Fazio (Executor) v Passmore

background 9 On 23 December 2005, Ms Underdown commenced a proceeding against Ms Passmore in the Magistrates Court of Western Australia. Ms Underdown claimed damages in relation to alleged losses arising from Ms Underdown having entered into a contract to purchase a residential property in Leeming from Ms Passmore. The trial of the proceeding took place over a number of days in October 2006 and November 2006. 10 On 15 January 2007, Magistrate Pontifex published reasons and made an order dismissing Ms Underdown's claim. I will deal in some detail with the proceeding later in these reasons. 11 On 15 January 2007, the Magistrate also gave the parties liberty to apply to be heard on the question of costs in default of agreement. 12 By a letter dated 18 January 2007, Ms Passmore's solicitors wrote to Mr Fazio, on behalf of Ms Underdown, contending that their client had spent $51,613.42 in defending Ms Underdown's claim and requiring payment of $51,613.42. I would add that Mr Fazio is named in the published reasons of the Magistrate, as the person who represented Ms Underdown in the proceeding in the Magistrates Court. 13 On 19 January 2007, Mr Fazio responded to that letter and asked for an itemised account of the costs claimed by Ms Passmore. 14 On 25 January 2007, Mr Fazio submitted for stamping a transfer of land form whereby Ms Underdown transferred to Mr Fazio an half interest as a joint tenant in the Leeming property. The transfer of land form states the consideration for the transfer of the half interest as "Love and Affection - Gift". Prior to the transfer, the land was registered solely in the name of Ms Underdown. 15 On 6 February 2007, Ms Underdown filed a notice of appeal in the District Court of Western Australia against the order of Magistrate Pontifex. The grounds of appeal were stated as follows: 1. The appellant was not afforded a fair trial. 2. The learned Magistrate failed to give proper consideration to the evidence and law pertaining to the question of duress and erred. 3. The principles of law afforded the defendant were not similarly afforded the claimant. 4. Reasonable apprehension of bias. 5. The decision is harsh, oppressive and unfair in the circumstances. 6. The learned Magistrate overlooked evidence and therefore gave such no weight. 16 On 28 May 2007, Ms Passmore's solicitors filed a chamber summons for dismissal of the appeal proceeding for want of prosecution in the District Court. 17 On 12 June 2007, Deputy Registrar Harman of the District Court, ordered that Ms Underdown enter the appeal for hearing by no later than 29 June 2007. By letter dated 19 June 2007, Ms Passmore's solicitors advised Mr Fazio on behalf of Ms Underdown, of the orders made by Deputy Registrar Harman and their available dates for hearing of the appeal. Ms Underdown did not enter the appeal for hearing by 29 June 2007. 18 On 1 July 2007, Ms Underdown passed away. On 2 July 2007, Mr Fazio executed a survivorship application in favour of himself in respect of the Leeming property. 19 In July 2007, Ms Passmore's solicitors filed another chamber summons in the District Court for dismissal of the appeal for want of prosecution. 20 On 25 September 2007, Deputy Registrar Hewitt of the District Court, wrote to Mr Fazio advising that the chamber summons for the dismissal of the appeal for want of prosecution and breach of the order requiring that the appeal be entered for hearing by 29 June 2007, would be heard on 2 October 2007. 21 On 26 September 2007, Magistrate Pontifex ordered that the estate of the late Ms Underdown was to pay the defendant's costs to be taxed. 22 On 2 October 2007, Deputy Registrar Hewitt dismissed the appeal. Mr Fazio, on behalf of the estate of the late Ms Underdown, did not appear at the hearing before Deputy Registrar Hewitt. 23 On 17 October 2007, Mr Fazio lodged for registration both the transfer application stamped on 25 January 2007 and the survivorship application. In support of the survivorship application, Mr Fazio completed a statutory declaration in which he declared that he was the lawful wedded husband of Ms Underdown, that he and Ms Underdown were the lawful joint tenants of the Leeming property, and that he was the lawful surviving joint tenant. 24 On 29 November 2007, a Registrar of the District Court signed a certificate taxing the costs payable by Ms Underdown's estate at $49,757.59. 25 On 7 December 2007, the solicitors for Ms Passmore made a demand on the estate of Ms Underdown, addressed to Mr Fazio, demanding that the estate pay the taxed costs together with interest. The demand was not met and has still not been met. 26 On 10 July 2009, Ms Passmore applied to the Supreme Court of Western Australia to appoint administrators to the deceased estate of the late Ms Underdown following Mr Fazio's refusal to apply for probate in respect of the will of the deceased. 27 On 14 December 2009, the Supreme Court adjourned the proceedings sine die. 28 On 13 January 2010, this Court granted Ms Passmore leave to present a creditor's petition under s 244(13) of the Bankruptcy Act for the administration in bankruptcy of the late Ms Underdown's estate (Passmore v Underdown (Deceased) [2010] FCA 70). 29 On 14 January 2010, as already mentioned, Ms Passmore filed a petition for the administration of the late Ms Underdown's estate under s 244 of the Bankruptcy Act. 30 On 12 March 2010, Mr Fazio filed in the District Court of Western Australia, a notice of appeal against the Magistrates Court's decision and orders, and an affidavit which stated that it was made in support of the application seeking "leave to appeal". I will refer in greater detail to these documents later in these reasons.

the review 31 A review of the decision of a Registrar of this Court under s 35A of the Federal Court of Australia Act is a hearing de novo. 32 Ms Passmore's application for an order for the administration of the late Ms Underdown's estate was made under s 244 of the Bankruptcy Act. Section 244(1)(c) provides as follows: 244(1) Subject to this section, where: … (c) a debt of not less than $2,000, or debts amounting in the aggregate to not less than that amount, which a deceased person would have been liable to pay to a creditor or any 2 or more creditors if he or she had not died becomes or become owing after his or her death; the creditor or creditors to whom the debt or debts is or are owing may present a petition to the Court for an order for the administration of the estate of the deceased person (in this section referred to as the deceased debtor) under this Part. (Original emphasis.) 33 As mentioned, the debt relied upon by the petitioning creditor, Ms Passmore, is the debt arising from the judgment of the Magistrates Court for costs. The costs order was made on 29 November 2007. Ms Underdown passed away on 1 July 2007 - four months before the making of the costs order. The costs order was made in respect of the proceeding before Magistrate Pontifex, who dismissed the claim made by Ms Underdown. Prior to the death of Ms Underdown, Ms Passmore's solicitors were engaged in the process of seeking to agree the amount of the costs which Ms Underdown, attendant upon the dismissal of her claim, would have been liable to pay. It follows that the costs order made on 29 November 2007 is a debt which Ms Underdown would have been liable to pay, had she not died. Accordingly, in my view, the requirements of s 244(1)(c) of the Bankruptcy Act are satisfied. 34 Section 244(11) of the Bankruptcy Act states that if the Court is satisfied with the proof of the matters stated in the petition, that there has been service of the petition and that the debt to which the petition relates, is still owing, the Court may make an order that the estate be administered under Pt XI of the Bankruptcy Act. 35 Section 244(12) of the Bankruptcy Act provides that if the Court is not satisfied with the proof of any of those matters or "is of the opinion that for other sufficient cause" the administration order should not be made, the Court may dismiss the petition. 36 As to verification of the matters stated in the petition, s 244(5) of the Bankruptcy Act provides that a petition shall be verified by the affidavit of a person who has knowledge of the facts. 37 The petition in this case was supported by affidavits of Ms Passmore and Ms Croft, Ms Passmore's solicitor. Each of these persons is a person who has knowledge of the facts on which the petition is founded. The affidavits verify the facts on which the petition is based. 38 Section 244(6) of the Bankruptcy Act is also a relevant provision. It provides as follows: A petition under this section shall not be presented unless: (a) the debt, or each of the debts, in respect of which it is presented: (i) is a liquidated sum due at law or in equity or partly at law and partly in equity; and (ii) is payable immediately or at a certain future time; and (b) at the time of his or her death, the deceased 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. 39 The requirements of this section are satisfied because the petition is in respect of the liquidated sum comprising the judgment debt which is due at law and which is payable immediately. There is no evidence of any stay having been obtained in respect of the judgment debt. Further, at the time of Ms Underdown's death she was personally present in Australia. 40 The next matter of which the Court must be satisfied relates to the service of the petition. Section 244(9) of the Bankruptcy Act relevantly provides that a sealed copy of the petition is to be served upon the legal personal representative of the deceased. Order 7 r 1(1) of the Federal Court Rules (which applies by reason of r 1.03(2) of the Federal Court (Bankruptcy) Rules) requires that there be personal service of an originating process - which includes a petition. 41 Mr Fazio contended that this requirement has not been satisfied by Ms Passmore. 42 Ms Passmore relied upon the evidence of Ms Harrison, a process server, who deposed that, on 18 January 2010, she had served the petition and accompanying affidavit on Mr Fazio. It will be recalled that Mr Fazio was named as the respondent to the petition in his capacity as the personal representative of the late Ms Underdown. 43 Mr Fazio, also, gave evidence as to the circumstances of the service of the petition. In his affidavit in opposition to the making of the administration order, Mr Fazio deposed that when he and the late Ms Underdown moved into the Leeming property in August 2005, he immediately placed two identical notices in the front windows near the front door which were clearly and highly visible. Mr Fazio attached a copy of the notice to his affidavit. The notice read: Notice To all persons and entities Entering this property without express permission of the occupant Admittance by invitation only Or beware Trespass applies Rulings by High Court of Australia Plenty v Dillon (1991) 171 CLR 635 FC 91/004 George v Rockett (1990) 170 CLR 104 FC 90/026 Halliday v Nevill (1984) 155 CLR 1 The Commonwealth v New South Wales 33 CLR IT 44 Mr Fazio went on to say that in 2009, he had dealings with Ms Harrison when she was engaged in serving documents on him at the Leeming property in relation to a proceeding, CIV 2258 of 2009, in the Supreme Court of Western Australia. Mr Fazio said that at that time he told Ms Harrison in no uncertain terms that she was uninvited and barred from entering the property. Mr Fazio said that he told Ms Harrison that service should be effected by registered post, and that she should never set foot on the property again. 45 Mr Fazio deposed that on 18 January 2010, he looked out the front security door and saw Ms Harrison approach the letterbox. Mr Fazio said he spoke to Ms Harrison in an abusive manner and slammed the front door closed before she could open her mouth or approach. Mr Fazio said that he then faxed a complaint to the Murdoch police station complaining that Ms Harrison had trespassed on his property. 46 Ms Passmore contended that nothing turned on the difference in the accounts by Ms Harrison and Mr Fazio of the events of 18 January 2010 in relation to service, because Mr Fazio was deemed to have been served personally by reason of O 7 r 1(3) of the Federal Court Rules. Order 7 r 1(3) of the Federal Court Rules provides that: 1(3) If a respondent to an originating process: (a) enters an appearance; or (b) files a defence; or (c) appears before the Court in response to the process; the originating process is taken to have been served on the respondent personally when the earliest of those events occurred, unless personal service on an earlier day is established. 47 Mr Fazio contended that, on its proper construction, O 7 r 1(3) of the Federal Court Rules had no application in circumstances where a process server had, in the course of effecting, or attempting to effect, personal service, committed a trespass. Mr Fazio relied on the case of Plenty v Dillon (1991) 171 CLR 635 (Plenty) in support of this proposition. 48 In my view, the construction contended for by Mr Fazio should be rejected. 49 First, the language of O 7 r 1(3) of the Federal Court Rules suggests no limitation of the kind contended for by Mr Fazio. 50 Secondly, Plenty is not authority for the proposition advanced by Mr Fazio. In Plenty, the High Court considered the question of whether a police officer was authorised, whether by common law or by the relevant statute, without the consent of the person in possession of land and without any implied leave or licence, to enter the land for the purpose of serving a summons. The summons in question in Plenty was for a child to appear before the juvenile court in South Australia. The High Court found that there was no authority in the police officer to enter Mr Plenty's property. The High Court did not consider the question of whether the Federal Court Rules were to be construed in the manner contended for by Mr Fazio. 51 Thirdly, the rationale for the issue and service of a summons on a respondent, does not support Mr Fazio's contention. 52 The petition in this case, stated relevantly: This petition has been set down for hearing by the Court at the time, date and place stated below. If you or your legal representative do not attend the Court at that time, the petition may be dealt with in your absence and an order made for the administration of the estate of the deceased respondent debtor. If you wish to appear at the hearing, you must file and serve a notice of appearance. If you wish to appear at the hearing and oppose this petition, you must: (a) enter an appearance in accordance with Form 4, and file a notice stating grounds of opposition to the petition in accordance with Form 5 and an affidavit supporting the grounds… 53 At 641 in Plenty, Mason CJ, Brennan and Toohey JJ observed: A summons to appear before a court of summary jurisdiction to answer an information or complaint does not of itself compel a defendant to appear. Its primary purpose is to ensure that natural justice is accorded to a defendant by giving the defendant notice of the subject of the complaint and an opportunity to be heard. 54 In my view, the observations inform the construction of O 7 r 1(3) of the Federal Court Rules. 55 The main purpose of the service of originating civil process on a respondent, is to inform the respondent of the complaint or claim which affects him or her; and to provide that person with an opportunity to be heard in relation to the complaint or claim. That purpose is achieved if the complaint or claim comes to the attention of the respondent, and the respondent responds to the service of the summons by entering an appearance. The filing of the notice of appearance evidences that the complaint or claim, has come to the respondent's attention and the respondent intends to be heard in relation thereto. That the originating process may have been served in circumstances amounting to a trespass, does not derogate from this fact, nor does it undermine the essential purpose of the service of a summons. 56 Of course, nothing in O 7 r 1(3) of the Federal Court Rules affects the question of whether a process server may have, in the course of serving or attempting to serve the summons, committed a trespass, nor any attendant remedies that may be available at law. 57 As to the question of whether the debt is still owing, the evidence was that demand had been made for the payment of the judgment debt, and that no payment had been made. Mr Fazio did not, of course, suggest the debt was paid - contending rather that he had on 12 March 2010, appealed the decision of the Magistrate which gave rise to the judgment debt on which the petition was based. However, there was no evidence before the Court that the costs order had been stayed. It is well accepted that an appeal does not operate as a stay of the relevant orders. Accordingly, I am satisfied that the judgment debt is still owing. 58 It, also, follows that I am satisfied of the matters referred to in s 244(11) of the Bankruptcy Act, with the consequence that the Court may make an order for the administration of the late Ms Underdown's estate.

should the court withhold making the administration order 59 Mr Fazio contended that, in any event, the fact that he had, in his capacity as Ms Underdown's personal representative, appealed against the Magistrate Court's order was a reason why the petition should be dismissed for "other sufficient cause", pursuant to s 244(12) of the Bankruptcy Act. Alternatively, contended Mr Fazio, the petition should, on this ground, be adjourned sine die pending the determination of the appeal.

the march 2010 appeal 60 The grounds of appeal set out in the notice of appeal in the second appeal in the District Court of Western Australia are the following: 1. The decision of Magistrate Pontifex amounts to a manifest miscarriage of justice. 2. A reasonable minded person would deduce a reasonable apprehension of bias by Magistrate Pontifex towards the appellant. 3. The learned Magistrate erred at law in allowing prejudicial cross examination that served no probative value. 4. The learned Magistrate erred at law as to the issue of Duress. 61 Mr Fazio filed in the District Court, an affidavit dated 12 March 2010 in support of an application seeking leave to appeal. In this affidavit, Mr Fazio said that at the trial of the proceeding in the Magistrates Court, he was an "integral witness" as to specific aspects of Ms Underdown's claim but the Magistrate had rejected his evidence. Mr Fazio referred to the following observations by the Magistrate in respect of his evidence: The defendant submitted and I accept, that as Mr Fazio has a criminal conviction for an offence of dishonesty, namely fraud, that his evidence should consequently be afforded little if any weight. 62 Mr Fazio said that it was true, that at the time of the trial before the Magistrate, he had been convicted of fraud. However, Mr Fazio went on to say that, subsequently, he appealed against that conviction to the Court of Criminal Appeal of Western Australia, and in 2008, that conviction was set aside by that Court. 63 In his affidavit of 12 March 2010, Mr Fazio also identified the rejection of his evidence by Magistrate Pontifex, as the "gravamen of the appeal". 64 Before this Court, Mr Fazio also stated that since the appointment of a trustee in bankruptcy, he had lost the power to prosecute the appeal in the District Court, and the appeal had not progressed. 65 Mr Fazio did not advance argument in support of the other grounds of appeal. However, Mr Fazio's contention in relation to the Magistrate's adverse treatment of his evidence because of his fraud conviction, is one of substance and calls for a close consideration of the decision of the Magistrate.

the magistrates court proceeding 66 The claim that was brought by Ms Underdown in the Magistrates Court arose out of an agreement entered into between Ms Underdown and Ms Passmore for the sale by Ms Passmore of a residential property in Leeming. The claim was for damages in the sum of $10,937.08 as well as aggravated and punitive damages. 67 Ms Underdown claimed damages in respect of the cost of repairs she had to make in order to remedy defects in the property after she took possession of the property. An important element of this claim related to a written agreement between Ms Underdown and Ms Passmore to permit Ms Underdown to enter into possession of the Leeming property before the contractually agreed settlement date. That agreement contained certain exclusion clauses in relation to any losses suffered by the purchaser in relation to any defects in the property. Ms Underdown claimed that this agreement had been induced by duress. 68 The Magistrate dismissed Ms Underdown's claim that the written early possession agreement had been induced by duress on the part of Ms Passmore's agent. The Magistrate also dismissed Ms Underdown's claim for repair costs on the basis that the claim was excluded under the exclusion clause which was part of the written early possession agreement. 69 Ms Underdown also claimed reimbursement from Ms Passmore of the cleaning and removal costs which were incurred by Ms Underdown in moving Ms Passmore and her family's belongings out of the Leeming property in order to permit Ms Underdown to take early possession of the property. Ms Underdown claimed that she entered into an oral agreement with Ms Passmore whereby Ms Passmore agreed to reimburse Ms Underdown for the cleaning costs and the costs of the removalists who moved Ms Passmore's family's possessions out of the Leeming premises over the course of the two days immediately prior to the date upon which Ms Underdown entered into early possession of the property. There was also a negligence claim which, in effect, overlapped this claim. 70 The Magistrate dismissed the claim for the reimbursement of the cleaning and removal costs on the basis that no such oral agreement was made. The Magistrate found that the agreement, in fact, made, was that it was Ms Underdown who agreed to bear the cleaning and removal costs as an inducement to persuade Ms Passmore to give Ms Underdown early possession. The Magistrate also dismissed Ms Underdown's claim that Ms Passmore's agent had acted negligently in failing to advise Ms Passmore timeously that Ms Underdown wanted to enter possession prior to settlement, on the basis that there was no damage flowing from the alleged negligence. 71 It was, of course, the dismissal of Ms Underdown's claim which led to the costs order being ultimately made against Ms Underdown. 72 The Magistrate's reasons for decision record that Mr Fazio gave evidence. It is apparent from the reasons, that Mr Fazio's evidence was important only on the question of the terms of the oral agreement relating to the reimbursement of the cleaning and removal costs. Ms Underdown alleged that an oral agreement was made on the evening of 3 August 2005, when Mr Fazio and Ms Underdown attended Ms Passmore's home to ask her to permit Ms Underdown to take possession of the property prior to settlement. Ms Underdown said that she wanted to take possession on the weekend of 6 August and 7 August 2005. This would give Ms Passmore and her family only two days to vacate their house in Leeming. 73 The evidence before the Magistrate was that, at that meeting, Mr Fazio did most of the talking on behalf of himself and Ms Underdown. The other people present were Ms Passmore and her husband, Mr Kim Passmore. The Magistrate found that it was agreed that Mr Fazio would arrange, and pay for, the removalists and the cleaners. The Magistrate rejected the allegation that Ms Passmore had agreed to reimburse Ms Underdown for the costs of the removalists and the cleaners. The Magistrate stated that she preferred the evidence of Ms Passmore and that of her husband. 74 In addition, the Magistrate accepted and relied on the corroborative evidence of Mr Robert De Graaf, who was the cleaning contractor that Mr Fazio contracted to clean Ms Passmore's house. Mr De Graaf deposed that Mr Fazio had said to him at the time, that Mr Fazio would be paying for the cleaning because he had "done a deal to cover the costs in order to get the people to move out". 75 Further, the Magistrate said that the evidence showed that the Passmores had intended to use their own resources to move out of the property during the period leading up to settlement, and not to engage removalists for that purpose, except for moving a piano. The Magistrate went on to find that it was unlikely that the Passmores would have agreed to undertake the daunting task of moving their possessions in the course of two days and paying removalists in order to do so, when their initial intention had been to use their own resources to move at a more leisurely pace. 76 As previously mentioned, the Magistrate placed little or no weight on Mr Fazio's evidence. The Magistrate said: The defendant submitted and I accept, that as Mr Fazio has a criminal conviction for an offence of dishonesty, namely fraud, that his evidence should consequently be afford little if any weight. 77 However, the Magistrate did not make an adverse credibility finding in respect of Ms Underdown. The Magistrate stated that she had no reason not to accept Ms Underdown as an honest witness. 78 The question then is whether the appeal has sufficient prospects of success, as to warrant setting aside the orders of Deputy Registrar Jan and dismissing the petition, or at least, adjourning the petition, pending the prosecution of the appeal. 79 It is the case that the Magistrate accorded Mr Fazio's evidence "little if any weight" on a premise that was subsequently shown to be misplaced, namely, that Mr Fazio was a convicted fraudster. However, Mr Fazio's evidence was only one of several relevant items of evidence considered by the Magistrate. In this regard, it is important to observe that the Magistrate did not make an adverse credibility finding in relation to Ms Underdown. It is apparent that, notwithstanding the absence of such a finding in relation to the issue of the terms of the oral agreement made on 3 August 2005, the Magistrate simply preferred the version of events deposed to by Ms Passmore and her husband, to that deposed to by Ms Underdown and Mr Fazio. In accepting that version of the events, the Magistrate also relied upon two other important aspects of the evidence, namely, the corroborative evidence of Mr De Graaf and the objective circumstances, which, said the Magistrate, supported the Passmores' version of events. The adverse credibility finding in relation to Mr Fazio was, therefore, not a decisive element in the Magistrate's factual findings in relation to the only important aspect of Mr Fazio's evidence. 80 It follows that, in my view, this ground of appeal does not have sufficient prospects of success as to warrant setting aside the administration order made by District Registrar Jan, and dismissing or adjourning the petition.

exceptional circumstances 81 Mr Fazio also referred to the fact that the late Ms Underdown was diagnosed sometime prior to her death with breast cancer, which ultimately led to her death. Mr Fazio said that he had been Ms Underdown's sole carer during the period prior to her death and that he had suffered profound grief following her death. He contended that these circumstances were exceptional circumstances, and should constitute a basis for dismissing the petition on the "other sufficient cause" ground in s 244(12) of the Bankruptcy Act. These circumstances, however, in themselves, do not comprise a sufficient cause to dismiss a bankruptcy petition under that provision.

extension of time 82 As to the question of whether time should be extended to permit the bringing of the review application, there was evidence that Mr Fazio had in May 2010, attempted to take steps in this Court to challenge the decision and orders of District Registrar Jan, but these steps were unproductive. Further, there was sufficient substance in some of the points made by Mr Fazio to warrant the Court exercising its discretion to extend time for the bringing of the review application under s 35A of the Federal Court of Australia Act. However, for the reasons set out above, the review application is dismissed and the orders made by District Registrar Jan on 28 April 2010 in WAD 4 of 2010, are affirmed. I certify that the preceding eightytwo (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.