Background
Joshua Marc Storey and Samantha Ruth Erskine Storey filed a creditor’s petition against Michelle Susan Britton and Andrew John Britton. Michelle Britton filed a notice of appearance, but the applicants could not personally serve Andrew Britton with the petition and required accompanying documents.
A process server made 11 unsuccessful attempts to serve Andrew Britton between 28 April and 28 May 2026. The applicants then sought an order under r 10.23 of the Federal Court Rules 2011 (Cth) that the documents be treated as served.
The Court’s Holding
Wheatley J granted the application. The Court held that personal service was not practicable after the repeated attempts at different times and on different days, and that the evidence established the documents had been brought to Andrew Britton’s attention.
Andrew Britton had emailed the Court and parties about the proceeding, said he would oppose the creditor’s petition, and stated that he had no objection to accepting service by email at the address used by the applicants’ solicitors. The solicitors had sent the relevant documents to that address on 18 May 2026. The Court therefore deemed service effective on 9 June 2026, dispensed with personal service, and ordered Andrew Britton to file a notice of appearance by 3 July 2026.
Key Takeaways
- Deemed service requires both impracticability of ordinary service and evidence that the documents reached the respondent’s attention.
- Repeated unsuccessful personal-service attempts can establish impracticability; impossibility is not required.
- A respondent’s email correspondence and participation in the proceeding can support an inference of actual notice.
Why It Matters
The decision illustrates the Federal Court’s practical approach to service in bankruptcy proceedings while preserving the statutory requirement for proof of service of a creditor’s petition. A respondent cannot necessarily defeat a service application by disputing receipt where the surrounding correspondence and conduct demonstrate awareness of the proceeding and its documents.