Re Hopper, Mavis Isobel & Anor Ex parte Esanda Ltd [1980] FCA 104

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. B.5016 of 1979

GENERAL DIVISION

Re MAVIS ISOBEL HOPPER : and DOUGLAS HUGH HOPPER

Ex Parte ESANDA LIMITED

Judgment of His Honour Mr. Justice McGregor delivered the 6th day of June 1980

Bankruptcy - Service to be on Sunday - Validity thereof.

This is the hearing of a petition for sequestration of the estate of Mavis Isobel Hopper and Douglas Hugh Hopper (debtors) based upon non-compliance with a bankruptcy notice dated 20 September 1979 issued in respect of a judgment obtained on 8 June 1979. The bankruptcy notice was served, as appears from the affidavit of Brian Hepburn Tesill, on the debtors on Sunday, 20 January 1980 in New South Wales.

The petitioner has satisfied me that there is an entitlement to have the estate of the debtors sequestrated if the service on a Sunday is or maybe treated as valid. The question that arises here is as to whether such service is a defect or such a defect as to disentitle the petitioning creditor to the order sought.

Counsel for the petitioning creditor submits first that nothing in the Bankruptcy Act 1966 or Rules requires that there should be service on any particular day; or that service on a Sunday is impermissible. However, he sought to meet any possible objection to the service if the Court were minded to look further at other provisions which might be said to forbid service on Sundays. In this regard he drew attention to the provisions of the Judiciary Act 1903 s. 79 which states

as follows:

2.

"The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as other- wise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable.