Battenberg v Restom, in the matter of Battenberg [2005] FCA 1184

Battenberg v Restom, in the matter of Battenberg [2005] FCA 1184

The application failed because the order for substituted service was properly made on the evidence before the Registrar, and the applicant's unknown absence from Australia at the time of that order and at the time of service did not warrant reversing the effect of the order. Following Sheahan v Joye, the relevant time for presence in the jurisdiction was the time of issue of the initiating process, and s 40(1)(g) of the Bankruptcy Act 1966 (Cth) did not require a different result for a bankruptcy notice.

Jurisdiction
Australia
Judgment Date
26 August 2005
Procedural Posture
Bankruptcy Application Concerning Substituted Service of a Bankruptcy Notice / Final Judgment on Application Seeking to Set Aside Bankruptcy Notice And, Alternatively, Orders for Substituted Service or a Declaration as to Invalid Service
Outcome
Application dismissed with costs.
Legal Topics
['substituted Service of Bankruptcy Notice' 'debtor Outside Australia at Time of Service' 'jurisdiction' 'setting Aside Bankruptcy Notice']
['bankruptcy' 'practice and Procedure'] ['substituted Service of Bankruptcy Notice' 'debtor Outside Australia at Time of Service' 'jurisdiction' 'setting Aside Bankruptcy Notice']

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Procedural Posture

Bankruptcy Application Concerning Substituted Service of a Bankruptcy Notice / Final Judgment on Application Seeking to Set Aside Bankruptcy Notice And, Alternatively, Orders for Substituted Service or a Declaration as to Invalid Service

Legal Issues

  1. 1 ['Whether substituted service in Australia of a bankruptcy notice was valid where the debtor was outside Australia at the time of the order for substituted service and at the time of service.' "Whether the orders made by Registrar Tesoriero on 9 March 2005 should be set aside in light of the debtor's absence from Australia." "Whether s 40(1)(g) of the Bankruptcy Act 1966 (Cth) makes the time of service the critical time for considering the debtor's presence in the jurisdiction."]

Ratio Decidendi

The application failed because the order for substituted service was properly made on the evidence before the Registrar, and the applicant's unknown absence from Australia at the time of that order and at the time of service did not warrant reversing the effect of the order. Following Sheahan v Joye, the relevant time for presence in the jurisdiction was the time of issue of the initiating process, and s 40(1)(g) of the Bankruptcy Act 1966 (Cth) did not require a different result for a bankruptcy notice.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of the respondents of the application.']