Silvas, Theodor & The Official Trustee In Bankruptcy As Trustee of the Bankrupt Estate of Theodor Silvas v Silvas, Maureen [1997] FCA 206

In this matter the bankruptcy notice was issued in early December 1996. There is evidence from a licensed process server that she received a bankruptcy notice for service in early December 1996. On 8 December 1996 she attended 2 Wells Street, Thornleigh where the debtor is registered as owner of an interest as tenant in common. There was no-one present at the premises. On 3 January 1997 she again attended the premises with the same result. On 28 January 1997 she attended the premises and spoke to a male who said that the debtor was not there. There were four further attendances with the same result in the period 30 January 1997 through to 11 February 1997. On 20 March 1997 the process server attended the premises and the person responding said he had contact with the debtor but would not say when and where. In addition inquiries of the Hornsby Shire Council, made on behalf of the applicant, indicated that rate notices were sent to the premises in the name of the debtor. It is proposed to effect substituted service by sending a copy of the bankruptcy notice by ordinary pre-paid post to the debtor at 2 Wells Street, Thornleigh and in addition by delivery to a person over the age of sixteen years at that address. I am satisfied that as a practical matter personal service has proved ineffective and also that the proposed form of service is reasonably likely to bring home to the debtor notice of the relevant procedures. Accordingly, I am prepared to grant the application. As an alternative submission the applicant has submitted that an order for substituted service may not be required in view of the recent amendments to the Bankruptcy Act and Regulations which commenced operation on 16 December 1996. In view of the orders which I propose to make in respect of substituted service it is not necessary for me to express a concluded view on this matter. However, prima facie, it does seem to me that the effect of Regulation 16.01 of the Bankruptcy Regulations enables non-personal service of a bankruptcy notice to be effected. However, this is prima facie evidence of service, it is open to the debtor, in due course, to adduce evidence to the contrary (Regulation 16.01(2)). Accordingly, the orders I make are that : 1. Personal service of bankruptcy notice No NN3610 of 1996 be dispensed with. 2. Service of the above notice addressed to Maureen Doina Silvas may be effected by sending the bankruptcy notice together with a sealed copy of this order by pre-paid ordinary post addressed to the debtor at 2 Wells Street, Thornleigh and in addition by delivering a copy to a person over the age of sixteen years at that address. 3. Service in accordance with this order shall be deemed good and sufficient service of the bankruptcy notice upon the debtor on 30 April 1997. 4. Copies of the bankruptcy notice to be served pursuant to these orders are to be annexed to any affidavit proving service. 5. The bankruptcy notice be amended by deleting the words "Service of this Notice on you excluding the day on which this Notice is served on you" and substituting "30 April 1997". 6. A copy of this order shall be given to the Official Receiver in Sydney. 7. Costs of this application are reserved. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 4 April 1997 Solicitor for Applicant: Sally Nash & Co Date of Hearing: 25 March 1997 Date Judgment Delivered: 4 April 1997