Boles v Official Trustee in Bankruptcy

2. The Debtor Ian John Boles justly and truly indebted to the Petitioner in the aggregate of amount of $763,297.30…

3. The Petitioner does not nor does any person on its behalf hold any security over the property of the Debtor… for the payment of the sum specified in the last proceeding paragraph.

4. The Debtor Ian John Boles has within six (6) months before the date of presentation of the Petition committed the following act of bankruptcy namely that he failed… to comply on or before the 1st July 1991 with the requirements of a Bankruptcy Notice duly served on him on the 17th May 1991 and deemed to be served on 10 June 1991…." 11 The Petitioner was unable to effect personal experience of the bankruptcy petition. However, an order was made for substituted service and service was effected in accordance with that order. The sequestration order of 3 December 1991 was made on that petition.

Statutory Framework 12 Section 43(1) of the Act provides as follows: "(1) Subject to this Act, where:

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

(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." However, s 44(1)(c) provides that a creditor's petition shall not be presented against a debtor unless the act of bankruptcy on which the petition is founded was committed within six months before the presentation of the petition. 13 Section 40 specifies the cases in which a debtor commits an act of bankruptcy. The following two cases are of possible relevance to the present appeal: "(c) if, with intent to defeat or delay his or her creditors:

(ii) he departs from his or her dwelling-house or usual place of business;

(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia…a bankruptcy notice under this Act and the debtor does not:

comply with the requirements of the notice or satisfy the Court [as to cross claims set off or cross-demand]…"

14 Section 52(1) provides that Court may make a sequestration order against the estate of a debtor if it is satisfied with the proof of: · the matters stated in the petition; · the service of the petition; and · the fact that the debt on which the petitioning creditor relies is still owing.

There has been no suggestion that the Court was not justified, on the basis of the evidence that was before the Court on 3 December 1991, in being satisfied with the proof of those three matters.

15 However, s 153B provides as follows: "If the Court is satisfied that a sequestration order ought not to have been made … the Court may make an order annulling the bankruptcy." 16 The words of s 153B do not authorise annulment of a bankruptcy only upon the case as disclosed at the time of the making of the sequestration order but as it would have been disclosed had all the true facts, as shown in the application for annulment, been before the judge on the making of the order - see Re: Raymond; Ex Parte Raymond (1992) 36 FCR 424 at 426. The expression "ought not to have been made" requires that, before annulling a bankruptcy, the Court must be satisfied that the trial judge was, on the basis of the facts disclosed on the hearing of the application, bound not to make the order - Re Frank: Ex Parte Piliszky (1987) 16 FCR 396. On the other hand, at the hearing of an application for annulment, even if the Court is satisfied that the sequestration order ought not to have been made, the Court nonetheless has a discretion to decline to order that the bankruptcy be annulled, at least in some circumstances.

decision of the primary judge 17 The petition on which the sequestration order was made alleged that Mr Boles was ordinarily resident in Australia as at 1 July 1991, the date of commission of the act of bankruptcy alleged in the petition. The primary judge accepted that it was irrefutable, on the evidence before him, that Mr Boles had departed from Australia and established his permanent home in the United States prior to 1 July 1991. By that stage he was no longer ordinarily resident at 11 Ingleby Street, Dundas. His Honour concluded, therefore, that the sequestration order was apparently made on a false understanding of a relevant fact. However, that did not necessarily mean that the Court lacked jurisdiction to make the order, as there may have been jurisdiction because of the existence of one of the other fact situations mentioned in s 43(1) of the Act. 18 The primary judge also concluded that Mr Bowles did not have a dwelling house in Australia as at 1 July 1991. Although he still owned property jointly with his wife at 11 Ingleby Street, Dundas, and could have re-occupied it at any time, his Honour found that Mr Boles had abandoned the use of the house as his residence prior to 1 July 1991. 19 However, the primary judge concluded that he was not in a position to hold affirmatively that the Court did not have jurisdiction pursuant to s 43(1)(b)(iii) of the Act. At the time of his departure from Australia, Mr Boles was the owner of a rural property at Tilpa, New South Wales, known as Rosedale Station. Rosedale Station was mortgaged to Westpac Banking Corporation ("Westpac") to secure advances made to Mr Boles by Westpac. Mr Boles asserted that Westpac took possession of Rosedale Station several months before he left Australia. He said that he had no direct knowledge of the operations of Rosedale Station, although he was aware that Westpac caused most of the stock to be shot, presumably because of drought conditions and low stock prices. Rosedale Station was sold by Westpac exercising power of sale as mortgagee in August 1992. The sale price was insufficient to pay the debt then owing by Mr Boles to Westpac. 20 The primary judge concluded that some person was carrying on the business of Rosedale Station as at 1 July 1991, limited though that business might have been. His Honour drew an inference that that person was appointed by Westpac pursuant to a power conferred on Westpac by a mortgage instrument. No instrument of mortgage was in evidence. His Honour considered that it was not possible to say whether any such instrument of mortgage provided that an appointee of Westpac would be deemed to be the agent of the mortgagor. However, his Honour took into account that, in his experience, such a provision is commonly included in Bank mortgages, although there was no evidence of that matter before him. His Honour was not satisfied, therefore, that the business was not being carried on by Mr Boles, through an agent.

REASONING ON APPEAL 21 It was conceded on behalf of Mr Boles, that even if the fact relied on by the judge who made the sequestration order as establishing a basis for that order were not made out, namely ordinary residence in Australia, it was open to the primary judge, in hearing the application for annulment, to go beyond that and consider other grounds within s 43(1)(b). In the course of argument before the primary judge, counsel for the Official Trustee suggested that it may be possible to consider an act of bankruptcy different from that alleged in the petition, when considering whether to make an order under s 153B. His Honour, however, did not determine that question, having regard to the conclusion he reached regarding Mr Boles carrying on business at Rosedale Station. 22 Since there is a residual discretion for the Court in considering an order under s 153B, and if the ground upon which it is said that the sequestration order ought not to have made is a lack of jurisdiction, it may be open to the Court to consider other grounds upon which the sequestration order might have been based. In other words, if it is shown that an act of bankruptcy may have been committed within six months prior to the presentation of the petition, albeit an act of bankruptcy that was not alleged in the petition, that may be a basis for exercising any discretion against the bankrupt.

CARRYING ON BUSINESS IN AUSTRALIA 23 In concluding that he could not be satisfied that Mr Boles was not carrying on business in Australia as at 1 July 1991, the primary judge appears to have taken into account that a provision, whereby any appointee by a mortgage is deemed to be the agent of the mortgagor, is commonly included in bank mortgages. His Honour made no direct finding that Mr Boles was in fact carrying on business at Rosedale Station on 1 July 1991. 24 However, Mr Boles in his affidavit said that he had previously been involved in business operations, which included Rosedale Station. The report of the Trustee, which was in evidence before the primary judge, recorded that Mr Boles had conducted business as a farmer and grazier at Rosedale Station. Thus it is clear that at some time prior to Mr Boles' departure from Australia he had been engaged in the business of a farmer and grazier. He also confirmed that fact in his statement of affairs as at 13 December 1991, which was filed many years out of time. In the statement of affairs, Mr Boles recorded that his usual trade or profession was "farmer self employed". Clearly Mr Boles had some knowledge of operations of the station after he left Australia, albeit no direct knowledge. At least he was aware of the fact that Westpac had caused livestock to be shot. 25 That evidence gives rise to an inference of continuity of carrying on business. Mr Boles did not reside at Rosedale Station but appears to have resided at Dundas. It appears that Rosedale Station was a sheep farming property. An inference can be drawn that Mr Boles would have had employees on Rosedale Station to look after the stock. That was not challenged by counsel for Mr Boles. There was simply no evidence from Mr Boles as to how Rosedale Station was managed, what happened to any employees of Rosedale Station, or how he came to have any knowledge of the operations of the station after he left Australia in March 1991. In the absence of further evidence, an inference was open to his Honour that Mr Boles was still carrying on business at Rosedale Station by 1 July 1991. 26 Against that Mr Boles points to the fact that he had left Australia on 22 March 1991 with the intention of never returning to Australia, and his evidence that "Westpac took possession of the station" several months before he left. However, there is no evidence at all as to what was involved in Westpac's taking of possession. That occurred while Mr Boles was still in Australia. It is possible to infer that he must have known precisely what happened. He may have seen Westpac physically take possession, and in any event, he must have been notified by Westpac. However he has not given any evidence at all as to what steps Westpac took. 27 He relies on the fact that subpoenas to produce documents were issued to Westpac, yet Westpac failed to produce any. This is not surprising, given the lapse of time. Nevertheless it would have been open to Mr Boles to give some evidence to the primary judge as to what he meant by saying that Westpac took possession. It was open to the primary judge, on the evidence before him, to conclude that it was possible that Mr Boles continued, at least in some technical sense, to carry on business at Rosedale Station. 28 In his reasons, the primary judge made a presumption that some person was carrying on the business of the station as at 1 July, and that person was appointed by Westpac, pursuant to a power conferred on Westpac by a mortgage document. His Honour observed that, in his experience, such a provision is commonly included in a bank mortgage whereby such an appointee is deemed to be the agent of the mortgagor. His Honour concluded that, if such a provision was included in the mortgage, the Court had jurisdiction to make the sequestration order pursuant to paragraph 3 of section 43(1)(b). 29 Some complaint was made in written admissions on behalf of Mr Boles that the course adopted by his Honour was the taking of judicial notice otherwise than in accordance with the provisions of the Evidence Act. However, in the course of the argument, his Honour put the following proposition to counsel for Mr Boles: "The Rosedale Station was presumably still in his name but he was not carrying on the business. You would probably find, you know, if you looked at the documents that he signed with Westpac, they provide that if they go into possession they do so as his agent. That is the usual approach of a bank." The response of Mr Boles' counsel was: "I have considered that, your Honour, but they will be carrying on business for him in only those technical senses." It may be that "those technical senses" should be read as "a technical sense". Be that as it may, counsel quite properly did not challenge the proposition that was put to him by the primary judge, namely, that the probabilities were that the mortgage pursuant to which Westpac exercised its power of sale contained a provision that, if it went into possession, any agent appointed to take possession would be the agent of the mortgagor. 30 In any event it would have been open to Mr Boles to produce his own copy of the mortgage. There is no evidence to explain why Mr Boles was unable to produce his own copy of the mortgage. Alternatively it would have been possible to obtain a copy of the mortgage from the Land Titles Office. There was evidence to indicate that the mortgage was given at a time when Rosedale Station was under old system title, and that the mortgage was registered. A transfer by mortgagee under power of sale dated 6 August 1992 was in evidence before the primary judge. That instrument was executed on behalf of Westpac: "being the registered proprietor of mortgage No. 989 Book 3585 dated 21 December 1983 from the mortgagor, Ian John Boles." 31 The inference drawn by the primary judge was that Westpac took possession of Rosedale Station as agent for Mr Boles as the mortgagor. It was open to his Honour to draw that inference. The inference was put to counsel for Mr Boles. In those circumstances, his Honour was entitled to conclude that he could not be satisfied one way or the other as to whether or not Mr Boles was still carrying on business on Rosedale Station as at 1 July 1991. In the circumstances, his Honour was justified in refusing to make an order annulling the bankruptcy.

ALTERNATIVE ACT OF BANKRUPTCY 32 Mr Boles left Australia on 22 March 1991, a mere eight days after judgment was entered against him in the Supreme Court of New South Wales. He left in a private aircraft. There was no evidence that Mr Boles' departure was the result of any long term plan. Indeed, his counsel frankly acknowledged that, on the evidence before the primary judge, an inference was open that Mr Boles left Australia with the intent to defeat or delay his creditors. That would be an act of bankruptcy under s 40(1)(c). 33 In an second affidavit relied on before the primary judge, Mr Boles asserted the following: "44. At the time of my departure in 1991, in my opinion, Australia was suffering a depression and high interest rate. I considered that the economic climate had not been favourable to my business endeavours and I found great difficulty in making any money in Australia.

45. I was confident that I had a better chance of making more money in the United States than in Australia.

46. My main intention in departing had always been to make enough money to provide for my family and to discharge my outstanding debts in Australia."

34 If that was Mr Boles' intention, he was spectacularly unsuccessful since, according to the report of the Official Trustee, he has provided nothing to his trustee in bankruptcy for distribution to creditors. Proofs of debt have been lodged by thirteen creditors for amounts totalling $3,917,335.29. 35 In my opinion, on the material before the primary judge, notwithstanding Mr Boles' assertion in his affidavit, the inference is irresistible that Mr Boles departed and remained out of Australia with the intent to defeat or delay his creditors. His departure occurred on 22 March 1991. That was capable of constituting an act of bankruptcy, which was committed within six months before the presentation of the petition, on which the sequestration order was made. His Honour would have been entitled to find that he was not satisfied that the Court did not have jurisdiction since, that at that time, Mr Boles was ordinarily resident in Australia and had a dwelling house in Australia.

DISCRETION 36 Counsel for Mr Boles accepts that the Court has a residual discretion to decline to annul the bankruptcy, even if the Court were satisfied that the order ought not to have been made. There is certainly no basis for exercising any discretion in favour of Mr Boles in the present case. Indeed, there is every reason for exercising the discretion against him. It seems that Mr Boles has not been entirely frank in his application to the Court. He asserted in an affidavit that his first knowledge of the bankruptcy notice was gained on 19 December 1996 and that his first knowledge of the sequestration order was gained in December 1996. He did not deign to tell the Court of the circumstances in which he claims to have first become aware of the bankruptcy in December 1996. 37 On the other hand, the Official Trustee's reports indicated that Mr Boles was notified of his bankruptcy by letters addressed to 11 Ingleby Street, Dundas and letters addressed to 313 Cascade Road, Colombus, Georgia. Those letters were sent at various times from December 1991 to February 1993. A total of seven letters were sent to the two addresses during that period of just over fourteen months. There is no record of any of the correspondence being returned unclaimed. In addition, there is a file note of a telephone conversation between Mr Boles and an employee of his first trustee in bankruptcy in April 1992. The file note records that the employee of the trustee spoke to Mr Boles by telephone and requested that he reply to correspondence and complete his statement of affairs. The note records that Mr Boles refused to accept that he was bankrupt. 38 Mr Boles appeared as a witness in litigation brought in the Federal Court in 1991. The applicant in the proceeding filed an affidavit sworn by Mr Boles on 15 June 1992. Affidavits filed in that proceeding in relation to the question of whether Mr Boles would give evidence by video link suggest that he was not unaware of his bankruptcy. 39 However, putting aside any lack of frankness, there are other cogent reasons why discretion would be exercised against Mr Boles in this case. Mr Boles has not assisted his trustee in bankruptcy in the administration of his estate. When a statement of affairs was finally lodged, it gave very little financial information concerning the affairs of Mr Boles. He has provided no information about how he has managed to live in the United States for in excess of eight years without funds. He has given no information as to the source of funds for the purchase of the house in which he resides, except as indicated earlier. 40 More than eight years elapsed from the making of the sequestration order to the application for annulment. Even if the evidence of Mr Boles that he first became aware of the sequestration order in December 1996 were accepted, there is a further unexplained delay of more than three years. 41 Mr Boles was clearly insolvent at the time of the sequestration order. His statement of affairs disclosed assets of $10,400 and an interest in his father's estate calculated at $74,342.07. Proofs of debt, however, as indicated above, totalled nearly $4 million. The Trustee in Bankruptcy subsequently received the sum of $30,000 by way of compromise in respect of a dispute relating to Mr Boles' interest in his father's estate. Mr Boles has made no proposal for the payment of his creditors. However, from February 1997, he conducted negotiations with the former trustee through solicitors with a view to finalising the administration of his estate. Those negotiations were not successful since he failed to provide any information relating to his assets or income in the United States, or to pay any money to his trustee for the benefit of creditors. 42 On 20 November 1997, a statement of affairs was filed with the Official Receiver. A copy was also sent to the former trustee. The trustee returned the statement of affairs to Mr Boles for completion under cover of a letter dated 26 November 1997. The trustee requested that Mr Boles answer all of the questions in the statement of affairs and provide full names and addresses for his creditors. No further information was provided by Mr Boles. Rather, his solicitors wrote on 11 December 1997,, saying that Mr Boles does not accept that the Federal Court had jurisdiction to make him a bankrupt. Even then it was more than two years before the application for annulment was made.

CONCLUSION 43 In the circumstances, the case is overwhelmingly against exercising any discretion in favour of Mr Boles. In my view, the primary judge was right. The appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT KATZ J: 44 I agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT CONTI J: 45 I agree. I certify that the one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 7 June 2001 Counsel for the Applicant: Mr M Hadley

Solicitor for the Respondent: Loban McNally & Harney