Dean v Pepper Finance Corporation Ltd

REASONS FOR JUDGMENT 1 Section 52(1) of the Bankruptcy Act 1966 (Cth) provides that at the hearing of a creditor's petition the Court shall require proof of the matters stated in the petition, service of the petition, and the fact that the debt or debts on which the petitioning creditor relies is or are still owing. Only if it is satisfied with the proof of all these matters may it make a sequestration order against the debtor's estate. Even then, it is not obliged to do so and may dismiss the petition if it is satisfied that the debtor is able to pay his or her debts or that there is "other sufficient cause" not to make the order: s 52(2). 2 Noor Dean is a bankrupt solicitor. On 27 August 2015 a Registrar made a sequestration order against his estate. The relevant act of bankruptcy was Mr Dean's failure to comply with the terms of a bankruptcy notice served upon him by the petitioning creditor. The Registrar's decision was open to review: see Federal Circuit Court of Australia Act 1999 (Cth), s 104(2). The review had to be conducted by a judge (Harris v Caladine (1991) 172 CLR 84) and it had to proceed as a hearing de novo (Federal Circuit Court Rules 2001 (Cth), r 20.03(a)), that is as a fresh hearing of the petition, unconstrained in any way by the decision of the Registrar: Totev v Sfar (2008) 167 FCR 193 at [13]-[14] (Emmett J). See, too, Harris v Caladine at 124-5 (Dawson J). 3 On 22 September 2015 Mr Dean applied for a review of the Registrar's decision. On the application for review he submitted for the first time that the judgment debt upon which the bankruptcy notice had been based and which followed his consent to the entry of judgment against him was due to fraud practised upon him by a former client. Consequently, he asked the primary judge to look behind the judgment and determine for himself whether he was "in truth and reality" indebted to the petitioning creditor. The primary judge declined to do so. His Honour then considered each of the statutory preconditions for the exercise of the power to make the sequestration order and was satisfied that they were made out. Finally, his Honour dealt with and rejected the submission advanced on Mr Dean's behalf that on the evidence he had produced there was nevertheless other sufficient cause not to make the order and proceeded to dismiss the application and affirm the Registrar's order. Mr Dean contends that in so doing his Honour fell into appealable error. 4 The appeal raises three overlapping issues: (1) whether the primary judge failed to conduct a de novo hearing of the petition; (2) whether the primary judge wrongly applied the principles governing the circumstances in which a court exercising jurisdiction in bankruptcy may go behind a judgment; and (3) whether the primary judge erred in the exercise of his discretion to make the sequestration order by failing to take into account Mr Dean's evidence that in truth he is not indebted to the petitioning creditor. 5 The primary judge's reasons are certainly brief, arguably too brief. The entire judgment, which was delivered ex tempore, consisted of 12 paragraphs. It also contained a number of obvious mistakes, evincing a failure to proof the judgment properly or at all. But no ground of appeal was pleaded and no argument put that the reasons were appealably inadequate. The question is whether the primary judge erred as alleged.

The judgment debt 6 The petitioning creditor (Pepper) sued Mr Dean in the Local Court of New South Wales to recover a debt arising under the terms of a guarantee. In its statement of claim, Pepper alleged that Capital Finance Australia Limited (Capital Finance), which had assigned its rights under the agreement to Pepper, had agreed to hire a Mercedes Benz two-door cabriolet to Camiolo Corporation Pty Ltd (Camiolo) and that Capital Finance had delivered the car to Camiolo in accordance with the terms of the agreement. To secure Camiolo's obligations under the agreement, Mr Dean was said to have agreed to guarantee Camiolo's obligations and indemnify Capital Finance for "all liabilities, losses and expenses" arising from Camiolo's failure to pay any amount required to be paid under the agreement. Pepper pleaded that, under the terms of the agreement, if Camiolo did not pay an instalment when it fell due, Capital Finance was entitled to terminate the agreement and repossess the car and Mr Dean was required to pay Capital Finance on demand all outstanding amounts, the costs of repossession, and certain other sums specified in the agreement. After Camiolo defaulted under the agreement by failing to make an instalment when it fell due, Capital Finance called on Mr Dean to pay the full amount owing under the agreement but Mr Dean failed to comply with the demand. Mr Dean filed a defence denying liability on the basis that the car was never delivered to Camiolo (though the particulars to this allegation state that the car was never delivered to Mr Dean), but he offered no evidence and consented to the entry of judgment in Pepper's favour.

The bankruptcy proceedings 7 Nevertheless, Mr Dean did not pay the judgment sum and on 21 January 2015 a bankruptcy notice was issued at Pepper's request claiming that he owed Pepper $52,400.70, being five cents shy of the full amount of the judgment debt. Under the terms of the notice, within 21 days after it was served upon him Mr Dean was required to pay Pepper that amount or make arrangements to Pepper's satisfaction for settlement of the debt. The bankruptcy notice, together with a copy of the "judgment/order" which it attached, was served on Mr Dean personally at the law offices where he then worked on 2 February 2015. Consequently, he had until 23 February to comply unless within that time he applied to have the notice set aside. He did not comply with the notice or apply to have it set aside, so on 16 April 2015 Pepper filed a creditor's petition in the Federal Circuit Court. Rule 2.06 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) required a person who intends to oppose a petition to file and serve a notice in the approved form setting out the grounds of opposition to the petition. But no such document was ever filed. 8 The petition was listed for hearing at 2.00pm on 26 May 2015 but it appears from the orders made on that day that Mr Dean did not appear and the matter was adjourned until 23 July. On this occasion Mr Dean sought and was granted an adjournment until 13 August when the matter was adjourned again (for two weeks this time). On 27 August Registrar Segal heard the petition, and made an order for the sequestration of Mr Dean's estate, with costs, fixed in the amount of $8,192.82, to be paid from the bankrupt estate, but he stayed all proceedings under the sequestration order for 21 days to enable Mr Dean to apply for a review. 9 The review application was lodged on the 21st day (17 September). It was supported by an affidavit challenging the debt upon which the consent judgment was based (the underlying debt). The affidavit was sworn by Mr Dean the same day. At the hearing, Mr Dean's affidavit was read, together with affidavits filed by Pepper, being an affidavit of service of the bankruptcy notice, sworn by Emmanuel Sayanos on 3 February 2015; an affidavit verifying the matters set out in the creditor's petition, sworn by Jonathan New on 15 April 2015, an affidavit of service of the creditor's petition sworn by Neset Icbudak on 29 April 2015 (all of which were read in the hearing before the Registrar); an affidavit from Fintan O'Connor sworn on 10 December 2015, which annexed the Local Court pleadings and the consent judgment; and two affidavits from Michael Linton sworn on 9 and 17 December 2015. 10 No objection was taken to any affidavit except Mr Linton's of 9 December 2015. The affidavit annexed what appear to be contemporaneous business records of Capital Finance and Pepper, purportedly recording the history of the recovery action and all dealings with Mr Dean. No reason was given for the objection and it was rejected. 11 For completeness I note that in his affidavit Mr O'Connor, a solicitor in the employ of Gadens, which acts for Pepper, stated that the consent judgment was entered "following a course of without prejudice communications". There is no dispute that the annexed form of judgment bears Mr Dean's signature. 12 Neither party tendered the guarantee.

Mr Dean's evidence 13 Mr Dean's affidavit sets out the circumstances in which he contends that the consent judgment came to be made. 14 After referring to the creditor's petition, which he asserted was issued "on the basis of an alleged loan from Capital Finance", he stated (without alteration): I have previously signed an application with Capital Finance on the basis of advice from the self-styled Finance Broker, Emmanuelle Camiolo. I am not aware of and have neither received a confirmation that Capital Finance had approved finance to purchase the subject Motor Vehicle. 15 What followed is an account of Mr Dean's dealings with Mr Camiolo, starting with a visit from him "in or about the month of January, 2011" at Mr Dean's then city office. Mr Dean said that Mr Camiolo was "not previously known to [him]" and had no previous association with him. He said that the purpose of the visit was to give Mr Dean instructions to act for Mr Camiolo in "a substantial case" involving his companies. A short time later, however, Mr Dean said that he was given a brief to defend Mr Camiolo on a number of fraud charges. Mr Dean said that he obtained Mr Camiolo's release on bail and asked him to bring all his documents over for him to review. 16 Mr Dean stated that Mr Camiolo did not visit him until some weeks later, when he walked in without an appointment and asked Mr Dean to act for him. Mr Dean said that he took Mr Camiolo's instructions but, as Mr Camiolo did not pay Mr Dean for his services, after a time Mr Dean terminated the retainer. 17 Mr Dean said that Mr Camiolo tried to sell him a car on a number of occasions and eventually he agreed to buy one, on finance that Mr Camiolo was to provide. After receiving the loan documents, however, Mr Dean said that he told Mr Camiolo that he did not want the car. Despite this, he said that "[t]he subject vehicle was bought using [Mr Dean's] name and finance documents signed by [him] to obtain finance". 18 Mr Dean went on to claim that Mr Camiolo obtained a credit card in his name. Annexed to the affidavit is a document that appears to be a letter dated 19 January 2011 from American Express to "Mr. N Dean", informing him that he was to receive an American Express Small Business Card, subject to Mr Dean verifying certain information or documents that American Express stated it had requested from him or his accountant. Mr Dean said that the address to which the letter was sent is not his own and is in fact Mr Camiolo's. He did not say, however, how, if that were so, he came into possession of it. 19 Finally, Mr Dean claimed to have discovered two further documents. One was a handwritten letter he said was "allegedly signed by [him] and bearing [his] name as an Officer of a certain Company [Camiolo] resigning from appointment". The other was a document that on one side, he asserted, carried a forged signature "as a 'Resignation of Director Authority'" and on the other a typed version of a "'Deed of Appointment of New Trustee' of 'The Camiolo Family Trust'", which is written on what purports to be the letterhead of Maddocks Lawyers and is marked as a draft. Once again, assuming his assertions are true, he did not say how he came to be in possession of these documents. Mr Dean also said that he has heard from other unnamed persons that Mr Camiolo has been posing as him. 20 Mr Dean said that at some point he began to receive letters from Capital Finance, demanding payment for the car. He said that he informed Capital Finance that he had not received any motor vehicle and did not buy one. Yet, sometime later Capital Finance filed proceedings against him in the Local Court in Sydney. 21 Mr Dean then stated: I confirm that Detective Sergeant Barry Jenks of the Metropolitan Police Force Western Division Victoria is fully conversant of these acts and has recently spoken to me about this case. I am informed and verily believe that Emmanuelle Camiolo has been charged with several Offences relating to the monies fraudulently obtained from his former Defacto Partner and her family and especially Mr Antonio Liparota and his Wife. He did not say that he had reported Mr Camiolo to the police for any fraud practised upon him. Nor did he indicate how he came to discuss the charges relating to Mr Camiolo's de facto wife with Detective Sergeant Jenks. 22 Paragraph 46 of the affidavit reads as follows: 46. Reasons for signing the Consent Orders I had been in touch with the said Emmannuelle (sic) Camiolo whilst I acted for him. He would walk into the Office and demand to see me. On one occasion he came into the office with a fit of rage accusing me of backstabbing him and going behind his back to find out what he was doing. He informed me that if I went after him, or informed Police, he would unleash Melbourne's Underworld figures who were his mates and they would sort me out. He threatened to harm my Wife and Children as well and used words such as "mother-fucker" "you get me into trouble over this car, you are dead, your children will have no home, your fucking wife will be raped. "My friends know where she is employed". I had seen him in a "spat" sometime back with someone he was calling a "whore" and a "slut" when he visited my office once. He was ready to harm the person on the other line. I cautioned him not to attack other people like that. He said words to me "None of your fucking business" "You get out of line" and "you see what happens to you, you son of a…… "BITCH!". I left him standing on the roadway accusing the other party of being a slut and "sleeping with her father" or words to that effect. 23 Annexed to the affidavit are what Mr Dean asserted were copies of messages that Caterina Liparota, who, he said, was Mr Camiolo's then de facto wife, received from Mr Camiolo. The messages are obscene and contain threats to kill both the recipient and the recipient's children. 24 The affidavit concludes with the claim that, in view of the matters deposed to, Mr Dean is not "truly and justly" indebted to Pepper. 25 Mr Dean did not offer any explanation for his failure to take any steps to set aside the consent judgment.

The hearing below 26 Mr Dean submitted that the court should exercise its discretion to go behind the judgment because there was in truth no debt, relying on the evidence given in his affidavit. In the alternative, he relied on the same evidence to show that there was other sufficient cause not to make the order, even if the court were satisfied of the matters contained in s 52(1)(a)-(c). 27 The primary judge did not refer to the relevant legal principles but he did advert to the summaries of those principles in Ramsay Health Care Australia Pty Ltd v Compton [2015] FCA 1207 at [13]-[17] (Flick J) and Katter v Melhem (No 2) [2014] FCA 1176 at [69]-[81] (Wigney J). His Honour then asserted that "[t]hose principles identify of the first question is whether the discretion should be exercised to go behind the judgment (sic)". He addressed that question at [7]-[8]: 7 In the present case, the circumstances surrounding the making of the consent order were not addressed by the judgment debtor, nor did the judgment debtor disclose the fact that he had filed a defence or identify circumstances as a result of which it could be said there was a ground to challenge the compromise reflected in the consent orders in the proceedings. In these circumstances, I am not satisfied that the discretion to reopen the judgment should be exercised. 8 I also take into account that if there was operative duress, it was a matter that the judgment debtor could have and should have sought to agitate at a time much earlier than the hearing of the creditor's petition that occurred before the Registrar. It is not apparent that any step was taken to challenge or seek to set aside the bankruptcy notice which was served on 2 February 2015 on the judgment debtor. There was no explanation as to why proceedings on these issues were not taken in the Local Court to challenge the consent order if, in fact, it was the subject of an allegation of duress. 28 At [9] his Honour referred to Pepper's evidence, found that the act of bankruptcy occurred on 23 February 2015, and held that Pepper had proved "the criteria identified in s 52(1) …" 29 His Honour then turned to s 52(2), adverting to Mr Dean's submission at [10]. He held at [11]: On the material before the Court, I am satisfied that the applicant is not able to pay its debts. I am not satisfied that there is other sufficient cause whereby a sequestration order ought not to be made. For the reasons earlier expressed, the affidavit of the judgment debtor falls a long way short of identifying grounds upon which the compromise reflected in the consent orders could properly be challenged. I further take into account in that regard the failure of the judgment debtor to take any steps, on the evidence before the Court, to move the Local Court to set aside the consent order. I also take into account the failure by the judgment debtor to take any steps to challenge the bankruptcy notice.

Did the primary judge fail to conduct the hearing required by law? 30 Ground 1 of the amended notice of appeal is in the following terms: The learned judge committed a jurisdictional error and/or non-jurisdictional error of law by failing to discharge his constitutional and statutory duty to determine afresh whether the appellant was justly and truly indebted to the petitioning creditor before making a sequestration order against him. 31 Before turning to the argument, it is necessary to say something more about the legislation. 32 The jurisdiction to make a sequestration order derives from s 43 of the Act. It relevantly provides: 43 Jurisdiction to make sequestration orders (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. (2) Upon the making of a sequestration order against the estate of a debtor, the debtor becomes a bankrupt, and continues to be a bankrupt until: (a) he or she is discharged by force of subsection 149(1); or (b) his or her bankruptcy is annulled by force of subsection 74(5) or 153A(1) or under section 153B. 33 Section 52, to which I referred at the outset, relevantly states: 52 Proceedings and order on creditor's petition (1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. … (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made; it may dismiss the petition. 34 The argument in support of this ground was to the effect that the primary judge failed to conduct a hearing de novo of the creditor's petition. The premise for the argument was that his Honour disregarded Mr Dean's evidence (the subject of ground 3 of the amended notice of appeal) and relied upon the consent judgment "as conclusive proof" or "irrefutable evidence" of the existence of the debt. Consequently, so the argument ran, the primary judge fell into jurisdictional error (see Craig v State of South Australia (1994) 184 CLR 163 at 175-176). The argument must be rejected because its underlying premise cannot be accepted. 35 First, the primary judge did not hold that the judgment was conclusive or treat it as irrebuttable. If he had done so, there would have been no need for him to inquire, as he did, whether the discretion should be exercised to go behind the judgment. 36 Mr Selimi of counsel, who appeared for Mr Dean both in this Court and the court below, emphasised the necessity for the Court to be satisfied that the underlying debt was still owing and seemed to submit, at times, that that meant that the court was bound to disregard the existence of the judgment. If that is in truth what he was saying, it is contrary to the authorities upon which he relied. A submission to similar effect was described by Lord Esher MR as "preposterous" in Re Flatau; Ex parte Scotch Whisky Distillers, Limited (1888) 22 QBD 83 at 85-6 (Fry and Lopes JJ agreeing). Furthermore, it is also contrary to the position Mr Selimi put to the primary judge. There, at ts 5-6 he is recorded as saying: Firstly, in my submission, on the basis of the affidavit sworn by the applicant, Mr Dean, the court has the power to go behind a judgment. Clearly there is a discretion involved in whether it ought to go behind a judgment, particularly a consent judgment. … So I deal with that issue squarely, your Honour. It's clearly the most formidable obstacle to success in this case. 37 It was common ground that, unless reason was shown to go behind the judgment, Pepper had proved the conditions for the making of a sequestration order and the court had both the jurisdiction and the power to make the order. His Honour's reasons, brief as they may be, show that he considered afresh both whether the order could be made and whether it should be. 38 Secondly, his Honour did not fail to consider Mr Dean's evidence. At [4]-[5] his Honour said: 4 The substance of the affidavit was to the effect that the judgment debtor had been defaulted by a third party in acquiring a vehicle which the judgment debtor contends was not the subject of any use by him and which the judgment debtor contends was not the subject of any document signed by him. 5 The affidavit of the judgment debtor does not identify what occurred in the conduct of the Local Court proceedings and has a heading, "Reasons for Signing Consent Orders", in which generalised allegations are made against a third party and nothing is said as to some operative duress referable to the signing of those consent orders. There is no fact identified that supports any ground to reopen the consent orders signed by the debtor on 15 December 2014. 39 Mr Selimi acknowledged that by "defaulted" in [4] his Honour meant "defrauded". 40 Ground 1 must be dismissed.

Did the primary judge misapply the legal principles for going behind a judgment? 41 In ground 2 Mr Dean alleged that the primary judge erred by misapplying the legal principles governing the circumstances in which a court exercising jurisdiction in bankruptcy may go behind a judgment. The argument in support of the ground, however, went further. Without applying for leave to amend the notice of appeal, Mr Selimi contended that the primary judge erred by failing to go behind the judgment. Since no objection was taken to this course, however, I propose to deal with the argument. Together these two propositions were largely founded on the primary judge's remarks at [5], to which I have already referred, and what his Honour went on to say at [6]-[7]: 6 The principles in relation to going behind a judgment have been more recently summarised by Flick J in Ramsay Health Care Australia Pty Limited v Compton [2015] FCA 1207 at 13 to 17 and also in the helpful summary of the principles by Wigney J in Katter v Melhem [2014] FCA 1176 at 69 to 81. Those principles identify of the first question is whether the discretion should be exercised to go behind the judgment. 7 In the present case, the circumstances surrounding the making of the consent order were not addressed by the judgment debtor, nor did the judgment debtor disclose the fact that he had filed a defence or identify circumstances as a result of which it could be said there was a ground to challenge the compromise reflected in the consent orders in the proceedings. In these circumstances, I am not satisfied that the discretion to reopen the judgment should be exercised. 42 Mr Selimi criticised the references in [5] and [7] to the reopening of the consent orders or the judgment. He submitted that this was indicative that his Honour had applied the wrong test, as the court does not reopen a judgment when it goes behind it. The judgment remains on the record, the court is simply not bound to consider it conclusive evidence of the debt. 43 The language his Honour used was certainly inapt to describe the statutory task. When a court decides to inquire into the existence of the debt, it does not set aside the judgment; it has no power to do that: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (Full Court) at 588. Rather, it "goes round the judgment, and inquires into the subject matter" for the purpose of satisfying itself that the petitioning creditor founds his petition on a "good debt": In Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633 at 636 (Lord Esher MR). 44 Without more, however, these inapt expressions do not indicate that the primary judge applied the wrong test for determining whether he should inquire into the existence of the underlying debt. 45 In his written submissions, Mr Selimi contended that, while the primary judge cited "the applicable principles" summarised in Ramsay v Compton at [13]-[17] and Katter v Melhem at [69]-[81], the principles were "demonstrably misapplied" because, instead of inquiring into the existence of a genuine underlying antecedent debt, his Honour misdirected himself by inquiring into the separate and distinct question of whether the subsequent compromise was vitiated by duress and by focussing on Mr Dean's failure to set aside the consent judgment. This submission was based on certain remarks of Barwick CJ (with whom Windeyer and Owen JJ agreed) in Wren v Mahony (1972) 126 CLR 212 at 223-4. 46 It is convenient to start with the summary in Katter v Melhem which was adopted by Flick J in Ramsay v Compton. In the present case, as in Katter v Melhem, but unlike Ramsay v Compton, there was no application to have the question of whether to go behind the judgment dealt with separately, in advance of a determination as to whether a sequestration order should be made. In Katter v Melhem, Wigney J said at [69]-[81]: Relevant principles - "going behind" a judgment 69 The existence of a judgment is prima facie evidence of a debt: Corney v Brien (1951) 84 CLR 343 (Corney v Brien) at 355 (Fullagar J). However, a judgment is never conclusive in bankruptcy and the Court has a discretion to "go behind" the judgment to investigate whether there was a good debt to support it: Corney v Brien at 347 (Dixon, Williams, Webb, Kitto JJ), 353-354 (Fullagar J). 70 The Court will not, however, inquire into the consideration for a judgment as a matter of course: Wren v Mahoney (1972) 126 CLR 212 at 222-223 (Barwick CJ). Whilst the circumstances in which the Court will inquire into the validity of a judgment debt are not closed (Commonwealth Bank of Australia v Jeans [2005] FCA 978 (Commonwealth Bank v Jeans) at [15]) and there is no inflexible rule (Re Wong; Ex parte Kitson (1979) 27 ALR 405; Chancliff Holdings Pty Ltd v Bell [1999] FCA 1708 (Chancliff) at [90]), it is possible to identify a number of guiding principles. 71 First, the Court looks with suspicion on consent judgments and default judgments: Corney v Brien at 348 (Dixon, Williams, Webb and Kitto JJ) citing Latham CJ in Petrie v Redmond (1942) 13 ABC 44 at 48-49. Where the judgment in question is a default judgment, it appears that the Court will always "go behind" the judgment if there is what it regards as a bona fide allegation that no real debt lay behind the judgment: Corney v Brien at 357-358 (Fullagar J). 72 Second, if the judgment in question followed a full investigation at a trial at which both parties appeared, the Court will not reopen the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out: Corney v Brien at 356-357 (Fullagar J). In Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 at 86, Fry LJ said: "this power has never, so far as I am aware, been extended to cases in which a judgment has been obtained after issues have been tried out before a [c]ourt". In Corney v Brien, Fullagar J said (at 358) that he had not been able to find any such case since Fry LJ made this statement in 1888. 73 Third, where judgment has been entered in pursuance of a compromise, grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened: Corney v Brien at 357 (Fullagar J). That is because it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 (Harrison v Charalambous) at [9]. 74 Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not generally be reopened: Corney v Brien at 357. The presumption in such circumstances is that it is difficult, although not impossible, to impugn the compromise: Harrison v Charalambous at [9]. One instance where the Court may go behind a judgment in these circumstances is where both parties knew the original claim was not a bona fide claim and the judgment or compromise was obtained by dishonesty known to both parties: Ex parte Banner; In re Blythe (1881) 17 Ch D 480 (Re Blythe). If, however, counsel had full knowledge of all relevant facts, and no suspicion of unfairness or impropriety in the compromise arises, a court may decline to go behind a judgment submitted to on the advice of counsel: In re A Debtor [1929] 1 Ch. 125; Chancliff at [100]; Smith v Abbott, Stillman & Wilson [2007] FCA 1256. 75 The fact that the debtor may have been pressured by his legal advisers to compromise the claim, despite the merits of his defence, will not generally be sufficient to warrant going behind the judgment entered pursuant to that compromise. That will particularly be the case where the judgment creditor was unaware of, or was not implicated in, the alleged undue pressure: Harrison v Charalambous at [11]… 76 It is implicit in this statement that the mere fact that the compromise may not have been "in accordance with the true merits of the claims made" will not be sufficient to impugn the compromise. Such a circumstance alone will therefore not warrant the Court going behind the judgment. 77 Fourth, the Court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced and would not support a finding that there was, in truth, no debt at all: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589; Olivieri v Stafford (1989) 24 FCR 413 (Olivieri v Stafford) at 431-432 (Gummow J); Re Cosimo Longo Ex parte: Cosimo Longo [1995] FCA 1324 at [23]-[25]; Cumins v Deputy Commissioner of Taxation (2008) 172 FCR 425 at [7]-[10]; Re Riviere; Ex parte Original Mont de Piete Ltd (1919) 20 SR (NSW) 77 (Re Riviere) at 83-84. 78 The particular circumstances of any given case may no doubt throw up other considerations relevant to whether the Court should exercise its discretion to go behind a judgment. Where the judgment debtor seeks to go behind the judgment on particular grounds, it is difficult to see why it would not be a relevant consideration that those grounds could have been, but were not, raised in opposition to the judgment, or in an application to set aside the judgment. Parties are ordinarily bound by the way they have chosen to conduct litigation. The fact that, for whatever reason, a party did not put particular arguments before the court that made (or refused to set aside) the judgment does not mean that there was no relevant hearing on the merits: Commonwealth Bank v Jeans at [18]-[21]; Olivieri v Stafford at 424 (Beaumont J). 79 The question whether the judgment is to be reopened or "gone behind" at all will usually involve some preliminary investigation of the merits of the attack of the judgment: Corney v Brien at 358. That question can and often is dealt with as a preliminary question: see for example Commonwealth Bank v Jeans. Once the Court decides that it will go behind the judgment "the whole [of the] matter is open": Corney v Brien at 358. Where it is legitimate to go behind a judgment entered after trial, there would effectively be no alternative but to retry the whole case. 80 The parties in this matter did not ultimately ask the Court to decide the question whether the Court should go behind the judgment as a separate preliminary question. The evidence relied on by the parties was relied on for all purposes. 81 It is, however, obviously necessary to first determine whether the discretion should be exercised. If not, it is unnecessary to go further. 47 It can readily be seen that the proposition that the primary judge erred in inquiring into the question of "whether the subsequent compromise was vitiated by duress" and focussing on Mr Dean's failure to set aside the consent judgment is directly at odds with what Wigney J said at [73]. In contrast to his written submissions, however, in oral argument Mr Selimi submitted that Wigney J erred at [73] (and by logical extension, so too, Fullagar J in Corney v Brien at 357) in saying that grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened. This was not a submission made to the primary judge and I reject it. It is against the weight of authority. 48 In Wolff v Donovan (1991) 29 FCR 480 (Wolff) at 486 Lee and Hill JJ (with whom Davies J agreed, adding some remarks of his own) said: The existence of the judgment is prima facie evidence of the debt: see Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633 at 636-637. No doubt it will be relevant that the judgment debtor has made no attempt to set aside the judgment although failure so to do may be explained, as it was in the present case, by the fact that the debtor lacked funds to pursue this course. It was, however, made clear by Lord Esher in Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 at 85-86 that the court will not go behind the judgment as a matter of course but only if appropriate circumstances are shown to exist. (Emphasis added.) 49 Indeed, in Re A Debtor [1929] 1 Ch 125 at 127 (which was followed by Cooper J in Re Longo; Ex parte Longo (1995) 57 FCR 523 at 529 and upon which, it will be seen, Mr Selimi relied for another purpose) Astbury J, with whom Clauson J agreed, declined to go behind the judgment where counsel for the debtor failed to show that there was anything in the circumstances of the compromise to justify such a course: True it is that the Bankruptcy Court may, upon a prima facie case being shown, go behind a judgment for the purpose of satisfying itself that the debt enforceable thereunder was a real debt. But here counsel for the appellant has failed to show anything in the circumstances of the compromise which raises any such suspicion of unfairness or impropriety as to justify this Court in looking behind the judgment to inquire into the consideration for the debt or the propriety of the compromise. See also Smith v Abbott Stillman & Wilson [2007] FCA 1256 at [18] (Ryan J). 50 In Wren Barwick CJ said at 224: The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor's debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment : to what is its consideration. 51 But the Chief Justice was at pains to point out that there was no inconsistency between what he was saying and anything said in Corney v Brien. 52 The Chief Justice's remarks should be read in context. Wren was not a case where the judgment debt was the sole foundation for the petition, as the Chief Justice emphasised at 221. To the contrary, the petition relied heavily on the terms of the deed, the obligations under which the debtor allegedly failed to honour, culminating in the entry of judgment against him: see Wren at 216-218. The Chief Justice did not expressly or impliedly rule out a consideration of the circumstances in which a consent judgment is obtained. 53 In any case, it is patently not irrelevant to a determination of whether reason has been shown to question the existence of the underlying debt to consider whether there is reason to go behind the agreement. Indeed, it may be highly relevant. Nor does it follow, as Mr Selimi appeared to suggest, that it is irrelevant whenever the debtor puts on evidence to challenge the underlying debt. As Wigney J explained in Katter at [79], in a passage with which Mr Selimi did not take issue, whether the discretion should be exercised to go behind the judgment usually involves a preliminary investigation of the merits of the attack upon it. That will ordinarily, if not inevitably or necessarily, involve an inquiry into the circumstances in which the judgment was obtained. After all, as his Honour put it in Katter, it is the compromise, rather than the claim that was compromised, which is the foundation for a consent judgment. In such a case it may not be enough to attack the antecedent debt because, unlike a judgment entered after a contested hearing, the consideration for the compromise often involves a number of factors, some of which may be completely unrelated to the debt. 54 Mr Selimi also submitted that it was apparent that the primary judge asked himself the wrong question from a comment his Honour had made during argument. In the hearing below, Mr Selimi took his Honour to the following statement by Astbury J in In re a Debtor at 127, cited by the plurality (Dixon, Williams, Webb and Kitto JJ) in Corney v Brien at 347: True it is that the Bankruptcy Court may upon a prima-facie case being shown, go behind a judgment for the purpose of satisfying itself that the debt enforceable thereunder was a real debt. 55 Mr Selimi then submitted that "what the applicant debtor needs to show is a prima facie case for going behind the judgment". His Honour responded: Well I don't think that's the correct principle today … The correct principle is that you have to demonstrate in respect of a compromise where there is a consent order whether there are grounds for challenging the compromise sufficient to the judgment being reopened. So you've got to address the compromise, which is why I draw your attention to the fact in this case your client had filed a defence of then entered into a consent order. 56 The exchange is confusing. If, by these comments, his Honour is to be taken as saying that the debtor does not need to establish a prima facie case for going behind the judgment, then I would respectfully disagree. Indeed, Ms Power, who appeared for Pepper, readily accepted that the test was as Mr Selimi put it, although at times it is expressed differently. In Wren v Mahony, for instance, the Chief Justice did not speak of a "prima facie case", but of "reason [being] shown for questioning whether behind the judgment … there was in truth and reality a debt due to the petitioning creditor". Other cases speak of "substantial reason" (see, for example Re Hughes; Ex parte Geo M Hume Pty Ltd (unreported, Merkel J, 29 July 1997). Indeed, it may be that the phrase "prima facie case" in this context needs to be approached with caution. There is no analogy to the "prima facie case" required in an application for interlocutory relief, where the moving party bears the legal onus of establishing its case, albeit only to a prima facie standard. Here, the debtor does not carry any legal onus. What he bears is a tactical or evidential onus to demonstrate that there is reason to go behind the judgment: Wolff at 487 (Lee and Hill JJ). 57 I do not think that his Honour was disputing these principles. Rather, I think his Honour understood Mr Selimi to be saying that it was sufficient that he show there was a prima facie case that there was no underlying debt. His Honour was concerned that, in the case of a consent judgment, the judgment debtor needed to address the compromise before the Court would go behind the debt. That is consistent with what Wigney J said in Katter v Melhem (at [73]) and with the authorities to which his Honour refers at that point. 58 In any event, comments by a judge in the course of argument cannot provide a foundation for a submission that he or she ultimately applied the wrong test. As Adamson J observed in Dang v R [2014] NSWCCA 47 at [32] (Simpson and Davies JJ agreeing at [1] and [2] respectively): It is an important part of procedural fairness that a judge will, at times, express views in the course of oral argument. However, judgment is necessarily suspended until all evidence has been adduced and all submissions made. Only then can all matters be considered, a decision made and reasons for decision given in the remarks on sentence. The remarks comprise the reasons. The reasons are not to be discerned from the exchanges in the course of the hearing, since the latter may constitute no more than the articulating of a proposition propounded for the purposes of argument and, at best, the expression of a preliminary view. 59 Unless the judge informs the parties that his or her reasons should be taken from what he or she said in the course of the argument, it is not to the point that the judgment is delivered ex tempore. 60 The remaining questions, then, are: (a) whether the primary judge failed to consider whether there was a prima facie case for going behind the judgment; (b) whether his Honour failed to give any weight to Mr Dean's evidence which, it is said, establishes that he is not in debt to Pepper because of a fraud perpetrated upon him by Mr Camiolo; (c) whether, if so, that would be an appealable error; and, (d) in that event, whether this Court should come to a different conclusion. 61 In the face of his Honour's reasons, I am unable to conclude that he failed to consider whether there was a prima facie case for going behind the judgment and, hence, that he asked himself the wrong question. 62 On the other hand, I accept that he did not give any weight to Mr Dean's evidence concerning the circumstances in which he came to be saddled with the debt. But I am not satisfied that in doing so, his Honour fell into appealable error and, having regard to that evidence, even if I were I would not come to a different conclusion. 63 Mr Dean's case presupposes that his evidence was entitled to be given any weight. 64 The difficulty lies in the substance and quality of the evidence. 65 At the hearing before the primary judge, Mr Selimi submitted, in effect, that the underlying debt did not exist due to "fraud, in essence, in relation to execution of documents", which he said was "alleged" in paragraphs [22]-[24] of Mr Dean's affidavit. Those paragraphs read: 22 The subject vehicle was allegedly bought using my name and finance documents signed by me to obtain finance. I did not give permission to any person to sign my name or use my signature on any documents or to take possession of a Motor Vehicle in my name. 23 I am informed and verily believe that the subject car was released to someone who posed as Noor Dean. I also understand that at the time of these acts, the said Camiolo was posing to other people that he was Noor Dean, A Solicitor and Principal in the Firm of MLC Lawyers. 24 Weeks went by I heard nothing about the motor vehicle. I believe that my signatures were forged or lifted by the said Camiolo, who had persuaded me that I should take over his substantial business and Companies including his Family Trust and be the sole Director of his companies whilst he dealt with his marital problems and several Court Cases. 66 Importantly, while Mr Dean asserted at [22] that he "did not give permission to any person to sign [his] name or [use] his signature on any documents", he did not deny signing the guarantee upon which he was sued and which gave rise to the judgment debt. Indeed, he did not mention the word "guarantee", let alone, as might have been expected of a lawyer if he was alleging that his signature had been forged on a guarantee, annex the guarantee to his affidavit, point to the signature and state that it was not his or that he did not put it there. 67 Later in the affidavit, at [27], Mr Dean stated that he "underst[oo]d that the Finance Application for a Motor Vehicle was accepted on the basis of some fraudulent Tax Returns this man proffered to the Finance Company including false Bank information". In the following paragraph he said that he "underst[oo]d" that the motor vehicle was received by Mr Camiolo who went to the Moonee Ponds car yard "with an authority allegedly signed by [Mr Dean] and took possession of the said Motor Vehicle". The source of these understandings is entirely obscure. What is more, it is not at all clear what finance application he is talking about, or what the authority presented to the car yard has to do with execution of the guarantee. It is common ground that the guarantee was executed on 5 November 2010. Yet, as I have said, all the events described in the affidavit are said to have occurred in or after January 2011. 68 Quite apart from the fact that the dates render the contents of the affidavit irrelevant, a good deal of the evidence is unreliable on its face. The affidavit was replete with hearsay, conjecture, and inadmissible lay opinions. Mr Dean repeatedly referred to what he understood and believed, instead of what he did, said or perceived. 69 The mere fact that Mr Dean's evidence was not challenged does not mean that the primary judge was obliged to accept it or to place any weight upon it. Nor was his Honour required to go beyond what Mr Dean actually said to draw an inference in his favour to connect these vague and confusing allegations to the underlying debt (such as an inference that Mr Dean's signature on the guarantee document was forged). 70 In any case, even if the evidence is taken to relate to the execution of the guarantee, at no stage did Mr Dean explain why he did not raise the matters in his defence in the Local Court proceedings. Nor did he explain why, in those circumstances, he consented to judgment. Nor did he account for his failure to file a notice of opposition to the creditor's petition or to contest the bankruptcy notice. 71 Furthermore, if the fraud said to "unravel" the underlying debt is that he did not sign any of the relevant documents, that allegation is entirely inconsistent with the defence he filed in the Local Court. His defence was that the vehicle the subject of the hire purchase agreement was never delivered or received and for that reason he had no obligation to make payments to the finance company. In [2] he admitted to signing documents relating to the "alleged purchase" and in the first particular [3] he stated: On or about 5 Nov 2010, [he] signed the documents in the presence of a representative of Capitol (sic) Finance … 72 While he disagreed with the terms of the guarantee as pleaded, he admitted at [6] to entering into the guarantee. 73 That is not all. The contemporaneous business records tendered by Pepper include numerous statements from Mr Dean in which he acknowledged his liability to Pepper. The following instances are sufficient to illustrate the point. 74 On 24 January 2011, the documents record that during a lengthy telephone conversation with an officer or employee of Capital Finance, David Wilson, Mr Dean said that he understood his obligations under the guarantee and said that he realised now that he should not have done so. On 29 January 2011, in another telephone conversation, the records show that Mr Dean advised again that he understood his obligations "as [they had] discussed 'over and over and over' (these were the guarantors words)". 75 On 3 February 2011, Capital Finance's records indicate that Mr Dean wrote a letter to it in the following terms: Re: Contract No: 517760 Camiolo Corporation - Breach of Terms & Conditions - Credit [1] I refer to the above matter and to my discussion since January with David of your Company. I have provided a Personal Guarantee in relation to this financing. I am aware of my responsibilities under the said Personal Guarantee and am cognisant of the fact of breaches leading to referral to a Credit Agency. [2] Mr. Emannuel (sic) Camiolo who is one of the beneficiaries of the Camiolo trust is presently in possession of the subject vehicle which is financed through your Company. He had undertaken to make regular and timely payments to your Company. This he has not done to-date despite a number of promises and undertakings. [3] Early this morning, Mr Camiolo advised this office that he intended to refinance the subject vehicle with GE Finance. He is working with a Financial Adviser to reorganise his finances and to pay out Capital Finance at the earliest possible time the outstanding balance plus costs and charges. Mr John Adicho, Managing Director of "Eight Point Capital Pty Ltd" … intends to contact you or David to discuss settlement/repayment plans in respect of this matter. I hereby authorise Mr Adicho to contact you and to provide all information for settlement of the outstanding repayments and to arrange for alternative finance over the subject vehicle. [4] I also advise that I have resigned as the Director and Trustee of this Company in view of the constant and repeated un-kept promises by my client Mr. Emmanuel Camiolo with regards to repayment. A copy of my resignation and the re-appointment of a new Director is enclosed for your information. [5] I believe that Mr. John Adicho and 8 Point Capital P/L are able to obtain refinance and thus repay all outstanding monies to Capital Finance. [6] I therefore seek a further 14 days, to provide through Mr. Adicho alternative plans with your office to pay out the debt due to Capital Finance. [7] I therefore seek your further indulgence to allow: - (i) Mr John Adicho to contact your representatives and to discuss payment of the outstanding amount and make suitable payment arrangements, (ii) the re-financing alternative and (iii) the provision of a further guarantee from the present director; 76 There followed Mr Dean's name, office address, telephone and fax number and email address. The letter was copied to Mr Camiolo and Mr Adicho. 77 The fourth paragraph of this letter appears to be entirely at odds with Mr Dean's apparent insinuation that his signature had been forged on the letter of resignation from Camiolo (see [65] above). 78 Mr Dean offered no explanation for any of this material. In particular, he did not suggest that he did not make the statements attributed to him or that the letter to which I referred did not come from him. Having failed to persuade the primary judge not to admit these records into evidence, his counsel simply chose to ignore them. 79 Further, neither in [48] nor anywhere else in his affidavit did Mr Dean make any attempt to connect the threats he said Mr Camiolo had made to his decision to agree to judgment being entered against him. He did not say that he was cowed by the threats. Indeed, he said nothing about their effect on him. He did not explain why contesting Pepper's actions would get Mr Camiolo into trouble over the car. He did not identify when the threats were made. (For all we know they could have been made after he signed the consent judgment.) In any case, even if his account were to be taken as a reason for not contesting the proceeding or for failing to file evidence, he did not explain why he actively consented to the judgment. Nor did he explain why, if he had consented to judgment out of fear, he now felt safe enough to air the allegations. 80 During the course of argument in the court below, Mr Selimi acknowledged there was a lack of detail in the affidavit. He also accepted that there was no direct evidence of an actual threat leading to the execution of the consent orders. When his Honour asked him how, then, he could get to "a prima facie case of duress in respect of the compromise", Mr Selimi replied: Well, in my submission, the prima facie test is satisfied when one has regard to the nature of the character that the applicant feared and if one looks at the content of the matters in paragraph 46 … they're rather graphic - in my submission, in terms of a prima facie case for reopening the matter, it does set out what he fears from this person and the inference that I would invite your Honour to draw is that by reason of the applicant's belief as to the nature of the character that he was dealing with, he feared agitating this matter in open court. And if the truth came out in terms of the criminal dealings of this rogue, then the applicant feared not only for himself but for his family. That is a fair construction of paragraph 46 and that's as high as I can put it on the evidence, your Honour. 81 These submissions were not repeated on appeal. Instead, as I have already explained, Mr Selimi tried to persuade the Court that his Honour was in error in considering this matter at all. 82 The allegations Mr Dean made in his affidavit are very serious but the lack of detail is troubling, particularly as he is a lawyer. 83 Mr Dean had an opportunity to improve his evidence. When the matter was first listed before the primary judge a week earlier he drew counsel's attention to "the potential deficiencies with the affidavit evidence". For some unexplained reason, however, the opportunity to rectify the deficiencies was not taken. 84 In the present case, the evidence in Mr Dean's affidavit fell far short of establishing a prima facie case that the conduct of the alleged fraudster had contributed to Mr Dean's decision to agree to judgment in Pepper's favour or that he did not sign the guarantee and therefore incur the debt. 85 Ms Power of counsel, who appeared for Pepper, contended that any conduct by a third party (like Mr Camiolo) could not be relied upon to impeach Pepper's rights against Mr Dean. Supplementary submissions were filed by both parties on this question, but in view of the conclusion I have reached about the evidence, it is unnecessary to decide the point. 86 Ground 2 of the amended notice of appeal should be dismissed.

Did the primary judge err in the exercise of his discretion by failing to take into account Mr Dean's evidence? 87 In ground 3 Mr Dean alleged that the primary judge erred in the exercise of his discretion by "failing to take into account [his] uncontradicted and unchallenged evidence … that he is not justly and truly indebted to [Pepper] before making a sequestration order against him". 88 I have already rejected this proposition. Accordingly, this ground should also be dismissed.

Conclusion 89 It follows that the appeal should be dismissed with costs.

Postscript 90 In his oral submissions in reply Mr Selimi argued that fraud was not required to impeach the underlying debt. He submitted that "even if [Mr Dean] signed the guarantee, it was on the assumption that he would be taking delivery of a vehicle, which, in fact, was never surrendered into his possession". On the basis that Mr Dean was misled or deceived in this way, Mr Selimi said that the Court could set aside the guarantee under the Australian Consumer Law (ACL), found in Sch 2 to the Competition and Consumer Act 2010 (Cth). He did not refer to any particular provision of the ACL that gives a court that power. Indeed, he said that "the only authority that [he] would seek to refer to" was s 18, which does not, on its own, empower a court to do anything. 91 No submission to this effect was put to the primary judge. Indeed, the case that was put below (with even more imprecision than the one advanced on appeal) appears to have been that Mr Dean's signature was forged. 92 This is an appeal by way of rehearing. That does not mean, though, that the issues are "at large": Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). Parties are ordinarily bound by the conduct of their case at trial. A point "cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below": Water Board v Moustakas (1988) 180 CLR 491 at 497. In exceptional circumstances, where the appellate court considers it expedient to do so in the interests of justice, a party may be able to raise on appeal a point that was not raised at first instance. See, for example, O'Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J). Assuming this point could not possibly have been met by evidence, it is not in the interests of justice to permit a party to agitate a point on appeal which is inconsistent with the case he ran below. 93 In his written submissions in reply Mr Selimi argued that it was not open to the primary judge to find that Mr Dean was indebted to Pepper because of Pepper's failure to tender the deed of guarantee or, indeed, any of the contractual documents. Its failure to do so is puzzling, considering that no order was made for a separate trial of the question whether the court should go behind the consent judgment and it exposed Pepper to considerable risk. Still, the argument that it was not open to his Honour to find that the debt was still owing unless those documents were tendered is plainly wrong, unless, contrary to my conclusion, his Honour was bound to go behind the consent judgment. In any case, the argument should never have been put. It is not caught by any of the grounds of appeal. Doubtless, it was for this reason that neither party referred to it in oral argument. 94 He also submitted for the first time that Mr Camiolo was an agent for Capital Finance. The submission was imaginative, to say the least, but it has no evidentiary foundation. Pepper had no opportunity to answer it, and the principles in the High Court authorities to which I have referred preclude its consideration. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.