Ernest Abraham Siewertzs van-Reesema [1982] FCA 305

&@ppliec for discharge pursuant to ¢.156 oi the Bankruptcy Act 1966. The Cfficial Trustee had lcdced an cbjection dated 19

The estate cf the bankrupt was secuestrateg on 14 September 1979 on the petiticn of é creditor EMMANCUIL GIAPEUS presentea on 19 June 1979. The amount ct the cebt éellegea in the Petition was $12,384.91; bankrupt ain Tis fEtatemert o: Affairs referred te at as "$15,CUC apprex." incurrea by bam tor legal costs. To this matter mcre detailec reference 1s mace

lt will ce useful tc set cut some ci the facts le&canc

The bankrupt, born an 19251, came to Couth Austraiita in 1963. he became in that year the State Manager of the faim

"Encyclopaeaqia Erittanica". he reméined in that appointment

until the end of 1963 when, because of @ dispute over the payment

of commission, he left the employ of that firm. he hes inrormec

the Official Receiver that he had to take legal action to recover

moneys he pelieved to be owing to him for commissions. his action was taken in Sydney. It was settlea ain 1976 when he received the equivelent of 7,0CO pcunds. This sum was in

replacement of income he shculd have keén paiaq aS ccmmission. The settlement, however, wes expressed in terms that it the payment was made he would not proceed with the acticn. his, sco the applicant said in evidence, was because the caefendant was concerned that 1t would or might be sued for by others presumably

From 19€4 until 1666 the bankrupt was involved in the

menagement of several companies which scold ana marketed ccokwere,

electrical appliances, wéll cladding, advertising ana painting. These businesses had all ceased pricr te 1976. 'the statement tou

this effect appears in the Cff1c1al Receiver's report.

in 1970 he becene a land agent, beirg siven & lacence from the appropriate authority for that purpose. issisted by the usé ci this licence, the bankrupt, in 1971, became invelvea wit & cempeny, Maeleor Jones Pty. Limitea, & real estate company

The bankrupt denies the substance of what the Ctiricial Receiver's report alleged viz. that he acquired control of the shares of this company 1n 1971. he claimed thet 4799 sheres were acauired by his parents and one wes hela in his own name as

trustee tor the five trusts of his cnildren cf which later

mention 1s made. After that time several more companies were

incorporatea, the bankrupt beccming a directcr and shareholuer

and trading in the land speculation ana real estate fiela.

Cn 16 February 1975, the estate cf his former wife wes sequestrated. Their marrizge was cissolved on 3G Ccetober 1¢7€. Property disputes between them have been resolvea by ceed. To

The bankrupt gave evidence Or véricus ccnvictions he haa suffered. Cn 22 hovember 1967 he pleadead guilty to a charge

brought fpursvant to the bLnauthcrisec Lecuments Act 1616 |sor.tr

Bustralia). This arcese out of using « Gocument ccloured blue which he had Gesignea that "at iG paces had the torm Cir a4 summons". lt was used to recover « large emount cwing but comprised or many smaéll caebts. he eGreea 1t was Cesigneu to unstal somé Gisgquiet gna fear intc the person whe receivea it.

Cn 25 February 1974 he was convicted or an cffence uncer

the Secret Cemrissions Preohibiticn Act 1620 (Sor.th fustreirz,

S.7; though it may be the convictions were referable to the aiding and abetting s.16 cf thet Act. He was advised that by reason of this conviction he was disqualified from being <z director of a company. He resigned directorships on 20 Movember 1974. It mey be more correct te say that by reason of that conviction he was prohibited without the leave of the Ccurt from being a director or promoter or from teking part directly cr indirectly in the management of a company. See Companies act

In 1975 he contracted tc purchase a shopping centre at

Banksia Park from the Petitioning Crecitor. He said in evidence before me that the contract, whilst in his own name, stated it was for and on behalf of a company tc be formed ance thet the company was formed and signed a transfer and was totally ready to settle on the first day of settlement. But he refused to settle for reasons not necessary to consider here. #& Gispute arose és to whether the bankrupt should have settled or as entitled to Gecline to settle that transecticn on the particular aay. ke took ection in the Supreme Court claiming (inter alia) a Gecleraticn that the contract petveen the pacties dGaten 24

September 1975 was still valic ana cf full effect end ledcec =

Caveat on the title cf the property. the action vas heara Ly

Walters oc. The bankrupt lost tris acticn. The Cavea vas

removed by orcer cf the Court and he was crdezrec to pay the costs

of the then vendor who became the Petitioning CreGitor. in

éppeal brought by the bankrupt agéinst that cecisicn te the Fuli

Court cf the Supreme Court of South Australia was, on 27 January 1978, dismissed. Bankrupt did not pay the costs as ordered. he

also gave evidence to the effect that he sought and was granted

leave to appeal to the Privy Council against this Gecision. the

order of events in this regard is referrea to in the judgment ot

Sangster J. upon the application for sequestration ot his estate

to which I will refer later. however, the leave granted is notea un that judgment as including the conditicn that he should prepare the reccrd and transcript of proceedings and lodse the same with the proper officer cf Her majesty in Council within three calendar months. He told me that the recora and transcript have not been so lcdged. It was in respect of the unpaid costs of the case in the Supreme Ccurt referred to abcve that a sequestration order was sought in 4& Petition presentec by the Petiticning Creditor, Emmanouil Cuiameos. The heéring of the Creditor's Petition was first apocarently to be by Judge Rocersor. The bankrupt objected tc him presiacing whereupon his honcutr withdrew. The hearing wes undertaken by Seéengster 3G. thouch bankrupt's counsel unsuccessfully sought to have him aisctualiry himself. The bankrupt héd riled a Notice cf Cpresition. the Proceedings lasted four dzys and were the occesion of submissicns on various technicalities as appears from the keasons fcr Judgement delivered cn 14 September 1979 Ly Sangster J." There was alsc a Genial by the bankrupt of the service on hin ci the bankruptcy hotice. his Honour rejected the evidence ot bankrurt

and others on this point ancG accepted the evidence of others thet

the service was effected. in his Keesons mentiored eerlier ana

referring to é@ so called medical Certificate produced tc seek an adjournment on the bankrupt's behalf, he said -

"Van Reesem&a gave his evidence tluently, convincingly and with an cbvious capacity to

of questions. Unfortunately from the point of view of credibility his actions speak more loudly than his words. He clearly masterminded Ur. Sumner's "meaical

certificate" (exhibit Cl) as a mere device in aid of an undeserved eadjcurnment the three

affidavits {hls own, Dr. Sumner's and Coombe's) aimed at refuting Frayne's claim to having served documents. Ee 1s cbviously

prepared to resort to any procedures which the law permits and for the purposes of which the

truth can be stretched or altered to suit his own ends, which ends currently appear to be Girectead at delaying rather than Getermaining issues, real or pretended."

Sangster J. found that the Petitioning Creditor vas entitled to the Sequestration CrdGer and costs put granted a stay of execution of his orders for 21 Gays avaiting the outcome ci

bankrupt's then pending application to the Full Court of the

Supreme Court of South Australia for a further Stay of proceedings. The decision of Sangster J. 1s reported in (197%)

in hNoverber 1975 kLankrupt became anterested in the

purchase of a city building viz. Alliance House in Grenzeil Street, Adelaide, for $500,CCC. ke said he wis éaviséea there would be available by Austrélian Fixed Trusts Lamitec a4 loan tor

$1,C006,CCO. A company was formed, Alliance Ekouse Pty. Lte., to effect the purchase and take the trensfer cf the property. J.ner.

the tine came tc settle the transacticn the bankrupt cléinec the

loan was not forthcoming. Settlement was Gelayed several times; and finally he was told only $65C,00C was available and cn less favourable terms than anticipated. He declined to take up the offer of the loan, so becéme unable to settle the purchase. This 1s but one of many involvements by the bankrupt in

corporate activity but shows the magnitude of a& project in which he has interested himself. It glvés some indication ot what might be the nature of his activities in the future 1r grantea a

discharge from bankruptcy. And it is but one instance ct a

company with whose formation he has been ccncerned.

Referring it seems to the conviction under the Secret

Commissions Prohibiticn Act 1920 (earlier mentioned) he said in

evidence that 1n 1975 "we applied tor leave to the Supreme Court to be @ director"; the matter was heard in March or April 1975 ané Zelling J. refused the epplication. Though he had resigned his directorships he maintained an "interest" 1n companies. As @ result of the cirect or indirect involvement of the bankrupt in the management cf these companies, he was, by summons issued cn 15 Merch 1976. charged with tic offences ageinst the Companies

Act supra. Cn 14 Januery 19%C he was found guilty cf the tvo

offences and in respect of activities with the compenies, b.aelor Jones Pty. Ltd. and Armor Coatings (Marketing) ty. Lta. 1t égpears from an extract fror the judgment cf Carter S.S.b. thet his participation in the affairs of the companies the subject ct the charges was considerable. by letter dated 15 January tec

adéressec tc his Solicitor, he asked that if ne vere founa cuilty

ot relevant conduct, which he denied, that the Court take into consideration alli of his possible offences by way of the same conduct, attituce and actions from the perica February 1974 to l¢ January 19&C. Cn 29 January 19&C0 he was sentenced to three

Against this sentence the bankrupt eéeppealed to the Supreme Court. Cn ll June 1980 wohr J. dismissed the appeal. His Honour in the reasons fcr his judgment referred to the "main ground" of appeal peing a denial by the bankrupt that his counsel had instructions to request the court when sentencing him to take into account the commission of other cffences, 1.€. aS Opposed to the possible commission of other offences. keterring to the evidence of bankrupt and the person who appeared for him, mchr uo. said that he could not accept their protestations of lack ct memory and communicaticn concerning the matter. Later he saia that the bankrupt's whole attitude haa quite clearly been one or contempt for the law; that the penalty was well meritec. in his affidavit dated 5 July 19682 an the proceedings befcre me the bankrupt said -

"As to the order and judgment of Judge kehr part of which 1s reciteca on paces 10 and ll of

the report I say that wchr 5. ought to have disqualified himself because of his prejudice end that my appeal to the Ligh Court in

respect cf that is still on foot." The accusation of "prejudice" has not been elaboratea. Bankrupt lcdgea a further eppeal, this time to the Full Court coi the Supreme Court of Scuth fustraliz.

From this decision I understana the bankrupt to sey he has appealed to the High Court but despite the lapse or time that

On 1 Cctcber 197S the bankrupt filed with this Court a

Motice of Appeal against the Sequestration Craer on varicus Grounds including that the case involved a constitutionai issue. After a hearing on 11 Lecember 1979 the eppeal was, on 2b Lecember 1979, dismissea for want cf prosecution. See 27 ALR at p-525. 'The Court said, inter alia, at p.533, that there had been inexcusable delay on the part of the appellant (bankrupt), breach by him of his undertaking tc the court and of the orders of the court; ang that it was not satisfied that there was any reasonably arguable case for the appellant om the appeal; ena

delay would increase the prejudice to the respondent ana any

Bankrupt hes had ccnsideraole involvement with other

companies which he listed for the Court (Ex.A) of which he has in

the past been & director. ihe shareholders of these are his parents, brother and an associate, tr. Coombe. The frincipal cone cf these is Jeé Laintzendrai Pty. Ltd. Cne Cf its aSSEétTS 15 & shopping centre or what 1s described as Toorzk Village. nother is lané at Morphett Vale. Eankrupt's evidence is that his own involvement as é& Girector end as a shareholder (thcugh not

holding beneficially) ceaseGd on 2C hovember 1974 and it Jamvaery

The bankrupt has achievea an enviable life style in ther claiming to have no assets he has been able since 1965 to live successively in tvo houses owned by companies. Presently, ana

since 1966, he lives at 1 College Street, College Park, on &

property said to be cwnec by Armor Coatings (Australasia) Pty.

Limited and, said by his witness hr. Ccombe, to be valued at well Over $2Z50,CCG; and described by his former wife es &@ "mansion vith a tennis court standing im one acre of ground". For this property rental cf $3,COO a yeaér is payable to the company; bet because of moneys which may ve due by the company to the bankrupt he Goes not have tc produce eny cash. The hcuse contains art treasures and antiques and furniture which he thinxs are worth in excess of $300,CO00. Further, he has the use of a Volve mctor ear, all expenses for which are paid by Je Maintiendrai Pty. Ltd. kis five children, the youngest cf whem he has not had to support

since 9 September 1581 when his contributions fcr her upkeep wére

some $15.CCO per week, all have the benefit of Trusts in their favour. The effect of the bankrupt's evidence was that the assets in each Trust are of equal velue. Cne cf has children estimated these in the case of her Trust to be $406,CCG. On that

assumpricn the assets in the Irusts would total $2,CCO,LCC. his

evidence 1s to the effect that the finance for the eccuisition ci

property held by these rusts was provided by his parents who livea in The Hague. The Eankrupt expressed the opinion that the assets were not worth that much, put would total Letween

$1,0CC,COC ané $2,006,CCO. in his affidavit datec 24 August 1°&.

filea in the Bamily Court, copy of which was tendercea by han ane

received in evidence before me (Ex.J), para.4(c), he said the

Maintenance of the children and their fananc1al security are

acGequately provided fer by the Trusts and holdings specifically

createa for this purpose. In the Family Court there wes 4

settlement of, inter alia, a property claim brought by his wife.

Property was made available not by the bankrupt but by companies cf the Van Reesema group referred to earlier. He has the

convenience of a loan account which 1s expressed in the ecccunts

ef one or mcre of the Van keesemaé group of companies &s 4&4 aebt

for some $14,6CC - the precise sum he did not know. he sala of

'++-@ny advance made to me by any cempany that was a loan ana not inccme was charged

agéinst cr set otf against the loan eccount with Maelor Jones Investments (Noarlunga). as

Mr. Pearce mentioned some time earller in this hearing, Moarlunca was the company used by the

group as é@ finance arm ena all of the other companies, including myself, my parents ana my

brother have a loan account wath Moarlunga either 'in credit or in debit."

According to a schedule cf the Van keesera ¢roir cr companies submitted by the bénkrupt, in this ccompary, incorporatea in 1973, there are three shares issued, hele by henri Siewertsz Ven Keesema, hr. Cccmbke (who was & witness fer him and is a leng time associate) anc the CCmpary, ce Maintiendrai Pty. Ltd. The shares in this last company incerporéted in 1963 are shown as held by the tive Trusts, one for each of his children, totalling 22CG class "C" shares, enu his parents SCCG preference, 24CCO class ""E" and 2 class ",,"

The bankrupt impresses as being an intelligent, educatea

and plausible man. He has operated in this country as a night club proprietor, as a bullder, a successful salesman ana @ licensed valuer. He has studied law at Leiden University. Yet with these adventages, the bankrupt has wade no contributicn to the payment of debts in his estate. The bankrupt in his submissions pointed out that no debt cf any proven creditor had been admitted. The Off1c1ral Receiver's answer to this was to refer to a policy directive. I1 would have preferred that in this application the Court had had the benefit of an explicit decision by the Cfficial Keceiver &@s to debts, yet I can understand a4

disinclination to incur more costs when, though debts have been

proven, no money 1s available for caistributiocn. Some short reference may be made to amounts owing. The Giamecs debt, as 1 have said, is fer costs. In respect cf the debt to the

Commissioner for Taxation, the Cfficial Receiver's report refers

tO an éssessment having been "raised" and, in the bankrupt's

affidavit of 5 July 1962, he refers tc 1t as "tax and penalties

assessed on recelpts which co not constitute income." 1 woulic

aunfer that s.177 of the Income lax Assessrent Act 1956 has e1ther

been or ccula be invoked. keccraing to the bankrupt's eviuence,

some proceeding to questicn thet the tax vés payable hea been attempted but proper proceaural steps nay not heave been taken.

The bankrupt's coral evidence before this court confirms, 1f 1t

were necessary to say so, that he had, ion receiving the

settlement cf his litigction with Encyclopaedia Lrittanica, incurred a tax liability. See also Inccme Tex Kssessment Act

1936, s.zZ08. 1 Go not accept his version of what happenea in his

discussion with an officer cn the staff of the Commissioner for Taxation. The debt incurred in relaticn to the ski hire was the subject of a judement, even if Signed efter secuestretion. the debt to Pembroke School, was not Gisputed in his Statement cit Affairs, though now disputed. he said in the copy éftidevit

referred to above used in the Family Court proceedings that "...i

am paying off Pembroke School fees of previous years." This 1s inconsistent with some of his viva voce evidence. In his letter te the Cfficial Receiver's office Gated 350 Januery 1982, para. z,

This is a total of school fees in respect of my three children. hy son waS improperly expelled from the school fcr smoking, whilst the others of the same group cf smokers were not expelled. The Headmaster resigned the following year because cf risking unpopularity with parents, increasing resistence tc nis peculiar manner of running the school, and my son, having been the best potenticl stident ct my 5 children has been sericusly handicapped and prejudiced by the schocls ections. I may ade that [I was not consulted at all whilst the boy was officially under my care ene control pursuant to Family Court arrancements. i have a claim against the schocl that far exceecs the sum cutstanding for schccl fees. Lhe claim ought te be rejectea."

The benkrupt's statenent in ris wlitten subrissicns

(MFI 4) that this ves stated in his Statement of Affairs to be

cne ci "Disputed Cleims" 1s clearly incorrect. Part of his orel

evidence did, however, egree that the debt was 4 ""fossikility".

The bankrupt's evidence and explanations as to has luabilitics,

reflect on his credibility rather than assisting one to doubt

Despite losing the Giamreos litagation, an appeal agzinst that decision and there being made on the judgment for costs then awarded egainst him the Sequestration Crder, an éppeél against which was dismissed, as I have mentionec earlier, the bankrupt still treats his debt for costs as "cisputec". The litigaticn in the Supreme Court he has been akle to sustain so far without providing any finance, his own ccsts having been paic by the company formed to acquire the Banksia shepping centre, ana

in his commercial dealirgs bankrupt has entered into guarantees. These ere referrec to in his Statement ct Affairs ana in the Gfficial Réceiver's report. In his affidavit swern 5

seeel Say that at the time of entering into tre guarantees there was no reasonable or

probable ground of expectation by me cr the lender that my guarantee would ever need to be called upon cr was intended to ke callec up."

Some lllumineticr cr hov the bankrupt has beheved in

the past as to payment cf cebts mey be found rrom copies ol affidéevits provided by kis wife (who was his witness in his cése before me) in the Family Court proceéedings. Sre séia an her

"by husband hes always been in trouble with bad debts. Summonses were coming regulerly tc

be served at our heme. These debts and the resulting actions which arose out ox the debts caused me considerable worry and anxiety because mcst of the time my husbéend was away from home when the documents were served. I had stract instructions from my husband that I was not allowed to accept any Gocument even & registered letter.

Cn the Ist of cGanuary 1977 1 lexrt the respondent and moved out of the matrimonial

home. Zt the time my husband wes spending approximately sixty to seventy percent of his time interstate. The mélin ceason ror my

leaving was the fact that he had now become 4 professional litigant and because I was constantly being harrassed by people coming to

the home to serve documents releting to court proceedings....

My husband has often told me that it is Gifficult for him to get solicitors to ect for

him. Gn cone occasion he told me that scmebody hea referred te him as a professional litigant. fle seemed quite amused by this phrase and in fact took 1t as cuite an honour. iI remember a person who vas employed Ly my husband specificaliy te keep records ain

respect cf his court meéetters. he had an office ian Flinders Street in the Laelor-dJones Building. & list of Court céses wis kept on

excess cf thirty métters pending in various courts."

I am satisfiead the bankrupt, it disposed to de sc,

ceuld have, in these last three years, earnt meney ena

contributea moncy towards peyrent cr his debts. 4.5tTer

sequestration of his estate in September 1979, on 16 Cctorer 1979, he was able to make an overseas TLIip to Lnited States cr

America and Europe. his expenses were peid end, so he cleéirs,

moneys lent to hin by his brother for use on the trip. lie Les,

vith the assistence of a tertlary ecucetion allovence, been eble

to spend twO years taking a University co.rse with supjects having no relation to the f1eld in which he might earn inccome. The bankrupt composed for his wifé an affidavit for usé in these proceedings. in it she expressed ofinicns she was not gualifiec nor able ctherwise to express. hls créparation cf his wire's affidavit read before me indicates 4 reaciness to manipulate ih

(perhags "mastermind" in the sense used by Sangster J.) cthers to

s.150(6) cf the Bankruptcy Act 1966 that he had no reason tc

believe that the bankrupt has committed any act which constitutes

an offence unéer that act; but makes other sukmissicns therein

whick 1t 1s not necessary tc detail. The RKoticé ck Cbhyectior

filea by cr on senalZ or the Citicial heceiver on 20 icvemcer

l ané amended against onjection in thesé precescings, states

"that the cankrupt is aétle, cr as likely within $ years frem the Gate of thé Sankrurtcy te be able, to make & signiticant contricuticn

mis ckyj¢ecticn has ceen esteclisnec ty the evicence.

hutnerities which crfer cuidance on this application

nerte the barnkrurt (iS61) 1S «.b-0. 3S; Re Fertes (1955) 2b 4ebeC. bF Re Conn bznwell Crey (16su} 19 w.E.u. 2S; e& Deller

F.L.R. 266. They indicate that in an epplaication {61 discharge & Ccurt 1s not concerned enly with the interests cf tne denaruEt but also of his crediters ana matters cf ccomrercial mecraiaty; and the conduct of the bankrupt relevant to his bankruptcy. in considering an application fcr discharge 1t is necessary to beer in ming what might be pursuits and behéviour of the bankrupt 12 Gischarge were granted. On this subject, 1 find assistance ircn kis previous activities end cenvicticns anc the expressicns (which coincide vith my own views) of Sangster J. and bohr vu. gucted above. the material ian his wife's affidavit alreacy mentioned corroborates my Own view. i fine the bankrupt's viva voce and affidavit evidence, not ail of which I have referred ic, in relation te véricus cebts end tc his guarantees to ke unsatisfactory; though it does eppear that liapility on scne Guarantees may no ionger remain. i em satisfiec Le 1s cone whe 1s ready to continue to evoid his liabilities by unacceprecle denials and tactics designed to thwart recevery; that he has ana will resort to procedures which in é commercial setting will seck to frustrate those to .hom he has chligaticns, put off creaitcors, and cenerally te carry on és 2 "prefessione] litigant". et Ls

1S anxlcus to resumé Lis commercial ectivities in a setting ewey

fror HKdelaide where his present werden are not known. ar. addition to my view, earlier expresséu, that the g¢reuna ci objection has been establishec, i ém satisfied, om the vhels Gi

the evidence and having regerc to the euthcrities mentioned, tlit

the aéppliceticr fer dischercé cught not be granted.

(1) Tame for filing the Cfficiral keceiver's report be

(2i) The delivery of a copy of it tc the aprlicaent on i

The Cf£ficial Receiver be relieved ci the consecuences

(ea) having failed to include in the Cff1iciel hecelver's

(b) the inccrrect spelling cf the name of the bankrupt;

{d) the failure, af any, to post a ccpy ci the Lotice

hone of above ordcrs wotld cause or have caused any

znjustice substantial or othervise to the applicent.

| cercify that this and the SIRS (re) preceding pages are a tiue coby" of bide) Reasons for Judgment herein of his Honour Mr. Justice McGregor.