5 Mr Amos says that on Friday afternoon, 20 March 1998, he reached an oral agreement with Mr Deshon (one of the solicitors representing the creditor at the taxation) that was confined to the matters set out in pars 1, 2 and 3(a) and (b) of the deed. He says that, after reaching that oral agreement, Mr Deshon later that same afternoon unsuccessfully sought to vary it to include, among other things, the restraint on Mr Amos appearing in par 3(d) of the deed. He says the $50,000 he then undertook to pay was expressed to include the taxing fee, the liability for which par 3(c) of the deed wrongly casts on to him. Mr Amos also says that it was orally agreed that his obligations in respect of the creditor's costs were limited to paying $50,000 to the creditor within two months, out of the proceeds of sale of a New Farm property which he held as trustee for his adult children. It can be seen that there is no mention in the deed of Mr Amos' deferred obligation to pay the $50,000 being dependent on the sale of the New Farm property.
6 Although Mr Amos' evidence was that a binding oral compromise was reached on 20 March 1998, Mr Amos accepted that on the morning of 23 March 1998 there was a further discussion about settlement, which he instigated. Mr Amos says he instigated the further discussion to try (without success) to persuade the creditor to reduce the $50,000 he had earlier agreed to pay it. This discussion took place in the course of a telephone conversation between Mr Collins, another of the creditor's solicitors, and Mr Robinson, Mr Amos' barrister. Mr Amos was present with Mr Robinson in his chambers during this telephone conversation and privy to the discussions.
7 I reject the first challenge Mr Amos makes to the bankruptcy notice. Mr Amos asserts that an oral compromise was reached on the afternoon of 20 March 1998 with Mr Deshon; the latter denies that. Though I am inclined to think that no compromise agreement was concluded on 20 March 1998, it is unnecessary to express any final opinion on the dispute between Mr Amos and Mr Deshon about the events of 20 March 1998. It is common ground that there were further settlement discussions between Mr Robinson and Mr Collins on 23 March 1998. On the view I take of the evidence, they resulted in a concluded agreement. This was either the first and only settlement agreement ever reached or it must have replaced any anterior agreement that may have been reached on 20 March 1998.
8 I accept Mr Collins' evidence that a compromise was concluded in the course of this telephone conversation, in preference to that of Mr Amos. In my opinion, the deed of settlement accurately records the settlement orally agreed upon on Monday, 23 March 1998 in the telephone conversation between Mr Robinson and Mr Collins.
9 Mr Collins says that his discussion with Mr Robinson revolved around the facsimile he had sent on 20 March 1998 to Mr Amos' solicitor. Mr Amos acknowledges that he did see it on the morning of 23 March 1998 and prior to the telephone conversation between Mr Robinson and Mr Collins. This facsimile takes the form of an offer by the creditor to consent to the bill of costs being taxed in the amount of $50,000 on the same four conditions later recorded in section 3 of the deed of settlement signed on 23 March 1998 by Mr Amos. Mr Amos did not expressly assert that, though he saw the facsimile, he did not read it. But that was the impression I gathered he sought to create. I think the probabilities are that he would have read this short important communication when he saw it at his solicitor's office on the morning of 23 March 1998. It may well have been the receipt of this offer that caused Mr Amos to have Mr Robinson contact Mr Collins. Mr Robinson put a counter proposal to Mr Collins that, in effect, Mr Amos would agree to settle the matter in terms of the offer contained in the facsimile subject only to the date for payment by him of the $50,000 being altered from 20 May 1998 to 20 June 1998. Mr Collins says that, after obtaining instructions, he rejected Mr Robinson's proposal, whereupon Mr Robinson responded with advice that he had instructions from Mr Amos to settle the matter on the basis of the facsimile.
10 As I have said Mr Amos, in his oral evidence dealing with this discussion between Mr Robinson and Mr Collins, contradicts Mr Collins' evidence. But I prefer the latter's testimony for the following reasons: it is supported in material respects by contemporaneous file notes made by Mr Collins. Moreover, although Mr Amos by his counsel at the start of the hearing stated that he wanted leave to file and read an affidavit by Mr Robinson, he then, without explanation, withdrew that request. This unexplained failure to adduce evidence from Mr Robinson suggests that he could not assist the case made by Mr Amos about what took place between him and Mr Collins on 23 March 1998.
11 Further, an important assertion made by Mr Amos is his allegation that the written settlement agreement does not record the earlier oral agreement set up by Mr Amos whereby payment by him of the $50,000 was to be dependent on the sale of his New Farm property. There are material inconsistencies in Mr Amos' testimony with respect to what he claims was said about New Farm. In his oral evidence, he said it was agreed between he and Mr Deshon that payment was to be made within two months of the sale of the New Farm property. In his affidavit, Mr Amos said that, when in the course of negotiations before oral agreement was reached, he told Mr Deshon that he did not have the funds available to settle forthwith and needed time, Mr Deshon suggested that he borrow the $50,000 against the New Farm property, a suggestion he rejected because it was held in trust for his children. There was then some discussion about him possibly being able to borrow funds from his children if the property was sold. But there the matter rested. Mr Deshon then offered to settle the matter on the basis of his consenting to the bill being certified by the taxing officer at $50,000, inclusive of the taxing fee, with the creditor undertaking to withhold enforcement proceedings for two months. Mr Amos says he accepted this offer. Mr Amos says that New Farm was next referred to when, on the afternoon of 23 March 1998, Mr Deshon presented him with the deed for his signature, representing that it had been approved by his solicitor and that it incorporated the earlier oral agreement. He says he "queried the time frame as the money had to come from the sale of the New Farm house", although his position is that he signed the deed without reading it. He says that Mr Deshon, at this point, told him that if he signed the deed, the creditor would extend the time for payment until the New Farm property was sold, that this was a "collateral oral agreement" and that he could "have all the time in the world" to sell New Farm. His affidavit evidence with respect to New Farm does not sit well with his oral evidence.
12 Moreover, it is apparent from Mr Amos' evidence before me that he is solvent and it is probable that he had ample access to cash to pay $50,000 forthwith if he had to, back in 1998. The statements he made in the course of negotiations about being financially straitened and, at one stage, needing to rely on the sale of the New Farm property to raise the $50,000 were pretty plainly negotiating ploys by him to defer having to pay. I think the probabilities are that once Mr Collins made it clear to Mr Robinson on 23 March 1998 that the creditor was not interested in settling on terms that would give Mr Amos an extended time to pay the $50,000, the latter was prepared to agree to settlement in accordance with the facsimile of 20 March 1998: whether or not he ever sold the New Farm property was of no moment to his capacity to pay $50,000. It is highly unlikely it ever had the significance for him that Mr Amos now suggests that it had at the time.
13 I also have difficulty accepting that Mr Amos, whom Mr Deshon describes as "a skilled and experienced negotiator", signed the settlement agreement document without reading it. On his own evidence he negotiated a compromise with Mr Deshon. Mr Amos, not his solicitor, ran the litigation before the taxing master which was the subject of that document. The document is not a lengthy one. I doubt that he even asked his solicitor to check it for him. The solicitor does not say he was so instructed by Mr Amos.
14 Mr Amos also contends that the notice should be set aside because he is solvent. Though he only raised the issue of his solvency on the eve of the hearing, the creditor elected to proceed with the case and not seek an adjournment to check this claim. Mr Amos' evidence as to his assets, including his having unencumbered real estate and chattels which he values at about $800,000 and to his having cash totalling $190,000 on short term deposit, is supported by documentary corroboration. I accept his evidence that he has minimal debts. He is embroiled in a dispute involving about $300,000 with the National Australia Bank; but he says, and I accept, that that bank holds extensive security over a number of his properties, other than those at Wynnum and Albion referred to in his affidavit. I have no doubt that Mr Amos is now, and has for long been, solvent.
15 The creditor meets this argument by submitting that the Court has no discretion under s 30 the Bankruptcy Act 1966 (Cth) to set aside a bankruptcy notice on the ground that the judgment debtor is solvent. The creditor relies on a decision of Hill J in Re Athans; Ex parte Athans (1991) 29 FCR 302 where his Honour said at 310: