Dunlop v Fishburn

Federal Court of Australia|2012-03-28|Before: Katzmann J

Number of paragraphs: 54

Counsel for the Applicant: Applicant did not appear.

Solicitor for the First, Second, Third and Fourth Respondents: Mr S Campbell of Fishburn Watson O'Brien

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1686 of 2011

MORGAN CHUBB on behalf of the trustee of the bankrupt estate of James Henry Dunlop

JUDGE: KATZMANN J DATE OF ORDER: 28 MARCH 2012 WHERE MADE: SYDNEY

The application be dismissed.
The applicant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1686 of 2011

MORGAN CHUBB on behalf of the trustee of the bankrupt estate of James Henry Dunlop

JUDGE: KATZMANN J DATE: 28 MARCH 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, James Henry Dunlop, is an undischarged bankrupt. On 10 November 2009 in the Federal Magistrates Court a sequestration order was made against his estate: Fishburn v Dunlop [2009] FMCA 1331. He now seeks an extension of time to appeal from that decision. The respondents are the petitioning creditors and the trustee of his bankrupt estate. 2 The debt the subject of the sequestration order arose from a judgment of the Local Court of New South Wales registering a costs assessment in respect of unpaid legal fees. The petitioning creditors (the first four respondents) are solicitors. Mr Dunlop had resisted the making of the order, maintaining that he was able, but unwilling to pay the debt and that he was solvent. But the federal magistrate said that he was not satisfied that Mr Dunlop was either in a position to pay the judgment debt, which was the subject of the creditors' petition, or that he was solvent. 3 The federal magistrate stayed all proceedings under the sequestration order for a period of 21 days, pursuant to s 52(3) of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act"), to enable Mr Dunlop to focus clearly on his financial situation "and to consider his options". 4 That 21 day period coincided with the period prescribed by the Federal Court Rules 1979 (Cth) (which were then in force) ("the former Rules") (O 52 r 15) in which he could appeal the federal magistrate's orders. He did not do so. It was not until nearly two years later - on 30 September 2011 - that he filed the present application. The draft notice of appeal contains only one ground. It pleads that he was solvent at the time the sequestration order was made. 5 On 14 October 2011 Mr Dunlop filed an interlocutory application seeking a stay of all proceedings including the execution of a writ of possession (issued by the Federal Magistrates Court in July) "until the determination of the outcome of the appeal of the sequestration order." The application came before me later the same day. Earlier that day an application to set aside the sequestration order was made to a federal magistrate, who dismissed it pursuant to s 37(2) of the Bankruptcy Act, which provides that the court does not have power to rescind, discharge or suspend the operation of a sequestration order: Chubb v Dunlop [2011] FMCA 813. (I refused the stay (Dunlop v Fishburn [2011] FCA 1194) 6 I offered Mr Dunlop an early hearing of his application for an extension of time. At the time he was legally represented. His then solicitor, Ms Tangsilsat, initially accepted the offer but later withdrew her acceptance. A timely hearing has been delayed for reasons that cannot be laid at the feet of the respondents or, for that matter, the Court. 7 When the application finally came on for hearing Mr Dunlop failed to appear. This was no oversight. He was aware of the hearing date but advised the Court that he would not be attending. By letter he asked that I disqualify myself for bias. For reasons that I delivered yesterday I declined to do so or to adjourn the hearing and proceeded to hear the matter in Mr Dunlop's absence: Dunlop v Fishburn (No. 2) [2012] FCA 314. 8 The petitioning creditors and the trustee alike vigorously oppose the making of an order for an extension of time. For the following reasons, they must prevail.

Legal principles 9 The Federal Court Rules 2011 (Cth) ("the Rules") retain the 21 day time limit for filing a notice of appeal and the discretion given to the Court in the former Rules to extend that period: r 36.03. The discretion is wide. It is constrained only by the interests of justice and the subject-matter and purpose of the legislation. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) ("FCA Act") provides that the overarching purpose of the civil procedure provisions of the Act and the Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That purpose includes the objective of disposing of all proceedings in a timely manner: FCA Act, s 37M(2). Section 37M(3) requires the Court to interpret and apply the Rules and exercise any power conferred by them in the way that best promotes the overarching purpose. Consequently, the discretion conferred by r 36.03 is to be exercised in that way. 10 The requirement in the former Rules (O 52 r 15(2)) that an applicant show "special reasons" has been removed. Despite the absence of a requirement for special reasons (which, in any event, only meant something out of the ordinary (Jess v Scott (1986) 12 FCR 187)), it seems to me that the considerations guiding the exercise of the Court's discretion set out by the Full Court in Parker v The Queen [2002] FCAFC 133 at [6] continue to apply: (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored; (b) The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; (c) Other action taken by the applicant to challenge the decision is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; (d) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension but the mere absence of prejudice will not justify the grant of an extension; (e) The merits of the appeal are to be taken into account. 11 I note that this was the approach recently followed by Bromberg J in SZQEH v Minister for Immigration and Citizenship [2012] FCA 127 and SZOEC v Minister for Immigration and Citizenship [2012] FCA 129.

The applicant's case 12 The evidence filed in support of the application consists of two affidavits sworn by Mr Dunlop on 29 September 2011 and 18 January 2012 and filed in each case the following day and an affidavit of Paul Moran, a bank officer, sworn on 1 December 2011 and filed on 16 January 2012. Mr Dunlop did not file any submissions in accordance with orders made on 5 December 2011 but annexed to his second affidavit submissions dated 18 October 2011 and signed by Ms Tangsilsat. Although Mr Dunlop was not present to read any of these affidavits, the respondents were content to proceed as though he did and, notwithstanding questions of admissibility that arise in relation to parts of them, took the practical course of not objecting to them. I have had considered all of this material and to the submissions made on Mr Dunlop's behalf. 13 In substance Mr Dunlop continues to assert that he was solvent at the time the order was made. He contends that he was able to pay his debts but was unwilling to do so because of a pending dispute between him and the petitioning creditors about the amount of professional fees they sought to recover from him. There are a number of problems with the argument to which I will come to later in these reasons. But first, there is the question of delay.

Does the delay cause any prejudice? 14 It is convenient to start here. Mr Chubb, the trustee in bankruptcy, filed an affidavit on 2 February 2012 in which, amongst other things, he complained about the fees and disbursements (in excess of $70,000) he has had to incur as a result, he said, of the "total lack of cooperation of the Bankrupt". There is, however, no evidence that those fees and disbursements would not have been incurred regardless of the delay in attempting to prosecute an appeal from the sequestration order. Indeed, neither Mr Chubb nor Mr Campbell, a solicitor from the petitioning creditors' firm who appeared on their behalf, was able to point to any actual prejudice if an extension of time were to be granted. As I have already noted, however, absence of prejudice alone does not justify the grant of an extension.

What is the explanation for the delay? Is it acceptable? 15 The only explanation Mr Dunlop gives for the delay appears in his first affidavit: I represent myself in the bankruptcy proceeding; therefore, I have never realised the rights nor the mechanism to appeal to the Federal Court. 16 Both affidavits are silent about what inquiries, if any, Mr Dunlop undertook to inform himself of his right to appeal, when he first realised he may have a right to appeal, how he learned about it, and what he did once he knew. In my view it beggars belief that if Mr Dunlop were dissatisfied with the decision it did not occur to him that he might have a right to appeal or at least that he should make inquiries or seek advice about whether he did. This was, after all, not his first brush with the law. The evidence contained in Mr Dunlop's affidavit of 18 January 2012 ("Mr Dunlop's second affidavit") shows that he was a party to an appeal from a decision of Coffs Harbour City Council in the Land and Environment Court and that in November 2009 he also sought an extension of time to appeal from the determination of a costs assessor arising out of those proceedings. Ms Tangsilsat's submissions record that that application was made on the advice of a solicitor from the firm Bartier Perry. Documents annexed to Mr Dunlop's second affidavit show that this action was taken after the sequestration order was made and eight months after the time limit for appealing the costs assessment had expired. The fact that he knew in November 2009 that he was out of time to challenge the costs determination should, at least, have alerted him to the possible need to proceed with some haste if he also wanted to challenge the sequestration order. 17 Moreover, whilst he may have represented himself on the application for the sequestration order, Ms Tangsilsat submitted that, although she was only instructed on 25 August 2011, Mr Dunlop had previously arranged for a solicitor to negotiate and appear for him in connection with the proceedings relating to the issue of the writ of possession. In an affidavit he swore in the Federal Magistrates Court on 5 August 2011, which is annexed to his second affidavit, Mr Dunlop referred to a "retired solicitor friend" (a Mr Cathers) from whom he sought advice in July 2011 and whom he has known for 40 years. He said he trusted him implicitly. He was a ready source of advice to Mr Dunlop on his options following the making of the sequestration order. Mr Dunlop does not say whether he sought advice from him about a possible appeal or, if he did, when he did so or what the advice was. Nor does he offer any explanation for the two month delay from the time he did seek advice from Mr Cathers. The writ of possession was issued by order of the Federal Magistrates Court on 27 July 2011 and it appears to be in this context that Mr Cathers was consulted. The present application was filed only after an unsuccessful attempt in early September 2011 to have that order set aside and the issue of the writ of possession stayed: Chubb v Dunlop (2011) 254 FLR 130. 18 Ms Tangsilsat stated in her written submissions: I was also instructed the reason of delay to appeal the FM sequestration Order was due to the debtor had opinion that if he solve the dispute on the amount of the debt he owed to the Creditor, the bankruptcy would be annulled. 19 If this is true, then it is difficult to understand why Mr Dunlop did not mention it in either of his affidavits. There is some evidence that he disputed the costs sought by the petitioning creditors. That is to be found in a letter dated 31 May 2010 from the Legal Services Commissioner to whom Mr Dunlop had made a complaint about Mr Campbell's handling of his appeal in the Land and Environment Court. The letter from the Commissioner was annexed to Mr Dunlop's second affidavit. The letter referred to Mr Dunlop's refusal to pay the costs which led to the sequence of events culminating in the making of the sequestration order and noted that the complaint against Mr Campbell was made six months after the costs assessor's determination. The letter also referred to an unsuccessful attempt to mediate the costs dispute which appears to have come to a grinding halt on 1 December 2009. The letter from the Commissioner is incomplete. Mr Dunlop's affidavit does not explain why. Nor does it explain what he did after he received it. 20 There is no evidence to show what happened with the application to extend the time to review the costs assessor's determination. A letter from a senior registry officer in the Costs Assessment Section of the NSW Supreme Court dated 2 December 2009, which is annexed to Mr Dunlop's second affidavit, referred to Mr Dunlop's application (received in the registry of that court on 30 November 2009). The letter goes on to state: You are required to, in the first instance write a letter to the Manager Costs Assessment setting out reasons as to the delay in filing your review application and the reasons as to why this extension should be granted. Your Review Application and the Money Order for $275.00 are returned herewith. On receipt of your letter, the Manager, Costs Assessment, will consider your request for extension of time, and will inform you of the decision. 21 Mr Dunlop also annexed to his second affidavit an "affidavit" (that begins as a statutory declaration) sworn on 19 November 2009 in which he applied for the extension of time to appeal the costs assessment and purported to explain the delay. Reading the "affidavit" with the letter from the Supreme Court leaves open more questions than it answers. The review application, itself, was not before the Court (unless the "affidavit" is supposed to be the application and Mr Dunlop did not say it was). There is no evidence that the "affidavit" was filed in the Supreme Court and the content of the Supreme Court's letter is arguably inconsistent with it having even come to the Court's attention. Nor is there any evidence about what Mr Dunlop did when he received the Supreme Court's letter. 22 In any event, there was nothing to prevent Mr Dunlop filing a notice of appeal and pursuing the resolution of the costs dispute at the same time. As will become clear, however, the resolution of this dispute would not have been enough to answer the petition and Mr Dunlop must have known that. 23 The evidence relating to the challenge to the costs assessment, such as it is, provides no basis for concluding that the explanation for the delay is acceptable. 24 In my view, Mr Dunlop has failed to satisfactorily explain the delay.

What of the merits? 25 As French J said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 in a similar context, the question of the merits has to be approached with caution at this point: If an application has no reasonable prospect of success, then the discretion to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. 26 An appeal to this Court is in the nature of a rehearing. It is not a new hearing. Error must be shown. See, for example, Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 at [25]; Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67 ("Optical 88") at [28]-[34]. An appellate court cannot set aside factual findings merely because it takes a different view of the facts from the primary judge. As the Full Court put it in Optical 88 at [29]: There is a danger - especially in … cases where much turns on findings of fact - that without proper restraint, appeals would be treated as an opportunity to "put the dice into the box for another throw": see reference in SAP Australia (at [37]). As Brennan J (as he then was) observed in SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 … at 491, where factual findings are reasonably open, an appellate court is not justified in setting those findings aside because the Court differs from the trial judge's view of those facts. 27 Nothing that has been put before this Court persuades me that there is any merit in the proposed appeal. In the first place, Mr Dunlop has pointed to no error on the part of the federal magistrate. Even if it be inferred that the supposed error was in coming to the conclusion that Mr Dunlop was solvent when he was not, the evidence does not indicate that his Honour was wrong. There are three reasons why I have reached this conclusion. One is that Mr Dunlop relies on a number of documents which were evidently not before his Honour. Some actually post-date the date of the sequestration order. I will explain later why I believe there would be little prospect of an appellate court receiving them in evidence. The second is that the evidence that was before the federal magistrate was insufficient to prove solvency. The third is that, even taking Mr Dunlop's evidence at its highest, it does not establish that he was solvent when the order was made. What is more, other evidence which has come to light since the sequestration order shows that Mr Dunlop's indebtedness was far greater than he disclosed to the federal magistrate. 28 Even if the federal magistrate was satisfied of Mr Dunlop's solvency, he had a discretion whether or not to make the sequestration order. Mr Dunlop does not point to any error, however, in the exercise of that discretion. In that regard, Mr Dunlop would have to satisfy a Court on appeal that there is an error of the kind referred to in House v King (1936) 55 CLR 499. Nothing in the affidavits or the submissions touches upon this question. 29 Section 5 of the Bankruptcy Act provides that a person is solvent if and only if he or she is able to pay all his or her debts as and when they become due and payable and that otherwise the person is insolvent. 30 The evidence does not demonstrate that Mr Dunlop was able to pay his debts as and when they became due. 31 The test for solvency is the cash flow test, rather than a simple "balance sheet" basis. That means that the Court will have regard to any express or implied agreement between debtor and creditor for an extension of time stipulated for payment: Keith Smith East West Transport Pty Ltd (in liq) v Australian Taxation Office (2002) 42 ACSR 501 at [33] Mason P, with whom Handley and Giles JJA agreed. Although this was a case dealing with s 95A of the Corporations Act 2001 (Cth), the definition of solvency in that Act is the same as the definition in the Bankruptcy Act. 32 There is no evidence of such an agreement in the present case. 33 In his reasons for making the sequestration order the federal magistrate said this on the question of Mr Dunlop's solvency: As for his solvency I accept that he owns property and he wishes to deal with that property to remove timber on it in order to raise funds, but that will require a further process of approval by his local council. Included in Mr Dunlop's evidence was a letter from his bank indicating that he had a line of credit available, sufficient to pay the judgment debt, but Mr Dunlop told me from the bar table that that credit was effectively committed for other purposes. 34 Amongst other things, Mr Chubb annexed to his affidavit of 2 February 2012 an affidavit filed by Mr Dunlop on 4 November 2009 in the Federal Magistrates Court in answer to the creditors' petition. That affidavit denied insolvency and attached a statement of assets and liabilities and other documents purporting to support the denial. In his affidavit, Mr Chubb said that, based on his extensive experience as a chartered accountant and an insolvency practitioner, the list of assets and liabilities annexed to Mr Dunlop's 4 November 2009 affidavit does not establish that Mr Dunlop had liquid assets which would have allowed him to pay his debts as and when they fell due. 35 Ms Tangsilsat submitted that it was not necessary to show that Mr Dunlop could pay all his debts from his own monies and the respondents accept that regard may be had to the capacity of the debtor to satisfy the debts from other sources. In Lewis v Doran (2004) 184 FLR 454 Palmer J held (at [116]) that, if the Court is satisfied that as a matter of commercial reality a company has a resource available to pay all its debts as they become payable, the company is solvent. The resource may be an unsecured borrowing or a voluntary extension of credit by another party. This principle applies equally to debtors against whose estate a sequestration order is sought. Ms Tangsilsat's submissions contend that there was such a resource in this case. The evidence does not support the contention. 36 First, the statement of assets and liabilities showed that Mr Dunlop had no cash assets; the plant and equipment listed as assets was income-producing equipment, which Mr Dunlop presumably required in order to earn his living as an earth mover; and even if the timber on the land he held, which was valued at $70,000, could be quickly sold, it would not have expunged all his debts. At any rate, there was apparently no evidence before the federal magistrate that funds would be raised from the sale of the timber within a reasonable time to meet the debts. Neither was there evidence that Mr Dunlop had any intention, let alone a proposal, to realise any real estate. In these circumstances, Mr Dunlop's assets could not be taken into account. As Palmer J explained in Hall v Poolman (2007) 215 FLR 243 at [187] in the context of a corporate insolvency: An asset cannot be taken into account in assessing solvency at a particular time without reference to the time it would realistically take to effect realisation and produce cash. It is no indication of solvency - indeed, it is the opposite - to point to property as available to meet debts falling due next month when, even with the utmost expedition, that property cannot be turned into cash for six months. Realisable property can only be taken into account in assessing solvency "if that property is in such a position as to title and otherwise that it could be realised in time to meet the indebtedness as the claims mature": Bank of Australasia v Hall (1907) 4 CLR 1514 at 1543; see eg Crema (Vic) Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (2006) 58 ACSR 631 at 652 per Dodds-Streeton J and Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87 at [14] and [15] per Barrett J. 37 Mr Dunlop stated in his affidavit of 29 September 2011: As evidenced by JHD5, the email from Paul Moran, NAB business banking partner, dated 15 March 2011, reiterated the fact that at the end of November 2009 the bank is willing to provide the fund to pay all the creditors in the creditor petition. 38 Annexure JHD5 does nothing of the kind. The email, which is addressed to Margaret Murphy (whoever she may be) is in the following terms: Margaret, I spoke to Jim and was looking to try and help him however funding was never approved at that time. I rang the solicitor to find out what was required and to find out if the fees were paid could the bankruptcy be avoided and was advised that it was too late as the bankruptcy had basically been lodged/formalised a couple of days earlier. I was also advised that there were others that were owed money and that one of them could take the place of the solicitor which meant that bankruptcy would/could have proceeded anyway. (Emphasis added.) 39 Mr Moran's affidavit takes the matter no further. 40 There is no evidence that the bank ever provided approval for additional funding. Nor is there evidence that Mr Moran knew what funds were needed to pay the creditors in the creditors' petition, let alone the true extent of Mr Dunlop's indebtedness. 41 Mr Dunlop has not said that either basis upon which his Honour made the sequestration order - that local council approval was required and that he told the federal magistrate that the credit was committed for other purposes - was wrong. 42 This brings me to the additional evidence. Both Mr Dunlop and the respondents rely on evidence that was not before the federal magistrate. 43 The Court on an appeal has power to receive further evidence, but is not bound to do so. It has a discretion. See FCA Act, s 27. The power is not limited to receipt of fresh evidence, properly so-called, but the discretion is to be exercised judicially and having regard to the fact that the role of an appellate court is to correct error. See Sobey v Nicol and Davies (2007) 245 ALR 389 ("Sobey") at [68]-[72] where the relevant principles are discussed and the leading authorities referred to. As the Full Court said in Sobey at [71], it is unlikely that the parliament intended that s 27 should be construed in a way that would obliterate the distinction between original and appellate jurisdiction. The Full Court at [72] emphasised the point made in Coulton v Holcombe (1986) 162 CLR 1 at 7 that it is "fundamental to the due administration of justice" that the substantial issues are settled at trial, otherwise the main arena for settlement of disputes would move from the trial court to the appellate court. 44 Mr Dunlop annexed to his second affidavit a number of documents that were not tendered in the Federal Magistrates Court. They included three bank statements from a woman to whom he referred as his partner. The relevance of those bank statements escapes me. There is no evidence from the woman that she will pay or contribute to the payment of Mr Dunlop's debts or, importantly, that she would have done so at the time the petition came on for hearing before the federal magistrate. There is no evidence that she even knew Mr Dunlop at the time the sequestration order was made. Further, the bank statements all relate to fixed term deposits, none of which matured until after the sequestration order was made. And there is no evidence to explain why this material was not put before the federal magistrate. For these reasons it is highly unlikely the evidence would be received in an appeal. See Guss v Johnstone [2000] FCA 1455 at [30]-[34]. 45 The affidavit also annexed an American Express statement in Mr Dunlop's name dated 22 July 2009 (more than three months before the sequestration order was made) showing a credit balance of $58 and a credit limit of $15,700 and an NAB Visa statement for the period 22 October - 20 November 2009 showing a credit of $108.76 and a limit of $20,000. These documents were not put before the federal magistrate either and, once again, there is no explanation for why they were not. Mr Dunlop also annexed statements and correspondence from the NAB but they appear to relate to the so-called additional line of credit which Mr Dunlop told the federal magistrate was committed for other purposes. The documentation shows that there appeared to be $42,704.02 available on this line of credit as at 29 October 2009. Taking this evidence at its highest this shows a total available credit of $78,507.78. 46 What is striking about Mr Dunlop's evidence, however, is not what it contains but what it omits. 47 Evidence presented by the trustee shows that Mr Dunlop failed to disclose either to the Federal Magistrates Court or to this Court two debts incurred in 2007 and which were still owing at the time the sequestration order was made. They were debts to Greenloaning Biostudies Pty Ltd ("Greenloaning") in the sum of $59,725.43 and to Resource Design & Management Pty Ltd ("RSD") for an amount of $18,418.41 (excluding interest). Mr Dunlop offered no explanation for this omission. Nor did he explain why he would not or could not pay those debts. 48 The sum total of the allegedly available credit in the bank documents annexed to Mr Dunlop's affidavit would not enable him to pay the debts to the petitioning creditors ($42,749.85), the debt owing to Coffs Harbour City Council of $21,000, both of which were disclosed to the federal magistrate, and the two additional debts to Greenloaning and RSD, culminating in total debts owing to unsecured creditors of $141,893.69 - nearly twice the amount of allegedly available credit. Even if the term deposits held by Mr Dunlop's partner are taken into account that would still leave a shortfall of over $30,000. 49 I have no doubt that, if an extension of time were to be granted and an appeal prosecuted, the Court would receive the trustee's evidence and it would be fatal to the success of the appeal. 50 Ms Tangsilsat submitted that there was no duty to disclose the existence of these debts because "Greenloaning and RDM have mutual understanding of extending the credit to Mr Dunlop due to the long standing business relationship over 10 years period". No authority was cited for this submission and no evidence adduced to support it. 51 Thus, as a matter of commercial reality Mr Dunlop did not have sufficient resources available to him to pay all his debts as they became payable. In any case, as the total amount of debt at the time of bankruptcy exceeded $141,000 and the total amount of apparently or allegedly available credit disclosed in the evidence does not approach this figure, I am not satisfied that Mr Dunlop can demonstrate that he was solvent when the order was made or that he can show that the federal magistrate erred in any respect in finding that he was not. 52 On no view could it therefore be said that the proposed appeal enjoys strong prospects of success. On the contrary, on the material before me the case is hopeless. 53 Even if Mr Dunlop could show he was solvent at the time the sequestration order was made, that, alone does not require the vacation of the order. The Court retains a discretion: FCA Act, s 28(1)(b). Mr Dunlop's lack of candour in failing to disclose the true extent of his indebtedness counts heavily against him.

Conclusion 54 The application should be refused with costs. It would not be fair and just to accede to it. The delay has been inordinate and has not been satisfactorily explained. In any event, any appeal would be doomed to fail. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Federal Court Rules 1979(Cth)

Bankruptcy Act 1966(Cth)ss 5, 52

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