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FEDERAL COURT OF AUSTRALIA

Commonwealth Bank of Australia, in the matter of Oswal v Oswal

[2013] FCA 391

Citation: Commonwealth Bank of Australia, in the matter of Oswal

v Oswal [2013] FCA 391

Parties: COMMONWEALTH BANK OF AUSTRALIA

(ABN 48 123 123 124) v PANKAJ OSWAL

File number: WAD 85 of 2013

Judge: SIOPIS J

Date of judgment: 29 April 2013

Catchwords: BANKRUPTCY – bankruptcy notice addressed to a

person resident out of Australia – solicitors within
Australia acted for debtor in a number of legal proceedings
in Australia – substituted service of bankruptcy notice on
the solicitors within Australia – whether necessary for the
Court to consider whether there was a prima facie or
good arguable case that the jurisdictional requirement for
the making of a sequestration order based on
non-compliance with the bankruptcy notice would be met.

Legislation: Bankruptcy Act 1966 (Cth) ss 40(1)(g), 43(1), 43(1)(b),

43(1)(b)(iii), 309(2)

Cases cited: Battenberg v Restrom (2006) 149 FCR 128

Commonwealth Bank of Australia v Oswal [2012]
FCA 772
Commonwealth Bank of Australia v Oswal [2013]
FCA 101
Commonwealth Bank of Australia v Oswal [2012]
FMCA 1082
Equitrust Ltd v Bosiljevac [2007] FCA 323
Ginnane v Diners Club Ltd (1993) 42 FCR 90
Re Mendonca; Ex parte Commissioner of Taxation (Cth)
(1969) 15 FLR 256

Date of hearing: 12 April 2013

Place: Perth

Division: GENERAL DIVISION

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Category: Catchwords

Number of paragraphs: 45

Counsel for the Applicant: Mr J Thompson SC with Mr C Lockhart

Solicitor for the Applicant: Corrs Chambers Westgarth

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IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION WAD 85 of 2013

IN THE MATTER OF PANKAJ OSWAL

COMMONWEALTH BANK OF AUSTRALIA

(ABN 48 123 123 124)
Applicant

PANKAJ OSWAL
Respondent

JUDGE: SIOPIS J
DATE OF ORDER: 29 APRIL 2013
WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The Bankruptcy Notice be served by the applicant by way of substituted service and
personal service be dispensed with.

2. Pursuant to section 309(2) of the Bankruptcy Act 1966 (Cth), the service of the
Bankruptcy Notice may be effected by:

(a) posting a copy of the Bankruptcy Notice by ordinary prepaid post to

Hotchkin Hanly, 1st Floor, BGC Centre, 28 The Esplanade, Perth
Western Australia 6000;

(b) personal service on any person apparently over the age of 16 years at
Hotchkin Hanly, 1st Floor, BGC Centre, 28 The Esplanade, Perth
Western Australia 6000;

(c) sending an electronic copy of the Bankruptcy Notice to

Mr Peter van der Zanden, Partner of Hotchkin Hanly at
PVanderZanden@hotchkinhanly.com.au.

3. When effecting service of the Bankruptcy Notice in accordance with Order 2, in each
case, it shall be accompanied by a copy of this order.

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4. Service in accordance with any one of the means specified in paragraphs 2(a), 2(b),
and 2(c) shall be deemed good and sufficient service of the Bankruptcy Notice on the
respondent.

5. The Bankruptcy Notice shall be deemed to have been served on the Debtor
fourteen (14) days after any of the acts of service, referred to in paragraphs 2(a), 2(b)
and 2(c) of this order, has been carried out (the Relevant Date).

6. The copies of the Bankruptcy Notice for service and proof of service all be amended
by deleting the words in paragraph 1 of page 2 of the notice “after service on you of
this Bankruptcy Notice” and substituting the Relevant Date.

7. Costs of this application shall be reserved for the purposes of any creditor’s petition
based on this Bankruptcy Notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION WAD 85 of 2013

IN THE MATTER OF PANKAJ OSWAL

COMMONWEALTH BANK OF AUSTRALIA

(ABN 48 123 123 124)
Applicant

PANKAJ OSWAL
Respondent

JUDGE: SIOPIS J
DATE: 29 APRIL 2013
PLACE: PERTH

REASONS FOR JUDGMENT

1 This is an application for leave to serve a bankruptcy notice on Mr Pankaj Oswal by

substituted service within Australia. Mr Oswal is not resident within Australia.

2 The bankruptcy notice is Bankruptcy Notice No BN 158514, which the Insolvency

and Trustee Service of Australia issued on 14 March 2013.

3 The bankruptcy notice is founded upon a judgment which the Commonwealth Bank
of Australia (the bank) obtained on 11 May 2012 against Mr Pankaj Oswal in the amount of
US$4,821,655.46 in the Supreme Court of Western Australia. The liability for the
judgment debt was incurred by Mr Oswal as guarantor of the obligations of a related
company, Garuda Pty Ltd.

4 On 6 March 2013, the Court of Appeal of the Supreme Court of Western Australia
dismissed an appeal against the judgment. Mr Oswal was represented in this appeal by
Hotchkin Hanly, a firm of solicitors in Western Australia

5 Mr Oswal has applied to the High Court of Australia for special leave to appeal
against the decision of the Court of Appeal. The application for special leave to appeal

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relates only to A$945,000 of the judgment sum. Mr Oswal is also represented by

Hotchkin Hanly in the application for special leave to appeal.

6 The bank seeks orders for substituted service of the bankruptcy notice pursuant to
s 309(2) of the Bankruptcy Act 1966 (Cth) by one of the following alternative means:

(a) by posting a copy of the bankruptcy notice by ordinary prepaid post to

Hotchkin Hanly;

(b) by personal service on any person apparently over the age of 16 years at the premises
of Hotchkin Hanly in Perth; or

(c) by sending an electronic copy of the bankruptcy notice to a nominated partner at

Hotchkin Hanly at a nominated email address.

7 I observe that, in its application, the bank also sought an order, as a further alternative
means of effecting service, that the bank be permitted to post a copy of the bankruptcy notice
by prepaid airmail to Mr Sanraj Bhawan at a nominated address in India. However, the bank
did not press for that order to be made, because a previous attempt to serve papers on
Mr Sanraj Bhawan, had led to the papers being returned to the bank’s solicitors.

8 This is not the first occasion that a bankruptcy notice has been issued in respect of the
judgment debt owed by Mr Oswal.

9 A bankruptcy notice was previously issued in 2012. On 12 July 2012, this Court gave
leave to serve that bankruptcy notice upon Mr Oswal out of the jurisdiction and by
substituted service (Commonwealth Bank of Australia v Oswal [2012] FCA 772). Mr Oswal
failed to comply with the bankruptcy notice.

10 A creditor’s petition was subsequently issued in respect of the failure to comply with
that bankruptcy notice. On 21 November 2012, the Federal Circuit Court of Australia
(formerly the Federal Magistrates Court of Australia) gave leave to serve the
creditor’s petition out of the jurisdiction (Commonwealth Bank of Australia v Oswal
[2012] FMCA 1082).

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11 However, in December 2012, Mr Oswal challenged the orders made in this Court and
the Federal Circuit Court for substituted service and service out of the jurisdiction of the
bankruptcy notice and the subsequent creditor’s petition, respectively. Mr Oswal was
represented in those proceedings by Hotchkin Hanly. Earlier this year, the bank brought an
application for the dismissal of the creditor’s petition, which was granted on
18 February 2013 (Commonwealth Bank of Australia v Oswal [2013] FCA 101).

APPLICATION FOR SUBSTITUTED SERVICE AND LEAVE TO SERVE OUT OF

THE JURISDICTION

12 Section 40(1)(g) of the Bankruptcy Act empowers the Court to give leave for a
bankruptcy notice to be served out of the jurisdiction.

13 Section 309(2) of the Bankruptcy Act deals with substituted service. It provides:

Where a notice or other document is required by this Act to be served on or given to

a person, the court may, in a particular case, order that it be given or served in the
manner specified by the Court, whether or not any other manner of giving or serving
that notice or other document is prescribed.

14 The Court has jurisdiction to make an order for substituted service of a

bankruptcy notice pursuant to this provision, even though Mr Oswal is out of Australia. In
Battenberg v Restrom (2006) 149 FCR 128 (Battenberg) at [18]-[20], the Full Court
observed:

[18] In Re Mendonca; Ex parte Commissioner of Taxation (Cth) (1969)

15 FLR 256 at 261, Gibbs J, sitting as a judge of the Federal Court of
Bankruptcy, observed that s 309(2) and r 113(1) (which authorised the Court
to give directions as to practice and procedure) conferred “ample power to
order service outside the jurisdiction” of a bankruptcy petition. In that case
the petition was issued after the debtor had left Australia. It seems that
his Honour did not consider that fact to be a bar to such an order. In other
words, exercise of the power conferred by s 309(2) is not conditional upon a
debtor’s presence in Australia. It is true that Gibbs J considered that an order
for such service would be made only if one of the criteria identified in
s 43(1)(b) were present. In this case the evidence does not presently
establish, or deny the existence of, any of those criteria. That is no doubt
because issue and service of the bankruptcy notice (as opposed to making a
sequestration order) are not conditional upon the existence of one of those
criteria.

[19] It is clear that a bankruptcy notice may be served out of Australia, subject to
leave being granted by the Court. The only question is as to the mechanics of
service. We accept that the notice, itself, can only be served by leave, but as
we have pointed out, there is a history of serving notice of proceedings rather

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than the initiating writ. There is also a history of making orders for
substituted service which do not involve actual service. Re Mendonca
establishes that s 309(2) authorises service out of Australia even when the
relevant process was issued after the debtor left Australia. The only
jurisdictional requirement is that contained in s 43(1)(b) which has no present
application. There is no reason why s 309(2) should not also authorise an
order for substituted service of a bankruptcy notice made whilst the debtor is
out of Australia. If, as in this case, that order does not involve service of the
bankruptcy notice itself outside of Australia, s 40(1)(g) does not dictate that
leave be obtained.

[20] Finally, we should say something about the inter-relationship between

ss 40(1)(g) and 309(2). The appellant’s case assumed that an order made for
service of a bankruptcy notice out of Australia pursuant to the latter provision
would also require leave pursuant to the former provision. For reasons which
we have given, it is not necessary for us to consider the correctness of that
assumption.

15 For the Court to exercise the jurisdiction to order substituted service under s 309(2),
the Court must be satisfied that abnormal difficulties exist in effecting personal service on the
debtor and that there is a reasonable probability that the debtor will be informed of the
document as a result of the form of service identified (Ginnane v Diners Club Ltd (1993)
42 FCR 90 (Ginnane) at 92). These observations were made in relation to the substituted
service of a creditor’s petition, but they apply equally in relation to the substituted service of
a bankruptcy notice (Equitrust Ltd v Bosiljevac [2007] FCA 323 at [9]).

16 The Full Court in Ginnane went on to observe that the two elements referred to above
are not to be regarded as discrete requirements but “form a composite basis for the exercise of
the discretion”.

17 There was evidence before the Court of the unproductive steps taken by the solicitors
of the bank to obtain Mr Oswal’s address for service and also to ascertain whether
Hotchkin Hanly had instructions from Mr Oswal to accept service of the bankruptcy notice.

18 Ms Bree Ludlow, one of the solicitors acting for the bank, deposed that on
21 February 2013, by email, she had advised Mr Peter van der Zanden, a partner at the law
firm, Hotchkin Hanly, that the bank had lodged a new bankruptcy notice and asked
Mr van der Zanden whether his firm had instructions from Mr Oswal to accept service of the
bankruptcy notice.

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19 Mr van der Zanden replied by email saying that his firm did not have instruc tions to
accept service of the bankruptcy notice. He also went on to say that it was common ground
that Mr Oswal did not live in Australia, and that it was Mr Oswal’s position that the
Federal Court, exercising power under the Bankruptcy Act, had no jurisdiction over him.

20 Ms Ludlow also deposed that she had later in March 2013 caused documents filed in
this application to be delivered to Mr Peter van der Zanden of Hotchkin Hanly, and had asked
whether Mr van der Zanden had an address for service for Mr Oswal. Mr van der Zanden
replied by saying that:

We do not have an address for service for Mr Oswal.

21 In addition, Mr Oswal’s attitude to the question of the service of process relating to

this debt and the attendant bankruptcy proceedings, is further manifest by the fact that it was
necessary for the bank to obtain orders for substituted service from the Supreme Court of
Western Australia in respect of the originating process for the debt upon which the
bankruptcy notice is founded. It was also necessary for the bank to obtain orders for
substituted service of both of the bankruptcy notice and of the creditor’s petition referred to
in [10]-[11] above.

22 The evidence shows that, notwithstanding its efforts, the bank does not have reliable
information as to an address for service for Mr Oswal and that Mr Oswal has not authorised
his solicitors to disclose such address, or to accept service of the bankruptcy notice on
his behalf.

23 I am satisfied, in the circumstances, that abnormal difficulty exists for the bank in
effecting personal service of the bankruptcy notice on Mr Oswal.

24 As I have already mentioned, the evidence also shows that the law firm,
Hotchkin Hanly, has acted on the instructions of Mr Oswal in a number of legal proceedings
relating to the judgment debt and the attendant bankruptcy proceedings; and, indeed,
continues to act for Mr Oswal in respect of the application for special leave to appeal to the
High Court. I am also satisfied that service of the bankruptcy notice on the law firm,
Hotchkin Hanly, will cause the bankruptcy notice to come to the attention of Mr Oswal,

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because I am satisfied that the solicitors in the exercise of their professional duty, would
bring the notice to the attention of Mr Oswal.

25 Accordingly, I will make orders for the substituted service under s 309 of the
Bankruptcy Act of the bankruptcy notice upon Mr Oswal by one or more of the means
identified in [6] above.

26 Senior counsel for the bank also addressed me on the question of whether it is
necessary for the bank to demonstrate at this stage of the process that the bank had a
prima facie or good arguable case for the existence of a jurisdictional foundation for the
Court to make a sequestration order in respect of Mr Oswal’s estate upon any failure by him
to satisfy the bankruptcy notice. This question was addressed by senior counsel for the bank
because in submissions filed in the proceedings which Mr Oswal brought in December 2012
to set aside this Court’s orders for substituted service and service out of the jurisdiction of the
bankruptcy notice, Mr Oswal had contended that the basis on which those orders should be
set aside, was that the Court, in making those orders, had not considered this question.

27 The bank made two submissions in relation to this issue.

28 The bank’s first contention is that it is unnecessary for the Court to consider, at
this stage, whether there is a prima facie or good arguable case as to the jurisdictional
foundation for the Court making a sequestration order on a creditor’s petition founded upon
an act of bankruptcy arising from Mr Oswal’s failure to comply with the bankruptcy notice.

29 Secondly, the bank contended that, in any event, the evidence which it has adduced
demonstrates a prima facie or good arguable case for such a jurisdictional foundation.

30 I deal with the first contention.

31 It is necessary to have regard to s 43(1) of the Bankruptcy Act which defines the
circumstances when an Australian court would have jurisdiction to make a sequestration
order. That section provides as follows:

Subject to this Act, where:

(a) a debtor has committed an act of bankruptcy; and

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(b) at the time when the act of bankruptcy was committed, the debtor:

(i) was personally present or ordinarily resident in Australia;

(ii) had a dwelling-house or place of business in Australia;

(iii) was carrying on business in Australia, either personally or by means

of an agent or manager; or

(iv) was a member of a firm or partnership carrying on business in

Australia by means of a partner or partners or of an agent or manager;

the Court may, on a petition presented by a creditor, make a sequestration order

against the estate of the debtor.

32 For the following reasons, the bank’s first contention should be accepted.

33 First, the Full Court in Battenberg held that a consideration of the jurisdictional
criteria set out at s 43(1), does not arise in relation to an application for substituted service of
a bankruptcy notice addressed to a person out of the jurisdiction, where the substituted
service is to be effected in Australia.

34 The Full Court in Battenburg was concerned with an application to serve a

bankruptcy notice addressed to a debtor out of Australia, by substituted service on an
Australian law firm to be effected within Australia. The Full Court referred to the case of
Re Mendonca; Ex parte Commissioner of Taxation (Cth) (1969) 15 FLR 256 (Re Mendonca).
That case involved the service of a creditor’s petition, not a bankruptcy notice, by substituted
service by posting the creditor’s petition to the debtor at an address in Portugal. Gibbs J
(as his Honour then was) relied upon s 309(2) of the Bankruptcy Act as authorising
substituted service of the petition on the debtor in Portugal. It is, also, significant that Gibbs J
considered whether the jurisdictional requirement under s 43(1) had been satisfied. Gibbs J
found that at the dates of the acts of bankruptcy, the debtor was resident, and still carrying on
business, in Australia and that, therefore, the jurisdictional requirements were satisfied. The
Full Court had regard to Re Mendonca, and, then went on to find that consideration of
jurisdictional limits in s 43(1) had no application to the question of whether to order
substituted service of the bankruptcy notice addressed to a person out of Australia. This is
evident from the following observations:

[18] In Re Mendonca; Ex parte Commissioner of Taxation (Cth) (1969)

15 FLR 256 at 261, Gibbs J, sitting as a judge of the Federal Court of

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Bankruptcy, observed that s 309(2) and r 113(1) (which authorised the Court
to give directions as to practice and procedure) conferred “ample power to
order service outside the jurisdiction” of a bankruptcy petition. In that case
the petition was issued after the debtor had left Australia. It seems that
his Honour did not consider that fact to be a bar to such an order. In
other words, exercise of the power conferred by s 309(2) is not conditional
upon a debtor’s presence in Australia. It is true that Gibbs J considered that
an order for such service would be made only if one of the criteria identified
in s 43(1)(b) were present. In this case the evidence does not presently
establish, or deny the existence of, any of those criteria. That is no doubt
because issue and service of the bankruptcy notice (as opposed to making a
sequestration order) are not conditional upon the existence of one of those
criteria.

[19] …There is also a history of making orders for substituted service which do
not involve actual service. Re Mendonca establishes that s 309(2) authorises
service out of Australia even when the relevant process was issued after the
debtor left Australia. The only jurisdictional requirement is that contained in
s 43(1)(b) which has no present application. There is no reason why s 309(2)
should not also authorise an order for substituted service of a bankruptcy
notice made whilst the debtor is out of Australia. If, as in this case, that order
does not involve service of the bankruptcy notice itself outside of Australia,
s 40(1)(g) does not dictate that leave be obtained. (Emphasis added.)

35 In my view, the circumstances of this case are indistinguishable from Battenberg. In

that case, as in this case, the means of substituted service was service on a firm of solicitors in
Australia. I am bound by the decision of the Full Court. It follows that the bank’s
first contention is upheld.

36 Secondly, even in the absence of authority, and had there been a need to give leave to
serve the bankruptcy notice out of the jurisdiction under s 40(1)(g) of the Bankruptcy Act,
I would have come to the same view. This is because the requirement to consider, at this
stage, jurisdictional constraints attendant upon the making of a sequestration order related to
the bankruptcy notice, would require the Court to embark upon an unacceptable degree of
speculation. Section 43(1)(b) states that the crucial date by reference to which the debtor’s
connection to Australia (as described in ss 47(1)(b)(i)-(iv)) is to be determined is the date of
the act of bankruptcy upon which the petition is founded. The issuing of a bankruptcy notice
does not, of course, in itself give rise to an act of bankruptcy. It is only if the bankruptcy
notice is not complied with, that an act of bankruptcy is committed.

37 Accordingly, it is not possible for a court to determine at the time that a bankruptcy
notice is served, whether the jurisdictional constraints on the making of a related
sequestration order will be met. All that a court could do at the stage of giving leave to serve

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the bankruptcy notice, would be to consider the debtor’s circumstances at that time and make
assumptions as to whether:

(a) the debtor’s circumstances will change before the expiry of the date for payment of
the sum demanded in the bankruptcy notice;

(b) the debtor will pay the sum demanded on that date - such that the failure to pay
amounts to an act of bankruptcy; and

(c) the petition ultimately presented and relied upon at the hearing will rely upon that act
of bankruptcy.

38 In my view, this level of speculation renders such an inquiry by the court inutile,
because it does not operate as a reliable predictor of whether the jurisdictional requirement
for the making of a sequestration order will be met at the relevant date. Thus, even if it had
been necessary for me to give leave to serve the bankruptcy notice out of the jurisdiction
under s 40(1)(g), I would not have regarded it as necessary for the bank to demonstrate that
there was a prima facie or good arguable case that the Court would have jurisdiction to make
a sequestration order founded on the act of bankruptcy arising for any non-compliance with
the bankruptcy notice.

39 The bank’s second, and alternative, argument is predicated upon the Court being
required to consider whether there is a prima facie or good arguable case on the jurisdictional
requirement for making a related sequestration order, by reference to the debtor’s
circumstances at the present time.

40 The bank contended that the jurisdictional foundation for the making of a related
sequestration order, would arise under s 43(1)(b)(iii), namely, that Mr Oswal was carrying on
business in Australia.

41 The bank adduced a considerable amount of evidence in relation to Mr Oswal’s

business activities in support of this contention. This evidence shows that, notwithstanding
his departure from Australia, Mr Oswal remains a shareholder in five privately owned
companies and that, of those companies, he is the sole shareholder of three companies, and he
and his wife, Mrs Radhika Oswal, are the shareholders in the other two companies. In

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addition, there is evidence that Mr Oswal was, prior to his departure from Australia, a
30% shareholder in Burrup Holdings Limited, which is the holding company of
Burrup Fertilisers Pty Ltd (now renamed), which conducts a profitable petrochemical
business. The evidence also discloses that Mr Oswal was a director of Burrup Fertilisers, and
during that time, a number of related party transactions took place between Burrup Fertilisers
and Biz Dev International Pty Ltd, as well as another company called Oswal Projects
Limited. In addition, the evidence also shows that Mr Oswal was formerly a shareholder of
three other companies; as well as being the beneficial owner of the company, Garuda
Aviation Pty Limited, the company whose obligations Mr Oswal guaranteed, and in respect
of which the judgment founding the bankruptcy notice, was obtained.

42 In addition, there is evidence that Mr Oswal continues to conduct in Australia a

number of proceedings in different Australian courts in respect of his investment as a
shareholder in Burrup Holdings Limited.

43 Had it been necessary for me to do so, I would have decided that the evidence
discloses a prima facie or good arguable case that Mr Oswal conducted, and continues to
conduct business in Australia as the promoter of, and investor in, companies, particularly,
companies related to the petrochemical industry and the supply of services to that industry.
That is a separate business to the business conducted by each of the companies.

44 Accordingly, I will make orders for substituted service under s 309(2) of the
Bankruptcy Act. As mentioned, it is not necessary to make orders giving leave to serve the
bankruptcy notice out of Australia, as the bank has withdrawn its application for an order for
substituted service of the bankruptcy notice on Mr Sanraj Bhawan, b y post to an address in
India.

45

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I will reserve the question of costs.

I certify that the preceding forty-five

(45) numbered paragraphs are a
true copy of the Reasons for
Judgment herein of the Honourable
Justice Siopis.

Associate:

Dated: 29 April 2013

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