the order giving leave to effect the service; 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; (emphasis added) 66 It is not in dispute that the Court has power to grant leave for service of bankruptcy notice outside Australia nunc pro tunc: Battenberg at [19]. Furthermore, an application for substituted service of the bankruptcy notice within Australia could be made pursuant to s 309(2) of the Act and similarly backdated (see below at [70]). Section 309(2) provides that: (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. 67 The evidence establishes (as the debtor submits) that at the time the bankruptcy notice was served and during the time allowed for compliance with it, the debtor was outside Australia. The debtor submits that leave was required because the place of receipt of the bankruptcy notice was deemed to be Singapore under the provisions of the Electronic Transactions Act 1999 (Cth), being the location of his place of business at the relevant time. If that submission is accepted, it is not in dispute that no leave was granted to serve the bankruptcy notice outside Australia. On this basis, the debtor submits that the bankruptcy notice is invalid on the ground that it could mislead him because a debtor could be confused as to whether the bankruptcy notice is valid. In the alternative, the debtor submitted the grant of leave nunc pro tunc, as sought by the creditor, would not be an appropriate remedy. 68 The creditor contends that the ground of opposition is untenable relying upon reg 16.10 of the Bankruptcy Regulations 1999 (Cth) or, in the alternative, s 14B of the ETA.. In the creditor's submission it was permissible for the creditor to serve the bankruptcy notice on the debtor by email and the Court can infer that that address is hosted in Australia given that Fernshaw is an Australian entity and that the email address ends with ".com.au". In those circumstances, the creditor submits that Australia is deemed to be the place of service, irrespective of whether the debtor was present in Australia at the time of transmission and there was no requirement to apply for leave to serve the notice outside Australia (applying American Express Ltd v Michaels [2010] FMCA 103; (2010) 237 FLR 268 (American Express) at [31]-[32] (Smith FM)). In any event, the creditor contends that the failure to grant leave under s 40(1)(g) of the Act to serve the bankruptcy notice overseas can be remedied by applying s 306(1) of the Act or granting leave nunc pro tunc.

5.3.2 Was service effected within Australia by virtue of Regulation 16.01, Bankruptcy Regulations? 69 In my view, the bankruptcy notice cannot be misleading in the sense for which the debtor contends because it was validly served within Australia by virtue of reg 16.01 of the Bankruptcy Regulations or, in the alternative, by virtue of s 14B of the ETA. 70 First, the question of whether the bankruptcy notice has been served in Australia or elsewhere for the purposes of s 40(1)(g) is not determined by whether the debtor was present in Australia when she or he received the bankruptcy notice. Rather, s 40(1)(g) addresses the deemed place of service such as when service is effected in accordance with a substituted service order, as opposed to the place where the notice in fact came to the debtor's attention: American Express at [32] (Smith FM). Thus in in Battenberg v Restrom (2006) 149 FCR 128, the Full Court held that service upon the debtor's solicitors in Australia pursuant to a substituted service order under s 309(2) of the Act sufficed to effect service upon the debtor for the purposes of s 40(1)(g) notwithstanding that the debtor was absent from Australia at that time. As the Full Court held in Battenberg at [19], "[t]here is no reason why s 309(2) should not also authorise an order for substituted service of a bankruptcy notice made whilst the debtor is out of Australia. If, as in this case, that order does not involve service of the bankruptcy notice itself outside of Australia, s 40(1)(g) does not dictate that leave be obtained." 71 Secondly, following the introduction of reg 16.01 of the Bankruptcy Regulations 1996 (Cth), it is no longer a requirement that bankruptcy notices be served personally absent an order for substituted service: de Robillard v Carver [2007] FCAFC 73; (2007) 159 FCR 38 (de Robillard) at [67] (Buchanan J (with whose reasons Moore and Conti JJ agreed at [1]). Rather, reg 16.01 provides for service to be effected via remote means including relevantly by email, and applies to bankruptcy notices: see e.g. Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321; (2004) 141 FCR 107 at [31]. Regulation 16.01 relevantly provides that: (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 …, 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. 72 The words "left, delivered or transmitted" are plainly intended to refer to "left" at the last known address under subsection (1)(c), "personally delivered" under subsection (1)(d), or "transmitted" under subsection (1)(e) respectively. 73 That being so, as a matter of ordinary language, reg 16.01(2) deems service to have occurred when the document relevantly is transmitted electronically to a facility maintained by the person for receipt of such documents under reg 16.01(e)(i). Logically, therefore, in my view reg 16.01 also deems service to occur at the place where that facility is located, as Smith FM held in American Express at [33]. As such, the email address to which the bankruptcy notice was transmitted being an Australian one as it ended in ".com.au", I agree with the creditor that the inference should therefore be drawn that the facility maintained by the debtor for receipt of emails was located in Australia. In this regard, even assuming that reg 16.01(2) creates a rebuttable presumption as to where, as well as when, service was effected, the debtor has not led any evidence to the effect that the facility maintained by him for receipt of electronically transmitted documents was located outside Australia. It follows in my view that the ground of opposition is not made out. There was no requirement for leave to serve out of Australia to be obtained as service of the notice occurred in Australia, and the question of where the debtor was located and when he personally received the bankruptcy notice is not relevant.

5.3.3 Was service effected within Australia by operation of s 14B, Electronic Transactions Act 1999 (Cth)? 74 Alternatively, I agree with the creditor that service was effected within Australia by operation of s 14B of the Electronic Transactions Act. In this regard, s 14B provides with respect to the place of despatch and receipt that: (1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication: (a) the electronic communication is taken to have been dispatched at the place where the originator has its place of business; and (b) the electronic communication is taken to have been received at the place where the addressee has its place of business. (2) For the purposes of the application of subsection (1) to an electronic communication: (a) a party's place of business is assumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location; and (b) if a party has not indicated a place of business and has only one place of business, it is to be assumed that that place is the party's place of business; and (c) if a party has not indicated a place of business and has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the transaction; and (d) if a party has not indicated a place of business and has more than one place of business, but paragraph (c) does not apply - it is to be assumed that the party's principal place of business is the party's only place of business; and (e) if a party is a natural person and does not have a place of business - it is to be assumed that the party's place of business is the place of the party's habitual residence. (3) A location is not a place of business merely because that is: (a) where equipment and technology supporting an information system used by a party are located; or (b) where the information system may be accessed by other parties. (4) The sole fact that a party makes use of a domain name or email address connected to a specific country does not create a presumption that its place of business is located in that country. 75 In the present case, I have already found that the debtor was carrying on business in Australia as a corporate adviser at the time of service of the bankruptcy notice even accepting (as I consider the debtor established) that he was also carrying on business in Singapore at that time: see above at [52]. Rather, the debtor having two places of business and correspondence from him indicating that he has two places of business, the issue would seem to fall to be determined by 14B(2)(c) of the Electronic Transactions Act. 76 That being so, the place of business with the closest relationship to the underlying transaction at the time of service was his place or places of business in Australia: see also by analogy e.g. American Express at [34]-[35]. In particular, there is no suggestion that the debtor was working anywhere other than in Australia as a corporate adviser at the time that the underlying transactions giving rise to judgment debt were engaged in. To the contrary, the debtor's evidence is that he had worked as a corporate adviser primarily in Sydney and Melbourne before he (allegedly) left to live in Singapore in October 2015. Furthermore, the debtor gave the Macquarie Street address as his address in the Settlement Deed, his company Jollimont which was incorporated in Australia was also party to the Deed and had the same Australian address, and the Deed is expressly governed by New South Wales law.

5.3.4 In the alternative, ought leave to serve outside the jurisdiction be granted nunc pro tunc? 77 Finally, even if I am wrong in holding that the bankruptcy notice is deemed to have been served upon the debtor in Australia, it would not necessarily follow that the bankruptcy notice was invalid. Rather, the failure to obtain leave under s 40(1)(g) is a formal defect only which can be "cured" by applying s 306(1) of the Act or granting leave nunc pro tunc: American Express at [36]; Envee Energy Pty Ltd v Stockford [2007] FMCA 1426 at [24]; Michael Wilson & Partners Ltd v Slater [2013] FCCA 1201 at [2]. 78 In this regard, the creditor contends that: 20. Even if the Court were to conclude that leave to serve the bankruptcy notice outside of Australia was necessary (which the applicant submits that it should not), the validity of service of the bankruptcy notice can nevertheless be established through matters such as the respondent's business connection with Australia, his actual knowledge of and receipt of the bankruptcy notice, and the fact that it is clear that he has suffered no prejudice by the fact that the notice was served via email. 21. In such circumstances, as noted in American Express at [36], it is open to the Court to cure any failure to obtain leave under section 40(1)(g) by applying section 306(1) of the Act, or by granting leave nunc pro tunc. The Court in American Express was readily prepared to do so where the debtor had actual and immediate receipt of the bankruptcy notice and could point to no particular prejudice arising from service of the bankruptcy notice outside Australia. 79 The debtor submitted that it would not be appropriate to grant leave nunc pro tunc after the time for compliance with the bankruptcy notice has expired as that could not retrospectively provide additional time which a debtor outside of the jurisdiction might reasonably require to comply with the requirements of the notice. Specifically, Mr Skinner for the debtor submitted that: That defect, in my respectful submission, cannot be cured as has been suggested in the submissions of my learned friend by the making of an order nunc pro tunc. This area of the law is so strict that to simply, in retrospect, seek leave to file outside of the jurisdiction would, in my respectful submission, be wrong at law and would be inappropriate because the opportunity for extra time to be granted would simply have been denied the debtor. 80 In my view, it is plain that the debtor would suffer no prejudice if leave were granted nunc pro tunc to serve the bankruptcy notice upon him outside of Australia. The detriment alleged by the debtor as to the loss of an opportunity to be afforded additional time within which to comply, is illusory in circumstances where it is not suggested that the debtor may have taken advantage of the additional time. To the contrary, it is the debtor's position that he is waiting for a transaction to be completed before he makes payment of the debt and that transaction has not been completed. Furthermore, I have earlier found that he received the bankruptcy notice together with the covering letter and District Court judgment when he arrived in China and before Mr Erdogan spoke to the process server the day after the service email was sent: see above at [12]-[20]).

5.4 The level of the building was not specified in the address for service and payment (Grounds 5-8, Amended Grounds of Opposition)

5.4.1 Relevant provisions and regulations 81 Section 41(2) of the Act provides that "[t]he [bankruptcy] notice must be in accordance with the form prescribed by the regulations", and not that the notice must be "in" the prescribed form. As such, s 41(2) "lays down a requirement of substantial, rather than strict compliance" with the prescribed form in terms of format or layout, as well as content: Farrugia v Farrugia [2000] FCA 385; (2000) 99 FCR 16 at [64] and [67] (Katz J). 82 Reg 4.02(1) prescribes Form 1 as the bankruptcy notice for the purposes of s 41(2) of the Act. While reg 4.02(2) provides a bankruptcy notice must follow Form 1 in respect of its format, reg 4.02(3) provides that subreg (2) is not to be taken as expressing an intention contrary to s 25C of the Acts Interpretation Act 1901 (Cth). Accordingly reg 4.02, does not exclude s 25C of the Acts Interpretation Act 1901 (Cth), reinforcing that strict compliance with the form prescribed is not required and substantial compliance is sufficient in line with s 41(2) of the Bankruptcy Act: see the note to subreg (3) and Australian Steel v Lewis [2000] FCA 1915; (2000) 199 ALR 68 (Lewis) at [88] (Lee J (whose approach in dissent was upheld in Adams)). 83 Form 1 states that the debtor is required within (relevantly) 21 days after service of the bankruptcy notice "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." In turn, the form makes space for the insertion of an address where payment of the debt "can be made" and where the creditor will accept service of legal documents. As such, the form does not require that the debt be paid using that mechanism of payment: Croker v Commonwealth [2010] FCA 1031 (Croker) at [23]-[25] Foster J at [24]. 84 It is not in issue that, where a question is raised as to an alleged incorrect address for payment or service in a bankruptcy notice, the onus of proving that an address given for the creditor in the bankruptcy notice was incorrect, too vague to locate, or not one at which the debt could be paid, rests on the party seeking to impugn the notice (Shephard v Chiquita Brands (South Pacific) Ltd [2002] FCA 466 at [15] and [21] (Gyles J)). In turn, the relevant test for determining the effect of an incorrect address is identified by Pincus J in Re Nugent; Ex parte Nugent (1985) 5 FCR 161 at 163: …the basic principle in accordance with which most of the authorities are capable of being reconciled, is that the address given should be one at which, during the relevant period, it is reasonably practicable to make payment or offer to secure or compound. (Applied e.g. in Shephard at [15] and [21])

5.4.2 The parties' submissions 85 In this case, the address given in the bankruptcy notice was the creditor's firm of solicitors as follows: Deutsch Miller 53 Martin Pl, SYDNEY, NSW 2000 86 The telephone number with the international code for the firm and an email address were also provided with the address. 87 The debtor submitted that the address provided by the creditor as the address for payment in the bankruptcy notice is incorrect as the solicitors for the creditor failed to include the level of the building at which their firm can be found. In the debtor's submission: 7. The relevant building nominated as the address is located at Martin Place in Sydney comprising a ground floor and twelve (12) further levels. The building is not solely occupied by the solicitors for the Applicant [creditor]. The building has at least thirteen (13) different businesses as tenants including three (3) sets of barristers Chambers and five (5) firms of solicitors. There is no common reception area in the building… 88 The debtor submitted that the insertion of an incorrect address for payment in the bankruptcy notice is a substantive defect and not merely a matter of form, given that the purpose of requiring creditors to insert a correct address in a bankruptcy notice is to enable the debtor to comply with the bankruptcy notice within the statutory time limit. The debtor also pointed to the quasi-penal consequences of non-compliance with a bankruptcy notice.

5.4.3 Should the decision in Celestini be followed? 89 The debtor's submission that the failure to identify the level of the building at which the solicitors were located was a substantive defect relied upon the decision in Celestini v Monte Paschi Australia Limited (1996) 71 FCR 399 which in turn followed Re Haritos; ex part Hill (1968) 15 FLR 378 (Re Haritos). In Celestini, Sackville J held at 403G that: The authorities strongly suggest that a failure to state the address of the court to which the judgment debt must be paid means that a notice does not comply with the statutory requirement. This is so notwithstanding that the debtor could readily ascertain the correct address of the Court, for example, by following the directions on a sign in the lobby of the premises at the address specified in the bankruptcy notice. 90 On that basis, Sackville J held that a bankruptcy notice that failed to state the correct address of the court at which the judgment debt is payable does not comply with s 41(2)(a) of the Act and is invalid. In so holding, his Honour followed Re Haritos at 379, holding that a bankruptcy notice which omits the address of the creditor or shows an incorrect address is defective in substance and not merely in form. 91 The creditor submitted that the decision in Celestini (and Re Haritos) should not be followed on the grounds that the decision: (1) related to a different legislative regime; (2) has not been followed in subsequent cases; and (3) has been impliedly overruled by the High Court in Adams v Lambert (2006) 228 CLR 409. 92 I agree that the decisions should not be followed. First, Celestini applied an earlier form of s 41 of the Act which was in materially different terms. In particular, s 41(2)(a)(i) then relevantly required that the prescribed form require the debtor to "pay the judgment debt or sum ordered to be paid in accordance with the judgment or order,…" (Celestini at 400-401 (emphasis added)). It was this provision with which Sackville found there was a failure to comply with a requirement essential to validity of the notice (at 403). 93 Secondly, the decision in Celestini was distinguished by Emmett J in Bonds Industries v Sing [1999] FCA 1055. That case concerned a bankruptcy notice with a similar error in the address of the Federal Court Registry. At that stage following amendments in 1996, there was no requirement in the Act that the address of the Federal Court be stated in a bankruptcy notice (at [12]). Emmett J noted at [13] that the position may be different in relation to the address at which a debtor may make the payment demanded under the bankruptcy notice. In this regard, his Honour observed that: A judgment creditor in a bankruptcy notice must give an address or addresses where he may be found. The address stated must be one at which the debtor may, during the currency of the notice, make payment of the amount claimed in the notice or, one where he may make arrangements to secure or compound the debt. The test for adequacy of such an address must satisfy the demands of common sense in the highly ordered and busy world in which we live, tempered by a consideration of the implications of a bankruptcy notice and the serious consequences that can flow from non-compliance with its requirements. The address given should be one at which, during the relevant period, it is reasonably practicable for the debtor to make payment or to offer to secure or compound - per Lockhart J in Nugent v Brialkim Pty Limited (1985) 61 ALR 725 at 726 and 727. 94 Emmett J distinguished Re Celestini on the grounds that the requirement in s 41(2)(a)(i) had been repealed and that the defect in the notice considered in Celestini concerned payment of the debt being the basic requirement of a notice. By contrast, his Honour held that the defect was not a defect in a matter made essential by the Act because it is not referred to in the Act but only in the prescribed form, even though s 41 of the Act required that a bankruptcy notice be in accordance with the prescribed form. As such and consistently with the approach later endorsed in Adams, Emmett J held at [17] that "[t]he question therefore resolves itself into this: could the bankruptcy notice in question reasonably mislead a debtor as to what is necessary to comply with it? The requirement of the notice is to make a payment." His Honour found that the statement of an address for the Federal Court which had become incorrect could not reasonably mislead the debtor as to what was necessary on order to comply with the notice (at [18]). 95 The decision in Bonds was subsequently applied to remedy errors in relation to the creditor's address in a bankruptcy notice in Herchenroder v Smith [2002] FMCA 96 at [9]. In that case, Raphael FM held that the failure by the creditor to provide a street address was a matter of form which could be rectified pursuant to s 306 of the Act: see also e.g. Brennan v McGuire [2015] FCCA 665 at [120]. 96 Thirdly, while the decision in Celestini was cited with approval by a majority of the Full Court (Black CJ, Heerey and Sundberg (Lee and Gyles JJ in dissent)) in Lewis at [45], the decision in Lewis was overruled by the High Court in Adams v Lambert. The applicable principles emerging from Adams have earlier been summarised. In Adams, the Court said at [32] that Gyles J in dissent in Lewis "accurately identified the question as whether correct completion of the form prescribed by the regulations in every respect is a requirement made essential by the Act." Their Honours continued: 32. … Bearing in mind that, in the present case, the error could not have misled the respondent as to what it was necessary to do in order to comply with the requirements of the notice, it is difficult to understand how, consistently with Kleinwort Benson Australia Ltd v Crowl, the respondent could succeed without an affirmative answer to that question. In their dissenting reasons in Lewis, Lee J and Gyles J both gave a detailed account of the 1996 amendments to the Act and Regulations. It is unnecessary to repeat what they said in that respect. Lee J concluded: "Properly construed, the Act and Regulations do not express an intention to create a new regime of strict compliance imposed on a judgment creditor issuing a bankruptcy notice. The tenor of the Act and Regulations is not consistent with that conclusion. An attempt has been made to recast the process of issue of a bankruptcy notice in terms more understandable to a judgment debtor, but the essential requirements of a bankruptcy notice remain as they have been stated by bankruptcy legislation over many years." 33. Lee J also said: "It cannot be correct that amendments to the Act that left undisturbed s 41(5) and (6) which state that a notice that demands payment of a sum that is unjustified or excessive is only invalid if a debtor gives notice within a prescribed period, introduced a new regime in respect of bankruptcy notices under which a judgment debtor could have such a notice set aside where the amount claimed is due in fact and there is no prospect that the debtor could be misled as to the steps to be taken to comply with the notice. The amending Act could not have contemplated that a mistaken citation of the source of entitlement to claim interest would be a substantive defect or irregularity in the notice so as to exclude the operation of s 306 of the Act." 34. That view of the legislative purpose is persuasive. The effect of the majority view in Lewis is to attribute to the legislature an overwhelming preference for form over substance. That should not be done. Given that s 306 relieves against the invalidating consequences of some mistakes in the preparation of bankruptcy notices, the mistake that was made in this case falls within its terms. 97 In, therefore, overruling the majority in Lewis and expressly adopting the approach adopted by Lee and Gyles JJ in dissent, the High Court affirmed the primacy of substance over form and rejected the approach adopted in decisions such as Celestini and Re Haritos. It follows in my view that those decisions can no longer be regarded as a reflection of the present law, and ought not to be followed. As such, the omission of a reference to the floor in the address given in the bankruptcy notice can properly be regarded only as a formal defect or irregularity, as the creditor submits, unless it is capable of misleading the debtor.

5.4.4 Could the omission of the floor reasonably mislead the debtor as to what is necessary to comply with the notice? 98 In the alternative, the debtor submitted that confusion over the correct address is capable of misleading the debtor when extraneous circumstances are taken into account. The creditor submitted that the correct address could be ascertained from materials extraneous to the bankruptcy notice. However, the debtor submitted that the extraneous materials alternate between the correct address and the incorrect address with no rational explanation for the differences. As such, the debtor submits that they would confuse a debtor in his circumstances, given that he was physically located outside Australia and would be understandably reluctant to send a cheque to either address. Specifically, the debtor submitted that: 26. The Certificate of Judgment served with the Bankruptcy Notice identifies the correct address. However the Applicant's solicitor's covering letter also served with the Bankruptcy Notice identifies the incorrect address on the letterhead. Emails sent to the Respondent further identify the incorrect address. The website of the applicant's solicitor does identify the correct address… A statutory demand previously forwarded to the Respondent identifies the correct address.… (emphasis in original) 99 I do not accept that the omission of the floor level is capable of misleading the debtor. While the level is not referred to in the bankruptcy notice itself, it is referred to on two occasions in the District Court judgment attached to the bankruptcy notice. It was also referred to in the statement of claim filed on 24 September 2015 in the District Court proceedings and in the creditor's statutory demand for payment of debt sent to the debtor under cover of a letter from the creditor's solicitors dated 22 April 2015. The building level for the creditor's law firm is also published on their website which could have been readily accessed by the debtor. The so-called "incorrect" references in the bankruptcy notice itself, the letterhead appearing on correspondence from the creditor's solicitors and the signature block set out at the base of emails emanating from the creditor's solicitors, would sensibly be read as no more than abbreviated descriptions of the solicitors' address in omitting the level number of the building and would be perceived as such by a reasonable debtor served with the bankruptcy notice in all of the circumstances. I do not consider that such a debtor in light of the judgment and other extraneous material providing the level number would reasonably be misled by the omission of the level number from the notice itself whether alone or in conjunction with the extraneous materials.

5.4.5 Has substantial injustice being caused by the defect? 100 Contrary to the debtor's submissions, no substantial injustice has been caused by the omission of the level number from the address for payment or service in the bankruptcy notice. As already explained, the debtor could readily have ascertained the level number of the building for the creditor's solicitors. In this regard, as the creditor submits, the debtor is a sophisticated person who is clearly "business and tech savvy", being the director of a large number of Australian companies and maintaining a prominent online profile. The debtor and others purporting to act at his request have communicated on many occasions by email and telephone with the creditor's solicitors and it can be inferred that, if he was indeed misled as to the creditor's solicitor's address, he would have easily clarified the matter. Furthermore, as the creditor also submits, the debtor lead no evidence suggesting that he has been thwarted in his attempts to pay the debt by confusion caused by the failure to specify the building level in the bankruptcy notice. To the contrary, it has consistently been the debtor's position that he is unable to pay the debt until the transaction which took him to Singapore has been completed. In this regard, the observations of Foster J in Croker are apt to describe the present case: 25. The issue of substance raised … is whether the Bankruptcy Notice was apt to mislead the applicant in relation to what was required by the Bankruptcy Notice should he wish to pay the debt relied upon in the Notice. In my view, the Bankruptcy Notice was not apt to mislead and did not, in fact, mislead the applicant as far as the method and place of payment was concerned. The applicant never intended to pay the amount claimed in the Bankruptcy Notice, in any event.

5.5 The reference to the Federal Magistrates Court of Australia in the bankruptcy notice (Grounds 9-10, Amended Grounds of Opposition) 101 Nor do I consider that the incorrect reference in the bankruptcy notice to the Federal Magistrates Court and failure to refer to the Federal Circuit Court constitute substantive defects invalidating the bankruptcy notice. 102 First, the form prescribed by reg 4.02 for the purposes of s 41(2), being form 1 of Schedule 1 to the Regulations, continues to include the reference to the Federal Magistrates Court of Australia. In referring therefore to the Federal Magistrates Court in the bankruptcy notice, the creditor therefore did no more than comply with s 41(2) of the Act which, it will be recalled, requires that bankruptcy notices must be in accordance with the form prescribed by the regulations. As such, there was no failure to meet a requirement under the Act, let alone one made essential by the Act. Quite apart from the fact it was decided before the decision in Adams, this distinguishes the present case from Commissioner of Taxation v Kelly [2001] FCA 844; (2001) 110 FCR 561. In that case, the Court held that the failure to refer to the Federal Magistrates Court in the bankruptcy notice and therefore to comply with the requirement in s 41(2) of the Act that a notice be in accordance with the prescribed form was not a formal defect capable of being remedied under s 306(1) of the Act: see also Atkinson v Oakleigh Holdings Pty Ltd (2000) 105 FCR 15; but cf Lee v McNulty [2000] FCA 1519 (McNulty) at [6] (Moore J). 103 Secondly, the reference to "the Court (that is, the Federal Court of Australia or the Federal Magistrates Court of Australia)" in the notice is in the context of notifying the debtor that bankruptcy proceedings may be taken against her or him if the debtor does not either pay the debt or reach a satisfactory settlement and the Court does not extend the time for compliance with the bankruptcy notice. I do not consider that the reference to the Federal Magistrates Court would reasonably mislead a debtor in circumstances where the Federal Circuit Court was originally established as the Federal Magistrates Court of Australia under the Federal Magistrates Act 1999, and then renamed as the Federal Circuit Court of Australia by the Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth). 104 Thirdly, there is nothing to suggest that substantial injustice has been caused by the reference to the Federal Magistrates Court. No evidence was led by the debtor suggesting that he had sought to avail himself of his right to recourse to the Federal Circuit Court or its Registry, or was acting under any misapprehension: see by analogy e.g. McNulty at [6] (Moore J).

6. HAVE THE REQUIREMENTS FOR A SEQUESTRATION ORDER OTHERWISE BEEN MET? 105 None of the grounds of opposition having been made out, I am satisfied that the applicant/creditor has otherwise complied with the requirements entitling him to a sequestration order. Specifically: (1) there has been a qualifying act of bankruptcy, namely the failure to comply with the bankruptcy notice on or before 27 June 2016; (2) the evidence of service of the bankruptcy notice given by Ms Guyatt in the first of her affidavit affirmed on 1 August 2016 is not challenged otherwise than by the grounds which I have already addressed; (3) the reissued creditor's petition was presented and served on 7 October 2016 and no issue is taken by the debtor with any aspect of that petition; (4) the relevant facts contained in the creditor's petition have been verified by unchallenged evidence of Mr Fuller in his affidavit sworn 26 July 2016 and Ms Guyatt in her affidavit affirmed 1 August 2010; (5) service of the creditor's petition and related documentation, including the consent to act by the trustee, have been verified by the affidavit of Mr Stevens sworn 11 October 2016 and that evidence was again not challenged; and (6) the affidavits of final search deposing as to the final debt were sworn on the day of the hearing and unchallenged.

7. CONCLUSION 106 In the circumstances, I am satisfied that a sequestration order should be made. I note that a consent to act as trustee has been filed under s 156A of the Act. Costs are reserved and the parties are to be given an opportunity to be heard on the issue of costs, as requested by the creditor in his additional submissions dated 22 March 2017. I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.