How to Serve a Bankruptcy Notice

Once you have caused AFSA to issue a Bankruptcy Notice (“Notice”) it is necessary for you to arrange service of the Notice on the debtor. Service must take place within six months of the date the Notice was issued.

There are a number of ways that a Notice can be served. These are set out in Regulation 16.01 of the Bankruptcy Regulations 1996 and include:-

Personal Service

Personal service involves an individual (most commonly a process server) locating the person to be served, identifying that person and physically handing the document to that person. The process server then swears an Affidavit of Service, proving that the document was personally served. This Affidavit of Service can be relied on in legal proceedings as proof of service. Personal service is therefore most effective and the mode that is hardest for the debtor to deny service. However, it is most costly as it requires a person to physically serve the document, and is limited if the person to be served is avoiding service.

Service by Post

The Notice can be posted to the last known address of the debtor. This method is useful if the debtor is avoiding service. It is also more cost effective than personal service. The person serving the Notice by post should also swear an affidavit as to posting. A difficulty with this method is that service is presumed, but not certain. It is possible that a debtor might, in any court proceedings regarding the Notice, lead evidence that the Notice was not actually received by the debtor.

Delivery

It is permitted to serve a Notice by delivering it to the debtor’s address or last known address (but short of handing it personally to the debtor). Delivery provides additional certainty that the Notice reached its destination (for example, removing the risk that is it lost in the main) however it still relies on a presumption that it has been received by the debtor.

Facsimile or Electronic Transmission

Similarly to service by post, a copy of the Notice can be served on the debtor by facsimile or electronic transmission. Therefore, for example, if an email address of the debtor is known (particularly one that is active and through with you have been corresponding with the debtor) service can be simply effected by email. Again, an affidavit to that effect should be prepared.

Substituted Service

The methods of service permitted by Regulation 16.01 are now quite broad. However, in circumstances where the permitted means of service are not available, it is possible to seek alternative orders from the court regarding substituted service. If it can demonstrated to the Court in a particular case that any other method/s of service are likely to bring the document to the debtor’s attention then the court may order service by such method/s.

If you are in need of advice concerning bankruptcy proceedings then get in touch with your nearest Prime Lawyers Office.

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