De Robillard v The Owners of Strata Plan No.49259 [2001] FMCA 130 (5 April 2002)

Last Updated: 20 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DE ROBILLARD v THE OWNERS [2001] FMCA 130

OF STRATA PLAN NUMBER 49259

BANKRUPTCY - Application to set aside sequestration order - address of creditor on Bankruptcy Notice - address for payment of debt on Bankruptcy Notice - delegation of functions under the Strata Schemes Management Act 1996 (NSW) - payment of debt under Bankruptcy Notice to authorised agent of creditor.

Strata Schemes Management Act 1996 (NSW) ss 28, 235

Martin & Anor v Commonwealth Bank of Australia [2001] FCA 87

St George Bank v Klintworth & Anor (1998) 86 FCR 240

Re Cain v Whyte [1983] 48 CLR 639

Meehan v Alfaro [1999] FCA 832

Goldsmith v First Pacific Mortgage Limited [1993] FCA 268; (1993) 115 ALR 175

Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915

Re Debtor [1912] 1 KB 53

Re Beauchamp; ex-parte Beauchamp [1904] 1 KB 572

Owners Corp (formerly the Proprietors) Strata Plan 3438 v Geoffrey Steven Hudson [1998] FCA 762

St Leon; ex-parte National Australia Bank (1994) 54 FCR 371

Re Stockton; ex-parte Leigh (1895) 2 QB 534 (CA)

Re Lynch; ex-parte Depila Pty Limited (1998) 153 ALR 271

James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631

Applicant:

CHRISTIAN ROGER DE ROBILLARD

Respondent:

THE OWNERS OF STRATA PLAN NUMBER 49259

File No:

HZ31 of 2001

Delivered on:

5 April 2002

Delivered at:

Sydney

Hearing Dates:

3, 10 & 19 December 2001 Written Submissions completed 13 March 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Mr de Robillard in person

Solicitor for the Respondent:

Ms Sally Nash of Sally Nash & Co as agent for Argyle Law

Solicitor for the Trustee:

Mr P Newton of Kemp Strang

ORDERS

(1) Sequestration Order set aside.

(2) Copy of this Order to be delivered to the Official Receiver for the Bankruptcy District of Tasmania within two days.

(3) Parties to apply to my associate for a date for argument in relation to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

HZ31 of 2001

CHRISTIAN ROGER de ROBILLARD

Applicant

and

THE OWNERS OF STRATA PLAN NUMBER 49259

Respondent

REASONS FOR JUDGMENT

1. On 18 October 2001 Registrar Parrot of the Tasmanian Registry of the Federal Magistrates Court made a sequestration order against CHRISTIAN ROGER DE ROBILLARD noting that the date of the commission of an act of bankruptcy was 6 August 2001. The creditor's petition claimed that Mr de Robillard had failed on or before 6 August 2001 to comply with the terms of the Bankruptcy Notice issued in respect of a debt of some $5,814.03 owed to the petitioning creditor for strata levies.

2. The creditor's petition indicates that the management office of the petitioning creditor was at 323 Castlereagh Street Sydney, and that the address given for Mr de Robillard was Level 13, 180 Phillip Street Sydney. The strata property in respect of which the levies are said to be in arrear is in Pyrmont.

3. Mr de Robillard did not appear before Registrar Parrot. Although an affidavit of service was sworn confirming that he had been served with the petition that clearly stated that the matter was in the Hobart Registry of this Court, Mr de Robillard says in his affidavit accompanying the application that he was not aware the matter was to be heard in Tasmania until 9:20 a.m. on the date of the hearing. His original application for review was filed in that Registry and he sought the following orders:--

1. The sequestration order be stayed with effect as and from

18 October 2001.

2. The sequestration order be set aside.

3. The petitioning creditor to pay the costs of this motion.

4. The matter to be transferred to the Sydney Registry of the Federal Magistrates Court.

4. The matter came before Federal Magistrate Roberts by telephone on 15 November 2001 and the matter was transferred to Sydney and placed in my docket. On 3 December 2001 I made orders relating to the conduct of the proceedings which were commenced on

10 December 2001. The respondents filed a notice of intention to oppose and at the hearing Mr de Robillard filed his Form 149 which set out five grounds of opposition to the petition. These were:

1. Invalidity of the Bankruptcy Notice.

2. No authority to start proceedings.

3. No "final order" or "judgment".

4. Abuse of process.

5. No debt.

5. The filing of this form was the first time in which Mr de Robillard's objections to the making of the sequestration order were clearly articulated and I proceeded to hear the review on the basis that these grounds superseded those contained in the application and I dealt with each one of the grounds in turn.

6. The nature of a review of a Registrar's decision was discussed by the Full Court of the Federal Court in Martin & Anor v Commonwealth Bank of Australia [2001] FCA 87 which confirmed that such an application is a hearing de novo. This allows Mr de Robillard to make submissions and if necessary to call evidence that was not before the Registrar. This privilege was taken advantage of by Mr de Robillard and by the respondents in the filing of further affidavits and written submissions.

The grounds of opposition to the petition

Invalidity of Bankruptcy Notice

7. The Bankruptcy Notice which is annexed to the petition is addressed to Mr de Robillard at his Wentworth Chambers address and states inter alia:

1. THE OWNERS OF STRATA PLAN NUMBER 49259

("the creditor")

of: OF BODY CORPORATE SERVICES (NSW) PTY LTD

323 CASTLEREAGH STREET SYDNEY NSW 2000

claims you owe the creditor a debt of $5814.03, as shown in the Schedule.

8. The Notice continues:

Payment of the debt can be made to: BODY CORPORATE SERVICES

(NSW) PTY LTD

of: 323 CASTLEREAGH STREET SYDNEY NSW 2000.

9. The Bankruptcy Notice proceeds to set out the amount of the judgment or order in the sum of $5814.30 and attaches a copy of a Form 49 Local Courts (Civil Claims) Act 1970 Certificate of Judgment from the Local Court at 94 Pacific Highway North Sydney. Finally the Bankruptcy Notice states as follows:

THE PERSON WHO APPLIED FOR THIS NOTICE TO BE ISSUED IS IAN DUNCAN WHO CONFIRMS BY THE FOLLOWING SIGNATURE THAT HE IS THE CREDITOR'S AUTHORISED AGENT: __________

AND WHOSE ADDRESS FOR SERVICE IS 142 ARGYLE STREET HOBART TAS 7000.

10. There was filed with the Registrar on 18 October 2001 an affidavit of debt sworn by one Robert Anderson who states:

"1. I am the strata manager employed by Body Corporate Services (NSW) Pty Limited, the strata managing agent of the petitioning creditor named in the petition dated 7 September 2001.

2. I am a person duly authorised by the owners of Strata Plan Number 49259 to make this affidavit on its behalf.

3. The strata scheme's agency agreement, appointment and delegation of powers between the applicant and Body Corporate Services (NSW) Pty Limited. (sic) This is a continuing agreement delegating to me all powers required to take enforcement and recovery action in relation to strata levies."

11. The applicant referred me to section 28 of the Strata Schemes Management Act 1996 (NSW). This section relevantly reads as follows:

28. What functions of an owner's corporation can a strata managing agent exercise?

(1) An owner's corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent all of its functions, or

(2) ...

(3) an owner's corporation cannot delegate to a strata managing agent its power to make:

(a) A delegation under this section, or

(b) A decision on a matter that is required to be decided by the owner's corporation, or

(c) A determination relating to the levying or payment of contribution.

12. Mr de Robillard makes a number of attacks upon the alleged delegation of powers as appears from the Bankruptcy Notice and the Bankruptcy Petition. In respect of the Bankruptcy Notice he says that the description of the owners of strata plan number 49259 being of "Body Corporate Services (NSW) Pty Limited" is incorrect. He refers to the affidavit of Billy Chau verifying the petition and dated

10 September 2001. That states:

"1. I am the strata manager employed by BCS Strata Management Pty Limited, the strata managing agent of the petitioning creditor.

2. BCS Strata Management Pty Limited is the strata managing agent appointed by the owner's of strata plan number 49259 to maintain its books and records and take action on its behalf.

3. ...

4. I am a person duly authorised by the owners of strata plan number 49259 to make this affidavit on its behalf."

13. Mr de Robillard says that to the extent that BCS Strata Management Pty Limited has delegated its powers to be the address for service of the creditor as appears in the Bankruptcy Notice, this is a delegation of a delegation forbidden by section 28 of the Strata Schemes Management Act. He further says that by requiring payment of the debt to Body Corporate Services (NSW) Pty Limited as appears in the Bankruptcy Notice a further delegation of a delegation has occurred. Finally, in respect of the Bankruptcy Notice he says that Mr Ian Duncan, who signs as the person who applied for the Notice to be issued is not the creditor's authorised agent. He says this because he has searched the books and records of the strata plan as provided to him by the managing agent and has not found any such delegation and he has called for a copy of the delegation.

14. The debtor further points in his affidavit to an invoice (Exhibit D to the affidavit of 6 December 2001). This invoice is from the Collection Corporation of Australia Pty Limited to Mr Chau at Body Corporate Services (NSW) Pty Limited for $885.50. The work for which the charge is made is described as "bankruptcy petition stage 2". Mr de Robillard suggests that it was this company who instructed Mr Duncan and that Collection Corporation of Australia was itself instructed by Body Corporate Services (NSW) Pty Limited and so there appears to have been a delegation of a delegation of a delegation. Mr Duncan, he says, in those circumstances, cannot possibly be the creditor's authorised agent.

15. The delegation referred to in Mr Anderson's affidavit mentioned in paragraph 9 is not produced but the affidavit appears to be at odds with the assertion made by Mr Chau in his affidavit verifying the petition that BCS Strata Management Pty Limited is the strata managing agent. This assertion is repeated in an affidavit Mr Chau made on 3 December 2001. Mr de Robillard argues that to the extent that any powers have been delegated from BCS Strata Management Pty Limited to Body Corporate Services (NSW) Pty Limited, that company is not licenced under the Property Stock and Business Agents Act 1941. He says this because when he attended the reception area of the company's offices he saw a number of licences displayed but the display did not include one for that particular company.

16. Mr de Robillard also submits that a search of the ASIC records reveals that the address for service of the Body Corporate is not care of the managing agent but is an address at 50 Murray Street Pyrmont. He refers me to s.235 of the Strata Schemes Management Act 1996 which says:

"235 Service of Documents on an Owner's Corporation

(1) ...

(2) A document other than a summons or other legal process may be served on an owner's corporation:

(a) ...

(b) By posting it, by prepaid mail, to the owner's corporation at its address recorded in the folio of the register comprising the common property."

17. The address of 50 Murray Street Pyrmont is that address and the section does not make any provisions for service on managing agents.

18. Mr de Robillard submitted generally that in relation to the matters where he had placed the authority of various persons or companies to act on behalf of the creditor in issue it was the responsibility of the creditor to establish those authorities to my satisfaction.

No authority to start proceedings

19. The applicant also alleged that the commencement of the process for the issue of a bankruptcy notice was analogous to proceedings for a penalty or a finding of breach of Body Corporate Rules which he alleged could not be taken by the agent without specific resolution to that effect by at least the executive committee of the Body Corporate.

20. According to Mr de Robillard the Body Corporate has to decide itself that a by-law has been contravened (s.28 of the Strata Schemes Management Act). He claimed that the non payment of levies was such a contravention.

No final order or judgment

21. The applicant pointed to the wording of the bankruptcy notice which stated that:

"A copy of the judgment or order relied on is attached."

22. The document which was attached was not such a judgment or order but was a certificate of judgment issued pursuant to Part 26 Rule 7 of the Local Court Rules. The debtor also argued that the certificate of judgment was not acceptable because it did not dissect the judgment into the debt, legal fees and interest. He also submitted that default judgment was not a final judgment because it was entered by an administrative process. I am satisfied that these matters were dealt with definitively by Hill J in St George Bank v Klintworth & Anor (1998) 86 FCR 240 and would not set aside the bankruptcy notice on these grounds.

Abuse of process

23. The matters to which I have previously adverted were dealt with by way of oral submissions from Mr de Robillard at the commencement of proceedings. At the stage at which the abuse of process became arguable I asked Mr de Robillard to enter the witness box and give evidence and make himself available for cross-examination by Ms Nash. Mr de Robillard relied upon the affidavits which he had sworn in the matter and then made a number of submissions. The hearing of this case lasted considerably longer than the original estimates. Much of the reason for the expenditure of extra time was the manner in which Mr de Robillard presented his case. The evidence and submissions in relation to abuse of process were confusing. It is, however, possible to perceive two distinct but connected threads.

24. Mr de Robillard's relationship with the Body Corporate of the unit that he occupies has been strained for a number of years. There were two incidents that particularly concerned him. The first was a flood in his premises which occurred in early 1997. The flood was occasioned by a leak in a hot water service pipe in a neighbouring unit and it flooded through to Mr de Robillard's unit damaging his floor and going through to the ceiling of the unit below as well as damaging other units. Mr de Robillard put the cost of repairs at approximately $8,000.00. This is money which he paid to a contractor he can't name and in respect of which he cannot produce a receipt. He did not fill in an insurance claim for the Body Corporate but he was told that the Body Corporate would inspect the damage and he expected that they would then attend to its repair and/or reimburse him. This did not occur.

25. At another time a motor vehicle owned by Mr de Robillard was damaged in the car park. He was quoted $2,000.00 to repair the damage but eventually, for reasons which were not entirely clear, the vehicle had to be written off. Mr de Robillard transferred the car to the repairer. He says he was not insured and that he expected the Body Corporate to accept responsibility for this accident.

26. As I understand his evidence, Mr de Robillard maintains that it was because of these incidents that he declined to pay his strata levies. That brought him into conflict with the strata managers. This conflict, he believes, caused the strata managers to act towards him in an improper manner and to bring these proceedings in abuse of process.

27. The second string of the abuse of process claim relates directly to the proceedings. Mr de Robillard points first to the fact that the bankruptcy proceedings themselves commenced in Tasmania. He notes that there is no obvious connection between the creditor strata company, its managing agent or himself with the State of Tasmania. He notes that although the mercantile agent Credit Corporation of Australia, which was charged with collecting the debt due by him, had an office in Tasmania, it also had offices in Sydney.

28. In relation to the proceedings Mr de Robillard points to the following matters as indicative of an abuse of process:

i) The reference in the bankruptcy notice to the creditor's address as being "Body Corporate Services (NSW) Pty Limited". This is an associate company of the strata manager but not the strata manager itself.

ii) There being no evidence of authority given to the strata managing agent or to the solicitor for the creditor.

iii) The statement in the petition that the applicant creditor "having its management office at Body Corporate Services (NSW) Pty Limited of, 323 Castlereagh Street Sydney".

iv) The fact that Mr Duncan, a solicitor, signed the schedule to the bankruptcy notice as the creditor's authorised agent although he was not so authorised.

v) The fact that the affidavit of debt sworn by Robert Anderson on 17 October 2001 stated:

"I am the strata manager employed by Body Corporate Services (NSW) Pty Limited, the strata managing agent of the petitioning creditor"

and then referred to the strata scheme agency agreement between the applicant and Body Corporate Services (NSW) Pty Limited.

vi) The fact that Mr Chau, under cross-examination, admitted that the books, computers and records of the petitioning creditor which he claimed to have examined in his affidavit of debt including his affidavit of debt sworn on 19 December 2001 did not contain any notation of the judgment against Mr de Robillard upon which the petition was based.

vii) The close association between Credit Corporation of Australia, and its principal Mr Ecob, and Argyle Law, the solicitors acting for the creditor.

viii) The fact that the affidavit of search is not in proper form because the annexure is improperly described as an annexure to an affidavit of Mr Duncan when the affidavit was in fact sworn by Mr Wilkinson.

ix) The fact that he continually asked for copies of invoices from the solicitors who were acting on behalf of the petitioning creditor and that none was forthcoming. In this regard the only invoices for costs which he saw were invoices from Credit Corporation of Australia for general services.

x) The fact that he asked for documentation from records of the Body Corporate indicating the complaints which he had made to the managing agents concerning the affairs of the Body Corporate and that when these were produced documents relating to the flood were not contained there.

xi) The fact that Mr Chau deposed his affidavit before his employer Mr Anderson.

xii) The fact that the strata manager's office at 323 Castlereagh Street is not easily found by a person who attends the foyer of that building. The office is in fact only approachable from outside the building and around it on the Pitt Street side where it occupies the level below the street level on Castlereagh Street but above the street level on the side on which it is.

29. All of the above items combined into what could be paraphrased as the following complaint, although these are not the exact words used by Mr de Robillard.

"Consequent upon my complaints about the leak and the damage to my car and other matters plus my refusal to pay strata levies, the strata company through its manager determined to proceed against me in the most inconvenient way possible. They commenced bankruptcy proceedings in Tasmania and attempted to pursue those proceedings utilising a mercantile agent and its solicitor without obtaining proper authorities and by preparing documents which were wildly inaccurate and misleading."

No debt

30. Mr de Robillard alleges that the petitioning creditor has wrongly claimed interest in the Statement of Claim. It would appear that in the calculation of interest in the Statement of Claim interest has been calculated on the strata levies for the day upon which the levy was due in each quarter other than the quarter commencing 1 March 1999. This, Mr de Robillard says is wrong because s.79(2) of the Strata Management Act states that a strata company cannot raise interest on a levy for one month from the date upon which the levy is due and payable. He has referred the court to a statement on page 237 of the third edition of Ilkin, Strata Schemes Management and the Law, Law Book Company 1998 and particularly to paragraph 911 thereof which states that there is "a one month interest free holiday". If this correct it would amount to an overstatement of the amount owing in the bankruptcy notice.

31. During this part of Mr de Robillard's submissions he also made reference to his cross-claim and to his concern about the authorisation of the solicitor to swear the affidavit of debt in the Statement of Claim.

32. The applicant provided detailed written submissions and authorities in support on 12 February 2002. The respondent filed its own equally detailed submissions and authorities on 25 February 2002 and finally the applicant replied on 13 March 2002.

The case for the respondent

33. The respondent commences her submissions by stating that the procedure for a review of a Registrar's decision is that the hearing is a de novo hearing, which echoes my finding in paragraph 6 of these reasons. But she goes on to argue that no leave has been sought to receive further evidence and there was no application to dispense with compliance of the rules by the debtor. There is no doubt in my mind that the debtor was given leave to adduce this additional evidence and that the matter proceeded on the basis that all procedural requirements had been satisfied.

34. The next substantial matter dealt with by the respondent in her submissions is that the creditor is prima facie entitled to an order. She cites an excerpt from Re Cain v Whyte [1983] 48 CLR 639 at 646 to the effect that the debtor must put something before the court to outweigh the public interest in making sequestration orders against insolvent persons. This is undeniable. It is equally accepted that the debtor in this case has not attempted to establish solvency. But these matters are only to be considered after the court has (at the request of the debtor) revisited the bankruptcy notice itself; for it is well settled that if a bankruptcy notice is invalid then the petition upon which it is based cannot proceed (see Meehan v Alfaro [1999] FCA 832 at para 8, also Goldsmith v First Pacific Mortgage Limited [1993] FCA 268; (1993) 115 ALR 175).

35. The respondent then deals with the two attacks on the bankruptcy notice which she described as WRONG PARTY WRONG AGENT. The bankruptcy notice in this case follows the form of the judgment and the name of the judgment creditor appearing in the sealed Local Court's certificate of judgment is "The Owners of Strata Plan No. 49259." The applicant says this is not the proper name of the Body Corporate, that is "The Owners - Strata Plan No. 49259". I fail to see the addition of the word "of" in place of a dash or the spelling of number as "number" in place of "No." can possibly constitute a defect which would render the judgment or the bankruptcy notice invalid. If it was a matter which might affect the validity of the bankruptcy notice I would not hold that it is a matter made essential by the Act (Australian Steel v Lewis (2000) FCA 1915) and is therefore a matter which must be looked at objectively to see whether or not it would confuse a debtor. I do not believe it would. I would therefore grant any application made under s.306(1) of the Bankruptcy Act.

36. The question of delegation is more serious. The respondent says:

"The proceedings in neither the Local Court nor this court were commenced or instituted by the agent. The plaintiff/judgment creditor/applicant creditor in each court is "Owners of Strata Plan 49259". Set out in Chapter 2 Part 2 of the Strata Schemes Management Act 1996 s.11 and 13 of the Strata Schemes Management Act 1996 enables a corporation to employ such persons as it thinks fit to exercise any of its functions. Those functions must be to recover unpaid contributions and interest on unpaid strata levies pursuant to s.79 and 80 of that Act. There are no requirements of the owners of the strata plan to appoint an agent for each and every event and in fact such a course would be too enwinding as to defeat the purpose of the Act and managing agent. The use of the words: "functions" of s.13 is intentionally wide to cover generally debt recovery matters under the Act against any defaulting unit owner who has not paid levies, not specifically this debtor."

37. I accept that the creditor in the bankruptcy notice is the Body Corporate. I also accept that the Body Corporate has the right and power under the Strata Schemes Management Act (NSW) to delegate certain of its functions. Those functions would undoubtedly include the right to collect unpaid levies. I also accept that this must be a general delegation and one would not be needed for every claim against a defaulting owner. The concern which I have is in relation to the apparent delegation to another entity, Body Corporate Services (NSW) Pty Limited, whose name appears in the bankruptcy notice in two places as set out in paragraphs 7 and 8 of these reasons.

38. In the section of her submissions entitled "wrong address" the respondent says:

"The name "Body Corporate Services (NSW) Pty Limited, 323 Castlereagh Street Sydney" is the name of a place at which payment can be made... The bankruptcy notice describes the address for payment in paragraph 4 as "Body Corporate Services (NSW) Pty Limited of 323 Castlereagh Street Sydney 2000". The address 323 Castlereagh Street, Sydney is that of the managing agent, see exhibit 5. The description should have more properly been: BCS Strata Management Pty Limited T/as Body Corporate Services, Lower Ground Floor Level, Level 1, 323 Castlereagh Street, Sydney 2000, paragraph 9, (Exhibit 5) being the address for service of notices resolved by the Body Corporate.

39. Paragraph 9 of Exhibit 5 says the following:

"SERVICE OF NOTICE:

RESOLVED that the address for service of notices be c/- Body Corporate Services, Lower Ground Floor, Level 1, 323 Castlereagh Street Sydney and that the Registrar General be notified. "

40. The date of this meeting appears to be 9 November 2000 but it is clear from Annexure K to the applicant's affidavit of 7 December 2001 that according to the Land Titles Office on 5 December 2001 the address of the Body Corporate was still 50 Murray Street Darling Harbour.

41. The address in paragraph 1 is certainly not the correct "address for service" of the Body Corporate. But does that matter? I have found no authority dealing with the address in paragraph 1 as opposed to the address in paragraph 3 of the bankruptcy notice. Because of the notation under paragraph 3: "*The address must be within Australia" it may be that the true purpose of paragraph 1 is to require the actual address of the creditor whereas paragraph 3 requires an address within the jurisdiction at which the debt can be paid in order to comply with the notice: Re Debtor [1912] 1 KB 53.

42. Because of the wording in paragraph 3:

"Payment of the debt can be made to" (my emphasis)

It is my view that paragraph 3 provides a true alternative for payment. In other words, payment can be made either to the creditor at the address in paragraph 1 or to the nominated person at the address given in paragraph 3. If I am correct in this then the address given in paragraph 1 takes on more significance, becoming an address at which the creditor can be found; as described in the celebrated passage from re Beauchamp; ex-parte Beauchamp [1904] 1 KB 572 quoted in Owners Corp (formerly the Proprietors) Strata Plan 3438 v Geoffrey Steven Hudson [1998] FCA 762 at page 15 and referred to in St Leon: ex parte National Australia Bank (1994) 54 FCR 371 and the cases there cited. The most significant extract from this quotation for the purposes of the instant case is:

"On the other hand, we think that that, if the creditor, after the service of the notice, abandons his place of address, so that it cease to be a place where at reasonable times the creditor could be found (or some authorised agent on his behalf) to receive payment of the judgment debt, or to deal with the question of security, the bankruptcy notice would cease to be a efficient" (at 483 to 484) (emphasis added).

43. The respondent would have it in that paragraph 1 the name "Body Corporate Services (NSW) Pty Limited" is part of the address and therefore has no independent significance. If that is correct then, because that address is not the address of the Body Corporate specified in the Strata Schemes Management Act it is not an address at which the creditor can be found.

44. Turning now to the name and address given in paragraph 3 as the person and place to whom and at which payment can be made, the person nominated is not a duly authorised agent of the creditor. The Strata Management Agency Agreement (Exhibit "E") is between the creditor and BCS Strata Management Pty Limited. That agreement follows the terms of s.28(1)(b) of the Strata Schemes Management Act which prohibits further delegation by the managing agent. There is no evidence before me that the creditor delegated any authority to receive payment to Body Corporate Services (NSW) Pty Limited. There is no evidence that a purported delegation of that power was made by BCS Strata Management Pty Limited. But even if it had been it would have been invalid under s.28(1)(b).

45. The confusion arising from these matters is compounded by the confusion in the affidavits of Robert Anderson and that of Mr Chau referred to in paragraphs 9 and 11 of these reasons. If these two employees of companies within the management organisation are confused as to who exactly is the duly appointed delegate of the respondent then it is not too difficult to hold that the applicant would be equally confused.

46. It is my finding that the address contained in paragraph 3 is not an address at which the respondent or its duly authorised agent can be found and that:

"is fatal to the validity of the notice itself: re Stockton; ex-parte Leigh (1895) 2QB 534 (CA); re Lynch; ex-parte Depila Pty Limited (1998) 153 ALR 271; Owners Corp (formerly the Proprietors) Strata Plan 3438 supra."

47. Having made this finding I am not required to deal with the other matters raised by the applicant. I should, however, deal with one matter which is connected with the question of the address upon which I gave a ruling during the hearing. The applicant argued that the address found in both paragraph 1 and paragraph 3 of the bankruptcy notice was improper because it did not describe the company as being on the lower ground floor of the building in Castlereagh Street and he gave evidence that if one attended at the foyer in Castlereagh Street no indication could be found there of the company's presence within the building. Some photographs were tendered which showed a sign on the wall of the building indicating where the company's offices were and it was evident from these photographs and from the examination and from the evidence given by Mr de Robillard and the cross-examination of him that the office was within the building known as 323 Castlereagh Street Sydney. In Australian Steel Company (supra) Gyles J at para 124 reminded the court that:

"The backdrop, after all, is that "it is the duty of a debtor to seek out the judgment creditor and pay the judgment debt to the creditor if he is in Australia. (James v Federal Commissioner of Taxation [1955] HCA 75; (1955) 93 CLR 631 at 639)."

48. Whilst it is clear that this authority does not assist a creditor who has provided an address at which neither he nor his authorised representative can be found, it would, to my mind, require the debtor to seek diligently for his creditor at a proper address. Such a search would extend to the lower ground floor.

49. For the reasons given above I would set aside the sequestration order made by Registrar Parrot. I will hear the parties on costs at a date to be agreed with my Associate.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: