Bankruptcy Notice - Debtor disputes service date

[The Hyena]

Hello,

I have served a Creditor's Petition on the debtor , after obtaining an order for Substituted Service, however the debtor disputes the date of service of the Bankruptcy Notice. He claims that it was 2 weeks after the actual service date.

My question is:

If the Registrar believes the debtor, and orders that the service date for the Bankruptcy Notice is later than the date in my Creditor's Petition, do I have to start again (ie)

File a new:
1. Affidavit of Service of Bankruptcy Notice with the new date,
1. Creditor's Petition with the new date,

Obtain a new order for Substituted Service then re-serve the Creditors Petition?

Thanks

H

 

[Tim W]

Which court?

 

[The Hyena]

Thanks Tim,

It's the Federal Circuit Court.

 

[Tim W]

And...

• it's commercial proceedings, in which you are the applicant in the head matter?
• has the respondent filed anything in respect of, say, setting aside the order for Substitute Service?
• is the argument about the dates of effect, and not about it being substitute rather than ordinary service?

 

[The Hyena]

My answers, below, Tim:

• it's commercial proceedings, in which you are the applicant in the head matter?

Yes, I am the applicant.

• has the respondent filed anything in respect of, say, setting aside the order for Substitute Service?

No, he has not. He has only brought the application to set-aside the Bankruptcy Notice.

• is the argument about the dates of effect, and not about it being substitute rather than ordinary service?

Yes, the dates of effect of the Bankruptcy Notice. He has brought an application to set aside the Bankruptcy Notice (the grounds being a current appeal with NCAT - now dismissed), however he filed it outside of the 21-day compliance period. When the Registrar told him that his application, by his own admission, was late, he announced that he was mistaken and that he really received the BN a few weeks later. The Registrar adjourned the matter, ordering that the debtor file an affidavit as to the circumstances of his receiving the BN, plus update the Registrar on the NCAT Appeal. The adjourned hearing is next week. Meanwhile, the Creditor's Petition has been served in accordance with the Substituted Service Order, and I have filed the Affidavit of Service of the Creditor's Petition.

To complicate things, the head matter is in the NSW Court, whereas this BN set aside matter is in SA (where he now lives). The SA Registrar is aware of the Sydney matter, of course.

 

[Tim W]

Was the Bankruptcy Notice also served by substitute service?

If I'm reading the above correctly, it's going to be on him to show
that service of the Bankruptcy Notice did not occur on the date in the record.
The presumption will be that any Affidavit Of Service is true and correct.
He will need to displace that presumption, with evidence, not just emphatic denial.

 

[The Hyena]

No, it was normal service, by email, with multiple read receipts. He and wife have already filed the affidavit purporting to show that he was served 2 weeks later. They lied, of course, but they also told unnecessary, trivial lies, which I easily disproved. They just can't help it. He and his wife have created this fictional world, to defeat their creditors, wherein they are supposedly separated , hence the validity of the address and email he supplies for service can be disavowed at will. I'm just hoping the Registrar can see through it, and honour my service date.

 

[Tim W]

They're pretty good at picking BS... Stay hopeful

 

[The Hyena]

Thanks Tim, I appreciate your help. And moral support!

Steve