Winn v Boss Lawyers Pty Ltd [2021] FCA 1652

Winn v Boss Lawyers Pty Ltd [2021] FCA 1652

The appeal failed because Ms Winn was validly served with the bankruptcy notice by email on 29 June 2020 under reg 16.01(1)(e), and in any event the evidence supported postal service at her home address by operation of s 160 of the Evidence Act 1995 (Cth). The six-month compliance period expired on 29 December 2020, the act of bankruptcy was then committed, and Ms Winn had not before that date applied to set aside the notice or instituted proceedings to set aside the underlying judgments, so no jurisdiction existed under s 41(6A) to extend time and the Registrar's later extension order was ineffective. The petition challenge also failed because, after Ms Winn filed a notice of appearance...

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Bankruptcy and Insolvency Appeal and Application for Leave to Appeal / Appeal From Federal Circuit Court Decision Dismissing Application to Set Aside Bankruptcy Notice, Heard Together With Application for Leave to Appeal From Federal Circuit and Family Court of Australia Division 2 Decision Concerning Service and Validity of Creditor's Petition
Outcome
Appeal dismissed; application for leave to appeal dismissed; interlocutory application dismissed; appellant/applicant ordered to pay the respondent's costs.
Legal Topics
['service of Bankruptcy Notice by Email' 'service by Prepaid Post' 'presumption of Postal Service' 'extension of Time for Compliance With Bankruptcy Notice' 'act of Bankruptcy' "service of Creditor's Petition" 'transfer of Proceedings' 'adjournment on Medical Grounds' 'open Justice' 'costs']
['bankruptcy and Insolvency' 'practice and Procedure' 'evidence'] ['service of Bankruptcy Notice by Email' 'service by Prepaid Post' 'presumption of Postal Service' 'extension of Time for Compliance With Bankruptcy Notice' 'act of Bankruptcy' "service of Creditor's Petition" 'transfer of Proceedings' 'adjournment on Medical Grounds' 'open Justice' 'costs']

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Procedural Posture

Bankruptcy and Insolvency Appeal and Application for Leave to Appeal / Appeal From Federal Circuit Court Decision Dismissing Application to Set Aside Bankruptcy Notice, Heard Together With Application for Leave to Appeal From Federal Circuit and Family Court of Australia Division 2 Decision Concerning Service and Validity of Creditor's Petition

Legal Issues

  1. 1 ["Whether service of the bankruptcy notice by email to Ms Winn's email addresses was valid under reg 16.01(1)(e) of the Bankruptcy Regulations 1996 (Cth)." 'Whether service of the bankruptcy notice by prepaid post was effective, including by operation of s 160 of the Evidence Act 1995 (Cth).' 'Whether the Federal Circuit Court had jurisdiction under s 41(6A) of the Bankruptcy Act 1966 (Cth) to extend time for compliance with the bankruptcy notice after the act of bankruptcy had been committed.' "Whether the Registrar's orders extending time for compliance after expiry of the time for compliance had legal effect." "Whether the creditor's petition was invalid or could not proceed because Ms Winn contended that she had not been personally served before the first return date." 'Whether the Sydney judge erred by refusing to transfer the notice proceeding to Brisbane.' "Whether parts of the Sydney judge's reasons should be expunged or edited." 'Whether the appeal and application for leave to appeal should be dismissed.']

Ratio Decidendi

The appeal failed because Ms Winn was validly served with the bankruptcy notice by email on 29 June 2020 under reg 16.01(1)(e), and in any event the evidence supported postal service at her home address by operation of s 160 of the Evidence Act 1995 (Cth). The six-month compliance period expired on 29 December 2020, the act of bankruptcy was then committed, and Ms Winn had not before that date applied to set aside the notice or instituted proceedings to set aside the underlying judgments, so no jurisdiction existed under s 41(6A) to extend time and the Registrar's later extension order was ineffective. The petition challenge also failed because, after Ms Winn filed a notice of appearance...

Court Disposition

Appeal dismissed; application for leave to appeal dismissed; interlocutory application dismissed; appellant/applicant ordered to pay the respondent's costs.

Orders

  • ['QUD 311 of 2021: The application for leave to appeal be dismissed.' "QUD 311 of 2021: The applicant pay the respondent's costs." 'NSD 494 of 2021: The interlocutory application filed on 24 October 2021 be dismissed.' 'NSD 494 of 2021: The appeal be dismissed.' "NSD 494 of 2021: The appellant pay the respondent's...