Modern Roof Restoration (Vic) Pty Ltd v Fisk, in the matter of Fisk [2025] FedCFamC2G 1989

1. The Applicant claims that on 11 August 2025, the Creditor's Petition and supporting affidavits were served on the Respondents in accordance with the Orders for Substituted Service of Registrar Buckingham.[12] This is disputed.
2. On 3 September 2025, Registrar Schmidt ordered that:
   1. The estate of BRAD FISK (ALSO KNOWN AS BRADLEY ALAN FISK) and AIMEE KERR be sequestrated under the Bankruptcy Act 1966.
   2. The applicant creditor's costs, including reserved costs, if any, be fixed in the sum of $10,408.50 and paid from the estate of the respondent debtors in accordance with the Bankruptcy Act 1966.

The Court noted that the date of the act of bankruptcy is 3 March 2025. The Court further noted that a consent to act as trustee signed by Mitchell Herrett had been filed under s 156A of the Act (Bankruptcy Trustee).

1. On 23 October 2025, the Respondent filed the Extension Application seeking the following interlocutory orders:
   1. An Extension of time.
   2. That the respondent[s] application be permanently dismissed on the grounds that the proceedings constitute an abuse of process.
   3. That the Court finds the conduct of the respondent[s] MODERN ROOF RESTORATION (VIC) PTY LTD ACN 077 248 090 - Mitchell Herrett [RSM], and Levi Smouha [Agility Law] amounts to malicious prosecution and an abuse of process and be recorded.
   4. That the Court make an order pursuant to section 102QB of the Federal Circuit and Family Court of Australia Act 2021 (Cth) declaring the respondent[s] MODERN ROOF RESTORA TJON (VIC) PTY LTD ACN 077 248 090 - Mitchell Herrett [RSM], and Levi Smouha [Agility Law] to be a Vexatious Litigant and be restrained from initiating or continuing any further proceedings.
   5. That the respondent[s], MODERN ROOF RESTORATION (VIC) PTY LTD ACN 077 248 090 - Mitchell Herrett [RSM], and Levi Smouha [Agility Law], whether by themselves, their servants, agents or otherwise, any person associated to the respondent[s] - creditor or trustee in bankruptcy, be restrained from:
      1. Taking possession of, selling, transferring, encumbering, disposing of, or otherwise dealing with any of the personal or household property located at ** M********, Wollert, 3750, Victoria, Australia and/or
      2. taking any steps to take possession of or interfere with the applicant's use or enjoyment of the said property, until further order of the Court, and until all outstanding matters are heard.
   6. An order that any finances, property and possessions already seized or removed from the applicant[s]' premises and or their accounts, on or after the 3rd September 2025, be preserved, not sold, not transferred, not destroyed, pending the hearing of this application and all other matters related matters.
   7. An order that the respondent[s] IMMEDIATELY DELIVER UP AND RETURN any finances, vehicles and, or other personal property belonging to the applicant[s] that was seized or removed, that is currently in their possession or control or passed on.
   8. An order that the respondent[s] bear all costs associated with the collection, return, or transport of the applicant's belongings, including any travel costs, transport costs, storage fees or removal costs, or any other costs incurred as a result of the respondent's conduct.
   9. An order that the Respondent pay compensation for damages, loss of belongings, economic loss, reputational harm, medical costs, and emotional and physical harm (with the quantum still to be assessed)
   10. That this application be treated as URGENT.
   11. That the matter be listed for hearing on a SAME-DAY URGENT BASIS, and/or on an AFTER HOURS EMERGENCY BASIS, as the Court sees fit.
   12. Any such further orders as the Court considers appropriate.

1. On 29 October 2025, Judge Egan ordered that:
   1. The proceeding be transferred to the Melbourne Registry of this Court.
   2. The Melbourne Registry list the hearing of the application filed by the first respondent on 23 October 2025 as an expedited hearing.
   3. The first respondent have leave to file and serve, on or before 4.00pm on 5 November 2025, any affidavit material and any written submissions in response to the affidavits and submissions filed on behalf of the applicant in the proceeding.
   4. The Trustee have leave to file and serve any affidavit material and any written submissions, as so advised, on or before 4:00pm on 7 November 2025.
   5. Each party have liberty to apply on the giving of two (2) days' notice, each to the other.
   6. The costs of and incidental to today's hearing be reserved.
2. On 9 November 2025, the Respondents filed the Annulment Application.
3. On 21 November 2025, the Hearing before me took place.
4. After I had reserved my Judgment,[13] the Applicant sent an email to my chambers advising that the Respondents "may not have been served" with the following affidavits:

(a) the affidavit of Kimberly Sze Ying Ho affirmed 28 August 2025;[14]

(b) the affidavit of Kimberly Sze Ying Ho affirmed 28 August 2025;[15] and

(c) the affidavit of Levi Jonathan Smouha affirmed 29 August 2025.[16]

(Proposed Exhibits)

1. The Applicant also sought to withdraw the submissions made at [42F] and [42G] of the "consolidated outline of submissions" (Withdrawn Submissions).
2. The First Respondent responded by opposing the filing of further material.
3. I listed the proceedings for a mention on 28 November 2025 (Mention) so as to formally mark the Applicant's exhibits (a matter that was overlooked), to raise with the Respondents whether they intended to rely on the Second Fisk Affidavit (which had not been marked), and to clarify what the Applicant relied upon in relation to proof of service of the Creditor's Petition.
4. At the Mention, which was rescheduled to 1 December 2025, I took the opportunity to go through the evidence relied upon by the Applicant, the Respondent and the Trustee that was sought to be read. The First Respondent opposed the tender by the Applicant of the Proposed Exhibits which went to service of the Creditor's Petition and compliance with the Orders for Substituted Service. The First Respondent advised me that if I did allow the Proposed Exhibits to be tendered, that he did not wish to file any further evidence, cross examine the deponents of the affidavits or file any further submissions. On that basis, I indicated that I would reserve my judgment on the question of tender,[17] and would hear any oral submissions that the Applicant wished to make in relation to the Proposed Exhibits.

1. The Applicant has filed and relies on the following:

(a) two affidavits of Daniel Fenton affirmed 10 April 2025 (Fenton Affidavits);[18]

(b) the affidavit of Steven Sommerville affirmed 3 June 2025;[19]

(c) the affidavit of Janel Bonnie Pearce affirmed 28 October 2025;[20]

(d) the affidavit of Janel Bonnie Pearce affirmed 29 October 2025;[21]

(e) the affidavit of Steven Sommerville affirmed 29 October 2025;[22]

(f) the affidavit of Jasmine Layla Law affirmed 17 November 2025 (Law Affidavit), attaching amongst other things:[23]

(i) Creditor's Petition;[24]

(ii) affidavit verifying paragraphs 1, 2 and 3;

(iii) affidavit verifying paragraph 4;[25]

(iv) Fenton Affidavits;[26]

(v) consent to act as trustee.

(g) the affidavit of Steven Sommerville affirmed 21 November 2025;[27] and

(h) the affidavit of Janel Bonnie Pearce affirmed 21 November 2025.[28]

1. The Respondents have filed and rely on the following:

(a) the Interlocutory Application filed 23 October 2025;

(b) the affidavit of Bradley Fisk affirmed 23 October 2025 (First Fisk Affidavit);[29]

(c) the notice to creditors of application for review of Registrar's decision to make sequestration order filed 24 October 2025;

(d) the Application for an extension of time dated 6 November 2025;

(e) the affidavit of Bradley Fisk affirmed 6 November 2025 (Second Fisk Affidavit);[30]

(f) the Annulment Application dated 9 November 2025;

(g) the affidavit of Bradley Fisk affirmed 9 November 2025 (Third Fisk Affidavit);[31]

(h) the affidavit of Bradley Fisk affirmed 17 November 2025 (Fourth Fisk Affidavit) with the following annexures:[32]

• (A) Annexure "A" - VCAT Documents;
• (B) Annexure "B" - house photos (House Photos);
• (C) Annexure "C" - email messages;
• (D) Annexure "D" - web page and ABN lookup;
• (E) Annexure "E" - Agility Group profiles;
• (F) Annexure "F" - Agility Group profile;
• (G) Annexure "G" - Law Society records;
• (H) Annexure "H" - Agility Group profile;
• (I) Annexure "I" - web page;
• (J) Annexure "J" - emails between Respondents and court;
• (K) Annexure "K" - emails between Respondents and Trustee;
• (L) Annexure "L" - emails.

(i) the affidavit of Aimee Kerr affirmed 18 November 2025 (Kerr Affidavit);[33] and

(j) the affidavit of Bradley Fisk affirmed 20 November 2025 (Fourth Fisk Affidavit).[34]

1. The Trustee has filed the affidavit of Mitchell Herrett affirmed 10 November 2025 (Trustee's Affidavit).[35]

1. The Applicant filed a "consolidated outline of submissions" filed 18 November 2025 (Applicant's Submissions) and made oral submissions supplementing their written submissions at the Hearing.
2. The Respondents rely on an outline of submissions filed 20 November 2025 (Respondents' Submissions) and the First Respondent made oral submissions supplementing their written submissions at the Hearing, on behalf of himself and the Second Respondent.
3. The Trustee filed an outline of submissions dated 10 November 2025.

1. Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides for the making of Rules of Court for the delegation of any of the powers of the FCFCOA to a delegate which includes a Senior Registrar or a Registrar.
2. Rule 2.02 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules) provides that for the purposes of s 254(2)(1) of the FCFCOA Act, the powers of the court referred to in Part 1 and Part 2 of Schedule 1 are prescribed.

(a) Item 10 of Part 1 of Schedule 1 provides that s 30(1) of the Act ("Power to set aside a bankruptcy notice") may be exercised by a Registrar.

(b) Item 10 of Part 1 of Schedule 1 provides that s 52(1) of the Act ("Power to make a sequestration order against the estate of a debtor") may be exercised by a Registrar.

1. Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the FCFCOA under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed by the Rules of Court or within any further time allowed in accordance with them.
2. Rule 2.02(3) of the Bankruptcy Rules provides that subject to any contrary direction by the Court of a Judge, an application for review must be made within 21 days after the day on which the power was exercised.
3. Rule 3.08(1) of the Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[36] in other words, "anew" or "afresh".
4. Rule 3.08(2)(b) of the Rules provides that in the review, the court may with leave receive further evidence.
5. Section 256(2) of the FCFCOA Act provides that on a review, the court may "make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised". On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[37] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[38]
6. Rule 7.05 of the Bankruptcy Rules provides that an application for review must be served on the trustee at least 7 days before the date fixed for the hearing of the application and the applicant must give notice of the application in accordance with Form B12 to all known creditors at least 7 days before the date fixed for hearing of the application.
7. Historically, it has been held that a review of a registrar's decision must be by way of a hearing de novo, which included the right to adduce new evidence.[39] While 3.08(2)(b) of the Rules includes a leave requirement, it is doubtful that it applies to a review of an order made under the Act.[40]

Review of a sequestration order made by a Registrar

1. In Bechara v Bates,[41] (Bechara) the Full Court explained the nature of a review of a registrar's decision, and the process to be followed at the hearing of the review.[42] The Full Court noted that the review was conducted as a hearing de novo of the creditor's petition. The hearing (or rehearing) is prosecuted by the creditor, who is the respondent to the application for review. The application for review is a demand that the claim for relief (for a sequestration order) be heard by a judge. The onus is on the creditor to prosecute the petition. Upon proof by the creditor of the matters required by s 52(1) of the Act, the only onus on the debtor/bankrupt is to prove solvency or other sufficient cause under s 52(2) of the Act.

1. Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules.
2. Bankruptcy Rule 2.02(3) provides that for the purposes of subsection 256(1) of the FCFCOA Act, an application for review of the exercise of a power by a Registrar must be made within 21 days after the day on which the power was exercised. The rule is expressed to be "Subject to any direction by the Court or a Judge to the contrary".[43]

1. At the Mention, the Applicant sought to tender the Proposed Exhibits. The tender was opposed.
2. The Proposed Exhibits go to the question of whether Orders for Substituted Service of the Creditor's Petition was complied with, and hence whether the Creditor's Petition was served. That question is raised in the Annulment Application by the claim of a denial of procedural fairness;[44] a claim that would usually be articulated as a failure to comply with s 52(1)(b) of the Act.
3. The allegation of denial of procedural fairness goes to one of the grounds of the Annulment Application, and to the substantive merit of the Respondents' opposition to the Creditor's Petition, which is relevant to the Extension of Time Application (and to the Review Application if an extension of time were granted).
4. The Applicant's Submissions set out, at "A", the "Material to be read" which did not include the Proposed Exhibits.
5. Paragraphs [6] and [36] of the Applicant's Submissions provided:

Following a failure by the respondents to comply with the Bankruptcy Notice, Modern Roof filed the Creditor's Petition in this proceeding on 4 June 2025.

...

Modern Roof relies upon the material previously filed to assert that the formal requirements for the application for a sequestration order have been met. Indeed, Modern Roof submits that:

1. a Bankruptcy Notice was served (as required by s40(g) of the Bankruptcy Act) on each of the respondents, following judgment being entered in the Magistrates Court of Victoria;
2. the Bankruptcy Notice was not complied with within the required time (s 41 of the Bankruptcy Act);
3. a Creditor's Petition was presented to this Court (as required by s 43 of the Bankruptcy Act), which was served on the respondents, in accordance with the orders for substituted service made by Registrar Buckingham on 6 August 2025; and
4. sequestration orders were made in the usual manner.

1. I turn then to the Applicant's tender of the Proposed Exhibits, which I shall treat as an application for leave to re-open after reservation of judgment and before judgment delivery (Re-Opening Application).
2. It can be seen that the Applicant's position as to what evidence it was seeking to rely on was somewhat confused. While the Applicant's Submissions included a list of affidavits to be read, that list did not include the Proposed Exhibits. On the other hand, the Applicant's Submissions sought to "rely upon the material previously filed to assert that the formal requirements for the application for a sequestration order have been met". Then after judgment was reserved, the Applicant sought to withdraw the Proposed Exhibits on the basis that the Respondents might not have been served with them. Then at the Mention, the Applicant sought to tender the Proposed Exhibits in order to prove service of the Creditor's Petition.
3. The court has a discretion to permit a party to re-open their case, even after it has been closed and judgment reserved. The discretion must be exercised judicially.
4. "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be".[45]
5. While the categories are not closed,[46] four categories have been recognised:

(a) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available;

(b) where there has been an inadvertent error;

(c) where there has been some mistaken apprehension of facts; and

(d) where there has been some mistaken apprehension of law.

1. In Spotlight Pty Ltd v NCON Australia Ltd,[47] the Victorian Court of Appeal explained public policy consideration that militates against allowance of applications to re-open as a matter of course:

There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.

The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the re-opened issues would be hard to define and as difficult to protect. The re-opened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the re-opening to polish parts of its case which were more or less within the scope of the re-opened proceeding but not clearly on one side or the other of the prescribed limits.

(Emphasis added) (Footnotes omitted)

1. In Bradshaw,[48] Kenny J refused leave to the applicant to re-open their case. Her Honour noted that the applicants had "from the commencement of the proceeding ... determined to carry their case without seeking to quantify their loss". The applicant then sought to re-open the case for the purpose of pursuing the question of quantification which they had originally "spurned".[49]
2. There are a number of matters militating against granting the Applicant leave to re-open its case:

(a) first, the Re-Opening Application was made after the Applicant closed its case and judgment was reserved;[50]

(b) second, as set out above, the Applicant's approach to the Proposed Exhibits has been inconsistent and somewhat confused; and

(c) third, the Applicant appears to acknowledge that the Respondents were not served with the Proposed Exhibits.

1. Despite these matters, I am persuaded that it is in the interests of justice for the Applicant to be granted leave to re-open its case to tender the Proposed Exhibits:

(a) first, the issue of service of the Creditor's Petition took on a different significance when raised in connection with the Annulment Application which was filed on 9 November 2025, being 12 days prior to the Hearing. In the Third Fisk Affidavit (affirmed 9 November 2025), the First Respondent raised the issue of service of the Creditor's Petition[51] more directly than had been raised in the previous Affidavits;

(b) second, I proceed on the basis that the Applicant made an inadvertent error in not seeking to tender the Proposed Exhibits - noting that the context here involves an Extension of Time Application, a Review Application (if time is extended) and an Annulment Application, where the issue of service of the Creditor's Petition was overshadowed by the Respondents' principal contention arising from the VCAT Orders and allegations of abuse of process etc.;

(c) third, the issue of service of the Creditor's Petition was addressed in the Applicant's Submissions by reference to the Proposed Exhibits;

(d) fourth, I asked the First Respondent if he wanted to file responsive affidavits, written submissions and/or to cross examine, in the event that the Proposed Exhibits were allowed to be tendered, but he indicated that he did not wish to take up that opportunity because he wanted the matter to be finalised; and

(e) fifth, for reasons set out in the previous paragraph, I do not consider that the Respondents will be substantially prejudiced by the admission of the Proposed Exhibits.

1. I allow the Applicant's application to tender the Proposed Exhibits and mark them as follows:

(a) the affidavit of Kimberly Sze Ying Ho affirmed 28 August 2025;[52]

(b) the affidavit of Kimberly Sze Ying Ho affirmed 28 August 2025;[53] and

(c) the affidavit of Levi Jonathan Smouha affirmed 29 August 2025.[54]

1. The Respondents seek to review the Sequestration Order that was made on 3 September 2025. The Bankruptcy Rules provide that an application for review of the exercise of power by a Registrar must be made within 21 days after the power was exercised. The application for review was filed 29 days of time. The Respondents required a direction "to the contrary" (i.e. an extension of time) in order to prosecute the Review Application.
2. In Hawkins v Kingsway Group Ltd,[55] Stone J stated:

The court's general power to extend time is to be found in O 3 r 3 of the Federal Court Rules. It is a wide power that permits the court to extend or abridge the time before or after the time expires, at the discretion of the court. In Bishop v R [1982] FCA 33; (1982) 40 ALR 40 Deane J considered the principles to be applied in the exercise of the court's discretion. At 42, his Honour quoted with approval the following statement of Cullen CJ in Morres v Papuan Rubber & Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR(NSW) 141 at 144:

... when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules.

As Deane J observed, the explanation required will depend on the circumstances of the case. In addition to the explanation for the delay, however, it has generally been accepted, in relation to a wide range of applications, that it is also necessary to consider the likelihood of prejudice to the respondent and whether the applicant for an extension of time has an arguable case: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349 per Wilcox J; Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24] per Weinberg J; Bahonko v Nurses Board (Vic) (No 4) [2007] FCA 1449; (2007) 97 ALD 721 at [48] per Middleton J.

It is for the court to weigh up all three factors and exercise its discretion accordingly. In particular circumstances one factor may outweigh the others. For example, an extension of time may be granted where the applicant has a strongly arguable case, even in the case of long delay for which the explanation is not strong. Similarly the prejudice to a respondent who, the prescribed time for appeal having expired, has exercised his or her rights under the decision from which an applicant now seeks to appeal, may be sufficient to justify the court exercising its discretion to refuse an extension of time.

1. Matters that are relevant to the exercise of the discretion include:

(a) the length of the delay and the explanation for it;[56]

(b) any prejudice to the other party caused by the delay,[57] or that may be presumed;[58]

(c) impact on the party seeking the extension of a refusal to grant an extension; and

(d) the merits of the substantive application which also informs the question of whether any purpose would be served by granting an extension.[59]

1. The time prescribed by a legislative provision (here rule) should not be ignored.[60]
2. Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[61] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[62]
3. I turn now to the merits of the Extension of Time Application.
4. The delay and explanation for it must be considered in the context of the purpose served by the time limit set by r 2.02(3) of the Bankruptcy Rules, and the public interest generally.
5. In Bechara,[63] the Full Court commented that a review of a sequestration order ought to be heard promptly:

Applications for review of exercises of delegated power by registrars should be reheard by judges de novo as soon as reasonably practicable. This is especially so in bankruptcy, and even more so if it is a review of a sequestration order that changes the status of a debtor, enlivens powers of a trustee and brings about changes to property. Delay is not only prejudicial to the debtor or bankrupt, but also to the creditor and potentially to members of the public.

1. The Respondents' explanation for the delay is given by the First Respondent in the First Fisk Affidavit.[64] It is:
   1. Since 6 August 2025, I have made multiple attempts to lodge relevant documents with the Queensland Registry of the Federal Court of Australia in relation to the bankruptcy matter numbered BRG439/2025.
   2. Despite these repeated attempts, the documents were not accepted or processed due to ongoing registry, elodgement and procedural issues, and as a result of actions and conduct by the Respondent[s] that have obstructed the normal progress of this matter.
   3. The delay in lodgement and filing was not caused by any fault of my own, but rather due to:
      1. Repeated administrative failures and technical issues within the lodgement process;
      2. The Respondents' abuse of process, malicious prosecution, their standing as a vexatious litigator, including filing and progressing matters without proper notice to me; and
      3. The failure of the Respondents to provide any notification, service, or communication to me at any stage regarding applications, filings, or orders that have been made, including orders of the Registrar made in this bankruptcy matter (BRG439/2025).
   4. I was not informed of, and did not receive notice, any prior orders made by the Registrar or by the Court in these proceedings, and was thereby denied a reasonable opportunity to be heard or to respond.
   5. These procedural irregularities have resulted in serious prejudice to me and have prevented me from exercising my rights in the bankruptcy proceedings in a timely manner.
   6. Accordingly, I seek that the Court extend the time for lodgement and filing of the relevant documents, and deem the attempted filings made since 6 August 2025 as having been validly filed nunc pro tunc (now for then).

1. The documents relied upon by the Respondents as contextualised by key dates and court orders are as follows:[65]

(a) on 4 June 2025, the Applicant presented the Creditor's Petition;

(b) on 16 July 2025, Registrar Buckingham adjourned the Creditor's Petition to 30 July 2025;

(c) on 30 July 2025 at 10:00 am, the court sent an email to the First Respondent setting out instructions as to how to access the Commonwealth Courts portal;

(d) on 30 July 2025 at 10:03 am, the court sent an email to the First Respondent advising that the matter had been listed for hearing at 9:30 am on 6 August 2025;[66]

(e) on 30 July 2025 at 10:05 am, the court sent an email to the First Respondent with information as to how to oppose a creditor's petition;

(f) on 6 August 2025 at 1:08 am, the First Respondent sent an email to the court setting out various complaints concerning the Applicant's conduct and concluding:

I look forward to hearing from you in regards to this request or the matter being further adjourned by your registrars office so I can seek legal advice and file a counter claim against [the Applicant] if that the case that you do not dismiss it and award damages in my favour immediately.

(g) on 6 August 2025 at 6:24 am, the court advised the First Respondent that his request to appear remotely had been granted and provided dial in details;

(h) on 6 August 2025 at 9:44 am, the First Respondent sent an email to the court advising of connection difficulties and issues with appearing in person;

(i) on 6 August 2025 at 10:29 am and 10:37 am, the First Respondent sent further emails to the court advising of connection difficulties and that he still "cannot connect via the links";

(j) on 6 August 2025 at 10:38 am, the court requested that the First Respondent provide his phone number;

(k) on 6 August 2025 at 10:43 am, the First Respondent provided his phone number to the court;

(l) on 6 August 2025 at 10:58 am, the court advised that "we will attempt to call you when the matter is recalled";

(m) on 6 August 2025 at 11:06 am, the First Respondent sent an email in response:

in the event that it isnt able to be tossed out now and compensation awarded to me for their actions then I see it that an adjournment be given as I cant even be contacted or reach you via phones and the internet link continues to fail with likely reasoning being IT issues thanks to Vodaphone.

(n) on 6 August 2025, Registrar Buckingham made orders as follows:

1. The applicant is allowed to amend Creditor's Petition No BRG439 of 2025 to change the name of the first respondent to "Brad Fisk (also known as Bradley Alan Fisk)".
2. Personal service on the respondents of Petition, copies of the affidavits verifying the Petition and a copy of the consent to act as trustee (if any) be dispensed with.
3. In lieu of personal service, a copy of the Petition, copies of the affidavits verifying the Petition, a copy of the consent to act as trustee (if any) and a sealed copy of this order (said documents) be served as follows:

(a) by pre-paid express post to each respondent at ** M******** Crescent, Wollert; and

(b) by email to each respondent at b**** @hotmail.com; and

(c) by telephoning the mobile telephone number **** *** ***. and informing the person who answers of the order for substituted service, or alternatively, if the mobile telephone number is not answered, sending a short message service (SMS) to the mobile number and providing details of the order for substituted service.

1. Service in accordance with this order shall be deemed good and sufficient service of the said documents upon the respondents.
2. The Petition shall be deemed to be served on the respondents 5 business days after the last method of service provided for in order 2.
3. The hearing date of this Petition be adjourned to 9.30am on 3 September 2025.
4. Costs of and incidental to this application be reserved.

(o) on 6 August 2025 at 2:11 pm, the First Respondent sent an email to the court and stated that there "still remains an issue with the inability to log in and [I] have not received any call from the registrar..."

(p) on 20 August 2025, the First Respondent sent an email to the court in which he stated that he was "disgusted with what happened a few weeks ago". The First Respondent contended that he still had "no access to the Court Systems" and that procedural fairness had not been followed. The First Respondent also sought:

I seek an immediate sealed copy of any orders that were made in regards to matter BRG439/2025 be provided to me as I have no access to the Court Systems, was not forwarded any procedural fairness in the process to date by the plaintiff, not by the registrar, the case worker or any member of the court.

(q) on 26 August 2025, the First Respondent sent an email to the court and stated:

DEAR REGISTRAR

I DO NOT KNOW OR UNDERSTAND WHY YOU ARE IGNORING ME - IS IT DUE TO THE FACT YOU HAVE ACTUALLY SEEN MY EMAILS AND IGNORING OR DISPOSING OF THEM TO AVOID BEING FOUND OUT FOR NOT DOUNG YOUR JOB AND THE COMPLAINTS ON FOOT??

...

(Words as written)

(r) on 3 September 2025, the Creditor's Petition was heard and a Sequestration Order was made. There was no appearance on behalf of the Respondents;[67]

(s) on 8 September 2025, the First Respondent sent an email to the court in which he stated that he was "chasing [the Registry] for assistance and confirmations of receipt with urgent action taken";[68]

(t) on 14 September 2025, the First Respondent sent a further email to the court requesting that confirmation of receipt of his documents be provided;[69]

(u) on 15 September 2025, the First Respondent claims that he was informed of the Sequestration Order by the bank;[70]

(v) 24 September 2025 was the last day for filing an application for review;

(w) on 24 September 2025 at 12:23 pm, the court sent an email to the First Respondent advising how to lodge a formal complaint;

(x) on 24 September 2025 at 12:30 pm, the court sent an email to the First Respondent setting out instructions as to how to access the Commonwealth Courts portal;

(y) on 24 September 2025 at 12:34 pm, the court sent an email to the Respondents advising that a review of a registrar's decision to make a sequestration order must be filed within 21 days of the orders being made;

(z) on 24 September 2025 at 12:36 pm, the court sent an email to the First Respondent advising that "it is important to obtain independent legal advice about your situation" and provided links to some free legal resources;

(aa) on 27 September 2025, the First Respondent again wrote to the court requesting assistance. The First Respondent claimed that "no one ... wants to acknowledge the fact that I've raised complaints";[71]

(bb) on 8 October 2025, the First Respondent sent an email to the court alleging that he and his family had been jeopardised as a result of failing to receive court assistance;

(cc) on 21 October 2025, the court sent the First Respondent an email attaching a link to the court's complaints policy; and

(dd) on 23 October 2025, the Extension Application was filed.

1. The Respondents' difficulties and complaints largely related to the First Respondent's attempt to participate in the hearing on 6 August 2025. It would appear from the First Respondent's emails of 20 August 2025 and 26 August 2025, that he was attempting to obtain orders that had been made (such as the 6 August 2025 orders adjourning the Creditor's Petition to 3 September 2025), but had not received those orders.[72] Further, the First Respondent claims that he did not become aware of the Sequestration Order until 15 September 2025.
2. I accept that the Respondents had significant difficulty with court systems and issues with their own internet and telecommunications. I also accept that the Respondents as self represented litigants had difficulties with court procedure. I accept the First Respondent's claim that he did not become aware of the Sequestration Order until 15 September 2025. Nevertheless, at that point in time, the Respondents still had 9 days within which to file the Review Application.
3. In the circumstances of the case, I approach the Extension of Time Application on the basis that the Respondents have a partial, but not completely satisfactory, explanation for their delay in filing the Extension of Time Application/Review Application. For the purpose of the exercise of my discretion, I shall not place significant weight on the Respondents' delay in filing the Extension of Time Application/Review Application.
4. The next matter that I consider is any prejudice to the other party caused by the delay. There does not appear to be any substantial prejudice to the Applicant because of the Respondents' delay in filing the Review Application.
5. The next matter that I consider is impact on the party seeking the extension of a refusal to grant an extension. A refusal of the Respondents' Review Application would mean that they could not seek review of the Sequestration Order. But I note that a refusal would not preclude the Respondents' Annulment Application.
6. The next matter that I consider is the merits of the Respondents' grounds of opposition to the Creditor's Petition (Grounds of Opposition).
7. The Grounds of Opposition that are relied upon by the Respondents are:

(a) the court ought to look behind the Magistrates Court Orders and determine that there is not a debt owing on the grounds of res judicata,[73] issue estoppel, Anshun Estoppel and abuse of process;

(b) the Bankruptcy Notice is invalid;

(c) the Bankruptcy Notice was not served;[74]

(d) the Bankruptcy Notice and Creditor's Petition constitute an abuse of process[75] malicious prosecution[76] and "vexatious proceedings";[77]

(e) fraud and misrepresentation;[78] and

(f) denial of procedural fairness.[79]

1. I take these to be the same grounds that are relied upon by the Respondents for the purposes of annulment. For reasons set out below under the heading Annulment Application, I consider that the Respondents' Grounds of Opposition do not have any substantive merit.

1. Having regard to all of the considerations set out above, but principally the lack of substantive merit in the Grounds of Opposition, I am not satisfied that it is appropriate to extend the 21 day timeframe provided for in r 2.02(3) of the Bankruptcy Rules. I refuse the Respondents' Extension of Time Application.

1. The Respondents apply to annul the bankruptcies under s 153B of the Act.
2. Section 153B(1) of the Act provides that if the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.
3. If the Court finds that a sequestration order "ought not to have been made", it has a discretion as to whether to grant relief under s 153B(1) of the Act.[80] One matter that is relevant to the discretion to annul is the solvency or insolvency of the bankrupt.[81]
4. In Bulic v Commonwealth Bank of Australia Ltd,[82] Tracey J set out the relevant principles:[83]
   1. An order can be made under s 153B(1) of the Act notwithstanding that the applicant has been discharged from bankruptcy: Re Oates: ex parte Deputy Commissioner of Taxation (1987) 17 FCR 402.
   2. An applicant who seeks an annulment of his or her bankruptcy "carries a heavy burden". It is incumbent on an applicant "to place before the Court all relevant material with respect to his or her financial affairs so that the Court may be properly informed and may make a judgment that is based on the actual circumstances of the applicant": Re Papps: Ex parte Tapp [1997] FCA 1031; (1997) 78 FCR 524 at 531.
   3. In determining whether or not a sequestration order "ought not to have been made" the Court is not confined to a consideration of whether the order should have been made on the facts known to the Court at the time at which it was made. The Court must take account of facts, known at the time at which the sequestration order was made and at which it determines an annulment application, even if those facts were not before the Court at the time at which the sequestration order was made: Boles v Official Trustee in Bankruptcy [2001] FCA 639; (2001) 183 ALR 239 at 243; Re Raymond: ex parte Raymond [1992] FCA 495; (1992) 36 FCR 424 at 426.
   4. A sequestration order "ought not to have been made" if: on the facts known at the time of the annulment application the Court would have been bound not to make the sequestration order: Re Frank: ex parte Piliszky (1987) 16 FCR 396.
   5. The Court will be so satisfied if it is established that the debtor was not at the time the sequestration order was made, indebted to the petitioning creditor: Re Deriu (1970) 16 FLR 420 at 422.
   6. If the Court is so satisfied, it is not precluded from annulling the bankruptcy because the bankrupt had not sought to have the default judgment set aside or failed to oppose the creditor's petition or failed to seek a review of the sequestration order_: Re Raymond: ex parte Raymond_ [1992] FCA 495; (1992) 36 FCR 424 at 426.
   7. The power conferred on the Court by s 153B(1) is discretionary in nature. Even if persuaded that the sequestration order ought not to have been made, the Court can, in appropriate circumstances, decline to annul the bankruptcy: Boles v Official Trustee in Bankruptcy [2001] FCA 639; (2001) 183 ALR 239 at 243.
   8. Considerations which may have a bearing on the exercise of discretion include unexplained delay in the making of the application, whether or not the applicant is solvent, whether or not the applicant has made full disclosure of his or her financial affairs and a failure by the bankrupt to oppose the creditor's petition and attend the hearing at which the sequestration order was made: Re Williams (1968) 13 FLR 10 at 24-5: Boles at 247; Re Papps: ex parte Tapp [1997] FCA 1031; (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7]. Additional considerations are collected in D. A. Hassall, "Annulment of Bankruptcy and Review of Sequestration Orders" (1993) 67 ALJ 761 at 766".
5. In Rigg v Baker,[84] French J held that non appearance and want of opposition to a creditor's petition are relevant to both the question of whether the sequestration order ought to have been made, and to the discretion to annul.
6. The grounds relied upon by the Respondents to support the contention that "a sequestration order ought not to have been made" are the Grounds of Opposition (to the Creditor's Petition). I address each of those grounds below.

Going Behind the Magistrates Court Orders (res judicata, issue estoppel etc.)

1. The first ground relied upon in support of the Annulment Application is that the Court ought to "look behind" the Magistrates Court Orders and determine that there is not a debt owing because of res judicata, issue estoppel, Anshun Estoppel and abuse of process.

1. Courts exercising bankruptcy jurisdiction have long been held to have the power to "look behind" a judgment to determine whether "in truth and reality" a debt is owing.[85] The power may be exercised in a variety of contexts, including on an application to set aside a bankruptcy notice,[86] on the hearing of a creditor's petition,[87] on an application for an annulment[88] or where there is a challenge to a determination on a proof of debt.[89]
2. In Ramsay Health Care Australia Pty Ltd v Compton,[90] (Ramsay) Kiefel CJ, Keane and Nettle JJ explained what a court exercising bankruptcy jurisdiction does when it "looks behind" a judgment:[91]

In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as "res judicata" between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary processes of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order. A Bankruptcy Court has a statutory duty to be "satisfied" as to the existence of the petitioning creditor's debt; a creditor should not be able to make a person bankrupt on a debt which is not provable.

1. Historically, the common circumstances in which courts exercising bankruptcy jurisdiction have exercised the power to "look behind" a judgment, include "a judgment obtained by default or compromise or where fraud or collusion is alleged and inquire whether the judgment is founded on a real debt..."[92] But, as the High Court made clear in Ramsay, the discretion is not limited to cases of fraud, collusion or miscarriage of justice. The discretion should be exercised "where sufficient reason is shown for questioning whether behind the judgment there is in truth and reality a debt due to the petitioning creditor".[93] It may arise even where, as in Ramsay, there has been a fully contested hearing.
2. When the court is considering whether to "look behind" a judgment, there are two questions: first, whether there is a proper basis to exercise the discretion to go behind the judgment, and second, if there is, whether there is in truth and reality no debt owing.[94]
3. Procedurally, the question of whether the court ought to exercise its discretion to "look behind" the judgment to investigate the debt upon which the creditor's petition was based, and to consider whether it was actually owed, can be determined as separate questions;[95] an approach endorsed by the High Court in Ramsay.[96] In that case, an application had been granted to have a separate hearing on the first question by the trial Judge.
4. In Ramsay, the defendant, who was sued on a corporate guarantee, relied upon a defence of non est factum at trial. In what has been described as an all or nothing defence, the defendant did not challenge the quantum of the debt. However, when the successful creditor sought to bankrupt the defendant upon the judgment debt, the defendant opposed the creditor's petition on the ground that the court ought to "look behind" the judgment to determine that there is not "in truth and reality" a debt owing.
5. The defendant submitted evidence in the form of a reconciliation of the accounts between the creditor and the company whose debt he guaranteed. The High Court held that the trial judge was in error in failing to look behind the judgment. The court was satisfied that a substantial question was whether the debt relied upon by the petitioning creditor was owing, and that the court exercising bankruptcy jurisdiction "should proceed to investigate this question in order to decide whether it was open to it to make a sequestration order". In other words, the court should embark on the second stage of the enquiry.
6. A fundamental reason why courts exercising bankruptcy jurisdiction have the power to "look behind" a judgment is that bankruptcy is not mere inter partes litigation. It does not deal only with the rights and obligations of the debtor and petitioning creditor. As Kiefel CJ, Keane and Nettle JJ explained, a court exercising bankruptcy jurisdiction is concerned to "protect the interests of third parties who were not participants in the litigation which led to the judgment in question".[97] To give a practical example, why should a dividend to other creditors be diminished if the debt claimed by the petitioning creditor is not truly owing.
7. The court hearing the application for an annulment has the power to go behind the judgment in the same manner and to the same extent as if the court were hearing the petition, particularly where the judgment was obtained by default.[98]
8. Returning to the present case, the parties agreed that both questions identified in Ramsay should be considered "in one hit"; in other words, the two questions would be heard at the same time. Those questions are, first, whether there is a proper basis to exercise the discretion to go behind the judgment, and second, if there is, whether there was in truth and reality no debt owing.
9. The Respondent raised four grounds for looking behind the Magistrates Court Orders: res judicata, issue estoppel, Anshun estoppel and abuse of process. Those grounds are said to arise because earlier proceedings in VCAT between the Applicant and the First Respondent (but not the Second Respondent) were struck out.

1. On 17 July 2023, the Applicant commenced proceedings in VCAT claiming payment of $17,080 for "Window Shutters" supplied, asserting that they "haven't been paid". The supply date recorded was 29 November 2021. The payment breakdown was recorded as "$14,000.00 Balance of contract, $3,080.00 Costs of Collection".[99]
2. The VCAT application recorded the following description of the problem:[100]

On the 29th of November 2021, the Applicant and the Respondent entered into a contract for the installation of Window Shutters at ** M******** Wollert Victoria.

On the 7th of December 2021, the installation of all shutters occurred at the property.

No payment for the balance of the contract was received.

On the 21st of December 2021, there was a warranty claim raised, this was resolved 6th of January 2022.

On the 28th of February 2022, there was a warranty claim raised. This warranty claim was resolved on the 11th of April 2022.

Despite multiple attempts at contact, the respondent has failed to make payment, citing a request for compensation on time for the warranty claims.

In accordance with clause 5 of the contract, the applicant is claiming the costs of collection in the application of $3,080.00

The applicant is claiming the balance of the contact, plus costs to date, totalling $17,080.00.

1. On 19 December 2023, Member K Knights made directions and ordered that the proceeding be listed for hearing on 16 May 2024.[101] The orders included the following:

...

1. By 31 January 2024, the applicant must send by post or email to VCAT and to the respondent a document headed "Points of Claim" which sets out clearly and in numbered paragraphs:

   1. what claim is being made against the respondent,

   2. each amount that is claimed,

   3. how each amount is calculated or arrived at,

   4. details of loss or damage, and

   5. the relief and remedy sought.

...

1. If a party does not comply with these directions, orders may be made against the party. Such orders may include striking out their claim or defence; excluding evidence on matters not mentioned in the Points of Claim, Defence or Counterclaim; excluding documents not sent to VCAT or the other parties; or adjourning the hearing and requiring the defaulting party to pay filing fees and costs.

1. On 16 February 2024, Member AM Moon set out the background to the proceeding and made orders as follows:[102]

BACKGROUND

1. VCAT made orders on 19 December 2023 to prepare the proceeding for hearing on 16 May 2024.

2. Although the claim exceeds $15,000.00 a compulsory conference was not listed before the hearing because there was no appearance by the respondent at the hearing.

3. On 6 February 2024 the respondent wrote to VCAT advising that he did not receive notice of the directions hearing from the applicant and this is why he did not appear at the directions hearing.

4. The respondent also claimed that the applicant was in breach of VCAT's Orders dated 6 February 2024 and suggested the applicant withdraw his claim.

5. The appropriate response to the respondent's complaint is that there be a further directions hearing at which the respondent can appear and discuss the further conduct of the proceeding.

6. The applicant is advised that if Points of Claim are not filed prior to the directions hearing date that the applicant's claim may be struck out as indicated in Order 13 of the Orders dated 19 December 2023.

ORDER

1. The proceeding is listed for a further teleconference directions hearing on 26 April 2024 at 9:30 am before any Member for a 45 minutes hearing.

1. On 23 February 2024, VCAT sent an email to the parties giving notice of a directions hearing that had been set for 26 April 2024.[103] The email provided:

If you do not attend the directions hearing at the allocated time, the directions hearing will still proceed in your absence and orders will still be made.

(Emphasis in original)

1. On 26 April 2024, Acting Senior Member T Petranis made the VCAT Order (strike out) in circumstances where there was no appearance on behalf of either the Applicant or the First Respondent.[104]
2. On 6 November 2024, the Applicant commenced the Magistrates Court Proceedings seeking $20,885.51 as a debt due and owing under an agreement made on or about 29 November 2021, for the supply of "goods and/or services" by the Applicant to the Respondents. The sum of $20,885.51 comprised the amount of $14,000 plus enforcement expenses in the sum of $2,800 plus interest of $4,085.51.[105]
3. On 8 January 2025, the Magistrates Court entered judgment against the Respondents and made the Magistrates Court Order against the Respondents "on application" for the claim of $20,885.51, interest of $241.07 and costs of $2,774.68, making a total of $23,901.26.[106]

1. A question arises as to what power was exercised by Acting Senior Member T Petranis when making the VCAT Order striking out the VCAT Proceedings.
2. In Martin v Fasham Johnson Pty Ltd,[107] Kyrou J held that VCAT does not have a general power to dispose of a proceeding against the wishes of the applicant "in a manner akin to striking out or dismissal without conducting a hearing of the merits". Such a power is limited to the specific statutory provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
3. The VCAT Act contains a number of provisions which empower VCAT to strike out proceedings where certain conditions are satisfied:

(a) section 75 empowers the Tribunal to make orders summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion, are unjustified proceedings;

(b) section 76 empowers the Tribunal to make orders dismissing or striking out all, or any part, of a proceeding for want of prosecution; and

(c) section 78 empowers the Tribunal to make orders dismissing or striking out a proceeding where "the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding", including where the party fails "to attend the hearing of the proceeding".

1. A difficulty resolving the question of what power was exercised by VCAT when making orders striking out the VCAT Proceeding, is that neither party has adduced evidence as to the reasons given, or even explored the question of whether reasons were given. Each of the powers identified above, would require an express finding to the effect that the statutory criteria has been satisfied and as to the reasons for the exercise of the statutory discretion.[108]
2. Doing the best that I can in the absence of evidence, I conclude that the power exercised by Acting Senior Member T Petranis to strike out the VCAT Proceeding was the power conferred by s 78(2) of the VCAT Act. The Applicant's failure to file points of claim and attend the directions hearing might be characterised as "conducting the proceedings in a way that unnecessarily disadvantages another party to the proceeding".[109] There is nothing to suggest that VCAT formed the conclusion that the proceedings were unjustified, and the extent and nature of the Applicant's default does not meet the usual test of want of prosecution.[110]
3. In Herald & Weekly Times v State of Victoria,[111] the Victorian Court of Appeal stated:

In our view, the Tribunal does have the implied power, in appropriate circumstances, to reinstate a proceeding that it has struck out. Generally, as was pointed out by Kaye, J. in R v. McGowan; Ex parte Macko & Sanderson, an order striking out an action does not terminate it. The latter occurs where judgment is entered in the proceeding or where it is discontinued. An order striking out an action, said his Honour, only has the effect of removing it from the list. It is plain enough, we think, that it would be a serious impediment to the Tribunal's administration of the Act if it could not reinstate a proceeding that was struck out in order to make an otherwise appropriate order in relation to it.

(Emphasis added) (Footnotes omitted)

1. Pizer's Annotated VCAT Act,[112] provides:

...there is an important distinction between an order dismissing a proceeding under s 75 [or, it is contended s 78] of the VCAT Act and an order striking out a proceeding under that section. An order dismissing a proceeding brings the proceeding to an end without the possibility of reinstatement. By contrast, an order striking out a proceeding brings the proceeding to an end with the possibility of reinstatement... Put another way, an order dismissing a proceeding renders the tribunal functus officio whereas an order striking out that proceeding does not.

1. In Blair v Curran,[113] Dixon J stated:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

1. In Shaw v Gadens Lawyers,[114] the Victorian Court of Appeal stated:

Res judicata, or "cause of action estoppel", prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the nonexistence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties.

1. In Clout v Kein,[115] (Clout) the defendants sought orders striking out parts of a further amended statement of claim on the grounds that one of the plaintiffs were estopped from advancing any claim against them by reason of the dismissal of an earlier action brought by it against them, or, alternatively, on the ground of abuse of process.
2. In an earlier proceeding involving the claims the subject of the amended statement of claim, the defendants had sought dismissal of the proceeding on the basis of failure by the plaintiff to provide security for costs in accordance with an order to do so. The application for dismissal was successful and orders were made on the following terms: "Judgment be entered in favour of the first and second defendants on the statement of claim".
3. In dismissing the defendants' application to strike out the amended statement of claim, Holmes J rejected the three grounds raised by them: res judicata, issue estoppel and abuse of process. In relation to the allegation of res judicata, Holmes J stated:[116]

The principle of res judicata prevents the raising a second time of a cause of action which has already been litigated and adjudicated upon. It can apply where judgment has been given by default (as opposed to a mere discontinuance). Thus, in Linprint Pty Ltd v Hexham Textiles Pty Ltd, res judicata was held to prevent the plaintiff from suing for breach of an agreement which had already been the subject of a counter-claim by it in an earlier action by the defendant. The counter-claim had been dismissed after the plaintiff's withdrawal from the trial of the action. The New South Wales Court of Appeal held that the cause of action had merged in the judgment in the earlier proceedings. To an argument that the plaintiff had not had the benefit in the earlier action of a trial on the merits, the court replied that it was its own conduct, in instructing its counsel to withdraw, which had produced that result.

The rationale for the application of res judicata to default judgments may be that they are to be regarded as a form of consent judgment; although equally it may be said that they indicate nothing "but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference has suffered judgment to go against him". But it is clear that there is no universal rule that a default judgment will found a successful plea of res judicata. In Pople v Evans the court held that res judicata did not apply where an action was dismissed for want of prosecution (the plaintiff's trustee in bankruptcy having refused to continue it). The operation of the principle was, in the view of Ungoed-Thomas J, to be limited "to issues which can be fairly regarded or treated as having been disposed of by the order relied on on [sic] their merits, for example, by trial, admission or compromise". And in Baines v State Bank of New South Wales, Powell J took the view that a dismissal of proceedings pursuant to a self executing order for discovery, not following any hearing on the merits, would not give rise to an estoppel or defence of res judicata.

Similarly, the South Australian Supreme Court has held that res judicata is not applicable where the earlier proceedings were dismissed for failing to disclose a cause of action:

"No finding was made as to any fact, nor as to the availability of any cause of action. In those circumstances it seems to me it cannot be said that the cause of action in the first proceeding has merged into a judgment. The principle of res judicata does not have application in these circumstances."

In the light of such authorities, it may be questioned whether a judgment obtained on a procedural default, as this one was, is capable of giving rise to an estoppel based on res judicata. However that may be, it is clear that great care must be taken in defining what may be said to be the res judicata of the first action:

"Default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham L.C., they can estop only for what must 'necessarily and with complete precision' have been thereby determined."

(Emphasis added) (Footnotes omitted)

1. In Bell Corp Victoria Pty Ltd and Ors v Stephenson,[117] (Bell) Ashley J said, in the context of an application for leave to appeal, and by way of "preliminary matter":

First, the Tribunal ordered in part that the plaintiffs' claim be struck out. The language of s.78(2), and a decision of the Tribunal, suggest that in such circumstances the disappointed litigant may start again. Subject to any problem created by s.71(1)(b) that would seem to be so. In the event, subject to any such problem, if the Tribunal's orders stood I consider that the plaintiffs could start again. It could not be supposed that the plaintiffs' claim would be determined apart from the defendant's counterclaim having regard to their interrelationship and to the estimated length of the hearing. Presumably, in a new proceeding, the plaintiffs would be able to adduce evidence in support of their claim.

(Emphasis added)

1. In Hallett v Robert James Lawyers,[118] (Hallett) O'Meara J said, in the context of dealing with a ground of appeal that alleged that orders made by VCAT striking out proceedings, that the appellant had been denied natural justice:

In the last of these respects, it seems that the application pertaining to the appellant's first VCAT action was simply 'rejected' by the Principal Registrar under s 71 of the VCAT Act. There was, as Counsel submitted, no evident determination on the merits. At most, such a course seems akin to having struck the application out, in which circumstances the litigant may be able to start again.[119] In no sense can any issue estoppel or res judicata presently be said to arise.[120] Nor, in any real sense, do any of the factors that might bear about whether or not there might be some other form of abuse of process seem apt.[121]

(Emphasis added)

1. The answer to the Respondents' claim of res judicata is that the VCAT Orders did not involve a determination on the merits of the case. Having regard to the principles set out in Clout, Bell and Hallett, I conclude that the VCAT Order did not give rise to a res judicata, such as to prevent the Applicant bringing fresh proceedings in the Magistrates Court.
2. I am not satisfied there is sufficient merit in the claim of res judicata such that it is appropriate to "look behind" the Magistrates Court Order.

1. In Tomlinson v Ramsey Food Processing Pty Ltd,[122] (Tomlinson) French CJ, Bell, Gageler and Keane JJ said that "issue estoppel":

...operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies".

(Footnotes omitted)

1. An issue estoppel will arise where:[123]

(a) the same question has been decided in earlier proceedings;

(b) the judicial decision that is said to create the estoppel is final; and

(c) the parties to the judicial decision or their privies are the same in the proceeding in which the estoppel is being asserted.

1. A fundamental difficulty for the Respondents in relation to the doctrine of issue estoppel is identifying a question that was decided in the VCAT Proceeding. VCAT did not decide any substantive factual or legal questions. Rather, it struck out the proceeding for non appearance.
2. In Butera v Mitch Karafili & Co,[124] Forbes J held that an order made by consent in VCAT proceedings striking out the proceeding did not give rise to an issue estoppel:

The VCAT Act clearly differentiates an order striking out a proceeding from an order dismissing a proceeding. Numerous cases highlight the distinction in the context of orders under s 75, which specifically grants the power to 'make an order summarily dismissing or striking out all, or any part of a proceeding'. The same distinction is made when orders are made under other provisions of the VCAT Act. This position reflects the distinction existing in other jurisdictions.

(Footnotes omitted)

1. I am not satisfied there is sufficient merit in the claim of issue estoppel such that it is appropriate to "look behind" the Magistrates Court Order.

1. In Tomlinson,[125] French CJ, Bell, Gageler and Keane JJ said that Anshun estoppel:

...operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

(Footnotes omitted)

1. In Clout, Holmes J rejected an argument that the plaintiff was subject to an Anshun estoppel, in circumstances where judgment had been entered because of the plaintiff's failure to provide security for costs. Commenting on fresh proceedings commenced by the plaintiff's liquidator, her Honour stated:[126]

A party may be estopped from raising a claim which it could have litigated in previous proceedings if it was unreasonable for the claim not to have been so litigated. Speaking of a claim which might have been raised as a defence in an earlier action, the High Court in P_ort of Melbourne Authority v Anshun Pty Ltd_ said:

"There will be no estoppel unless it appears that the matter relied upon as the defence [sic] in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."

...

Judgments were conflicting if they appeared "to declare rights which are inconsistent in respect of the same transaction".

There is some doubt as to whether Anshun estoppel has any application where there has been no examination of the merits of the claim in the earlier action. It has been noted that "attempts to apply Anshun to bar claims not previously adjudicated upon have had little success". At the least, it is clear that great care must be exercised in considering whether an Anshun estoppel ought be applied.

The precise content of the Anshun principle is not clear. Plainly, it is a necessary condition that the claim sought to be raised in the second action was capable of being raised in the first. Thereafter, difficulty arises, firstly, in considering how unreasonableness is to be assessed, and secondly, as to whether the existence of special circumstances is a matter to be considered distinct from the question of unreasonableness.

As to the first, a commonly adopted approach has been to ask whether the two proceedings involve the same or substantially the same facts. However, the Victorian Court of Appeal has taken the view that the capacity to raise the claim in the earlier proceeding and the common sub-stratum of facts "are necessary but not sufficient conditions": Gibbs v Kinna. In the same case, it is suggested that the potential for conflict between judgments is an indicator of unreasonableness, rather than a pre-requisite.

On the other hand, in Tanning Research Laboratories Inc. v O'Brien Brennan and Dawson JJ said this:

"A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings ... cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counter-claimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v Anshun Pty Ltd as holding the contrary, except in a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first."

That passage suggests a requirement of potential inconsistency. In Boles v Esanda and in Bazos v Doman the New South Wales Court of Appeal appears to have regarded the question of the potential for conflicting judgments as critical.

(Emphasis added) (Footnotes omitted)

1. Holmes J held that it was not unreasonable for the plaintiff to have failed to make a claim of breach of director's duties in the earlier action. Her Honour also held that there was no risk of inconsistency, in circumstances where there had been a default judgment in the earlier proceedings: "Indeed, the only right which might be said to be manifest from that judgment is the right of the defendants to have judgment by reason of Fibre-Tek's default".[127] Her Honour also regarded it as significant that there had been an early dismissal, rather than a prosecution of the action to judgment.
2. Returning to the present case, as with Clout, the only right which might be said to be manifest in the VCAT Order was the right of the First Respondent to have judgment by reason of the Applicant's non appearance and/or default. There was no examination of the merits of the Applicant's claim in the making of the VCAT Order. There is no potential for conflict between the VCAT order and the Magistrates Court Order. Neither the Applicant nor the First Respondent appeared before VCAT on the day when the VCAT Orders were made. Further, the Magistrates Court Proceeding involved an additional party, namely the Second Respondent. On the other hand, the VCAT Proceeding was struck out pursuant to s 78 of the VCAT Act because of the Applicant's default. Nevertheless, taking all of these matters into account, I do not consider that the Applicant's conduct in commencing the Magistrates Court Proceeding was so unreasonable as to give rise to an Anshun Estoppel.
3. I am not satisfied there is sufficient merit in the claim of Anshun estoppel such that it is appropriate to "look behind" the Magistrates Court Order.

1. In Shao v Crown Global Capital Pty Ltd (In Prov Liq),[128] the High Court stated:

The doctrine of abuse of process is capable of wide application, encompassing almost any aspect of the procedures of a court, and is unconfined by any closed categories. In broad terms, an abuse of a court's process "is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute".

(Footnotes omitted)

1. In Angeleska v State of Victoria,[129] the Victorian Court of Appeal stated:[130]

The authorities make clear that abuse of process principles may be invoked to prevent the re-litigation of cases which have been disposed of by previous proceedings. In this respect, there is a degree of conceptual overlap with the doctrine of Anshun estoppel. It is clear, however, that the Court's power to prevent an abuse of its process can be exercised even where no estoppel arises. In Walton v Gardiner, Mason CJ, Deane and Dawson JJ stated:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, ... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'.

Accordingly, the Court need not conclude that Mrs Slaveska's claims in respect of Incidents 5 to 10 would be barred by an Anshun estoppel in order to consider that the continuation of those claims would be an abuse of the Court's process. Plainly, however, various considerations may inform both analyses.

The focus of an abuse of process analysis is ultimately the substance of proceedings, rather than their form. As a result, in appropriate circumstances, litigation may be regarded as an attempt at re-litigation notwithstanding that it is brought by a different party to the earlier proceeding.

In such a case there must, however, be some relevant connection between the plaintiffs or other special factor rendering the attempted re-litigation an abuse of process. This need not be a subjective intention to misuse the court's procedures. In Batistatos v Roads and Traffic Authority (NSW),[149] the High Court referred with approval to remarks of Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay emphasising there was no 'requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff'. Rather, what was decisive was the objective effect of the continuation of the action.

In Kermani v Westpac Banking Corporation, Robson AJA stated:

The guiding considerations [in a re-litigation type abuse of process analysis] are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:

1. the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;
2. the opportunity available and taken to fully litigate the issue;
3. the terms and finality of the finding as to the issue;
4. the identity between the relevant issues in the two proceedings;
5. any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
6. the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
7. an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process: Rippon v Chilcotin Pty Ltd.

The question, therefore, is whether it would be unjustifiably oppressive to the respondents or would otherwise bring the administration of justice into disrepute to allow Mrs Slaveska to maintain her claims in respect of Incidents 5 to 10 (subject to proper re-pleading) given her significant involvement in her husband's proceeding.

(Footnotes omitted)

1. While there is substantial overlap between the claims of Anshun estoppel and abuse of process, as the passage set out above indicates, they have some separate work to do. For substantially the same reasons as those set out above in relation to Anshun estoppel, I do not consider that the Magistrates Court Proceedings constituted an abuse of process. In circumstances where the VCAT Proceeding was struck out because neither party appeared on the day of the directions hearing, I do not consider that it was "unjustifiably oppressive" to the First Respondent (and certainly not the Second Respondent), "or would otherwise bring the administration of justice into disrepute" to allow the Applicant to bring its claims in the Magistrates' Court Proceedings.
2. I am not satisfied there is sufficient merit in the claim of abuse of process such that it is appropriate to "look behind" the Magistrates Court Order.
3. I address the Respondents' argument that the Bankruptcy Notice and/or Creditor's Petition constitute an abuse of process on the ground that they were issued or prosecuted for a collateral purpose, separately, below.

1. I conclude that there is not a proper basis to exercise the discretion to go behind the Magistrates Court Order for two principal reasons: first, there is no substantive merit to the claims of res judicata, issue estoppel, Anshun estoppel or abuse of process; second, the Respondents have not adduced any probative evidence of a substantive defence to the claims made by the Applicant - noting that the complaints made about delayed installation, non attendance and "poor handyman work" do not establish a prima facie defence or cross claim.[131]
2. I am not satisfied that the Sequestration Order ought not to have been made on the basis of the claims of the Respondents to go behind the Magistrates Court Order. I also note that the Second Respondent was not a party to the VCAT Proceeding.

1. The second ground relied upon in support of the Annulment Application is that the Bankruptcy Notice is invalid. This ground relies on the same matters as the previous ground: "The VCAT matter having been struck out means that there was no enforceable judgment or order upon which to base a bankruptcy notice".[132] For reasons given in relation to the previous grounds, I am not satisfied that the Bankruptcy Notice was invalid or that the Sequestration Order ought not to have been made on that basis.

1. The third ground relied upon in support of the Annulment Application is that the Bankruptcy Notice was not served on either of the Respondents.
2. The Applicant relies on two affidavits of Daniel Fenton affirmed 10 April 2025 to establish service of the Bankruptcy Notice on the First and Second Respondent, respectively. The affidavits, which are in similar terms, depose to service of the Bankruptcy Notice at 9:12 pm on 10 February 2025, by leaving them on the "front steps" of the Respondents' property at ** M******** Crescent, Wollert.
3. Each affidavit provides the following response in relation to service:[133]

At the time of service, I spoke with a male person via the intercom doorbell system. He declined to disclose his name but identified himself as the property owner. I informed him I was in possession of important legal documents for Brad Fisk and Aimee Kerr. The male became extremely aggressive. He claimed I was trespassing and threated to "kick [my] head in" if I did not leave immediately, followed by what sounded like him forcefully kicking the closed front door from inside the property. I explained the contents of the documents and that they would be left on the front steps. The documents were then left on the front steps at the abovenamed address.

(Words as written)

1. In the First Fisk Affidavit, the First Respondent responds to Mr Fenton's allegations. He has deposed that:
   1. Improper and Irregular Service Attempts
      1. At no time were the Applicants' documents lawfully served on either myself or my partner.
      2. No documents were handed to us, left at our premises, or otherwise delivered in compliance with Bankruptcy Regulations 2021 rr 102-104 or Federal Circuit and Family Court Rules.
      3. On or around 10 February 2025, a person who later claimed to be a process server, in documents only seen for the first time on 17 November 2025 - contrary to what illusions the applicant[s] are trying to show, attended our home at approximately 21:30 hours.
      4. My partner heard the doorbell, and attempted to observe the individual via the doorbell camera, without success as no body present on the camera, as she was too frightened to open the door at that time of night, especially as we were putting our child to bed.
      5. The individual repeatedly pressed the doorbell but refused to identify himself, refused to step into picture of the camera, refused to show any form of identification, refused to state his name, refused to show his face to the camera, and refused to disclose the company he worked for or any registration number for his employment, he refused to identify what he was attending our property for, he refused to state why he was on our property, refused to leave the property when requested to do so, only leaving when threatened with police being called for trespass, intimidation of a female and child, harassment of a young family late at night.
      6. His conduct caused significant concern. My partner called out through the doorbell intercom requesting that he identify himself and display his ID to the camera. He refused multiple times. She requested he show his ID Badge and asked what he was at our property for. He refused to do so or answer.
      7. I came from the back room of the house, our son's bedroom where I was settling our child and also requested that the individual identify himself and show his ID and his face to the camera.
      8. The individual again refused. I then instructed him to leave the property or I would contact the police for criminal trespass, intimidation of a female and child, harassment of a young family late at night.
   2. False or Misleading Affidavit Evidence
      1. At not time did I "identify myself as the property owner", contrary to what the Applicants' affidavit claims.
      2. At no point did he inform me he "was in possession of important legal documents for Brad Fisk and Aimee Kerr", contrary to what the Applicants' affidavit claims.
      3. At no time did I threaten to "kick his head in," contrary to what the Applicants' affidavit claims.
      4. At no time did I "kick a closed front door from inside the property", especially noting our son was awake by being disturbed at the time we were settling him, contrary to the what the Applicant's affidavit claims.
      5. The Applicants' own affidavit concedes only that I threatened to remove him from the property and said I would call police if he continued refusing to identify himself.
      6. These statements were made to protect my family and my home, and are consistent with lawful rights under Victorian property law, including the principles described in Plenty v Dillon (1991) 171 CLR 635.
      7. At no time did the individual leave any packages, envelopes, or documents at the property.
      8. Annexure "B" - a Series of photographs taken on 18 November 2025 between 02:03 and 02:06 hours at ** M******** Crescent, Wollert 3750 Victoria - present the evidence relied upon to not only discredit, but prove the deliberate false and misleading sworn affidavits by Daniel Fenton on two occasions that can be seen to have occurred.
      9. I believe that the affidavit filed by the Applicants contains this to be such that, false and misleading statements, including the above claims and that service was attempted lawfully.
      10. These statements are untrue. I believe they were made for the purpose of obtaining a bankruptcy order through deception.

1. In the Kerr Affidavit, the Second Respondent responds to Mr Fenton's allegations.[134] Her evidence was in similar terms to that of the First Respondent. She concluded by saying: "At no time did the individual leave any packages, envelopes, or documents at the property".[135]
2. Regulation 102 of the Bankruptcy Regulations 2021 (Cth) (Bankruptcy Regulations) provides:

Service of documents

1. Unless the contrary intention appears, if a document is required or permitted by the Act or this instrument to be given or sent to, or served on, a person (other than the Inspector-General, the Official Receiver or the Official Trustee), the document may be:

   1. sent by a courier service to the person at the address of the person last known to the person serving the document; or

   2. ...

   3. given in a manner specified in section 28A of the Acts Interpretation Act 1901; or

...

1. For the purposes of paragraph (1)(a) or (b), in the absence of proof to the contrary, the document is taken to have been received by, or served on, the person when the document would, in the due course of business practice, be delivered to that address or document exchange.

...

1. Section 28A of the Acts Interpretation Act 1901 (Cth) provides:

Service of documents

1. For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then the document may be served:
   1. on a natural person:
      1. by delivering it to the person personally; or
      2. by leaving it at, or by sending it by pre - paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
   2. on a body corporate - by leaving it at, or sending it by pre - paid post to, the head office, a registered office or a principal office of the body corporate.
2. Nothing in subsection 1:
   1. affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
   2. affects the power of a court to authorise service of a document otherwise than as provided in that subsection.

1. The permitted methods of service of a bankruptcy notice include "by leaving it at... the address of the place of residence... last known to the person serving the document".[136]
2. None of the parties sought to cross examine the above deponents. This makes the resolution of factual conflict difficult. Ordinarily, in the context of an interlocutory application, such as the Extension of Time Application, the application would be resolved without cross examination. But here, the parties have proceeded on the basis that both the Extension of Time Application and the Review Application, if an extension were granted, would be heard at the same time. Further, the Annulment Application is not an interlocutory application. In the usual case, disputes of fact in the context of non interlocutory applications would be resolved by cross examination.
3. Because the Respondents were self represented, I raised with the parties the right to give notice of an intention to cross examine, and some of the difficulties that I might encounter in resolving factual questions (such as the disputed question of service) if there were no cross examination. Despite this, both parties were content to proceed without cross examination, and no adjournment was sought.
4. In Petkovski v Galletti,[137] the Victorian Court of Appeal described the difficulties faced by a trial Judge in resolving a conflict in evidence where there has been no cross examination:

The difficulty of resolving conflicts in evidence when there is no cross examination (as in this case) was here demonstrated. For example, the applicant claimed that he was unable to work more than five hours per day: Mr Bedi thought he was exaggerating his disability and that he could work longer hours. One of the factors which persuades us that the applicant has made out his case was that, as it seemed to us, the preponderance of the medical evidence did not support the views of Mr Bedi. Further, we thought that there was strength in the submission of Mr Gillies that it would not be right to reject the applicant's version when the respondent's right to cross examine him was not exercised. That is not to say, of course, that an applicant's untested version must always be accepted each case will be decided upon its own facts.

(Emphasis added)

1. I approach the question of service on the basis that "the Court must make a decision, however unsatisfactory and inadequate the materials made before it may be".[138]
2. For the purpose of s 28A of the Acts Interpretation Act 1901 (Cth), the first question is: what is "the address of [each of the Respondents] last known to the person serving the document".
3. In Burrows v Macpherson and Kelley Lawyers (Sydney) Pty Ltd,[139] Jackman J considered the proper interpretation of reg 102 of the Bankruptcy Regulations. His Honour applied the decision of the Full Court in Skalkos v T & S Recoveries Pty Ltd,[140] which stood for the proposition that under earlier equivalent provisions, the last known address of the person is the address which has been made known by the applicant, as at the time closest to the date in question.
4. Service of the Bankruptcy Notice was effected at ** M******** Crescent, Wollert. This is the same address as is recorded as the address of each of the Respondents in their affidavits. It is the same address as was given by the Applicant as the address of the First Respondent in the VCAT Application both as the address of the First Respondent and the delivery address for the goods. It is also the address given by the Applicant for each of the Respondents in the Magistrates Court Proceedings[141] and the Bankruptcy Notices. Further, putting to one side the factual disputes as to what was said on 10 February 2025, being the date of purported service, it is clear that Mr Fenton, being the Applicant's agent, attended the property at ** M******** Crescent, Wollert, on that date, in accordance with instructions given to him by the Applicant, and made contact with the First Respondent, and that the Second Respondent was also present.
5. While the Applicant's evidence on this question is somewhat indirect, I find that ** M******** Crescent, Wollert was the "the address of [each of the Respondents] last known to [the Applicant]". I note for completeness, that there is no evidence that the Respondents had changed address at any point between the date of the VCAT Proceedings and the date of purported service. Their presence at the address on 10 February 2025 supports this conclusion. In the absence of a change in address as a matter of fact, I find that the Applicant did not know of an address other than ** M******** Crescent, Wollert at the critical time.
6. The next question is whether Mr Fenton left the Bankruptcy Notices at ** M******** Crescent, Wollert on the date of purported service, as deposed to by him. Against this, the First Respondent has deposed that "at no time did the individual leave any packages, envelopes, or documents at the property".[142] The Second Respondent refers to "improper and irregular attempts at service"[143] and to "documents only seen for the first time on 17 November 2025". None of Mr Fenton, the First Respondent or the Second Respondent were cross examined.
7. On the basis of the evidence before me, I conclude on the balance of probabilities that the Bankruptcy Notices were left at ** M******** Crescent, Wollert, as deposed to by Mr Fenton. He gave direct evidence about that matter. On the other hand, the First Respondent's evidence is in the form of a bare denial. He does not depose as to what searches he made around the front door and when. Similarly, the Second Respondent's evidence is also somewhat conclusionary. The lack of detail in the Respondents' evidence undermines the probative value of their denials. For example, there is no evidence to the effect that either of Respondents searched the front of the property at any point in time after Mr Fenton left it.
8. I reach this conclusion regardless of whether the onus of proof was cast on the Respondents (Annulment Application)[144] or the Applicant (Review Application in the event that the Extension of Time Application were granted).
9. The Respondents sought to rely on the House Photos[145] in order to challenge Mr Fenton's evidence that "the documents were then left on the front steps" of the property at ** M******** Crescent, Wollert. The photos sought to be tendered showed that there are no steps at the front of the property, rather there is a row of bricks in front of the house door. According to the Respondent's argument, there are no "steps". The Applicant objected to reliance by the Respondents on the photos on the basis that they had been late served and that he had not been given an opportunity to respond to them.
10. I do not regard the apparent discrepancy between Mr Fenton's account that "the documents were then left on the front steps" and House Photos at ** M******** Crescent, Wollert, as materially undermining Mr Fenton's evidence. A non technical approach to the reference "front steps" could include area in front of the front door, which includes a row of bricks. Given the lack of probative value of the House Photos to resolution of the facts in issue, and the late filing of the material,[146] I refuse the Respondents' tender of the House Photos.
11. I am satisfied with proof of service of the Bankruptcy Notice on the Respondents. Having not complied with the Bankruptcy Notice that was served, I am satisfied that each of the Respondents committed the act of bankruptcy alleged in the Creditor's Petition. I am not satisfied that the Sequestration Order ought not to have been made on the basis that the Bankruptcy Notice was not served on each of them.

Abuse of process, malicious prosecution, vexatious proceedings

1. The fourth ground that is relied upon is that the Bankruptcy Notice and Creditor's Petition constitute an abuse of process, malicious prosecution and "vexatious proceedings".
2. I shall address each of these in turn.

1. In Yarranova Pty Ltd v Shaw (No 2),[147] Gordon J stated:

An abuse of process occurs when the purpose of bringing the proceedings is not to prosecute them to a conclusion, but to use them as a means of obtaining some advantage for which they are not designed or for some collateral advantage beyond what the law offers: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 526. There is a heavy onus on the person alleging the abuse of process. In any particular case, whether there is a use of the process or an abuse of it depends upon the purpose rather than the result: Re Excel Finance Corporation (Receiver and Manager Appointed); Worthley v Australian Securities Commission [1993] FCA 108; (1993) 41 FCR 346. To establish abuse of process, more than mere assertion is required: Davidova v Murphy [2009] FCA 601 at [91] citing Watts v Adelaide Bank Ltd [2009] FCA 420.

It is an abuse of process for a judgment creditor to pursue bankruptcy proceedings "for the purpose of stifling litigation": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39; (1908) 6 CLR 382 at 396. So, for example, if the purpose of the bankruptcy notice is to put pressure on a debtor to pay a debt rather than to invoke the Court's jurisdiction in relation to insolvency, then the filing of a bankruptcy notice is an abuse of process: cf Maxwell-Smith v S & E Hall Pty Ltd, in the matter of Maxwell-Smith [2006] FCA 825; (2006) 233 ALR 81.

1. In Joseph v Segelov,[148] Stewart J stated:

The party alleging an abuse of process, being the applicant, bears the onus of establishing the purpose for which the bankruptcy notice was issued and that it was improper... The allegation of an abuse of process is a serious one which cannot be made without a sufficient factual foundation and the party alleging it bears a "heavy onus" in establishing its existence.... The time at which to ascertain whether a bankruptcy notice is an abuse of process is the time when it is issued.... It is not an improper purpose to issue a bankruptcy notice for the purpose of having a debt paid, so long as the creditor intends to invoke the Court's bankruptcy jurisdiction if it is not...

(Footnotes omitted) (Emphasis added)

1. The Respondents contend that the Bankruptcy Notice and/or Creditor's Petition constitute an abuse of process. The Respondents' principal contention would appear to be that the Applicant's "initiation of bankruptcy proceedings, knowing that the alleged debt had been struck out by VCAT and was not enforceable, was done without reasonable cause". The Respondents also contend that the Applicant intends to use the bankruptcy proceedings "as a means of coercion and harassment rather than to recover a lawful debt".[149]
2. Another matter that is relied upon by the Respondents in support of the allegation of abuse of process is the initial filing of these proceedings in the Queensland Registry. The fact that the Applicant's legal representatives are based in Brisbane is a likely explanation for the choice of venue. In the absence of some evidence of improper motive or collateral purpose, I do not draw any adverse conclusions based on choice of initial Registry.
3. The principal matters that are relied on by the Respondents to support the claim of abuse of process, are the same matters underpinning the claims of res judicata, issue estoppel, Anshun estoppel and abuse of process in the context of the application to go behind the Magistrates Court Order. I have rejected the substance of each of those claims. For the same reasons, I do not consider that lack of reasonable cause and collateral purpose are made out.
4. I am not satisfied on the basis of the evidence before me that the Applicant had a collateral purpose in issuing the Bankruptcy Notice or presenting and prosecuting the Creditor's Petition, or that they are otherwise an abuse of process. The Respondents have not discharged the "heavy onus"[150] of establishing abuse of process.

1. In Mutton v Baker,[151] Whelan and Santamaria JJA referred with approval to what was said by the Privy Council in the case of Amin v Bannerjee:[152]

The action for damages for malicious prosecution is part of the common law of England... The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and is designed to discourage the perversion of the machinery of justice for an improper purpose.

1. The Respondents' claim that the Bankruptcy Notice and Creditor's Petition constitute the commission of the tort of malicious prosecution fails because there is no evidence that the Applicant issued those proceedings with malice. I also note that the Respondents have not adduced any probative evidence addressing the substance of the Applicant's claim, being that it was owed moneys for windows supplied.

1. Part 8 of the FCFCOA Act makes provision with respect to "Vexatious Proceedings".
2. Section 239 of the FCFCOA Act applies where a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.
3. The Respondents' claim that the Creditor's Petition constitutes "vexatious proceedings" fails because there is no evidence before me that the Applicant has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals.

1. The fifth ground relied upon by the Respondents as a reason why the Sequestration Order ought not to have been made is the claim that it "was obtained by fraud, misrepresentation".[153]
2. The matters relied in support of these allegations, would appear to be the same matters that are relied upon in support of the claims of res judicata, issue estoppel, Anshun estoppel, abuse of process, malicious prosecution and "vexatious proceedings". For reasons that I have set out above, I do not consider that there is any substantial merit to these claims.
3. The Respondents have sought to contend that the evidence of Mr Fenton are untrue, and, they would also contend, are "misleading and deceptive".[154] In the absence of cross examination, apart from the issue of delivery of the Bankruptcy Notices, I cannot resolve the factual differences between Mr Fenton's account of what happened at the time of service of the Bankruptcy Notices and the Respondents' account. The First Respondent has not discharged the onus of proof that a sequestration order ought not to have been made on the ground that Mr Fenton's account is false (misleading and deceptive).

1. The sixth matter that the Respondents rely on as a reason why the Sequestration Order ought not to have been made is the claim of a denial of procedural fairness:[155] "The creditor's failure to serve me deprived me of the right to appear and oppose the petition".[156]
2. I do not regard the First Respondent's evidence that "I was not served or notified of any hearing"[157] as establishing even a prima facie case that the Creditor's Petition was not served on either of the Respondents in accordance with the 6 August 2025 Orders for Substituted Service (presumably made pursuant to s 309(2) of the Act).
3. In order to prove that the Sequestration Order ought not to have been made on the basis of non service of the Creditor's Petition, the Respondents would need to demonstrate that the Orders for Substituted Service was not complied with. I am not satisfied on the basis of the First Respondent's bare denial, that service of the Creditor's Petition was not done in accordance with the Orders for Substituted Service,[158] and hence, I am not satisfied that the Sequestration Order ought not to have been made on the ground of denial of procedural fairness.
4. The Respondents take issue with the terms of the Orders for Substituted Service ("if [the Applicants, their lawyers and the Trustees] had been honest... Registrar Buckingham would not have made such punitive orders of 5 days"),[159] but have not sought review of the decision to make that order.

1. Having concluded that the threshold requirement in s 153B of the Act is not satisfied (that the Sequestration Order ought not to have been made), the discretion to annul the Respondents' bankruptcies is not enlivened. The Respondents' Annulment Application must be dismissed.
2. In the course of writing my judgment, I have become aware that there is no evidence before me as to service of creditors by a notice to creditors in accordance with Form B11 and r 7.03 of the Bankruptcy Rules. Because of the conclusion that I have reached on the Annulment Application, it is not necessary for me to address that non compliance.

1. It is not possible for me to address the question of discretion, because that would require some consideration of the ground upon which a Sequestration Order ought not to have been made (a matter that I have not found). Nevertheless, I note that there are several matters that would militate against a favourable exercise of discretion, and they are, the failure by the Respondents to file statements of their affairs in accordance with s 54 of the Act,[160] and, the lack of evidence of solvency.[161]

1. The Respondents' material[162] seeks numerous other orders including general, special, aggravated and exemplarily damages against the Applicant, the Applicant's lawyers and the Trustee; injunctions to prevent each of those persons dealing with assets; reference of various persons to the Chief Justice of Queensland, the Australian Federal Police, the Commonwealth Director of Public Prosecutions, the Inspector General in Bankruptcy and the Australian Financial Security Authority as well as any other orders that the court "sees fit for this matter". None of the additional relief that is referred to is relevant to the Extension of Time Application or the Annulment Application, and most appear to have, as a premise, success in one or both of those applications. For reasons set out above, both applications have not succeeded. There is no basis in the material before me for the making of orders, other than orders dismissing the Respondents' Applications and as to costs.

1. I am not satisfied that the time provided for by r 2.02(3) of the Bankruptcy Rules ought to be extended. Accordingly, I shall dismiss the Respondents' Extension of Time Application.
2. I am not satisfied that the Sequestration Order ought not to have been made. Accordingly, I shall dismiss the Respondents' Annulment Application.

1. I shall hear the parties on the question of costs.
2. Having regard to the conclusion that I have reached in relation to both the Extension of Time Application and the Annulment Application, the issues that the Trustee sought to raise, concerning the appropriate orders to get rid of the bankruptcies, do not arise. I note that some of the authorities that the Trustee relies on predate Bechara,[163] where the Full Court held that the Court cannot both set aside a sequestration order and annul the bankruptcy, because once set aside, there is no bankruptcy to annul.[164]

I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary.

[1] Affidavit of Aimee Kerr affirmed 18 November 2025 at [3(a)].

[2] Orders made by Judge Fary on 21 November 2025, Order 1.

[3] Affidavit of Jasmine Layla Law affirmed 17 November 2025, Exhibit JLL-2, p [59] (Law Affidavit).

[4] Law Affidavit, Exhibit JLL-2, p [66].

[5] Law Affidavit, Exhibit JLL-3, pp [74]-[78].

[6] First and Second Affidavits of Daniel Fenton sworn 10 April 2025, pp [12]-[13] (Fenton Affidavits).

[10] Amended on 7 August 2025 to reflect name change orders made by Registrar Buckingham on 6 August 2025, Order 1.

[11] Affidavit of Janel Pearce affirmed 28 October 2025, Annexure B at [4].

[12] First and Second Affidavits of Kimberly Sze Ying Ho affirmed 28 August 2025; Affidavit of Levi Jonathan Smouha affirmed 29 August 2025.

[13] Orders made by Judge Fary on 21 November 2025, Order 1.

[14] Affidavit of service of Creditor's Petition on the First Respondent, Proposed Exhibit A3.

[15] Affidavit of service of Creditor's Petition on the Second Respondent, Proposed Exhibit A3A.

[16] Affidavit of service of Creditor's Petition, Proposed Exhibit A5.

[17] Orders made by Judge Fary on 1 December 2025, Order 1.

[18] Service of First Respondent, Exhibit A1; Service of Second Respondent, Exhibit A2.

[26] pdf p [28]. Affidavit of service of Bankruptcy Notice on First Respondent, pdf p [41]; Affidavit of service of Bankruptcy Notice on Second Respondent.

[36] Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 per Allsop CJ, Markovic & Colvin JJ at [17]-[31]. In Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193, Emmett J held that this entailed "a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar" (at [10]).

[37] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 [2021] FCAFC 143; (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2]-[4] and [18]-[29].

[38] Section 254(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act).

[39] See the discussion in Pitman v Park (Liquidator), in the matter of BAM Recycling Pty Ltd (in liq) [2020] FCA 887 at [28].

[40] Compare r 1.04 of the Bankruptcy Rules.

[41] [2021] FCAFC 34; (2021) 286 FCR 166.

[43] See r 2.02(3) of the Bankruptcy Rules.

[45] Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at p 478.

[46] Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [28] (Kenny J) (Bradshaw).

[47] [2012] VSCA 232; (2012) 46 VR 1 (Harper, Tate JJA and Beach AJA) (Spotlight) at [17] and [18].

[49] To use the characterisation adopted in Spotlight.

[50] Save for the leave to file a short written submission.

[52] Substituted service on the First Respondent, Exhibit A3.

[53] Substituted service on the Second Respondent, Exhibit A3A.

[55] [2009] FCA 1073; BC200908919.

[56] Di Iorio v Wagener [2015] FCA 524; BC201504416 (Di Iorio).

[57] Perovich v Tesla Nominees Pty Ltd [2006] FMCA 1342.

[58] See for example Horne in their capacity as joint and several liquidators of Australian Property Custodian Holdings Ltd (recs and mgrs apptd) v Retirement Guide Management Pty Ltd [2017] VSCA 47; (2017) 54 VR 325 at [161].

[60] Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550.

[61] Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 195.

[62] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].

[63] [2021] FCAFC 34; (2021) 286 FCR 166

[66] Exhibit R3, Annexure J, p 11; Orders made by Registrar Schmidt on 30 July 2025, Order 1.

[67] Orders made by Registrar Schmidt on 3 September 2025, Order 1.

[70] The First Respondent made this by way of oral submissions at the Hearing.

[72] It would appear that the First Respondent subsequently obtained a copy of the 6 August 2025 orders: Exhibit R6, the First Respondent's "Further Submissions - Response to Law Affidavit" at [42E].

[80] Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307; BC200704737 at [12].

[81] Pollock v Deputy Federal Cmr of Taxation (1994) 94 ATC 4148 (Pollock); Re Finn; Ex parte Amoco Australia Ltd [1982] FCA 49; (1981) 41 ALR 487; 58 FLR 54.

[82] [2007] FCA 307; BC200704737 at [12].

[83] In a passage endorsed by the Full Court in Francis v Eggleson Mitchell Lawyers [2014] FCAFC 18 at [16].

[84] [2006] FCAFC 179; (2006) 155 FCR 531 at [77].

[85] For recent consideration, see JML Rose Pty Ltd v Jorgensen (No 2) [2025] FCA 282 at [3], [24]; Savage v Soloman (No 2) [2021] FedCFamC2G 384 at [2], [5]; Clark v Clark-Ugle [2019] FCCA 1482 at [11], [16].

[86] Katter v Melhem (No 2) [2014] FCA 1176; (2014) 319 ALR 646.

[87] E.g. Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132 (Ramsay).

[88] E.g. Shaw v Yarranova Pty Ltd [2016] FCA 88.

[89] E.g. Cannon (Bankrupt) v Scott (Trustee), in the matter of Cannon [2024] FedCFamC2G 861 at [35]; Davis v Viglianti [2024] FedCFamC2G 505; Hoy v Hurst-Meyers [2024] FedCFamC2G 187 (affirmed on appeal in Hurst-Meyers v Hoy [2024] FCA 1499); One Flush Plumbing Services Pty Ltd v St Clair [2023] FedCFamC2G 1118; Re Quatrovision Pty Ltd (In Liq) [1982] 1 NSWLR 95 at 103.

[90] [2017] HCA 28; (2017) 261 CLR 132.

[92] See Corney v Brien [1951] HCA 31; (1951) 84 CLR 343.

[93] Ramsay where Kiefel CJ, Keane and Nettle JJ at [38] endorsed contentions at [37].

[94] Thompson v Lane (Trustee) [2023] FCAFC 32; (2023) 410 ALR 439 (Thompson) at [145].

[95] See Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 22.01.

[96] Ramsay per Kiefel CJ, Keane and Nettle JJ at [16].

[100] Law Affidavit, Exhibit JLL-2, pdf pp [60]-[61].

[103] Law Affidavit, Exhibit JLL-2, p 67.

[106] Fenton Affidavits, Annexure A, pp 12-13.

[107] [2008] VSC 289 at [27].

[108] Compare Martin v Fasham Johnson [2008] VSC 289 at [29].

[109] See s 78(1)(g) of the VCAT Act and the Victorian Civil and Administrative Tribunal Practice Note (PNVCAT1) at [9].

[110] See ACN 115 918 959 Pty Ltd (fka Pearl Hill Pty Ltd) v Moulieris [2022] VS 555 at [34], citing Bishopsgate Insurance Australia Ltd v Deloitte Haskins & Sells [1993] 3 VR 864.

[111] [2006] VSCA 146 at [19].

[112] Nekvapil E (6th ed, Thomson Reuters, 2017) at [VCAT.75.60].

[113] [1939] HCA 23; (1939) 62 CLR 464 at 531 - 532.

[114] [2014] VSCA 74 at [59].

[115] [2001] QSC 401 at [25].

[117] [2003] VSC 255 at [54].

[118] [2021] VSC 363 at [44].

[119] Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255, [54]; Weber v Deakin University [2015] VSC 703; (2015) 50 VR 645 at [36].

[120] See generally, Derks v R&J Fibreglass Pty Ltd [2009] VSC 601.

[121] Kermani v Westpac Banking Corporation (2012) 36 VR 100 at [97] and Angeleska v State of Victoria [2015] VSCA 140; (2015) 49 VR 131 at [155]- [159].

[122] [2015] HCA 28; (2015) 256 CLR 507, 517 [22].

[123] Kuligowski v Metrobus (2004) 220 CLR 373 at [21].

[124] [2024] VSC 178.

[125] [2015] HCA 28; (2015) 256 CLR 507 at 517 [22].

[129] [2015] VSCA 140; 49 VR 131.

[131] Kerr Affidavit at [4]. Noting that the material refers to a warranty claim that the Applicant contended was resolved: see Law Affidavit, pdf p [61].

[134] pdf pp [7]-[8], esp at [5(d)-(g)].

[136] Section 28A(1)(a)(ii) of th_e Acts Interpretation Act 1901_ (Cth).

[137] [1994] VicRp 32; [1994] 1 VR 436.

[138] Re Masters; Ex parte Gerovich [1985] FCA 354 at [9].

[139] [2023] FCA 622.

[140] [2004] FCAFC 321; (2004) 141 FCR 107.

[145] See Fourth Fisk Affidavit, Annexures B #1 to Annexure B #9.

[146] Order 3 of the orders made by Judge Egan on 29 October 2025 gave a filing deadline of 5 November 2025. On 6 November 2025, the Respondents requested an extension of the filing deadline for a period of 4 days, until 9 November 2025. The request was supported by the Second Fisk Affidavit. On 7 November 2025, each of the Applicant and the Trustee responded by advising that they had no objection to the extension. On or around 9 November 2025, the Respondents subsequently filed the Annulment Application that was supported by the Third Fisk Affidavit. The Fourth Fisk Affidavit is dated 18 November 2025 and was handed up to me at the Hearing on 21 November 2025. The Applicant and Trustees' solicitors advised me that they had not been served with the Fourth Fisk Affidavit prior to the date of the Hearing.

[147] [2014] FCA 616 at [90] and [91].

[148] [2025] FCA 1340.

[149] First Fisk Affidavit at [2(b) and (c)].

[150] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 526.

[151] [2014] VSCA 43.

[152] [1947] AC 322.

[156] Third Fisk Affidavit at [3(f)].

[157] Third Fisk Affidavit at [3(c)].

[158] Compare Exhibits A3, A3A and A5.

[159] First Respondent's "Further Submissions - Response to Law Affidavit" at [42E].

[161] Trustee's Affidavit at [5] and [8].

[162] For example Exhibit R1 at [11], Exhibit R3 at [1] and Exhibit R6, the First Respondent's "Further Submissions - Response to Law Affidavit".

[163] [2021] FCAFC 34; (2021) 286 FCR 166.