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[2016] FCA 731
Federal Court of Australia
2016-06-20
Farrell J
Original judgment source is linked above.
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Counsel for the Respondent: The respondent appeared in person
BETWEEN: INVESTEC AUSTRALIA FINANCE PTY LIMITED ACN 161 468 131 Applicant
JUDGE: FARRELL J DATE OF ORDER: 20 june 2016
REASONS FOR JUDGMENT 1 The applicant was formerly called Investec Australia Loans Management Pty Ltd and I will refer to it as the "applicant" or "IALM" in these reasons. IALM applied to the Court for a sequestration order against the respondent ("Mr Naude") under s 43 of the Bankruptcy Act 1966 (Cth). Unless otherwise indicated, all references to legislation are references to the Bankruptcy Act.
Issues 2 Several issues fall for determination: (1) Was a document dated 4 May 2015 titled "Creditor's Petition" "presented" within the meaning of s 44(1)(c) at the time the Court's electronic filing system acknowledged receipt? I will refer to that document as the "4 May 2015 Petition". (2) As an assignee of the Judgment Debt referred to at (3) below, is the applicant a "creditor"? (3) Has Mr Naude made out the grounds in his "Notice Stating Grounds of Opposition to Application" ("Notice of Opposition") filed on 26 November 2015? (4) Should a sequestration order be made?
Background 3 On 21 February 2014, Justice McDougall delivered judgment in the Supreme Court of New South Wales in favour of Investec Bank (Australia) Limited ("Investec Bank") and made orders against Mr Naude for an amount of $10,382,342.21 ("Judgment Debt") with costs: see Investec Bank (Australia) Limited v Naude [2014] NSWSC 165 ("Investec Bank v Naude"). The Judgment Debt related to two guarantees provided by Mr Naude to Investec Bank. The first guarantee is dated 2 July 2007 and relates to indebtedness of Castleworld Pty Ltd ("Castleworld") in connection with the acquisition of a property at Bookara in Western Australia ("Bookara Property") with a view to its development: Investec Bank v Naude at [30]. The second guarantee is dated 31 March 2011 and relates to indebtedness of Powerstar Nominees Pty Ltd ("Powerstar"). Both of the guarantees are in evidence. By way of background to the Powerstar guarantee, in August 2007, Investec Bank agreed to advance in excess of $6.5 million to Powerstar in connection with the acquisition of a property named Wildwood at Yallingup in Western Australia ("Wildwood Property") and Mr Naude guaranteed Powerstar's obligations under that facility; that facility (as extended) expired on 30 September 2008. After protracted negotiations, Investec Bank and Powerstar entered into a further facility guaranteed by Mr Naude on 31 March 2011: Investec Bank v Naude at [35]-[45]. Mr Naude's defence to Investec Bank's enforcement of the guarantees was based on alleged misleading or deceptive conduct and unconscionable conduct. The judgment has not been appealed. 4 On 26 March 2014, a bankruptcy notice was served on Mr Naude requiring him to pay the Judgment Debt within 21 days, that is, by 16 April 2014 ("Bankruptcy Notice"); Investec Bank was named as the creditor. 5 On 10 July 2014, Investec Bank entered into an agreement ("First Deed") with IALM and Investec Holdings Australia Limited. The First Deed is entitled "Intergroup Transfer Agreement (RAS) Loans". It was designed to transfer certain assets from Investec Bank to IALM, including its interest in portfolio assets which comprised certain debts, securities and rights associated with them. The purchase price for the Castleworld debt is stated to be $800,000. A notice of assignment dated 10 July 2014 addressed to Mr Naude relates to the assignment of Investec Bank's interest in the Castleworld debt. 6 The applicant filed a creditor's petition on 13 October 2014 ("13 October 2014 Petition"). The act of bankruptcy on which the 13 October 2014 Petition relied was Mr Naude's failure to respond to the Bankruptcy Notice by 16 April 2014. The 13 October 2014 Petition stated that the Judgment Debt had been assigned to the applicant on 10 July 2014 and attached a copy of the First Deed as Annexure A and the Notice of Assignment of 10 July 2014 as Annexure B. 7 On 25 November 2014, Mr Naude signed an authority appointing Mr David Hurt and Mr Kimberley Strickland as his controlling trustees under s 188. A debtor commits an act of bankruptcy by signing the authority: s 40(1)(i). It also had the effect of staying the 13 October 2014 Petition until a meeting of creditors called under the authority has been concluded or adjourned: s 189AAA. 8 By a deed dated 15 December 2014 ("Second Deed") and for a consideration of $10, Investec Bank (by then known as BOQ Specialist Bank Limited) assigned to the applicant, to the extent it had not already done so, "all its present and future right, title and interest in and to the Assigned Property". The term "Assigned Property" was defined to include the Judgment Debt, the aggregate indebtedness of Castleworld (including indebtedness under a facility agreement dated on or about 28 June 2007), the aggregate indebtedness of Powerstar (including indebtedness under a facility agreement dated 31 March 2011) and all amounts owing by Mr Naude to Investec Bank including the benefit of any indemnities given by Mr Naude in respect of the Castleworld and Powerstar debts. Clause 3.3 of the Second Deed specifically acknowledged that the assignment "is effective, at equity or otherwise, from the Assignment Date [being 15 December 2014] notwithstanding whether notice of it has been given to any person". 9 A document entitled "Assignment Notice" dated 30 January 2015, addressed to Mr Naude and another document entitled "Assignment Notice" of the same date addressed to Mr Naude's controlling trustees advised that: …by a deed of assignment between [Investec Bank] and Investec Australia Loans Management Pty Limited ACN 161 468 131 (IALM) (Deed of Assignment) dated 15 December 2014 (the Assignment Date), we assigned all of our present and future right, title and interest in and to the Judgement Debt to IALM (together with all accrued but unpaid interest on the Judgement Debt) on the Assignment Date including, without limitation, all rights and remedies in connection with the Judgement Debt (the Assigned Property) and all proceeds and claims arising from and in connection with the Assigned Property. 10 A meeting of Mr Naude's creditors was held on 24 March 2015 and they rejected Mr Naude's draft personal insolvency agreement. 11 The 13 October 2014 Petition came before the Court on 28 April 2015. Transcript of the proceedings before District Registrar Wall is in evidence. Mr Dominic Delany, a solicitor employed by Arnold Bloch Leibler, told District Registrar Wall that the First Deed related only to the Castleworld debt so that it had not had the effect of assigning the Judgment Debt as a whole and the applicant had formed the view that this was not a formal defect that could be cured under s 306(1). Mr Delany explained (as written) "… we have prepared a supplementary creditors petition based on a separate act of bankruptcy, which is the controlling trustee appointment under section 188 of the Act and so if leave is granted to withdraw the creditors petition, we will seek to file that as soon as possible". Mr Naude was not present at the hearing. Mr Delany explained that he had never appeared, that "every mention has been done by consent" and that he had "not heard from the respondent debtor in the past week". The proceedings then continued: THE REGISTRAR: All right. Very well. So the controlled trustee appointed a meeting of creditors. The creditors met, did not accept the proposal put forward and there was - what's the effect of the resolution? MR DELANY: Yes, well, the effect - it's another act of bankruptcy, as you would be aware. THE REGISTRAR: Right. MR DELANY: We've chosen to rely on the earlier act, which is still … THE REGISTRAR: Yes MR DELANY: - - -we think, well within six months. THE REGISTRAR: Okay. MR DELANY: In any case, we will do so when we file the amended creditors petition. THE REGISTRAR: All right. Okay. Very well. So in matter 1 in the Federal Court list, which is listed at 2 o'clock, which is the matter of Investec Australia Loans Management Proprietary Limited v Alfred John Naude, this is a matter where a controlling trustee was appointed by Mr Naude, a meeting to convened but the proposals put forward were rejected. The resolution was that the respondent present a debtors petition. There is no evidence that he has done so as at today. The applicant creditor has sought leave to withdraw the existing position on the basis - petition, rather, on the basis that there was an ineffective assignment of the judgment debt rather than assignment of the - at least one of the constituent debts. The applicant creditor has reached the view, and probably correctly, although it's not necessary for me to decide, that the ineffective or incomplete assignment is terminal and that the petition ought to be - that they couldn't proceed on the petition. So I will grant leave to the applicant to withdraw from that petition. I will grant leave to the applicant to file an amended creditors petition relying upon - identifying the act of bankruptcy relied upon. Do you wish there to be a date? MR DELANY: For the amended creditors petition to be filed? THE REGISTRAR: To be filed and/or - I suppose you're going to serve it, are you, on Mr- - - MR DELANY: We will need to personally serve it on Mr Naude. THE REGISTRAR: Yes. MR DELANY: We have effectively prepared the petition, but if the court pleases, if we could file it - be given by the end of the week to file it - - - THE REGISTRAR: Sure. And do you want a return date? MR DELANY: For the creditors petition? Well, we will have to serve it, and that has proved difficult in the past. THE REGISTRAR: Has it? MR DELANY: So perhaps on the - I take it that - well, the creditors petition will specify a return date, I think, when filed. We would be content with whatever return date is - - - THE REGISTRAR: Okay. MR DELANY: - - - placed on it by the registry. THE REGISTRAR: All right. Very well. Well, the court will grant leave to file an amended petition with the registry. The court notes the registry will allocate a return date for that petition and the matter can come back in the ordinary course. Okay. Thank you. I will - I don't think there is anything else. I will adjourn. [As written, emphasis added] 12 District Registrar Wall made the following orders: 1. Pursuant to Section 47(2) of the Bankruptcy Act 1966, leave be granted to the Applicant Creditor to withdraw the Creditor's petition. 2. Leave be granted to the Applicant to file an amended creditor's petition within the next seven days. 13 Mr Delany deposed that on 30 April 2015 he caused to be lodged with the Court electronically a "clean" creditor's petition and trustee's consent to act; a filing fee of $3,075 was paid. That document relied on a single act of bankruptcy comprised of Mr Naude signing the s 188 authority on 25 November 2014. Registry rejected the "clean" petition and requested that the applicant file an amended creditor's petition. Mr Delany deposed to conversations with Registry as follows: 4. On 1 May 2015 I received a telephone call from a person named Katerina from the Federal Court Registry. We had a conversation that included words to the following effect: Katerina: I am calling regarding matter number NSD No 1040 of 2014. Why did you file a new creditor's petition? Shouldn't you be filing an amended petition? Me: I explained in Court on 28 April that the applicant would file a fresh creditor's petition and so I did not think it necessary to file a petition in mark-up. Katerina: I will check with the Registrar. I suspect that the Registrar intended that you should file an amended petition on the file of the existing proceeding. If this is the case, then you will not need to pay a filing fee. 5. On the morning of 4 May 2015, I called the Federal Court Registry again. I spoke to a person named David. We had a conversation that included words to the following effect: Me: I am calling in relation to matter number NDS No 1040 of 2014. Can you please tell me whether it is necessary to file an amended petition using mark-up? If not, I will file the creditor's petition on the existing matter and will not pay the filing fee. David: I will check with Registrar Wall and will get back to you today. 14 The following text appears on the e-lodgement file: "Lodgement Date: 30/04/2015 3:49:37 PM AEST", "Processed: 4/05/2015 4:29:33 PM AEST" and "As discussed, please lodge an Amended Creditors Petition. A refund of $3,075 will be arranged. Kind regards Katerina …" 15 On 5 May 2015, a further document dated 4 May 2015, headed "creditor's petition" which marks-up differences from the 13 October 2014 Petition, but is otherwise unchanged from the "clean" petition, was e-lodged and marked as "Received: 3:53:16 PM AEST"; no fee was paid in relation to the document. The Court's "Notice of Filing and Hearing" indicates that it was filed on 6 May 2015 at 12:22:18 PM AEST. 16 Relevantly, the 4 May 2015 Petition: (1) is headed "creditor's petition"; (2) refers to IALM as the "applicant creditor"; (3) applies for a sequestration order under s 43; (4) states that the applicant creditor does not hold security over the property of the respondent debtor; (5) states that when the act of bankruptcy occurred, the respondent debtor was (a) ordinarily resident in Australia; (b) had a dwelling house or place of business in Australia; (6) states that the applicant was the assignee of the Judgment Debt under the First Deed and Second Deed; (7) relies on the act of bankruptcy as Mr Naude signing an authority under s 188 on 25 November 2014, being "within 6 months before presentation of this petition"; (8) is marked-up with the underlining of material which did not appear in the 13 October 2014 Petition and which also strikes through reference to reliance on the failure to comply with the Bankruptcy Notice as the relevant act of bankruptcy; and (9) attaches as Annexures copies of the First Deed (which includes a copy of the sealed order of the Supreme Court of New South Wales relating to the Judgment Debt), the Second Deed, the Notices of Assignment addressed to Mr Naude dated 10 July 2014 and 30 January 2015, a copy of the appointment of a controlling trustee authority form signed by Mr Naude and dated 25 November 2014, and a copy of the Certificate of Appointment of Controlling Trustee issued by the Official Receiver and dated 3 December 2014. 17 It appears that the applicant had some difficulty serving the 4 May 2015 Petition on Mr Naude personally. On 9 October 2015, Registrar Segal made orders permitting service of documents on Mr Naude at a specified email address with a text message to a designated mobile telephone number advising that an email had been sent. I note that the specified email address is the one Mr Naude used to communicate with the Court in relation to these proceedings. 18 Registrar Segal also made the following order on 9 October 2015: 3. The period at the expiration of which the creditor's petition shall lapse shall be the period of 24 months commencing on the date of presentation of the petition. 19 By an affidavit sworn on 6 November 2015, Mr Delany deposed that on 21 October 2015 he sent to Mr Naude by email a copy of a letter of the same date, Registrar Segal's orders dated 9 October 2015, a sealed copy of the 4 May 2015 Petition and its attachments and a trustee's consent to act. He also deposed that, on the same day, he sent text messages to Mr Naude's designated mobile number which advised that those documents had been sent to the email address designated by Registrar Segal and notified Mr Naude of the listing date on 11 November 2015. Although Mr Naude makes extensive complaints concerning the manner in which the applicant's solicitors have conducted the bankruptcy proceedings against him, Mr Naude admits in his affidavit sworn 8 March 2016 that he received the 4 May 2015 Petition on 6 November 2015. 20 On 10 November 2015, the 4 May 2015 Petition was amended to reflect the change of name of the applicant to "Investec Australia Finance Pty Limited". 21 Mr Naude filed his Notice of Opposition on 26 November 2015. 22 Mr Naude appeared at the hearing on 19 April 2016. Before the hearing, Mr Naude filed submissions and a number of affidavits. Mr Naude sought to make oral submissions at the hearing relying on an affidavit sworn by him on 8 March 2016. That affidavit was incompletely transmitted to the solicitors for the applicant and to the Court, a matter raised by the applicant's solicitors with Mr Naude by letter dated 9 March 2016. Annexures AJN9-AJN26 and pages 7-12 and 39-64 were missing. Mr Naude was given leave to file and serve a complete version of this affidavit by 24 April 2016, but failed to do so.
Was the 4 May Document "presented" on 5 May 2015? 23 The issue which concerned District Registrar Wall causing him to refer this matter to a Judge of this Court was whether the date of presentation of the petition is 13 October 2014 or in early May 2015. The question turns on whether the 4 May 2015 Petition is a new creditor's petition or an amendment of the 13 October 2014 Petition. If 13 October 2014 is taken to be the date on which the petition was presented, then the act of bankruptcy now relied on by the applicant, namely, the signing of an authority under s 188 by Mr Naude on 25 November 2014, would mean that s 44(1)(c) would not be satisfied because it requires the act of bankruptcy on which the petition is founded to have been committed within the six months before the presentation of the petition. 24 Relevantly to this point, though not directed specifically to it, Mr Naude submitted that the "creditor's petitions" that the applicant seeks to rely on are "comprehensively defective" and "have expired". 25 The applicant claims that the 13 October 2014 Petition was withdrawn in accordance with the first order made by Registrar Wall on 28 April 2015 and accordingly, the second order granting leave to amend the petition could have no work to do. It also claims that no application to amend the 13 October 2014 Petition had been made under s 33(1)(b). The applicant says that the 4 May 2015 Petition was "presented" on 5 May 2015 when it was lodged and accepted by the Court by issuing an e-lodgement receipt. The applicant relies on Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 ("Purden") at 515 (Bowen CJ, Fisher and Lockhart JJ) and Department of Human Services v Mitchelson (2013) 279 FLR 93; [2013] FMCA 226 ("Mitchelson") at [12]-[15] (Burnett FM as he was then known). 26 This matter is not without some difficulty having regard to: (1) Mr Delany has deposed that it was his understanding on 30 April 2015 that "the applicant had withdrawn the existing petition on 28 April 2015 and that I had informed the Court that the applicant would be filing a new petition based upon a different act of bankruptcy, and on this basis I caused an employee of Arnold Bloch Leibler to lodge the clean petition with the Federal Court Registry together with the filing fee of $3,075". The transcript of the proceedings on 28 April 2015 bears out Mr Delany's evidence that the applicant's purpose was to seek leave to withdraw the 13 October 2014 Petition and that Mr Delany did say that it was the applicant's intention to rely on a different act of bankruptcy which had occurred within the six month period prior to 28 April 2015. However, it also shows that Mr Delany first referred to the proposed petition as an "amended petition" and then went on to discuss timing for the filing of an "amended petition" with District Registrar Wall without demur that no leave was required as the proposed petition was a new petition; (2) Mr Delany appears to have filed the "clean petition" on the same file as the 13 October 2014 Petition and accepted Registry staff's position that it was necessary to file an "amended creditor's petition" marked up from the 13 October 2014 Petition. A refund of the filing fee for the "clean" petition was paid and no payment was made on filing the 4 May 2015 Petition; and (3) Registrar Segal made orders on 9 October 2015 extending the period before which the petition would lapse to 24 months commencing on the date of presentation of the petition. Transcript of the proceedings before Registrar Segal is not in evidence but it is difficult to understand why he would have made that order at that time (only five months after the 4 May 2015 Petition had been filed), had he not understood himself to be dealing with an amended petition presented on 13 October 2014, the anniversary of which was imminent. 27 Nonetheless, it is clear from the transcript of the proceedings on 28 April 2015 that the application made to District Registrar Wall was for leave to withdraw the 13 October 2014 Petition under s 47(2) on the basis that it was fatally flawed and to rely on a new act of bankruptcy that had occurred within 6 months before the proposed new filing. I accept the applicant's submission that the effect of leave being granted to withdraw the 13 October 2014 Petition was that there remained no extant petition to be amended. On that basis, the discussion during the proceedings on 28 April 2015 in relation to the filing of an "amended petition" appears to have been conducted under a misapprehension; the second order made on 28 April 2015 had no work to do and was otiose. 28 The facts in Purden are set out at 513 as follows: On Tuesday 9 February 1982 a law stationer, representing the petitioning creditor, Purden Pty Ltd (the appellant), attended at the New South Wales Bankruptcy Registry in Sydney and lodged there a petition by the appellant as petitioning creditor, petitioning this court for a sequestration order against the estate of Alan Darnay White; a cheque for $60 being the fee prescribed under the rules for the presentation of a petition; and affidavits in support of the petition. At the same time the law stationer completed a document described in the evidence as a "Debit Note" relating to the lodgement of the cheque. The law stationer was then told by the registry officer to whom she handed the documents that it was not possible for the petition to be sealed and issued that day and that she should return on Thursday 11 February 1982 to collect it. The evidence does not show whether the cheque for $60 remained at the registry or was taken away by the law stationer. On 10 February 1982 a Deputy Registrar in Bankruptcy signed and sealed the petition and, on the note attached to it, listed the petition for hearing on 20 April 1982. On 11 February 1982 a clerk from the office of the solicitors for the appellant went to the registry to collect the petition. He was informed by a Deputy Registrar in Bankruptcy that the petition could not be handed out as "it was out of time", ie the period of six months within which the petition should have been presented expired on 10 February 1982 because the act of bankruptcy on which the petition was founded was committed on 10 August 1981. The Deputy Registrar relied on s 44(1)(c) of the Act. 29 The Full Court went on to consider the meaning of "presentation" at 515: "Presentation" of a commercial document has been held to mean delivering up or handing over the document, not merely showing it: Bartlett v Holmes (1853) 13 CB 630 ; 138 ER 1347, per Jervis CJ at 1350. In Alston v Alston [1946] P 203, Willmer J held that the date on which a petition is "presented" within the meaning of s 2 of the Matrimonial Causes Act 1937 (UK) is the date on which it is filed with the court. Even where the words have been considered in bankruptcy legislation there are differences, sometimes material differences, between that legislation and the Bankruptcy Act 1966; and the practices operative in different registries have varied, sometimes markedly. Cave J said of a bankruptcy petition in Re Cripps, Ross & Co; Ex parte Ross (1888) 5 Morr 226 at 229: "Now prima facie a petition is presented when it is received and put on the file." To the same effect see Halsbury's Laws of England 4th ed, vol 3, para 314. In our opinion the words "presented" or "presentation" are used in the Act, not in the sense of the unilaterial act of the creditor of showing the petition to the appropriate court officer; but in the sense of handing or delivering the petition to and acceptance by that officer. The showing of the document to the court's officer and its receipt by him are both necessary elements in the notion of presentation of a petition. However, what the officer does with the document thereafter is nothing to the point as by then it has been presented. Not only is this so according to the ordinary use of the words in the context of the Act; but the far-reaching consequences in bankruptcy law of the presentation of a petition, to which we have already adverted, demonstrate the necessity for the act and date of presentation to be certain and readily ascertainable. Merely to show the petition to the registry clerk without its being received would necessarily introduce an unacceptable element of uncertainty surrounding the date of presentation. Our view is supported by s 47(2) of the Act which provides: "Except with the leave of the court, a creditor's petition shall not be withdrawn after presentation." There would be no point in this provision if receipt by the registry was not an integral part of the presentation of a petition. There is a distinction of long-standing between the presentation and the filing of a petition. The act of presentation has been said to be the act of a party and the act of filing to be the act of the court: see for example Re Daunt (1905) 5 SR (NSW) 533, per Walker J at 536 and 537. 30 Noting that "filed" is not a word which is used in the Act but which appears in the Bankruptcy Regulations, the Full Court went on to find that there is no ambiguity surrounding the meaning of the word "presented" in the Bankruptcy Act (at 516-517) and further, that (at 517): The act of presentation of a petition is under the Act, not the Bankruptcy Rules, and it affects rights and liabilities of the petitioning creditor, other creditors and the debtor. The act of filing the petition under the Rules, whether by presentation or otherwise, is an act of a different character; it is internal to the registry. This is not to say that the Registrar may not be entitled to refuse to file the petition if the requirements of the Bankruptcy Rules are not complied with; for example, by failure to tender the prescribed fee or to file the documents referred to in r 12(2) and (3). It is vital, however, that the date of presentation of the petition be ascertained with certainty. Hence that date ought to be stamped or otherwise marked on the petition. We conclude that the petition in the present case was presented on 9 February 1982 which is within the time required by s 44(1)(c). 31 The 13 October 2014 Petition had been withdrawn. The "clean" petition lodged by Mr Delany on 30 April 2015 was in substance and effect a new petition which relied on a different act of bankruptcy from the 13 October 2014 Petition. As the "clean" petition relied on an act of bankruptcy which had occurred in the previous six months and appears otherwise to be regular, Registry should not have rejected it even though it was filed on the same file number as the 13 October 2014 Petition. However, Mr Delany accepted that they did and the applicant does not rely on that petition. 32 Having regard to the reasoning in Purden, which, in the context of an e-lodged petition, was followed by Burnett FM in Mitchelson and recently in this Court by Flick J in Ramsay Health Care Australia Pty Ltd v Compton (No 2) [2016] FCA 691 at [11]-[18], the 4 May 2015 Petition was presented on 5 May 2015 when the Court issued an e-lodgement receipt. The fact that the applicant complied with Registry's request to file a marked up petition is irrelevant: the 4 May 2015 Petition was in substance and effect a different petition from the 13 October 2014 Petition. The subsequent issue of the "Notice of Filing and Hearing" is an act equivalent to that undertaken by the Registrar in Purden on 10 February 1982; it is an act which occurred subsequent to "presentation". The fact that Registry elected to refund the filing fee paid on 30 April 2015 and did not require a fee to be paid in relation to the 4 May 2015 Petition does not derogate from the fact that the 4 May 2015 Petition was presented based on the debtor having signed an authority under s 188 in the prior six month period. 33 Further, the 4 May 2015 Petition has not "expired", which I take to mean "lapsed", even though it is now more than 12 months since it was presented. On 9 October 2015, within the 12 month period after the 4 May 2015 Petition was presented, Registrar Segal extended the period for the lapsing of the petition. The order is silent as to the exact date from which the 24 month period runs being "24 months commencing on the date of presentation of the petition". Even if Registrar Segal was under the impression that he was dealing with an amended petition, the order operated to extend the time before which the only extant petition before him, being the 4 May 2015 Petition, would lapse to 24 months commencing on 5 May 2015 for the purposes of s 52(4)(b).
Is the applicant a creditor?
34 Section 44(1) prohibits the presentation of a creditor's petition unless (a) the debtor owes a debt or debts to the petitioning creditor of at least $5,000 in the aggregate; (b) the debt is for a liquidated sum due in law or in equity or partly in law and partly in equity and the debt is immediately payable or payable at a certain future time; and (c) the act of bankruptcy on which the petition is founded was committed within six months before the presentation of the petition. Similarly, under section 43(1), subject to the satisfaction of the matters set out in subparagraphs (a) and (b), the Court "may" make a sequestration order "on a petition presented by a creditor". This implies that the person who presents the petition must be a creditor at that time.
35 In submissions filed on 3 May 2016 in accordance with leave granted at the hearing, the applicant claimed to be a creditor because it is the legal assignee of the Judgement Debt; the applicant relied on the decision of the Full Court in Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 (Rares, Flick and Bromberg JJ ) at [21]-[22] ("Francis").
36 The applicant made no submissions as to whether the assignment of the Judgment Debt was effected under s 12 of the Conveyancing Act 1919 (NSW) or s 20 of the Property Law Act 1969 (WA). Both statutes require an absolute assignment in writing under the hand of the assignor and for written notice to be given to the debtor in order to effect the assignment of a debt at law. Section 12 of the Conveyancing Act requires assignment of a whole debt while s 20(3) of the Property Law Act permits assignment of part of a debt. It is unnecessary for me to decide which statute applies. For the reasons that follow I accept that by means of the Second Deed (and possibly in combination with the First Deed if the Property Law Act applies to the assignment of part of the Judgment Debt) there was an absolute assignment of the Judgement Debt by Investec Bank to the applicant in equity; it is likely that a legal assignment also occurred before the 4 May 2015 Petition was presented.
37 Section 52(1)(a) of the Bankruptcy Act permits the Court to accept the affidavit verifying the petition as sufficient evidence of the matters stated in the petition. The 4 May 2015 Petition at [1] states that:
The respondent debtor owes the applicant creditor the amount of $10,382,342.21, being the judgment debt of the respondent debtor to Investec Bank (Australia) limited (the Assignor) pursuant to the Orders of the Honourable Justice McDougall made on 21 February 2014 in the Supreme Court of New South Wales Proceeding no 34857 of 2013, which judgment debt was assigned by the Assignor to the applicant creditor on 10 July 2014 and 15 December 2014. A redacted copy of the deed of assignment dated 10 July 2014 is at annexure A to this creditor's petition. A copy of notice of this assignment dated 10 July 2014 given to the respondent debtor is at annexure B to this creditor's petition. A copy of the deed of assignment dated 15 December 2014 is at annexure C to this petition. A copy of notice of this assignment dated 30 January 2015 given to the respondent debtor is at annexure D to this creditor's petition.
[As written, including mark-up]
38 The statements in the 4 May 2015 Petition were verified by the affidavit of Ms Helene Marie-lyse Charmaine Eliatamby sworn on 5 May 2015. Ms Eliatamby is head of Group Legal for Investec Australia Limited who has access to the books and records of the applicant; in relation to paragraph [1] of the 4 May 2015 Petition she states that the statements made are within her knowledge true.
39 The Court would have been better assisted if the 4 May 2015 Petition had been explicit as to the date and manner in which Mr Naude was served with the Notices of Assignment. Nonetheless, the phrase "given to the respondent debtor" indicates that they were given to Mr Naude before the date of the 4 May 2015 Petition so that a legal assignment of the Judgment Debt had occurred by that time. If I am wrong, the First and Second Deeds would have been effective to pass Investec Bank's interest in the Judgement Debt to the applicant in equity by 15 December 2014 having regard to the consideration which the applicant promised to pay Investec Bank as assignor under the First and Second Deeds: see Francis at [21].
40 For the sake of completeness, I note that I enquired of the parties at the hearing on 19 April 2016 whether, as the applicant claims to be an assignee of a judgment debt, there is any requirement that the applicant comply with r 39.1(a) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") before it may be regarded as a "creditor" who presented a petition for the purposes of ss 43(1) or 44(1). Rule 39.1(a) provides that a writ of execution may not be issued except by leave of the Court if there has been "any change in the persons entitled or liable to execution under the judgment, whether by assignment, death or otherwise." Although the timetable set at the hearing permitted Mr Naude to respond to any submissions filed by the applicant on this issue, he did not do so.
41 The applicant contended that this issue is not relevant because Francis is authority for the proposition that a legal assignee of a "final order" is a creditor.
42 In the context of a creditor's petition which relies on a bankruptcy notice under s 40(1)(g) of the Bankruptcy Act, s 40(3)(d) provides that a "person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order". In Dib v Green [2009] FMCA 1174 at [11]-[12], Judge Rafael (then referred to as Federal Magistrate) relied on dicta of the Full Court (Davies, Burchett and Gummow JJ) in McIntyre v Gye (1994) 51 FCR 472 at 476-477 to find that a bankruptcy notice should be set aside because a legal assignee of a judgment debt had not sought leave under r 39(1)(a). The cited passage from McIntyre v Gye is as follows:
"For the purposes of s 40(1)(g), a person shall be deemed to be a creditor who has obtained a final judgment or final order if that person is for the time being entitled to enforce'' that final judgment or final order: s 40(3)(d). In Re Richards; Ex parte Sommers (1947) 14 ABC 112, Clyne J explained that under earlier legislation the only person who could issue a bankruptcy notice was the judgment creditor himself and that under a provision such as s 40(3)(d) a legal assignee of a judgment debt could be deemed a creditor who had obtained a final judgment. Nevertheless, as his Honour also held, such a legal assignee must be in a position, at the time of the issue of the bankruptcy notice, to issue immediate execution upon the judgment. This conclusion was said to follow from the words now appearing in s 40(1)(g), the execution of which has not been stayed''. See also Australian Workers' Union v Bowen (1946) 72 CLR 575 at 583. If at the time of the application for its issue, execution in fact has been stayed, a bankruptcy notice shall not be issued on the application: s 41(3)(b).
Part 44 r 2(1) of the Supreme Court Rules 1970 (NSW) made under the Supreme Court Act 1970 (NSW) (the Supreme Court Act) provides that in certain circumstances a writ of execution to enforce a judgment shall not be issued without the leave of the Supreme Court. These include the case:
"where any change has taken place, whether by assignment, death or otherwise, in the persons entitled or liable to execution under the judgment."
If a creditor who has taken a judgment debt as a legal assignee has not obtained the requisite leave, a bankruptcy notice cannot be issued at the instance of that assignee: Re Richards; Ex parte Sommers at 115. Furthermore, an assignee who has taken part of the judgment debt under an equitable assignment thereof should not be given leave to issue execution; there should be but one execution upon the one judgment debt: Forster v Baker [1910] 2 KB 636; Austra1ian Workers' Union v Bowen.
43 Francis is a case dealing with whether a bankruptcy notice could be relied on where the "creditor" was the assignee in equity of a consent order made by a Master; the order was that Ms Francis pay the assignor firm its costs. The "creditor" was not a legal assignee of the debt because the debtor had not been given notice of the assignment. The Full Court found that the primary judge had been correct to find that an assignee in equity was "deemed to be a creditor" by force of s 40(3)(d) at the time it served a bankruptcy notice on her. It is not apparent from the reasons of either the primary judge (Francis v Eggleston Mitchell Lawyers Pty Ltd [2013] FCA 564) or the Full Court in Francis that the dicta in McIntyre v Gye at 476-477 or the decision of Judge Rafael in Dib v Green was drawn to either Courts' attention on the issue of whether the assignee must first have obtained the requisite leave from the court which issued the costs order before the assignee may be deemed to be a "creditor" under s 40(3)(d). In any event, Francis is not authority for the general proposition that a legal assignee is a "creditor" in the absence of the benefit of the deeming provision in s 40(3)(d).
44 It is unnecessary for me to take this matter further as the applicant is not relying on the failure to comply with a bankruptcy notice as the act of bankruptcy. McIntosh v Shashoua (1931) 46 CLR 494; [1931] HCA 56 is authority for the proposition that an equitable assignee of a legal debt (in that case, a judgment debt) may present a petition without joining the assignor as co-petitioner per Starke J (at 506-508) and McTiernan J (at 518-520); Evatt J contra (at 515-516); Gavan Duffy CJ and Dixon declining to express an opinion as the matter had not been raised at first instance (at 504). It is difficult to envisage that the applicant would be in a worse position if it is indeed the legal assignee of the Judgment Debt at the time the 4 May 2015 Petition was presented.
45 I accept that the applicant is and was, at the time of the presentation of the 4 May 2015 Petition, a creditor of Mr Naude for an amount exceeding $5,000. For the reasons which follow, I do not consider that Mr Naude has made out the grounds in his Notice of Opposition which attack the basis of the Judgment Debt.
Notice of Opposition 46 The grounds set out in Mr Naude's Notice of Opposition dated 26 November 2015 are (as written): 1. The creditors petition should be set aside; 2. There are errors in the affidavits supporting the petition application; 3. Applicant possesses secured property and proceeds of property sales of respondent, greater than the debt; 4. The remaining debts on the creditors petition are discharged or secured by property. 47 Recognising the difficulty faced by a self-represented litigant whose business affairs have been complex and who appears to have received limited (if any) legal advice in relation to this matter, it is nonetheless the case that much of the material in the affidavits filed by Mr Naude lack foundation and can be accepted only on the basis that they are submissions. The affidavits and written submissions filed by Mr Naude are repetitive with frequent inconsistent variations. Many of the submissions are not relevant. 48 Mr Naude appears to raise the following contentions: (1) The alleged errors in the affidavit supporting the creditor's petition appear to relate to verification by Ms Eliatamby of the applicant's statement that it is not a secured creditor of Mr Naude. He says: "Investec" has taken possession of three Naude Properties and one which it still holds [the Bookara Property]"; "Investec is attempting to double dip. It has possessed my property, equal or greater in value to the $10.3m judgment that Investec obtained, but has not accounted for that"; "Investec ought not be able to instigate bankruptcy proceedings when it still holds property of the defendant"; "As I was the sole shareholder of the 3 companies [which owned the Naude Properties] the property value, proceeds or securitised value of the 3 properties that Investec holds, ought to now be credited to me by Investec." (2) Complaints which seek to go behind McDougall J's judgment in Investec Bank v Naude. Although some of the submissions cavil with aspects of the trial, Mr Naude says: "Arguments about the 3 Naude Property Loans were dealt with in action number NSD 1040/2014 [sic] February 2014 NSW Supreme Court decision, which Naude accepts" and "Many documents that I discovered in the 2014 NSW Supreme Court action were not considered by the court in assessing the debt Investec claimed against me and I accept that". In addition, Mr Naude says: "The Kings Park Property was however not addressed financially in the 2014 court decision … Investec has the Kings Park Property or the proceeds of selling it but Investec should not be paid twice for it as part of this or any bankruptcy action." "That judgment took no account of the Wildwood Property sale proceeds. Investec sold Wildwood for only $3.2 million. Naude has never been granted any information about that sale or credited with the value of any offset for the Wildwood property." The offset amounts for Kings Park property and Bookara property, were addressed in my affidavit to the NSW Supreme Court, but were not included in a court book, so they were not considered by the Supreme Court in that action and I was prevented from relying on those documents at trial." "The judgment took no account of: (a) The value of the Kings Park Property of up to $3.3 million. (b) The value of the Bookarra Property of about $2.8 million. (c) Investec causing the interest offset of the Bookara Property of $478,000. (d) The interest offset on the Kings Park Property of $1.7 million. (e) The proceeds of the Wildwood Property of $3.2 million." "If the Investec judgment was properly offset against the $11,478,000 credit that Investec has had the benefit of from its dealings with me then Naude would not owe Investec any money"; "Naude refers to that amount as the $11.5 million Offset"; "The value of the 3 Naude Properties should be Offset, against what Naude owed under the February 2014 judgment, because Naude Companies were deregistered between 2013 and 2015." Mr Naude claims that the Judgment Debt "includes an amount of $478,000 for Bookarra interest which Investec claimed under the guarantee for a period in which Investec, not [Mr Naude], had sole power to sell the property…By denying … the right to Offset the $11.5 million the amount of about $478,0000 for the Bookarra Property is effectively double claimed." (3) Mr Naude claims that the failure by Investec to take account of the "offsets" accentuated claims made by the National Australia Bank against him and as a result he was not able to accept a settlement. (4) Mr Naude signed the s 188 authority under threat of bankruptcy by Investec on the basis of a misrepresentation by Investec that "this would resolve the offsets but Investec intended only to rely on that Personal Insolvency Agreement ... as an excuse to bankrupt [Naude] … a PIA being an act of bankruptcy" and "Investec ought to have disclosed that the PIA would be relied on as an act of bankruptcy anyway". Mr Naude says he was told by a solicitor for the applicant that the offsets were "a formality that your PIA trustee will consider, please liaise with them ASAP or you will be bankrupted forthwith". The PIA trustee "noted the offsets but as the offsets were in companies that I owned or controlled, not in my personal name … [The PIA trustee] did not specifically address the $11.5 million Offsets when they released me from control in March 2015". (5) Money raised by the sale of three properties following the appointment of the controlling trustees and liquidators remain in trust accounts of law firms (not the solicitors for the applicant); the properties were located in Dalkeith (about $2.3 million), Subiaco (about $850,000) and Fremantle (about $2.2 million). Mr Naude refers to at least one of these law firms as being his own and says that he believes that there is about $500,000 in these accounts. (6) The relevance of creditors (other than the applicant). Mr Naude relied on the affidavit of Ms Sonja Michielsen sworn on 20 November 2015 in relation to payments made to creditors. Ms Michielsen does contract bookkeeping. (7) The existence of an alleged conflict of interest on the part of the solicitors for the applicant in these insolvency proceedings by reason of the fact they had previously advised Investec Bank and the applicant in relation to borrowings by companies controlled by Mr Naude; he claims to have been ambushed by them in the manipulation of the untimely service of documents. 49 As submitted by the applicant, these contentions in substance seek to go behind the judgment in Investec Bank v Naude, or, alternatively, to establish his solvency. I am not satisfied that any of the grounds can be made out. 50 In Tran v Pu (2015) 228 FCR 562; [2015] FCA 97 at [25]-[26], Beach J usefully set out the circumstances in which the Court may go behind a judgment as follows: 25 A court has discretion to go behind a judgment. This may be exercised where: (a) the judgment has been obtained by default or compromise; or (b) the judgment has been obtained following an adjudication on the merits where both parties appeared, but where there are substantial reasons for questioning whether there is in substance a debt, including whether the judgment is tainted with fraud, collusion or a miscarriage of justice. 26 In such a case a court may go behind the judgment to ascertain whether the judgment was founded on a real debt (Corney v Brien (1951) 84 CLR 343 at 347 per Dixon, Williams, Webb and Kitto JJ; Wren v Mahony (1972) 126 CLR 212 at 221-224 per Barwick CJ; Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 147-148 per Davies, Lockhart and Neaves JJ). This is a s 52(1)(c) question and see generally Ali v Retail Decisions Pty Ltd [2012] FCA 1130 at [17]-[20] per Bromberg J and Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616 at [69] per Gordon J (endorsed by the Full Court in Shaw v Yarranova Pty Ltd [2014] FCAFC 171 at [27] per Bennett, Flick and Yates JJ), although some authorities have also brought this within s 52(2)(b). 51 Mr Naude has not established any basis for going behind the judgment in Investec Bank v Naude in accordance with the principles enunciated by Beach J. 52 As set out in [3] above, two of the "3 Naude Properties" were purchased by Castleworld (the Bookara Property) and Powerstar (the Wildwood Property) with facilities provided by Investec Bank; they were the subject of guarantees by Mr Naude. Mr Naude does not deny that he entered into the guarantees. Mr Naude's claims of misleading or deceptive conduct and unconscionable conduct by Investec Bank or its employees and advisers were considered and rejected by McDougall J on bases (including a finding that Mr Naude was not a credible witness) which appear to have been open to him having regard to the terms of the statutes and factual matters considered by him. 53 Mr Naude complains that neither Investec Bank nor the applicant (as mortgagee in possession) has sought to sell the Bookara Property in the past six years which would have the effect of reducing the amount owed to the applicant (as assignee of Investec Bank). I accept the applicant's submission that the terms of the guarantee given by Mr Naude on 2 July 2007 permit enforcement of the guarantee without recourse to other available securities. The reason why neither Investec Bank nor the applicant has sold the Bookara Property has not been explained, though Investec Bank v Naude at [111] indicates that Mr Naude asserted there was some problem with the title to that property that was not detected on search and after the purchase of the property settled, Castleworld became embroiled in litigation with the trustee for a bankrupt who asserted an interest in the property. As a result of that litigation, Casteworld ended up owning only two-thirds of the property purchased. Insofar as Mr Naude complains that the value of the Bookara Property should be taken into account, there is no evidence as to current value or any legal basis on which it should be taken into account having regard to the terms of the guarantee. To the extent that Mr Naude suggests that there should be interest offsets as a result of the fact that the applicant or Investec Bank is a mortgagee in possession, he has established no basis for why that should be so and the submission is misconceived. Mr Naude's assertion that the applicant is "double dipping" by reason of its security over the Bookara Property also cannot be accepted. If Mr Naude were to pay the Judgment Debt and any other amounts secured by the mortgage, subject to any other matters which are not in evidence, the applicant would be obliged to release its security over the Bookara Property. 54 Mr Naude's complaint that the Wildwood Property was sold but the proceeds of sale were neither paid to him nor taken into account in the calculation of the Judgment Debt must be rejected as it is plain that the sale of the property was taken into account. At the hearing, the applicant tendered a copy of an affidavit affirmed by Matthew Waite, an analyst employed by Investec Bank. That affidavit was tendered to McDougall J as evidenced by transcript of the hearing before him. Mr Waite deposed that the total amount of principal and interest owing on the Powerstar facility was $7,433,549.23 and the total amount of principal and interest owing on the Castleworld facility was $2,948,792.98, the sum of these amounts is the amount of the Judgment Debt. Mr Waite deposed that: At tab 44 of Exhibit MW1 is the contract for sale of the Wildwood property at [address] Yallingup, which records that that property was sold for $3,100,000. The amount of $7,433,549.23 … takes into account the amount for which the Wildwood property was sold. 55 Mr Naude cavilled with the calculation of interest relied on by Mr Waite, but he was not in a position to establish why the calculation was wrong. I am not satisfied that he has demonstrated a basis to go behind the Judgment Debt but on any basis, Mr Naude owes the applicant an amount exceeding $5,000. 56 A third property, Kings Park, was security for a facility entered into by Investec Bank with Woomarra Pty Ltd ("Woomarra"), which is another "Naude Company", Naude Pty Ltd, Mr Naude and Mr John Robert Woods ("Woomara Facility"). In Investec Bank v Naude at [33] and [36], McDougall J found that in May 2007 Investec Bank advanced in excess of $2 million to Woomarra to acquire Kings Park and that by November 2007 Woomarra was in default; that was done by way of background since liabilities under the Woomarra Facility were not the subject of those proceedings. It is Mr Naude's evidence that Kings Park was sold some time in 2013 for an amount of $3.3 million. I accept the applicant's submission that the proceeds from the sale of the property at Kings Park was irrelevant to the calculation of the debt arising under the guarantees relating to the Castleworld and Powerstar facilities and it was open to Mr Naude to raise an argument as to the availability of proceeds from the sale of Kings Park to reduce the amount of the Judgment Debt in the proceedings before McDougall J. Mr Naude did not establish that there was any amount remaining from the proceeds of sale of Kings Park after satisfaction of the amounts owed to Investec Bank under the Woomarra Facility. He also did not establish why, if there were remaining sale proceeds, they should be taken into account as an "offset" in relation to Mr Naude's personal liabilities. Even if, as contended but not established by Mr Naude, Investec Bank had suggested that Mr Naude establish different companies to acquire and develop each of the properties and separate loan facilities to be guaranteed by Mr Naude, that does not change the fact that any sale proceeds remaining after the satisfaction of Woomarra's debts would be owed by Investec Bank to Woomarra, not Mr Naude. 57 Mr Naude's submissions refer to amounts held in solicitors' trust accounts in relation to property sales which occurred after the appointment of a controlling trustee. It appears that the amount in those accounts now stands at around $500,000, as best I can understand Mr Naude's submissions. Those amounts could be relevant to the question of his solvency, but it is not clear whether he is suggesting that or whether he claims that they should be dealt with as "offsets", however it does not appear that Investec Bank was the lender in relation to those assets so the "offset" claims are not relevant. As to solvency, $500,000 does not outweigh the amount of the Judgment Debt. Mr Naude has also not provided any evidence concerning the alleged liability of Investec Bank or the applicant having regard to actions taken or not taken by the National Australia Bank. Mr Naude has not established that he is solvent. Ms Michielsen's affidavit does not assist him since it does not take the Judgment Debt into account and Mr Naude admits to having few assets. 58 Having regard to the fact that the applicant's security over the Bookara Property relates to property of Castleword (now deregistered), Mr Naude has not established any error in the statement in the 4 May 2015 Petition that the applicant holds no security over Mr Naude's property. The fact that Castleword is deregistered does not thereby make Castleworld's property Mr Naude's property. 59 Mr Naude is clearly concerned that the 4 May 2015 Petition does not take into account that he has paid debts relating to his living expenses and legal fees which were advised to his controlling trustee. However, that issue is not relevant to these proceedings; he needs to demonstrate that he can pay all of his debts, including the Judgment Debt, as they fall due and he has not done that. Insofar as Mr Naude complains that he was misled into appointing the controlling trustee, what the applicant's solicitor said to Mr Naude does not appear to be misleading. Mr Naude had a period of at least three days in which to obtain legal advice should he have wished to do so. The fact that he was motivated to sign a s 188 authority to avoid a creditor taking action to bankrupt him does not amount to "other sufficient cause" to decline to make a sequestration order. 60 I do not accept that Mr Naude has established misconduct by the applicant's solicitors. I accept that bankruptcy proceedings can be confusing and troublesome to a debtor. I also accept that reliance on multiple creditor's petitions based on different acts of bankruptcy will have made that harder. However, I do not accept that the difficulties in communications with him lay at the feet of the applicant's solicitors.
Mr Naude's email of 20 June 2016 61 On the morning that judgment was to be handed down, the Court received an email from Mr Naude complaining of a number of matters. 62 Mr Naude complained that an email sent to the applicant's solicitors on Thursday 16 June 2016 "came as a complete surprise to me insofar as it advised that judgement is now to be handed down in less than 2 working days from the date of the courts email, which given the interstate times and dates, leaves me no more than a few hours to respond before judgement deadline. That deadline has left me with no reasonable opportunity to be heard in many important aspects which may amount to a denial of justice" (as written). This has been a common complaint from Mr Naude in relation to all steps taken in the proceedings. 63 I reject Mr Naude's complaint. An email dated 9 June 2016 was sent by the Court's registry to Mr Naude and the applicant's solicitors advising that: Justice Farrell has listed this matter for judgment on Monday, 20 June 2016 at 2:15pm. Mindful of costs, Her Honour is content for the parties not to attend. I will arrange for a copy of the judgment to be emailed to you shortly after it is handed down. Please advise as soon as possible whether you wish to attend judgment (either in person or in the case of Mr Naude, via video-link) so the necessary arrangements can be made. 64 The email dated 16 June 2016 from the applicant's solicitors, copied to Mr Naude, apologised for the delay in responding to the 9 June 2016 email and stated that the applicant was content to receive a copy of the judgment by email. 65 Mr Naude says that it would be a denial of natural justice because he relied on a timetable set at the hearing on 19 April 2016 and "when my opponents claimed and were granted more time or extensions to the court deadline for Step 1, it was reasonable and necessary for me to be granted extensions to steps 2 and 6". I also reject these contentions. 66 As mentioned previously, Mr Naude was given leave to refile, by 24 April 2016, an affidavit dated 8 March 2016 which has been incompletely filed and served on the applicant's solicitors. He never filed the complete affidavit. To the extent that he claims now to be prejudiced by not being able to rely on a document entitled "what Investec paid and what Investec got", that claim cannot be accepted. His failure to file the complete affidavit was not caused by any act of the applicant. The applicant was also granted leave to file, by 3 May 2016, submissions on the question of whether the applicant, as an assignee of a judgment debt who had not obtained leave of the Supreme Court of New South Wales under r 39.1(a) of the UCPR was a creditor of Mr Naude entitled to receive a sequestration order. Those submissions were filed by that date. Mr Naude had until 17 May 2016 to file submissions on that question but he did not do so, nor (until 20 June 2016) did he raise the issue of whether the Court should grant him an extension of time. 67 On 12 May 2016, the Court enquired of the applicant (copied to Mr Naude) whether the applicant was a creditor of Mr Naude's on 13 October 2014. The Court asked for a response by 13 May 2016 and the applicant requested a short extension to respond. That short extension was granted and the applicant's solicitor responded on 16 May 2016; I accepted the applicant's submission that that issue did not need to be decided. 68 Mr Naude's email of 20 June 2016 also raises matters canvassed in these reasons. He complains that he did not get an opportunity to make a final submission on them. The matters on which Mr Naude was given leave to file submissions following the hearing were confined; there was no basis for him to think that he had a further opportunity to repeat arguments already ventilated on or before the hearing on 19 April 2016.
Conclusion 69 In addition to the matters previously mentioned, I note the following: (1) The 4 May 2015 Petition, as amended on 10 November 2015 to reflect the change of name of the applicant, signed by a partner of the applicant's law firm and verified by an affidavit of Ms Eliatamby; (2) An affidavit of service of the 4 May Petition sworn by Mr Delany on 6 November 2015 and filed on 11 November 2015; (3) An affidavit of debt sworn by Ms Eliatamby on 18 April 2016 confirming that the Judgment Debt remains outstanding; and (4) An affidavit of search sworn by Mr Delany on 18 April 2016. 70 I am satisfied that Mr Naude is insolvent, that he owes the applicant an amount in excess of $5,000 and that the act of bankruptcy on which the applicant relies occurred within the 6 month period before the 4 May Petition was presented. 71 I will dismiss the Notice of Opposition and make a sequestration order. 72 When a sequestration order is made on the application of a creditor it is usual to order that the applicant creditor's costs (including any reserved costs) be taxed and paid from the debtor's estate in accordance with the Bankruptcy Act. I am disposed to make such an order but my current view is that it would not be appropriate for the applicant to recover any costs related to the 13 October 2014 Petition up to and including the proceedings before Registrar Wall in 28 April 2015. I will order that the parties have the opportunity to provide submissions on the question of costs having regard to this issue. I certify that the preceding seventy-one (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.
Investec Australia Finance Pty Limited
Naude
[2013] FMCA 226
[2009] FMCA 1174
(2013) 279 FLR 93
(1931) 46 CLR 494
(1994) 51 FCR 472
(1982) 43 ALR 512
(2015) 228 FCR 562
(1946) 72 CLR 575
(1951) 84 CLR 343
(1972) 126 CLR 212
(1987) 76 ALR 137