The respondent in this matter, Mr Culleton, owed Macquarie Leasing Pty Limited (Macquarie) a debt arising out of two chattel mortgage agreements.

Macquarie obtained judgment against Mr Culleton in the amount of $94,304. The judgment debt was not paid and Macquarie petitioned for a sequestration order to be made against Mr Culleton's estate.

Macquarie served the Bankruptcy Notice on Mr Culleton by affixing it to a padlocked gate at his last known address.

Mr Culleton, an unrepresented litigant, opposed the petition on the basis that the Bankruptcy Notice had not been served on him because the property at which the Bankruptcy Notice was affixed was not his last known address.

SERVICE

The cases have considered service at a "last known address" and formulated (among others) the following principles:

  • It does not matter whether the debtor actually resides at the particular address or not;
  • "last known address" does not expressly refer to the debtor's residence or place of abode;
  • The expression refers to the address that has been made known by the debtor to the world at large at the time closest to the date in question; and
  • A business address can be a debtor's last known address.

Mr Culleton deposed to the fact that he no longer lived at the property where the Bankruptcy Notice was served but continued to run a business from there.

The court found that at the time of service:

  • Mr Culleton was not living at the property where the Bankruptcy Notice was served, but visited the property various times in the year preceding the date of service;
  • Nevertheless, he conducted a business from that property;
  • He did not inform Macquarie of where he was in fact living;
  • When all the evidence is viewed objectively, the information that Mr Culleton conveyed to the world at large was that his business address at the property in question was his last known address for the purpose of service under the Bankruptcy Regulations; and
  • All reasonably available public records indicate that the address in question was Mr Culleton's last known address.

Having regard to all the evidence, the court was satisfied that there had been service in accordance with the requirements of the legislation and granted the sequestration orders sought by Macquarie.

THE COURT'S DUTY TO UNREPRESENTED LITIGANTS

Judge Altobelli quoted from the recent decision of the Full Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 in affirming the court's duty to ensure 'fairness' for an unrepresented litigant. However, the cases note that the court's duty is not solely to the unrepresented litigant. The obligation is to ensure fairness for all parties.

In applying the duty of fairness to the unrepresented litigant in this case, His Honour noted that Mr Culleton 'was given the benefit of the doubt with all of his evidence being subjected only to weight assessment'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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