Burgess v Lennon & Anor [2014] FCCA 130

1. The applicant creditor, Suzanne Burgess is seeking to amend the creditor's petition under section 33 of the Bankruptcy Act 1966 (Cth) ("the Act") and further seeks a sequestration order against the two respondents. The amendment and the sequestration order are opposed by the respondents.
2. The creditor's petition was originally presented on 16 September 2013 and claims the sum of $197,000 is owed by the respondent debtors to the applicant creditor "for monies owed on a consultancy agreement pursuant to personal guarantees and securities provided by both parties."
3. The act of bankruptcy alleged in the creditor's petition is stated as follows:
   • "4. The following act of bankruptcy was committed by the respondent debtors under section 40(1b)(iv) of the Bankruptcy Act 1966 within 6 months before presentation of this petition:
   • 1. Under an agreement for the provision of consultancy services dated 4 January 2012, the respondent debtor incurred an obligation to pay the amount of $197,000.00, such obligation being an obligation that would, if he or she became bankrupt, be paid against the Trustee.
     • i. The services were provided in accordance with the agreement for the agreed term.
     • ii. A letter of demand DATED 03-January 2013 was sent to the Respondents for payment for services for $197,000 rendered under the consultancy agreement.
     • iii. The respondent debtor failed to comply on or before the 11 January 2013 with the requirements of a Demand to pay Notice dated 03 January 2013 served on them by ordinary mail.
     • iv. The Respondent debtor's solicitors on 14 January 2013 gave notice that the Respondent debtor had received the demand notice.
     • v. On 2 August 2013 further notice as sent by registered mail to the respondent debtor in relation to this debt including advice that proceedings would be commenced under the bankruptcy Act 1966 should payment not be forthcoming.
   • II. The respondent debtor failed to comply on or before the 2 August 2013 with the requirements of the demand to pay Notice dated 2 August 2013 serviced on them on by registered mail on 8 August 2013 or make any cross demand equal to or more than the sum claimed in the demand notice, being a counter claim, set off."
4. When the matter came before the Court on 28 November 2013, the applicant sought to rely on an amended creditor's petition which was filed on 26 November 2013. Unsealed copies of the amended creditors' petition had been served on the respondent at only 4.45 the afternoon prior. The solicitor for the applicant Ms Leipold informed the Court that the original Creditors Petition filed on 16 September 2013, was fatally flawed and that the applicant was self-represented when the initial creditor's petition was filed. Ms Leipold stated "this is where the creditor's petition was fatal to begin with in that the act of bankruptcy hadn't been fully stipulated in the creditor's petition.
5. An affidavit sworn by the applicant on 25 November 2013 seems, on its face, to be seeking an amendment of the petition pursuant to section 33(1) of the Act by "deleting the whole of paragraph 4 of the creditor's petition and replacing it with the text set out below in paragraphs 4b, 4c and 4d and 5, taken from the amended creditors petition:
   • 4. The following act of bankruptcy was committed by the respondent debtors under section 40(1b)(iv) of the Bankruptcy Act 1966 within 6 months before presentation of this petition:
     • i. In a Court document of the respondent written and signed by him on 20 August 2013, and filed in QCAT in matter 72/13, the respondent stated "I have indemnified my sister, Sr Mary-Ann Lennon and Sr Pam Thompson who are the other Respondents against any loss or damage they may suffer as a result of these proceedings so my interest are one and the same as theirs."
     • ii. The following act of bankruptcy was committed by the respondent John Lennon under section 40(1)(h)of the Bankruptcy Act 1966 within 6 months before presentation of this petition:
       • a. In an affidavit of the Respondent sworn by him on 23 October, and filed in the Supreme Court of Qld in matter 487/12 as escourts document 14, the respondent annexed a contract of sale of a business to which he was the guarantor of the purchasing entity's obligation, and in respect thereof deposed "the completion of the contract of sale was conditional on payment of the balance of the purchase price by 30 June 2012 and it is conceded this payment was not made in full in the time limited under the contract and the purchase price is yet to be paid in full."
       • b. Nothing further was deposed by the respondent as to when, if at all, he intended to see to it that the price was paid in full.
     • iii. The respondent has taken no steps to pay any part of the purchase price.
     • iv. The following act of bankruptcy was committed by the respondents John and Adrienne Lennon under section 40(1)(b)(iv) of the Bankruptcy Act 1966 within 6 months before presentation of this petition:
6. The amendment is opposed by the respondents for the following reasons:

1. No application for leave to amend the petition has been filed; 2. The respondents were not afforded procedural fairness in respect of the proposed amendments;

1. The respondents would suffer substantial prejudice if leave to amend was granted as they would be required to respond to the amended creditor's petition, which is essentially a fresh petition in that it alters several material aspects of the original petition including: 1. The amount of the debt; 2. The removal of the sole act of bankruptcy relied upon; and 3. The insertion of a further three acts of bankruptcy.

1. The errors are wide reaching and are incapable of curing through the proposed amendment.
2. In the present case, the debtors contend that as a matter of discretion the amendment should be refused because, on the evidence, the petitioning creditor is not able to make out the putative act of bankruptcy and therefore, the amendment would be futile.

1. As can be seen from the excerpts quoted above, the applicant has attempted to plead the less frequently used acts of bankruptcy provided for in section 40 of the Act. The attempts have not been well crafted and are clumsy in many respects.
2. The affidavit filed in support of the creditor's petition is sworn by the applicant and deposes to a Consultancy Agreement dated 4 January 2012 between Global Protective Services Pty Ltd (GPS) as "principal" and Susan Burgess as "consultant". The Consultancy Agreement is Annexure "A" to the affidavit verifying paragraphs 1, 2 and 3 of the creditor's petition. As can be seen from Consultancy Agreement, GPS is the owner of the business NQ Security who engaged the contractor as advisor to the business.
3. Annexed to that same affidavit and marked "B" is a Deed of Security dated 31 January 2012 between Ricchezza Eternity Pty Ltd ("Richhezza") as lender and John Lennon and Adrienne Lennon as guarantor. Mr and Mrs Lennon guaranteed the loan between the lender and GPS.
4. The respondents argue that they are not a party to the Consultancy Agreement and therefore any liability on the part of the respondents must be found in the Deed of Security which they are a party to. They submit that any debt owing under the Consultancy Agreement is not secured by the Deed of Security that is annexed to the creditor's petition. Having regard to the terms of the Deed of Security, the respondents argue that they do not owe any money to the applicant under the Deed or at all.
5. To further confuse the matter, the applicant has sought to rely on two separate Notices of Demand to set up the act of bankruptcy. The first Letter of Demand is dated 3 January 2013 and claims that the sum of $179,000 was due on or about July 2012 by the respondents to the applicant, pursuant to the terms of the "Sales Contract dated January 4, 2012 for the sale of NQ Security". The Letter of Demand requires payment on or before 11 January 2013.
6. The second Notice of Demand is dated 2 August 2013 and claims that the sum of $197,000 is owed pursuant to a "Consultancy Agreement and personal guarantee". The Notice requires payment by 2 September 2013. The second Notice of Demand contains a warning in large bold font stating "DO NOT IGNORE THIS: If you do, we will proceed against you under the Bankruptcy Act 1966".
7. During the course of this hearing the solicitor for the applicant explained, when questioned by the Court as to where the debt was and the amount of the debt which was relied upon as an act of bankruptcy, said that the amount of the debt changed because a lot of that debt was given for a restrain of trade - consideration for a restrain of trade, and it was only restrained for one year instead of three. So that's why the debt was reduced....[1]. When asked where was this explained the Court was advised No. Well, it's not explained anywhere. It' s just that it was just more realistic. We worked it out that three years, $150,000: it's $50,000 a year for a restrain of trade. So we - it was reduced[2].
8. The submissions made to the Court on behalf of the applicant were of no assistance and kept changing when challenged by the Court to explain what the debt was.

1. It would appear that the applicant has attempted to issue a demand not unlike a statutory demand which is permitted by the Corporations Act 2001. Failure to comply with a statutory demand will afford a creditor the presumption of insolvency against a corporation but not an individual. Failure to comply with a statutory demand does not establish an act of bankruptcy under section 40(1) of the Bankruptcy Act. This critical distinction appears to have been overlooked by the applicant.
2. In the original creditors petition, the applicant has pleaded the "voidable transaction" act of bankruptcy contained in s.40(1)(b)(iv) of the Act. It is somewhat confusing that the evidence relied upon by the applicant to support the creditor's petition makes reference to Notices of Demand which have no relationship to s.40(1)(b)(iv) of the Act. Section 40(1)(b)(iv) provides that a person commits at act of bankruptcy if, in Australia or elsewhere, the debtor incurs an obligation that would, if he or she became a bankrupt, be void as against the trustee.
3. In order for a creditor to rely on the "voidable disposition" act of bankruptcy, they must prove that at the time of the transaction it would be void as against the trustee. As a result, if an essential requirement (such as the petitioning creditor's debt being in existence) is not satisfied as at the date of the transaction, it cannot be relied on as an act of bankruptcy: Exelerate Funding Pty Ltd v Puels (No.1) [2004] FMCA 241, Raphael FM. The allegations sought to be proved must be proved by admissible evidence. Here the applicant has failed to demonstrate in her evidence that the transaction is voidable.
4. The Bankruptcy Act 1966 _p_rovides a procedure by which a person whose debt remains unsatisfied by an individual may petition the Court for the bankruptcy of the debtor. The creditor must comply strictly with both the substantive and procedural requirements of the Act and care must be taken in drafting documents in the bankruptcy jurisdiction as simple mistakes may be fatal to the creditor's application. The creditor must be able to point to what is called an "act of bankruptcy" which occurred within six months prior to the presentation of the petition. The debt must be in the sum of $5000 or more and the amount must be a liquidated sum. The date of the act of bankruptcy is important when determining the commencement date of the bankruptcy. The courts have long held that the acts of bankruptcy should generally be strictly construed as the consequences are penal in nature.
5. Section 40(1) of the Bankruptcy Act establishes a long list of events which will trigger an act of bankruptcy for an individual. The most commonly used act of bankruptcy by creditors who are owed money is the one provided for by s.40(1)(g) - the failure to comply with a bankruptcy notice. The applicant was not able to rely on that provision because there is no judgment or order in respect of the debt which is alleged to be owed by the respondents to the applicant. The respondents deny the existence of any legal obligation between the parties.

1. There is no doubt that this Court has power to allow the amendment of a creditor's petition: s.33 (1) of the Act; rule 7.01 Federal Circuit Court Rules 2001. The power to amend proceedings under the Act is not limited to formal defects only: Re Roberts: ex parte Bower (1994) 48 FCA 350. In an appropriate case amendment may be allowed which substitutes one act of bankruptcy with another but only if the debtor is not worse off than if the correct material had been inserted in the first place: Green v Solomon [2001] FCA 698, Wilcox J. Leave to amend the petition will not be granted if the new act of bankruptcy occurred more than 6 months before the date of the presentation of the original petition.
2. The applicant seeks to amend the creditor's petition by adding further various acts of bankruptcy provided for in s.40.
3. An affidavit filed by the applicant on 26 November 2013 purports to set out the alleged Acts of Bankruptcy as seen at pages 2, 3, 4 and 5. The amended creditor's petition is seen at page 8. The evidence before the Court consists of array of various documents, they are incomplete and ultimately the documents do not satisfy the Court that an Act of Bankruptcy has occurred. The applicant has simply annexed what amounts to documentary hearsay or irrelevant documents, or parts of documents in an attempt to convince the Court that the respondent has committed an act of bankruptcy. The amended creditor's petition sets out the "following act of bankruptcy" but goes on to include no less than five new bases. It is clear to the Court that, apart from all of the other irregularities with this application (including the lack of procedural fairness afforded to the respondent in failing to formally seek leave to amend and in serving unsealed copies of the latest material late in the afternoon prior to the hearing), the applicant is searching for an act of bankruptcy and attempting to convince the Court that a debt is owed, rather than coming to this Court based on the strength of a judgment. The applicant solicitor said as much in her submissions. Having admitted that the original creditor's petition "was fatal to begin with" the solicitor went on to state: So when we received it and we had a look at the material contained in there and realised that there had been a misunderstanding between parties and that an act of - we had to find an act of bankruptcy. There are several but the one that we've hung our hat on is the fact that he has actually incurred an obligation.[3]
4. The first act of bankruptcy set out at point 4 of the "Petition" attached to the applicant's affidavit filed on 26 November 2013 reads: The following act of bankruptcy was committed by the respondent debtors under section 40 (1b)(iv) of the Bankruptcy Act 1966 within 6 months before presentation of this petition. That section provides that if a debtor gives notice to creditors that payment of debts has been, or will be, suspended, then an act of bankruptcy has been committed. Whether the communication by the debtor to his or her creditors amounts to a suspension or an intention to suspend payment of debts is a question of fact, which will depend on all the circumstances: Mobil Oil Australia Pty Ltd v Lemon [2004] FMCA 518, Jarrett FM. The Petition continues:
   • 1. In a court document of the Respondent written and signed by him on 20 August 2013, and filed in QCAT in matter 7.2.13, the Respondent stated:
     • "I have indemnified my sister, Sr. Mary-Ann Lennon and Sr. Pam Thompson who are the other Respondents against any loss or damage they may suffer as a result of these proceedings, so my interest is one and the same".
5. The evidence attached consists of an "Application for leave to be represented" in QCAT. The applicant is "Global Protective Services (Australasia) Pty. Ltd CAN trading as NQ Security. Under a section headed "Reasons Why Representation is Needed" the Respondent ( Mary-Ann Lennon & Pam Thompson & John Lennon) set out that the Applicant's claim again him arises from a business conveyance and that the success or failure of the Applicant's claim depends on the interpretation of a business contact of sale, which has already been the subject of Supreme Court proceedings. The Respondent sets out that it is his belief that the Applicant has exhausted her available courses of action through the Supreme Court proceedings and that this application, in so far as it relates to me, should be struck out. In conclusion the Respondent says I have indemnified my sister, Sr. Mary-Ann Lennon and Sr. Pam Thompson who are the other Respondents against any loss or damage they may suffer as a result of these proceedings, so my interests are on and the same as theirs. That is the extent of the evidence.
6. There is no evidence of any findings being made in the proceedings or whether it proceeded or as sought by the Respondent, that it was struck out. The alleged "indemnity" does not have a value nor a time period, it may never occur and I accept that it has not been established that any obligation has yet been incurred. In the context of all of the material presented with this creditor's petition, the evidence does not satisfy the Court that the Respondent has committed an Act of Bankruptcy. The action in QPAC arises seemingly out of the same dispute that was initiated by the Applicant in the Supreme Court. It appears the applicant is attempting to re-litigate that dispute in both QCAT and this Court. As I have said elsewhere in this judgment, it is clear that the Applicant in this matter is trying to have this Court resolve various factual disputes arising from a Consultancy Agreement, in order to then rely on that finding as an Act of Bankruptcy. This is not how the process occurs under the Bankruptcy Act.
7. The next Act of Bankruptcy alleged is set out at 4 (c) of the affidavit and 4 (ii) of the Amended Petition at page 8. Reference is made to a sworn statement by the Respondent within proceedings in the Supreme Court in regard to what seems to be a contractual dispute. The Respondent deposes that: The completion of the contract of sale was conditional on payment of the balance of the purchase price by 30 June 2012 and it is conceded this payment was not made in full in the time limited under the contract and the purchase price is yet to be paid in full.
8. This evidence does not satisfy the Court that an Act of Bankruptcy under section 40(l)(h) has occurred, namely that the debtor gives notice to his creditors that he has suspended or is about to suspend payment of his debts. All that is said in the affidavit is that, in the context of this contractual dispute, some of the purchase money has not been paid. I accept also that the debt in question is that of GPS to Riches and not that of the Respondents, that there is no evidence of notice given by either of the Respondents and that any notice given does not state that the Respondents have suspended, or are about to suspend, payment of their debts as submitted by the solicitor for the Respondents. I also accept and adopt the case law relied upon by the Respondent in Mobile Oil Australia Pty. Ltd v Lemon and Amor[4] that the giving of notice to one creditor was not the notice required by the relevant act and that where there were other creditors who were being paid, then the act was not made out.
9. The next alleged Act of Bankruptcy falls under section 40(I) (b)(iv) and is listed at point (d) of the applicant's affidavit filed on 26 November 2013. The evidence amounts to an allegation that the respondent was a guarantor of "the purchasing entity's obligation" to the contract of sale of a business mentioned in paragraph 5(b)(i) of this affidavit and they provided a deed of security over their family home. Having been served with a Notice of Exercise of Power of Sale for the property in August 2013, neither of the respondents has responded or lodged an objection to the Notice nor have they taken any steps to pay any part of the purchase price. A copy of the Notice of Exercise of Power of Sale is attached. There is no evidence that the Respondents have done any act within the relevant six month period which would, if either of them became bankrupt, be void as against the trustee. The evidence falls well short of establishing the assertion that this constitutes an Act of Bankruptcy as defined.
10. It is further alleged at point 5 of the Applicant's affidavit, that the Respondent John Lennon endeavoured to defeat or delay his creditors as referred to under Section 40 (1) (c) of the Act: It is alleged that: In response to a demand from Work Cover Qld on 17 May 2013 for payment of overdue premiums the Respondent was fraudulent in his response to the creditor by stating: I advise that as per an order of the Supreme Court of Qld.... All our interest in the insured business were relinquished to Global Protective Services (Australasia)... responsibility for this debt.... Lies with Global Protective Services (Australasia) Pty. Ltd.
11. The alleged Act of Bankruptcy is a bare assertion that the non-payment of a Work Cover account for overdue premiums constitutes an intent to defeat or delay his creditors. A reading of the Act includes the circumstances which constitute such an intention to defeat or delay creditors. They include departing from or remaining out of Australia, departing from his dwelling house or usual place of business, otherwise absents himself or is beginning to keep house. Neither the allegation set out at 5(a) or 5(b) constitute an Act of Bankruptcy as alleged. There is no evidence to establish that an Act of Bankruptcy has occurred as alleged and the attempt to do so is entirely misguided and reflects the willingness of the applicant's to seek to rely on almost any ground possible, without regard to the facts or anything more than a cursory reading of the Act.
12. I note that the solicitor for the applicant has included at both 5(a) and 5(b) an allegation of fraud against the respondent. Being mindful of a solicitor's obligation not to draw or settle any court document alleging fraud unless the solicitor believes on reasonable grounds that there is factual material already available to the solicitor to provide a proper basis for the allegation, I would not have expected in the context of a contractual dispute on the evidence before me, any such allegation to have been made.
13. In regard to a further alleged act of bankruptcy referred to at point 5(c) in regard to an alleged transfer of funds of $7,000.00 to his sisters which is allegedly in a court document in the QCAT documents, I do not accept that this transfer constitutes a transfer which would be void under s.121 (1) (a) as alleged. Nor do I consider that non-payment of various accounts as alleged in point 6 constitute an Act of Bankruptcy. All of these allegations are intertwined with the contractual dispute conducted in the Supreme Court and QCAT. It is not for this Court to resolve these disputes and to then use those findings as a basis for an Act of Bankruptcy. This application is flawed in its approach and suggests a serious misunderstanding of the Bankruptcy Act.
14. In relation to the matters raised at point 7, in regard to the Supreme Court Action, without going through chapter and verse, it is clear to the Court that having started this civil action, the Applicant's also filed a Notice of Discontinuance. The matters were finally put to rest by Justice North. The minutia of these proceedings and issues in dispute are not matters which constitute an Act of Bankruptcy. Following the matter through and obtaining a judgment would have been the usual course. This has not occurred.
15. The respondent correctly argues that it would be futile to permit the petition to be amended if it fails to correct fatal flaws in the action.
16. I accept the submissions made by Mr Cameron solicitor on behalf of the Respondents. I accept that the respondents are not a party to the Consultancy Agreement and also that any debt owing under the Consultancy Agreement is not secured by the Deed that is Annexure B to the Petition, as set out at paragraph 12 of the written submissions of the respondent. I accept that there is no money owing by the respondents to the applicant under the Deed at all. I also accept the submissions made in relation to the alleged Acts of Bankruptcy relied on and the difficulties put forward with each of the alleged Acts.
17. The main difficulty faced by the applicant, is the lack of evidence which proves the existence of a liquidated debt owed by the respondents to the applicant. It is an essential requirement that the applicant is able to prove the existence of a liquidated debt equal to or exceeding $5,000.00. Whilst there is no requirement that the debt be in the form of a judgment or order, the applicant carries the onus of proving the existence of a genuine debt.
18. Where there is a dispute about the existence of the debt, the Court exercising bankruptcy jurisdiction normally has regard to the judgment or order which underpins a bankruptcy notice. The Court as a general rule does not go behind the judgment unless there are exceptional circumstances. Generally speaking, where a petitioning creditor has obtained judgment, which underpins a bankruptcy notice and the judgment remains unsatisfied, the petitioning creditor is on solid ground to rely on the judgment as founding an entitlement to a sequestration order.
19. However, in this case, the applicant has not relied upon a judgment and a court exercising bankruptcy jurisdiction must be satisfied there is a debt due and owing to the petitioning creditor. The material filed in support of the petition is largely irrelevant and does not satisfy the burden of proof.

1. Having identified the deficiencies in the applicant's material, I am unable to find that an "act of bankruptcy" has occurred within six months of the date of the presentation of the creditor's petition. I am also not satisfied of the existence of a liquidated debt owed by the respondents to the applicant. I refuse leave to amend the creditors petition.
2. It therefore follows that creditor's petition must be dismissed and the applicant pay the respondents' costs. In the respondents' submissions, they have sought an order for fixed costs in the amount of $2,400. I agree that this is an appropriate figure in the all the circumstances and therefore order the applicant to pay the respondents' costs fixed in the sum of $2,400 within 45 days.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Willis

[4] [2004] FMCA 518 (19 August 2004)