Re Hanlin, R.H. v. Ex parte South Properties Development Pty Ltd [1985] FCA 609

Re Hanlin, R.H. v. Ex parte South Properties Development Pty Ltd [1985] FCA 609

The affidavit of Caroline Ellen Bell does not establish due service of the bankruptcy notice, as personal service as prescribed by rule 15 was not effected; acceptance of service by solicitors is insufficient under the Bankruptcy Act and Rules, and waiver or agreement as to service cannot cure the defect.

Parties
Debtor: Robert Henry Hanlin; Petitioning Creditor: South Properties Development Pty. Ltd.
Jurisdiction
Australia
Judgment Date
02 December 1985
Procedural Posture
Creditor's Petition for a Sequestration Order / Ex Tempore Judgment on Proof of Service of Bankruptcy Notice
Outcome
Declaration made that due service not established
Legal Topics
Service of Bankruptcy Notice, Personal Service Requirements, Waiver of Statutory Requirements
Bankruptcy Service of Bankruptcy Notice Personal Service Requirements Waiver of Statutory Requirements

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Parties

Robert Henry Hanlin

Debtor

South Properties Development Pty. Ltd.

Petitioning Creditor

Procedural Posture

Creditor's Petition for a Sequestration Order / Ex Tempore Judgment on Proof of Service of Bankruptcy Notice

Legal Issues

  1. 1 Whether service of the bankruptcy notice was effected as prescribed by law
  2. 2 Whether acceptance of service by solicitors constitutes valid service under the Bankruptcy Rules
  3. 3 Whether the court can waive defects in service under section 306 or rule 195

Ratio Decidendi

The affidavit of Caroline Ellen Bell does not establish due service of the bankruptcy notice, as personal service as prescribed by rule 15 was not effected; acceptance of service by solicitors is insufficient under the Bankruptcy Act and Rules, and waiver or agreement as to service cannot cure the defect.

Court Disposition

Declaration made that due service not established

Orders

  • The affidavit of Caroline Ellen Bell filed in these proceedings on 9 August 1985 does not establish due service of the bankruptcy notice.