Mbuzi v Favell

REASONS FOR JUDGMENT 1 By this application, the appellant, Mr Josiyas Mbuzi, seeks a stay (under s 52(3) of the Bankruptcy Act 1966 (Cth); s 29 of the Federal Court of Australia Act 1976; and Rule 36.08 of the Federal Court Rules 2011) of a Sequestration Order made by the Federal Magistrates Court of Australia before Federal Magistrate Jarrett on 5 September 2011, pending an appeal from that order to this Court. The appeal is set down to be heard in February 2012. 2 The appellant filed a Notice of Appeal on 26 September 2011 in which the appellant recites as one of the orders sought in the appeal, an order in these terms: "Urgent stay of orders until appeal is determined". The appellant sought to file an Amended Notice of Appeal on 28 November 2011. Leave is required to file an Amended Notice of Appeal: Federal Court Rules, Rule 36.10. The question of whether leave to amend is to be granted has been referred to the Full Court to be heard and determined on the hearing of the appeal in February 2012. 3 The Amended Notice of Appeal does not recite any request for a stay (urgent or otherwise) pending the hearing and determination of the appeal. No application directed to the seeking of a stay has been filed by the appellant. In effect, the appellant seeks to orally press the application recited in the Notice of Appeal of 26 September 2011. On the morning of the hearing on Wednesday, 30 November 2011, the appellant sought leave to read and file an affidavit he swore that day in support of the stay application. A copy of the affidavit was handed to counsel for the respondent either at or shortly before the commencement of the application. Counsel for the respondent, Mr Hackett, objects to aspects of the affidavit having regard to the accusations and expressions adopted in it and matters such as letters of complaint written by the appellant to the Legal Services Commissioner concerning contended conduct of the respondent and also contended conduct of Mr Hackett in connection with the proceedings from which the appeal arises. The accusations are made in strong affirmative terms and until a copy of the affidavit was given to the respondent's advisers, Mr Hackett did not know of such a letter and no copy had been given to him by the appellant notwithstanding that the letter is dated 29 August 2011 and presumably was written and dispatched on that day. 4 I will make directions concerning the affidavit later in these reasons. 5 The background matters in relation to the stay application are these. 6 On 18 November 2005, the District Court of Queensland (Judge Tutt) gave judgment in favour of the respondent against the appellant in an amount of $15,000 for damages for defamation together with interest at the rate of 10% per annum for the period 14 February 2005 to 18 November 2005. On 24 November 2010, the respondent applied to Insolvency and Trustee Service Australia ("ITSA") for the issue of a Bankruptcy Notice addressed to the appellant. The Bankruptcy Notice was issued by ITSA on the footing of the District Court judgment under which monies were due and owing. The Bankruptcy Notice required payment of $23,609.59 made up of the damages award of $15,000, interest of $1,138.36 for the period 14 February 2005 to 18 November 2005 and $7,471.23 representing interest from 19 November 2005 to 10 November 2010 under s 48(1) of the Supreme Court Act 1995 (Qld) and Rule 4 of the Supreme Court Regulations 2008 (Qld). 7 The respondent sought a Sequestration Order on the ground of the appellant's failure to comply with the Bankruptcy Notice. 8 The appellant, by his Notice of Objection and supporting affidavit each filed on 16 August 2011, contended that he had not been served with the Bankruptcy Notice. The respondent contended that he had caused a letter addressed to the appellant and attaching the Bankruptcy Notice, to be sent in the ordinary course of his practice, by post, to the appellant's last known address at Lot 32, Eucalypt Court, Cashmere, Queensland, 4500. The respondent contended that service was effected in this way on 29 November 2010. The appellant contended that he had not received any such letter nor the Bankruptcy Notice and no proof of posting had been adduced before the Federal Magistrates Court from any person evidencing actual posting. Secondly, the appellant contended that the letter enclosing the Bankruptcy Notice could not have been delivered to him as he had no mailbox for the receipt of letters. The appellant concedes that his address is Lot 32, Eucalypt Court, Cashmere, Queensland, 4500. However, the appellant contends that since he had no receptacle at that address for the receipt of correspondence, he would not have received mail at that address in the ordinary course. 9 The respondent gave evidence that the letter marked with a re-delivery address had not been re-delivered to him. 10 Federal Magistrate Jarrett accepted that the respondent had caused the letter to be posted by putting the letter into the processes adopted for posting and dispatching mail in the ordinary course of the respondent's practice. Federal Magistrate Jarrett accepted that by operation of Regulation 16.01(a) of the Bankruptcy Regulations, service is deemed to have occurred if sent by post to the relevant person's last known address. Federal Magistrate Jarrett found that service of the Bankruptcy Notice had been effected. Federal Magistrate Jarrett also found that, firstly, "posting and delivery" were the material matters not "receipt" (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Skalkos v T and S Recoveries Pty Ltd [2004] FCAFC 321); secondly, service is deemed to have occurred unless the person to whom the Bankruptcy Notice is sent proves non-delivery; and thirdly, the appellant had not so proven. Federal Magistrate Jarrett also found that the appellant had not adduced any proof of non-delivery. 11 The appellant by his Notice of Appeal seeks to set aside findings of fact by Federal Magistrate Jarrett. The appellant frames those challenges to the findings of fact as either findings made against the weight of evidence or findings not open on the evidence. In addition, the appellant contends that Federal Magistrate Jarrett fell into error by finding, as a matter of law, that service was deemed to have occurred. As to the underlying Judgment of the District Court of 18 November 2005 upon which the Bankruptcy Notice is based, Mr Mbuzi has sought leave to appeal from that Judgment to the Court of Appeal of the Supreme Court of Queensland. That application involves an application for leave to appeal out of time and a further application for leave to appeal having regard to the amount involved the subject of the Judgment. 12 Upon the making of the Sequestration Order on 5 September 2011, Mr Paul Desmond Sweeney and Mr Jason Shane Cronan were appointed as the joint and several trustees of the estate of Josiyas Mbuzi. On or about 10 October 2011, the appellant's Statement of Affairs dated 9 October 2011 was lodged with the Official Receiver. The Statement of Affairs does not disclose any secured or unsecured creditors of Mr Mbuzi's estate. The only assets disclosed in the Statement of Affairs are three bank accounts of Mr Mbuzi with a disclosed combined value of less than $1,000 and a motor vehicle described as a 1998 Toyota Prado (EQP-386) with a estimated value (by Mr Mbuzi) of $15,000. 13 Mr Cronan swore an affidavit dated 18 November 2011 in which he says that upon appointment as trustee of the appellant's estate he caused searches to be undertaken of any real property owned by Mr Mbuzi. Mr Cronan says that those searches revealed that Mr Mbuzi is the registered owner, together with his wife, Vainess Banda Mbuzi, as joint tenants of a property situated at 3 Eucalypt Court, Warner, Queensland (described as Lot 32 on Survey Plan 112285, County Stanley, Parish Warner, having title reference 50234938). Mr Cronan annexes an historical title search of that property conducted on 21 September 2011. The search reveals that the Australia and New Zealand Banking Group Limited ("ANZ Bank") holds a registered mortgage over the property. 14 Mr Cronan has caused an informal appraisal to be obtained from a real estate agent of the value of the property. In the opinion of the appraiser, the property is likely to have a market value of between $600,000 to $650,000. Mr Cronan says that ANZ Bank has informed the trustees that the debt secured by the mortgage over the property as at 5 September 2011 was $225,583.70. Mr Cronan annexes to his affidavit a copy of a letter received from ANZ Bank on 4 October 2011 informing the trustees of Mr Mbuzi's accounts with that bank. 15 On 22 September 2009, the trustees lodged a caveat over the property to protect the estate or interest of the trustees of the estate of Mr Mbuzi in the property. The trustees have instructed their solicitors to lodge a request to record a transmission in bankruptcy so as to recognise the trustees as the registered owners of the property jointly with Mrs Mbuzi. 16 Mr Mbuzi emphatically denies that he has any interest in the property. He contends that although he is a registered proprietor jointly with his wife, the entire beneficial interest in the property is held by Mrs Mbuzi and that he holds his legal estate on trust for his wife. Mr Mbuzi contends that his name was recorded in the title simply as a protective measure so as to provide financial protection for the five children of the union between Mr and Mrs Mbuzi, in the event that Mrs Mbuzi prematurely died. Both Mr and Mrs Mbuzi contend that Mr Mbuzi has not made any contribution to the purchase of the property or repayments of the loan. In that sense, Mr Mbuzi contends that his Statement of Affairs is entirely correct as he has no interest in the property and no secured creditors. The trustees have exchanged correspondence with Mr Mbuzi and also Mrs Mbuzi about these matters. 17 Plainly enough, Mr Mbuzi is jointly registered as a proprietor of the land (with his wife) and equally plainly the trustees in discharge of their duties and obligations as trustees of the estate must act to preserve the apparent interest of the estate of Mr Mbuzi in that property. It may be that on proper inquiry and analysis of all the relevant documents, loan application documents, bank statements and other such documents that Mr Mbuzi will be shown not to have made any contribution to the acquisition of the property or loan repayments in relation to the property. However, that matter remains to be determined and Mr Mbuzi, is required, under the Bankruptcy Act 1966 (Cth), to cooperate with the trustees in answering relevant questions and providing the trustees with such documents as he is able to produce. It may also be shown that notwithstanding that Mrs Mbuzi elected to record Mr Mbuzi as a joint owner of the property that she did not accelerate any beneficial interest in the property to Mr Mbuzi, assuming the threshold facts are made out that Mr Mbuzi made no contribution to the acquisition of any interest in the property. 18 Apart from the question of the property, Mr Cronan says that the trustees have received notification of contended debts owed by Mr Mbuzi to particular unsecured creditors represented by Mr F van Reede of Rodgers Barnes & Green Lawyers. Mr Mbuzi emphatically contests the contentions of these unsecured creditors that such monies are owed by him. He says that an examination of each of the claims recited in the Proof demonstrates that either the quantification of the claim is unresolved and is seriously in contest or the basis upon which the claim is made no longer remains on foot. For example, Mr Cronan says that Australian Associated Motor Insurers Ltd ("AAMI"), Clifford Rowe Chuter, Cherrel Hirst, Martin Eberlain Kriewaldt and Christopher Skilton claim to be owed an amount of not less than $106,069. Mr Cronan annexes to his affidavit a Proof of Debt lodged by those claimants. The debts are said to be payable due to judgments and orders for costs (other than default judgments) obtained against Mr Mbuzi. 19 The details of the judgments are these: Judgment Court of Appeal (Qld) to pay costs, made 24 December 2009 (amount $14,399.93); Judgment Court of Appeal (Qld) to pay costs, made 19 February 2010 (amount $6,612.50); Judgment Registrar Supreme Court pursuant to Order of White J dated 9 July 2009, entered on 26 February 2010 to pay costs (amount $13,556.50); Judgment Supreme Court, Wilson J, to pay costs made 10 May 2010 (amount not less than $12,500); Judgment, Supreme Court, Lyons J, to pay costs made 30 July 2010 (amount not less than $17,500); Judgment Supreme Court, Applegarth J, to pay costs made 22 September 2010 (amount not less than $17,500); Judgment Supreme Court, Dalton J to pay costs made 14 March 2011 (amount not less than $2,000); Judgment Supreme Court, Boddice J, to pay costs made 28 March 2011 (amount not less than $12,000); and Judgment Supreme Court, Daubney J to pay costs made 15 April 2011 (amount not less than $10,000). 20 The Proof says that no amount has been received in reduction of the contended debts. 21 As indicated earlier, Mr Mbuzi says that none of these amounts have been quantified and that each amount pursuant to each judgment is simply a contention on the part of the unsecured creditors. Mr Mbuzi says that negotiations are continuing about the quantification and steps are being taken by him to challenge the contended quantification. In other respects, Mr Mbuzi contends that some of these orders have been varied by agreement. 22 In any event, the point of present relevance is not whether some or all of these amounts reflected in the Proof of Debt of 16 September 2011 are immediately due and owing but that these unsecured creditors represented by Mr van Reede contend that judgments have been obtained in favour of the unsecured creditors (recited in the Proof) and that the estimated amounts due under the various orders is the amount nominated. 23 Mr Cronan also annexes a further Proof of Debt received by the trustees in which these creditors, Glen Finger, Colin McAndrew, Jennifer Martin, Bradley Bowden, Alex Forrest, Renee Wilson, Malcolm Alexander and Cathy Jenkins claim to be owed an amount of $10,650.05 pursuant to an order made by Byrne J of the Supreme Court on 15 June 2011 in a particular proceeding. The Proof is lodged by Mr McCormick dated 17 October 2011. The quantification is said to be based upon an attached Costs Statement. 24 Mr Mbuzi contends that the claim by these creditors has not been quantified and remains in contest. 25 Again, the point of present relevance is not whether the amount reflected in the Proof of Debt of 17 October 2011 is the precise amount immediately due and owing but that the creditors recited in the Proof contend that a judgment has been obtained in favour of those creditors and the amount of the costs can be understood by reference to the attached Costs Statement. No doubt Mr Mbuzi will seek to demonstrate that a lesser amount is properly regarded as the costs payable pursuant to the order of Byrne J. In addition, I also understand Mr Mbuzi to say that arrangements have been made in relation to the proceeding in which the costs order was made which have the effect of altering the burden of that costs order. No doubt the trustees will take up that matter with the relevant unsecured creditors. 26 The trustees are required, in discharge of their duties under the Bankruptcy Act, to examine each of the claims by the unsecured creditors and determine whether the claims are good or bad. The trustee will in due course undertake a process for the calling of Proofs of Debt and will then seek to test each claim. No doubt the trustees will caucus with Mr Mbuzi as to his contentions in relation to each of the claims made against his estate. 27 However, the trustees are confronted with a situation where the Statement of Affairs completed by Mr Mbuzi fails to identify his position as the registered proprietor of the property earlier mentioned (even if confined to the legal estate) and the Statement of Affairs fails to acknowledge the claims of the unsecured creditors (quantified or not) as asserted in the Proofs of Debt already mentioned. 28 Apart from the claims already mentioned, Mr Cronan says that the trustees have received notification of an unsecured debt of $11,418 owed to Credit Corp Services Pty Ltd (assigned by ANZ Bank) and an unsecured debt owed to Credit Corp Services Pty Ltd of $32,579 (assigned to it by National Australia Bank Limited and the subject of a Proof of Debt). Mr Mbuzi emphatically denies that any of the claimed debt of $11,418 is owed to the claimant. Mr Mbuzi says that debt is seven years old and the claim was dismissed. Mr Mbuzi similarly denies that any of the sum of $32,579 is owed to the claimant. 29 Apart from these matters the trustees observe that at Item 27 of the appellant's Statement of Affairs, Mr Mbuzi states that he only owns a Toyota Prado motor vehicle (Registered No. EQP-386) with an estimated value of $15,000 yet in the appellant's affidavit filed on 25 August 2011 in Federal Magistrates Court of Australia proceedings BRG 493 of 2011, the appellant deposed that he owned two Toyota Landcruisers which had a combined monetary value of over $30,000 "thus proving that I am not insolvent" (see para 13 of the affidavit, 25 August 2011). The point of the affidavit was, as Mr Mbuzi said, to demonstrate that he was not insolvent. On 10 October 2011, the trustees wrote to the appellant observing that searches had revealed that a Toyota Landcruiser (Registered No. 568-RIO) was formerly registered in his name. The trustees asked whether Mr Mbuzi still owned the vehicle. On 24 October 2011, the appellant wrote to the trustees asserting that he did not own any other vehicle apart from the Toyota Prado vehicle and that he had never owned the Toyota Landcruiser. 30 Mr Mbuzi accepts that the position reflected in the Statement of Affairs is inconsistent with the earlier affidavit. However, Mr Mbuzi explains the circumstances that gave rise to the inconsistency. Irrespective of the explanation, the trustees are rightly concerned about the inconsistency between the earlier affidavit and the Statement of Affairs, particularly having regard to s 267(2) of the Bankruptcy Act. 31 The trustees have written letters to Mr Mbuzi and separately, letters to Mrs Mbuzi about the property. Mrs Mbuzi on 8 October 2011 responded to a letter written by the trustees of 4 October 2011 raising questions about Mr Mbuzi's interest in the property. In the letter of 8 October 2011, Mrs Mbuzi said this: 1. Mr J Mbuzi has no equity in the property you are referring to, as he has not contributed even a cent towards [the] property on account of lack of money, as he has no income earning job. 2. I put Mr Mbuzi on my application for a loan and on the property documents, so that if I die he could administer it on behalf of my children because I have five children with him. 3. I note that you have placed a caveat on [the property] presumably based on your mistaken assumption that Mr Mbuzi had equity in it. Now that I have explained the situation I request that you remove the caveat. 4. Please note that you do not remove the caveat on your own, I will apply to the courts to have it removed and I will produce this letter in relation to court costs. cc ANZ Bank 32 On 10 October 2011, the trustees wrote to Mr Mbuzi noting Mr Mbuzi's interest in the property and the non-disclosure of that matter in Mr Mbuzi's Statement of Affairs. In his response of 24 October 2011, Mr Mbuzi described the contention of the trustees as false, dishonest and misleading on the footing that "100% equity is vested in … my wife". Mr Mbuzi said that "under no circumstances [will I] be providing you with a copy of insurance policy, as it is none of your business". 33 Notwithstanding that Mr Mbuzi contends that the entirety of the beneficial interest in the property is held by Mrs Mbuzi, Mr Mbuzi has an obligation to cooperate with the trustees in relation to what is a perfectly proper inquiry about the status of Mr Mbuzi's interest in the property. In the interests of the estate and the creditors, it is important that the trustees take the necessary steps to protect the apparent or contended interest of the estate in the property in question. It is also important for the trustees to properly deal with all persons who assert a claim against the estate as unsecured creditors. It is also important for the trustees to deal with the ANZ Bank as a party that asserts a secured interest over the property. 34 Mr Mbuzi seeks a stay of the Sequestration Order on the footing that he has identified meritorious grounds of appeal and that pending the determination of the appeal, he and his wife suffer significant prejudice. The appellant does not identify the content of that prejudice in his affidavit in support of the stay application. The material matter to consider is where the balance of convenience lies in the sense of the prejudice that might arise to Mr Mbuzi between now and the hearing of the appeal in February (and the determination of the appeal thereafter) on the one hand, and the prejudice to the proper administration of the estate (and thus the unsecured creditors) and also prejudice to the respondent, on the other hand. 35 Mr Mbuzi contends that prejudice arises in three ways. 36 First, he says that he wishes to travel overseas in December and January (and possibly February) and he will not be able to do so without the benefit of a stay order. Secondly, Mr Mbuzi says that his wife is alarmed and emotionally affected by the Sequestration Order with the result that a stay is necessary in order to address that emotional dislocation. Thirdly, Mr Mbuzi says that a stay of the Sequestration Order has important consequences for him in his negotiations in the various Supreme Court proceedings and steps he says he wishes to take in those proceedings. These matters are the measure of where Mr Mbuzi says prejudice lies and thus the balance of convenience favours him, he contends. Mr Mbuzi says that neither the respondent nor the estate will be prejudiced by a stay order. 37 As to these matters, Mr Mbuzi's suggestion that he is required to travel overseas in December and January emerged only in the course of the oral submissions. I am not satisfied that this is a compelling matter of prejudice on the balance of convenience. No doubt, if Mr Mbuzi is required to travel arrangements might be made having regard to all the relevant considerations to enable Mr Mbuzi to travel. This is not a reason to stay the Sequestration Order. Secondly, the letter written by Mrs Mbuzi of 8 October 2011 does not suggest a high level of anxiety. However, if Mrs Mbuzi is anxious about the consequences for her of the Sequestration Order in the context of the assertion by the trustee of an interest in the property on behalf of the estate of Mr Mbuzi, that matter must be dealt with in an orthodox and professional way and does not itself give rise to such prejudice that the balance of convenience in favour of a stay falls in favour of Mr Mbuzi. Thirdly, the making of a Sequestration Order and the orthodox and professional administration of the estate pending the determination of the appeal to this Court in February 2012, is a matter which can be put and explained to the Supreme Court of Queensland in the context of any relevant matter arising in proceedings before that Court. 38 It seems to me that the balance of convenience favours the trustees continuing in their role unrestrained so as to preserve the interests of the estate pending the determination of the appeal. In considering the exercise of the discretion as to whether a stay ought to be made, I proceed on the footing that, for the purposes of the application, I will assume that Mr Mbuzi has identified a ground of appeal. I make no observations about the strength of the ground of appeal. In favour of Mr Mbuzi, I simply assume that an arguable question arises. The question of whether a stay order ought to be made is to be determined in this case simply on the question of where the balance of convenience properly lies. On that question, I have had regard to and applied the principles identified in Freeman v National Australia Bank Limited [2002] FCA 427; Rigg v Commonwealth Bank of Australia [2001] FCA 1340; and Greyson v Commonwealth Bank of Australia [2005] FCA 1108. I am not satisfied that the contended prejudice identified by Mr Mbuzi outweighs the prejudice to the creditors, and the public interest in the trustees taking such steps as may be necessary between now and the determination of the appeal to address the contention of Mr and Mrs Mbuzi as to where the beneficial interest lies in relation to the property; the interest in the trustees continuing to deal with or respond to challenges to the caveat lodged by the trustees; and, the interest of the trustees continuing to deal with those persons who at least contend that they have proper claims as unsecured creditors against the estate of Mr Mbuzi. 39 The trustees ought not make any disposition of the interest they assert in the property to any party pending the determination of the appeal without leave of the Court. 40 As to the challenge to aspects of the affidavit of Mr Mbuzi sworn 30 November 2011, I note that the trustees take no objection to the affidavit in the formal sense although they too have reservations about the expressions used in the affidavit in relation to particular matters. I propose to give leave to read and file the affidavit of Mr Mbuzi in support of the application for a stay subject to striking out paras 22 and 23 of the affidavit which includes, of course, Annexures "JM8", "JM9", "JM10" and "JM11" to the affidavit. Those paragraphs together with the Annexures referred to in those paragraphs are struck out on the basis that those matters are not relevant to the questions alive on the Stay Application. 41 The application for a stay is dismissed. The appellant is to pay the costs of the respondent of and incidental to the application. The costs of the trustees of and incidental to their appearance on the application shall be costs in the administration of the estate. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.