Ebert v Union Trustee Co. of Australia Ltd

attempt to set aside judgment - dilatory conduct by debtor - discretion of court to refuse extension of time - consequential

dismissal of application to set aside notice - discretion to

refuse sequestration order - sequestration order made.

Ebert v Union Trustee Co. of Australia Ltd (1960) 104 CLR 346; Re:

Billinghurst; Ex parte Australia and New Zealand Banking Grou Limited (1978) 36 FLR 62, Re: Brink Ex parte The Commercial Banking Company of Sydney Ltd (1980) 44 FLR 135; Vogwell v Vogwell (1939) 11 ABC 83; Eastick v Australia and New Zealand Banking

Group Ltd (1981) 53 FLR 91; Re: Sterling; Ex parte Esanda Ltd

RE; NEIL JAMES JOHN DUCKWORTH EX PARTE: ALAN KEVIN LOCKETT and ELIZABETH EVEYLN LOCKETT NO P635 OF 1986

) OF AUSTRALIA ) GENERAL DIVISION ) BANKRUPTCY DISTRICT ) OF THE STATE OF )

EX PARTE: ALAN KEVIN LOCKETT AND ELIZABETH EVELYN LOCKETT

Creditors MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J.

compliance with the bankruptcy notice be dismissed.

Note: Settlement and entry of orders 1s dealt with in Rule 124 of the Bankruptcy Rules.

NO. P635 OF 1986 RE NEIL JAMES JOHN DUCKWORTH Debtor

EX PARTE: ALAN KEVIN LOCKETT AND ELIZABETH EVELYN LOCKETT

By their petition filed in this Court on 7 October 1986 the creditors seek a sequestration order against the estate of the debtor arising out of his failure to comply with a bankruptcy notice. The debtor opposes the petition and by an application filed on 4 December 1986 seeks to extend the time for compliance

with the bankruptcy notice and an order setting the notice aside.

On 20 June 1986 the creditors applied for and obtained

the issue by the Registrar in Bankruptcy of a notice pursuant to

By the notice demand was made for payment of the sum of $21,583.12 said to be due by the debtor to the creditors pursuant

to a default judgment given in the District Court on 30 April

The time limited by the notice for compliance with its

On 25 September 1986 the debtor filed an affidavit in

By his affidavit he acknowledged that the creditors had obtained judgment against him in the District Court but contended that he had a counterclaim against them exceeding the amount of the judgment. He said that they had had business dealings over 5 years since 1979. During that time he had made payments on behalf of the creditors to Western Underwriters Limited and Alliance

Acceptance Corporation and made a number of loans to them. In paragraph 3 of the affidavit he said:-

"The counterclaim that I have against the Judgement Creditor is one that could have been set up in the action in which the Judgement was obtained, However since early this year, I have been having considerable problems with one of my companies, namely Westpaper and Pulp Ltd. The company has had financial difficulties and alli of my time and effort has been focused on raising funds to keep the company operating, defending various actions which have been brought against the company and generally overseeing the companies affairs. There problems have continued throughout the year, and, unfortunately, are still continuing." (sic)

The affidavit went on to say he had filed an application

in the District Court seeking to set aside the judgment but that

due to problems with his company he did not have time to assemble

all relevant information for an affidavit 1n support of the

"IT am now in the process of getting all of the relevant information together, and I should have it shortly. The payments and the loans which are the subject of my counterclaim were made over a period of some four years. During that time I have had accounts with a number of different financial institutions, and I am going through all my transactions over that period of time. This process is however taking some time."

The affidavit went on to say that he had issued a writ

against the creditors to recover the moneys allegedly owing to

Exhibited to the affidavit was a copy of a writ issued out of the District Court on 23 September 1986 with an Indorsement

(a) The sum of $23,000.00 being monies paid by the Plaintiff on behalf of the Defendants to various creditors by way of repayments on loans taken out by the Defendants and further monies owing to the Plaintiff by way of loans advanced by the Plaintiff to the Defendants and which monies are due and owing to the Plaintiff.

(b) Interest on the said sum of $23,000.00 pursuant to Section 32 of the Supreme Court Act."

The time limited by the bankruptcy notice for compliance

with 1ts terms has long expired. However a preliminary question

arises whether the debtor has by filing his affidavit obtained the

benefit of a statutory extension of time within which to comply

The issue arises in this way. Paragraph 40(1)(g) of the

"A debtor commits an act of bankruptcy in each of the following cases:~-

if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not -

(i) where the notice was served in Australia

• within the time fixed by the Registrar by whom the notice was issued; or

(1i) where the notice was served elsewhere - within the time fixed for the purpose by the order giving leave to effect the service,

comply with the requirements of the notice or satisfy the Court that he has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter~-claim, set-off or cross demand that he

could not have set up in the action or proceeding in which the judgment or order was obtained."

The above paragraph has to be read together with sub-s.

"Where, before the expiration of the time fixed for

compliance with the requirements of a bankruptcy notice, the debtor has filed with the Registrar an affidavit to the effect that he has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(q), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied."

In relation to the application of these provisions the

l. The affidavit 1s not an affidavit to the effect that the debtor has a counter-claim, set-off or cross demand of the kind referred to in paragraph

2. The conditions for the statutory extension of time under sub-section 41(7) of the Bankruptcy Act have not been met.

3. The time for compliance having expired the Court has no power to extend it.

In order to escape the consequences of non-compliance

with a bankruptcy notice para. 40(1)(g) of the Act requires the

equal to or exceeding the amount of the judgment debt.

set-off or cross demand in the action in which the judgment or order was obtained.

To satisfy the Court of the existence of the relevant counter-claim, set-off or cross demand, it is not necessary that

"The debtor must show that he has a prima facie case even 1f£ then and there he does not adduce the admissible evidence which would make out a prima facie case before a Court trying the issues that are involved in the counterclaim, set-off or cross demand."

• See Ebert v Union Trustee Co. of Australia Ltd (1960) 104 CLR 346 at 350; Re: Billinghurst; Ex Parte Australia and New Zealand Banking Group Limited (1978) 36 FLR 62, Re: Brink Ex parte The Commercial Banking Company of

In Vogwell v Vogwell (1939) 11 ABC 83, a decision of the

High Court concerned with s.52(j) of the Bankruptcy Act 1924,

Latham CJ with whom Starke and McTiernan JJ agreed, said at 85:-

"The words of the section are that the debtor must satisfy the Court that he has "a counterclaim, set-off or cross demand which equals or exceeds the amount of the judgment debt". In the first place it is accordingly clear that the counterclaim, set-off or cross demand must be something sounding in money. It is also obvious that the section does not apply or refer to an already established right. If there were an already established set-off, for example, the judgment debt would have been reduced pro tanto and if there had been a counterclaim or cross demand which had already been applied as against the amount of the judgment the position would have been entirely different. What the section contemplates is a claim to the enforcement of a right sounding in money. It must be a real claim; it is insufficient that the debtor believes, that he has a claim, and the authorities show that the matter to which the Court looks is this, - whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words,

whether it 1s a claim which it is proper and reasonable to litigate. That is the effect of the decisions in Re

Rivett; Ex parte Edward Faye Ltd ((1932) 5 ABC 182) and

Re Duncan; Ex parte Modlin ((1917) 17 SR (NSW) 152). Therefore there must appear to be some substance in the counterclaim, set-off or cross demand which is relied

In Re: Brink (supra) Lockhart J. said that the affidavit filed under sub-s.41(7) could not merely contain an assertion that the debtor has a counterclaim, set-off or cross demand which he could not have set up in the action in which the judgment or order

At the same time his Honour accepted that in many cases it would be difficult in the time available for the debtor to present more than an outline of his case. As his Honour said at

"I do not think any good purpose would be served by my attempting to express a definitive formula as to what

the original affidavit must contain. That must depend in every case on the particular facts and circumstances:

see Re A Debtor; Ex parte The Debtor v_ Tossoun per Upjohn LJ.

The fact that it is within the power of the Court to determine when the hearing of a matter under section 41(7) will take place, and thus the length of the extension of time to comply with the requirements of the bankruptcy notice; and the difficulty if not impossibility in some cases of the initial affidavit being anything more than a mere outline of the debtor's case due to the temporal constraints imposed by the notice, all point to the conclusion that the Courts should adopt a benevolent construction to the initial affidavit."

In the event, he held that the affidavit in that case was defective as it did not indicate that any counterclaim, set-off or cross demand available to the applicant could not have

These general observations made by Lockhart J. were approved by the Full Court in Eastick v Australia and New Zealand

The affidavit filed by the debtor gives a very sketchy outline of an alleged counterclaim said to arise from repayments made by him on behalf of the judgment creditors to Western

Underwriters Ltd and Alliance Acceptance Corporation.

It is also contended that a number of loans were made by

the debtor to the creditors during the relevant period.

Adopting a benevolent approach to its construction, the affidavit does not indicate even in outline, the basis upon which the quantum of the counterclaim is said to exceed the judgment

At the time of swearing the affidavit, the debtor was evidently still embarked on his voyage of discovery in relation to the amounts and details of payments allegedly forming the basis of

This view is reinforced by his evidence in a later affidavit sworn on 4 December 1986 in support of the application

to set aside the bankruptcy notice in which he said:-

"I have recently been endeavouring to collate the evidence necessary to show that I have paid substantial

sums of money on behalf of the Respondents either to them or to Creditors of theirs and to that end I have obtained as proof cheque butts totalling in excess of $9,000.00 and am still endeavouring to obtain further

financial information in that regard. It shall be necessary for me to search records of a number of companies including one which 1s presently in liquidation and it is for that reason that 1t is taking such a lengthy period of time for me to obtain the evidence."

Although not ultimately relevant to the determination of the sufficiency of the affidavit filed on 25 September 1986, the sworn oral testimony of the debtor supports the view that he himself has little concept of the extent of his alleged

From that evidence it appeared that many if not all, of the payments allegedly made by him on behalf of the creditors or by way of advance to them were in fact made by cheques drawn on the accounts of companies controlled by the debtor. In one case the company concerned was West Valley Holdings Pty Ltd the trustee of the debtor's family discretionary trust. In his evidence he produced a cheque butt said to show a payment of $5,000 to Western Underwriters Ltd on 12 September 1984. The cheque butt represented a cheque drawn on the account of West Valley Holdings

Q. Well, how would that be a counterclaim or set-off £

against his loan to you? --- Well, it is my money, Sir. I loaned the money; the money 1s owed by me. I have a large group of companies - at the moment

there is a bit of turmoil through taxation doing a similar type of things. The money belongs to me.

A. Yes. My books are a long way behind because of other things. You personally know what the problem is with my accountants. A full investigation would reveal that it belongs to myself."

Quite apart from the difficulties faced by the debtor in establishing the existence of a counterclaim of the required amount, there is a fatal flaw in his initial affidavit so far as

For para. 3 of the affidavit positively asserts that the counterclaim could have been set up in the action in which judgment was obtained. It then goes on to excuse the failure to set it up by reference to pressure on the debtor to attend to the

In an affidavit which made no express statement that a counterclaim, set-off or cross demand could not have been set up in the action or proceeding in which judgment was obtained, the

Court might by consideration of the nature of the claim infer that

In my opinion the affidavit was not of the kind contemplated by s.41(7) and the statutory extension of time did not operate. Thus as at 26 September 1986 the debtor had failed

Nevertheless by an application filed 4 December 1986 he seeks from the Court an order setting aside the bankruptcy notice and asks that the Court extend time for compliance with 1t pending

Counsel for the creditors contends that these applications having been lodged after the time for compliance has

expired, there 1s no power in the Court to grant any extension,

The power of the Court to extend the time for compliance with a bankruptcy notice 1s conferred by sub-s.41(6A). This must

"41(6A) Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of a bankruptcy notice -

(a) proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b) an application to set aside the bankruptcy notice has been filed with the Registrar,

the Court may, subject to sub-section (6c), extend the time for compliance with the bankruptcy notice."

(a) a debtor applies to the Court or the Registrar for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and

(b) the Court or the Registrar, as the case may be, 1s of the opinion that the proceedings to set aside the judgment or order -

shall not extend the time for compliance with the bankruptcy notice."

The power 1s conditioned on one or other of two events which must have occurred before the expiry of the time limited for

(i) Proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor.

(11) an application to set aside the bankruptcy notice has been filed with the registrar.

The debtor's evidence was that he attempted to set aside the judgment by filing an application but did not have time to get together all relevant information for an affidavit in support of

In an affidavit sworn by a law clerk employed by the

solicitors for the creditors, a chronological account of

It appears that the creditors issued their writ on 15 April 1986 and that it was served on the debtor on 23 April. He did not enter an appearance to the writ and accordingly default judgment was entered on 30 April 1986. On 9 May 1986 a writ of fier1l facias was issued. By a report dated 27 May 1986 the bailiff advised that he had seized a quantity of goods from the debtor's residence in Applecross but that the debtor claimed that all items seized were the property of a company, Nowra Holdings

On 3 July 1986 the debtor issued a chamber summons seeking orders that the default judgment be set aside and that he have leave to defend the claim. On 18 July 1986 the solicitors for the creditors wrote to the debtor's solicitors in the

"We acknowledge receipt of your letter of 4 July 1986 enclosing the summons to set aside our clients' judgment. Is it your intention to serve on us an affidavit in support of the application?

Please note we shall oppose any application for adjournment for the purpose of filing and serving such

On the return of the chamber summons on 31 July 1986 the

debtor had not filed any affidavit in support of it and the

application was dismissed by the Registrar of the District Court.

On 4 August 1986 the debtor issued a further chamber

summons seeking the same orders as before. On the return of that

summons on 20 August 1986 no affidavit had been filed in support of the application and again the Registrar dismissed the chamber

As has already been noted the debtor thereafter on 23 September 1986 issued a writ out of the District Court claiming the sum of $23,000 from the creditors. A memorandum of appearance was entered to that writ on 15 October 1986 but as at 5 December

It is apparent from this evidence that no real attempt has been made to pursue any application to set aside the judgment

Whether or not the conditions which, under sub-s.41(6C) negate the power of the Court to exercise any discretion to extend time have been satisfied, I would in any event in the exercise of my discretion under sub-s.41(6A), refuse the extension having regard to the debtor's conduct in relation to the District Court proceedings and having regard to its implications for the

In the circumstances the application to extend time for

compliance with the bankruptcy notice will be dismissed.

The logical question then arises whether a refusal to extend time for compliance with the bankruptcy notice 1s fatal to

As was observed by Lockhart J. 1n Re Sterling Ex parte Esanda Ltd (1980) 44 FLR 125 there is nowhere in the Act that the

Court is expressly empowered to set aside bankruptcy notices.

However, I respectfully agree with his Honour's view that a source of the power is to be found in sub-s.30(1) which

(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part X or Part XI coming within the cognizance of the Court; and

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter."

Whether that is the only source of the power or whether there is another source as suggested by his Honour is not

Suffice to say the scheme of the Bankruptcy Act is quite inconsistent with the existence of a power to set aside a bankruptcy notice after the time for compliance with it has

It follows as a consequence of my decision to dismiss

the application to extend the time limited for compliance with the

bankruptcy notice that the application to set aside the notice

As a last line of defence counsel for the debtor submitted that even if I were to arrive at decisions adverse to his client on the application to extend time and to set aside the

notice, I should nevertheless decline to make a sequestration

He called in aid s.44(1)(a) of the Bankruptcy Act which

"A creditor's petition shall not be presented against a debtor unless -

(a) there is owing by the debtor to the petitioning creditor a debt that amounts to $1,500.00 or two or more debts that amount in the aggregate to $1,500.00, or, where two or more creditors join in the petition, there 1s owing by the debtor to the several petitioning creditors debts that amount in

He then referred to the following passage at para. 244 of the 5th Edition of McDonald Henry & Meeks Australian Bankruptcy

"If a debtor has a right to set off, cross claim, mutual credit or the like so that on a balance of account less than the amount prescribed by section 44(1)(a) is owed by the debtor, it may well be that the debtor can use it as an answer to the petition in order to induce the Court, in the exercise of its discretion to refuse to

Even accepting for the sake of argument that the debtor May be able to make out a substantial counterclaim, he has not made it out and his conduct in that respect has been so dilatory as in my opinion to disentitle him to any exercise of the

discretion to refuse the making of a sequestration order.

The petition being in order, I am prepared, subject to an affidavit of continuing debt and an affidavit of search of the indices, to make the order sought by the creditors in this case.

I will hear the parties as to the appropriate costs orders.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Decision of his

Honour Mr v7 jce French. Associate: liyebelh Uh het Cea vrur Dated: Li Fibrin, ha

. for the debtor - Mr D.R. Clyne instructed by Malone Dzieciol & Co.

. for the creditors - Mr V.A. Bull instructed by Parker & Parker