Hall, D. v. Brury, J. & Anor [1994] FCA 869

JUDGMENT No. 0.96.2, 9 14

NOT FOR GENERAL DISTRIBUTION

IN_THE FEDERAL COURT OF AUSTRALIA ) ) qT T REGISTR ) NB 2467 of 1994 ) GENERAL DIVISION ) RE: DENNIS HALL EX PARTE: IN DRURY ZANNE_D

A RECEIVED 22 NOV 1994

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

CORAM: Burchett J. PLACE: Sydney DATE : 2 November 1994

R R DGMENT

In this matter, a sequestration order was made by a Registrar. Within the time permitted, the debtor requested that the matter be reviewed by a judge. On the evidence now before me, which is not the same as the evidence presented to the Registrar, there is no doubt that it is appropriate to dismiss the petition. Accordingly, I review the orders made, set aside the sequestration order, and dismiss the petition. I note that the evidence given before me by the debtor, who is a quality systems auditor and would certainly not be the kind of person who would not understand the bankruptcy notice, or a petition, is that he was never served with either. He had not paid the debt because he did not consider he owed it morally, although he had

been found liable.

2.

In those circumstances, it does seem prima facie rather unlikely that the debtor would have simply ignored, first, the bankruptcy notice, and then a bankruptcy petition. He was a person with substantial assets, and apart from the normal house mortgage no other obligations. It would have been a remarkable example of biting off his nose to spite his face if he had simply ignored these documents, having received them. In those circumstances, there must be concern about the affidavits of service which were filed, indicating service had twice been

effected by a licensed process server.

Of course, I have not heard the process server. And there may be nothing at all sinister about that since, the debt having been paid, the petitioning creditor had no interest to oppose the debtor's case that the petition ought to be dismissed. Consequently, I reach no conclusion either way about the question of service, and I dismiss the petition on the ground that the debtor is not, in fact, insolvent, and was not insolvent at any relevant time. I think, in the circumstances, it is appropriate that I request the Registrar of the court to refer these reasons, together with copies of the affidavits of service and of today's transcript, to the authority responsible for licensing process