Key Points

  • Test for personal service of bankruptcy petition same as for claim forms
  • Document to be handed to debtor or contents explained and left “with or near” debtor
  • Rule 7.55 can be used to remedy any irregularity in service if necessary

The Facts

Gate Gormet served Mr Morby with a statutory demand and then presented a bankruptcy petition against him. The process server met with Mr Morby and his colleague to serve him with the petition. On Mr Morby’s evidence the colleague took the bankruptcy petition sought to return it and then placed it in the bin. Mr Morby appealed the order on the basis of defective service.

At first instance, the Registrar held that the requirement for personal service of a bankruptcy petition was as set out in Kenneth Allison Limited v AE Limehouse & Co i.e. that the person to be served had to be handed the document or, if he would not accept it, be told the contents of the document and it be left with or near him. The Registrar held the test had been satisfied in relation to Mr Morby.

In any event, the Court held that Rule 7.55 could remedy defective service of a bankruptcy petition. Mr Morby appealed.

Decision

The High Court dismissed the appeal. It held that service had been validly effected. Mr Morby was aware of the contents of the document and the bankruptcy petition had been left “with or near” Mr Morby and he could have taken possession of it at any time. No stricter test than that set out in Kenneth Allison was necessary. In any event, the High Court also considered that Rule 7.55 could be applied.

Comment

This decision confirms the test for personal service of bankruptcy petitions is no stricter than that applied to personal service of a claim form.

Morby v Gate Gormet Luxembourg IV Sarl & another