King (Trustee) v Hockings

This Federal Court decision sits at the intersection of insolvency recovery and court procedure. The applicant, Gavin David King, was acting as trustee of the regulated debtor estate of Silvana Liliana Wirepa. He had started proceedings against Stephen Hockings seeking to recover $95,000 under s 129(4A) of the Bankruptcy Act 1966 (Cth).

The trustee's pleaded case, as recorded in the judgment, was that he had been appointed on 3 September 2024, and that on 11 September 2024 Ms Wirepa caused $95,000 to be transferred from her bank account to Mr Hockings' bank account. The trustee alleged that the funds were properly divisible among Ms Wirepa's creditors, that Mr Hockings was not legally entitled to retain them as against the trustee, that a notice of demand was issued on 14 March 2025, and that the money had not been repaid.

But the Court was not yet deciding whether the trustee would recover the money. The immediate problem was service. Under the Federal Court Rules 2011 (Cth), the originating application and associated documents ordinarily had to be served personally. The trustee had not been able to achieve that, so he asked the Court for procedural relief that would allow the case to move forward.

Set out this way, the timeline shows why the Court treated the service issue seriously. There was a substantial gap between the respondent's known use of the email address in March 2025 and the email attaching the originating process in September 2025. There were also several later attempts to locate him, none of which produced a confirmed current address.

The judgment focused on three Federal Court Rules. First, r 8.06 required personal service of the originating application and associated documents. Secondly, r 10.23 allowed the Court to order that a document be taken to have been served on a person on a specified date if two conditions were met. The first was that it was not practicable to serve the document in the usual way. The second was that there was evidence the document had been brought to the attention of the person to be served.

Thirdly, r 10.24 allowed the Court to order substituted service if it was not practicable to serve the document in the way otherwise required by the Rules. The authorities discussed in the judgment explain that this does not require proof that personal service is impossible. The question is whether personal service is not sensible or realistic in the circumstances. There must also be a proper evidential basis to conclude that the proposed substituted service method will, in all probability, bring the documents to the person's attention.

That distinction mattered here. Deemed service under r 10.23 is stricter in one important respect because it asks the Court to treat service as already having happened. Substituted service under r 10.24 is forward-looking. It asks whether the alternative methods proposed are likely to work now.

The trustee relied on a series of contact points and attempted service steps. The first was the respondent's use of the relevant email address on 14 March 2025, when he replied to notices sent by the applicant's firm. The judgment records two responses from that date, including statements such as "Do not contact me again" and a complaint that the correspondence was harassment. The trustee also relied on an authority to act form signed by the respondent with Ms Wirepa on 12 August 2024 in an unrelated proceeding. That form listed the email address, a mobile number and a Long Flat postal address.

The trustee then pointed to the later service attempts. On 30 September 2025, the originating process was emailed to the same email address. There was no reply, but also no bounce-back message indicating non-delivery. On 13 October 2025, a process server attempted personal service at the Toms Creek property, being the address on the respondent's expired but last known driver licence. That attempt failed. The process server spoke with Ms Wirepa, who said the respondent had not been there for about four months and that she did not know his whereabouts or contact details.

Further tracing efforts followed. The trustee acted on a tip that the respondent might be at a Queensland caravan park, but enquiries there were unsuccessful. A skip trace report also failed to confirm a current address and instead confirmed the Toms Creek property as the last known address.

These details mattered because service applications are evidence-heavy. The Court needed to know not just that the respondent had not been served, but what had been tried, what contact details were available, and how closely those details could still be linked to him.

The trustee asked the Court to treat service as having already occurred on 30 September 2025, the date the originating process was emailed. That application failed because the Court was not satisfied about the second requirement in r 10.23. The evidence did not justify an inference that the documents had actually been brought to the respondent's attention.

The Court accepted some important parts of the trustee's evidence. It accepted that the respondent had used the email address in March 2025 and had identified it on the authority to act form in August 2024. But those facts did not close the evidentiary gap. There was about a six and a half month gap between the March 2025 email exchange and the 30 September 2025 email attaching the originating process. The respondent did not reply to the later email. There was no evidence of where he was living in September 2025 or afterwards. The Court also noted that the email account appeared associated with a different name, Dylan James, and there was no evidence explaining that feature.

The judge said it was possible the respondent had received the documents and chosen not to reply. That possibility was consistent with the earlier hostile email exchange and the absence of a bounce-back message. But possibility was not enough. The Court could not simply assume that the respondent still had access to the email account, or regular access to email or the internet, at the relevant time. Because there was no other basis to show the documents had actually been brought to his attention, the deemed service application was refused.

The trustee succeeded on the alternative application for substituted service. The Court first considered whether personal service was not practicable. Drawing on earlier authorities, the judge treated the question as whether personal service was not sensible or realistic in the circumstances. The Court accepted that threshold was met. The trustee had attempted personal service at the Toms Creek property, tried the last known email address, engaged a process server, obtained a skip trace report and followed up the caravan park lead.

The Court expressly noted that the trustee had not yet tried contacting the respondent using the mobile number or the Long Flat postal address before making the application. Even so, given the failed attempts to locate him and the absence of evidence about his whereabouts, the Court accepted that reasonable efforts had been used and that personal service was not practicable.

The second question was whether the proposed substituted service methods would probably bring the documents to the respondent's attention. The Court was reasonably satisfied they would. The email address, mobile number and Long Flat postal address were all listed on the authority to act form signed by the respondent. If he still had access to one or more of those channels, using all of them together increased the likelihood of actual notice.

The Court also drew an inference about the respondent's ongoing contact with Ms Wirepa. The evidence of the authority to act form, the alleged $95,000 payment, and the March 2025 email exchange in which the respondent referred to Ms Wirepa seeking legal assistance suggested a close relationship likely to present ongoing opportunities for contact. Although Ms Wirepa had told the process server that she did not know his whereabouts or contact details, she had not said communication had ceased. That supported the inference that posting to the Toms Creek property was also likely to help bring the documents to his attention via Ms Wirepa.

Looking at the proposed methods together rather than in isolation, the Court held that the multiple pathways of service would in all probability bring the originating process to the respondent's attention.

The Court dispensed with the requirement for personal service of the originating application, statement of claim and genuine steps statement. It then granted leave for substituted service of those documents, together with a sealed copy of the substituted service orders and the reasons for judgment, by five methods: email to the identified email address, post to the Toms Creek property, post to the Long Flat postal address, a call to the identified mobile number, and a text message to that mobile number in the terms set out in the orders.

The applicant had to complete those steps by 4.00 pm on 27 March 2026. Service was deemed effective 10 business days after compliance with the substituted service steps. The Court did not accept the applicant's proposal that service become effective one business day after compliance, holding that one business day was not appropriate.

The Court also ordered that the same substituted service arrangement could be used for future documents in the proceeding until the respondent filed and served a notice of address for service or the Court made a further order. Future service would also be deemed effective 10 business days after compliance.

If your business is pursuing a claim, this case shows the value of building a service record from the start. Keep copies of signed forms, prior correspondence, demand letters, replies, process server reports, tracing reports and notes of any leads followed up. The Court was prepared to act because there was a documented history of attempted contact and a rational basis for thinking the proposed channels still connected to the respondent.

If your business is defending a claim, do not assume that avoiding personal service will stop the proceeding. Once the Court is satisfied that personal service is not practicable and that alternative methods are likely to bring the documents to your attention, service can be authorised by email, post, phone and text. Deadlines can then run from the date fixed by the Court, even if no one physically hands you the documents.

This case also matters for businesses dealing with insolvency risk. A payment received from someone later subject to a regulated debtor estate may be challenged by a trustee. The underlying merits were not decided here, but the judgment shows how quickly the focus can shift from the money dispute to procedural questions that determine whether the case can continue.