Psevdos v Commonwealth Bank of Australia

Events in the Federal Circuit Court 22 The power to make a sequestration order on the presentation of a creditor's petition is conferred by s 43(2) of the Bankruptcy Act. The power is discretionary. The discretion may only be exercised upon the petitioning creditor proving the matters specified in s 52(1). It provides: 52 Proceedings and order on creditor's petition (1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. 23 The Court may dismiss a creditor's petition if it is satisfied by the debtor that he or she is able to pay his or her debts or that, for any other "sufficient cause" a sequestration order ought not to be made: see s 52(2). 24 In his Notice of Opposition filed in answer to the creditor's petition, Mr Psevdos had alleged that: (1) he was solvent; (2) he was not liable for the debt specified in the bankruptcy notice because he had participated in the Supreme Court Proceedings in his capacity as trustee of the Orio Trust and not in his personal capacity; (3) he had, at that time, an appeal pending in this Court against the Review Judgment; (4) the judgment obtained by CBA in the Supreme Court Proceedings was affected by fraud and collusion; and (5) the Supreme Court appeal was still pending or otherwise capable of being revived. 25 Argument on the creditor's petition proceeded in the FCC on 30 May 2016. Judgment was reserved and adjourned to 4:00pm on that day. Less than an hour before judgment was due to be delivered, Mr Psevdos sent an email to CBA's solicitors with a proposal to pay $122,000.00. The proceedings were adjourned to 11:00am on 6 June 2016 to enable CBA to provide instructions to its solicitors in relation to the proposal. 26 CBA rejected the proposal. Notwithstanding the rejection, on 2 June 2016, Mr Psevdos sent an email to CBA's solicitors furnishing what he described as "proof of payment" of the amount specified in the bankruptcy notice. Attached to the email was a deposit slip evidencing the deposit into the solicitors' trust account of the amount of the debt (Deposit). Correspondence adduced by Mr Psevdos suggests that the Deposit was made by a person named Jonathan Dean on Mr Psevdos' behalf, although earlier correspondence had suggested that payment might originate from Mr Psevdos' mother. 27 CBA's solicitors wrote to Mr Psevdos by email on the afternoon of 3 June 2016 in, relevantly, the following terms: We are instructed that CBA's position remains that it rejects your offer to pay the amount of the bankruptcy notice. To be clear, CBA does not accept the deposit into Fisher Jeffries' trust account as payment to CBA. CBA will accordingly press for the sequestration order on Monday. In support of this, and so you are put on notice ahead of the hearing, CBA intends to rely on the line of authority emanating from McIntosh v Shashoua (1931) 46 CLR 494. 28 On the morning of 6 June 2016 Mr Psevdos made an application in the FCC proceedings for orders to the effect that the creditor's petition be dismissed by virtue of the payment of the Deposit into the trust account of CBA's solicitors. He submitted, among other things, that his willingness and ability to make the proposal and pay the Deposit demonstrated that he was solvent. He submitted that CBA's rejection of the proposal was proof of its "bloody mindedness" and its alleged fraudulent collateral purpose in seeking to have him made bankrupt. The learned primary judge heard argument on the application before proceeding to deliver judgment on both the application and the creditor's petition. 29 The contentions on Mr Psevdos' Notice of Opposition overlapped to some extent with the issues raised on his application for review of the Registrar's decision not to set aside the bankruptcy notice. Although the reasons for the Sequestration Judgment do not deal expressly with the issues summarised in subpara 24(2) and 24(4) above, that is hardly surprising. Those issues had been considered and determined by the primary judge in the Review Judgment. Consistent with what I said in the First Appeal Judgment at [18], the argument before me on this appeal proceeded on the basis that I should have regard to both sets of reasons in determining the issues arising on this appeal. 30 As to the issues arising on the Notice of Opposition, the primary judge: (1) held that exceptional circumstances did not exist so as to justify going behind the Supreme Court judgment (Sequestration Judgment [24]) and otherwise determined that service of the bankruptcy notice on Mr Psevdos was a bona fide attempt by CBA to invoke the regime established by the Bankruptcy Act, that was not undertaken for a collateral purpose (Review Judgment [20] and [23]); (2) recognised that the commencement of the Supreme Court appeal was a relevant consideration, but determined that the appeal had lapsed, there had been no application by Mr Psevdos to reinstate it, there had been no appeal against the issue of the Allocatur itself and an application by Mr Psevdos to stay the execution of the Allocatur had failed (Review Judgment [22], Sequestration Judgment [18] - [21], [23]); (3) determined that Mr Psevdos was personally liable to pay the debt specified in the Allocatur, notwithstanding that he had contracted with Schutara in his capacity as trustee of the Orio Trust (Review Judgment [24] - [30]); (4) took into account the pending appeal against the Review Judgment but did not consider that appeal to have sufficient prospects of success to justify the refusal of the sequestration order sought by CBA (Sequestration Judgment [22] - [23]); and (5) was not satisfied, on the evidence before him, that Mr Psevdos was solvent (Sequestration Judgment [15] and [25]). 31 In dismissing Mr Psevdos' application arising out of the payment of the Deposit, the learned primary judge expressed some doubt about the "providence" of the Deposit monies and whether the fact of the payment might affect Mr Psevdos' estate. His Honour said: 25. With respect to the question of solvency, the applicant asserts that he is solvent and as I have said, relies on paragraph 7 of his Affidavit dated 30 June 2016, and Annexure SP4, to demonstrate this and the matters contained in his Affidavit filed today, being 6 June. I have considered those materials closely. I am not satisfied that Mr Psevdos has demonstrated his solvency. 26. I note that the order in the Application for a Case, which seeks that the moneys currently in the Fisher Jeffries trust account be paid into Court, is contested by the creditor who says that that application should be dismissed in its entirety. In short, Mr Roberts SC, on behalf of the creditor, says that I could not be satisfied on the material presently before the Court and the Affidavits, that this is truly a third party payment. Mr Psevdos asserts vehemently from the bar table that it is and that the security referred to is not a security that he has any direct interest in and that the payment of the moneys does not affect his financial estate. 27. I take the view that there is sufficient doubt about the providence of those moneys, at least in my mind, as to whether or not this is a genuine third party payment. I do not regard it as appropriate to make any order with respect to the disposition of the funds presently in the Fisher Jeffries trust account. 32 His Honour did not elaborate so as to explain the significance of his finding that the Deposit was not a "genuine third party payment". It appears, however, that there were before his Honour two supporting creditors, such that upon any subsequent bankruptcy founded on the supporting creditors' debts, the payment to CBA might be voidable so far as it affected Mr Psevdos' personal estate.

ISSUES ARISING ON THE APPEAL 33 Mr Psevdos appeared self-represented on the appeal. His Notice of Appeal is lengthy. Permeating most of the grounds is an allegation that CBA has acted fraudulently in respect of the issues arising in the Supreme Court Proceedings and that it obtained the Sequestration Judgment for the collateral purpose of advancing and concealing that alleged fraud. It is alleged that the learned primary judge erred in failing to dismiss the creditor's petition on that basis. Relatedly, it is alleged that the primary judge erred by failing to find that the CBA's refusal to accept the Deposit evidenced its alleged collateral purpose in seeking to obtain a sequestration order (Grounds 1, 2, 3, 8 and 10) and by failing to either go behind the judgment of Parker J in the Supreme Court Proceedings (Ground 6) or dismiss the creditor's petition on the grounds that the appeal against that judgment was yet to be heard (Ground 5). It was further alleged (as it was on the first appeal) that the learned primary judge erred in finding that Mr Psevdos was personally liable to pay the amounts specified in the Allocatur and the bankruptcy notice (Ground 4). Finally, it was alleged that his Honour erred in failing to determine that Mr Psevdos was solvent (Ground 7). 34 This is a somewhat crude summary of the allegations made on the Notice of Appeal. As I have said, the Notice of Appeal is lengthy. It contains wide-ranging allegations that overlap and interrelate. They are spiced with rhetoric. I am mindful of Mr Psevdos' status as a self-represented litigant and do not criticise him for his manner of expression. 35 Given its length, I will not recite every issue verbatim from the Notice of Appeal. I will instead consider whether the learned primary judge erred in making any one of the determinations I have identified in [30] of these reasons as it is clear that each of those determinations are subject to challenge. Those determinations, and the grounds of appeal, fall broadly under three topics: alleged fraud and the Supreme Court Proceedings, Mr Psevdos' personal liability for the debt and the Deposit. I will deal with the issues in that order.

Alleged fraud and the Supreme Court Proceedings: Notice of Appeal, paragraphs 4II - VI, 10 and 12 36 In Dean v Pepper Finance Corporation Ltd (Trustee) [2016] FCA 648, Katzmann J said (at [43]): … When a court decides to inquire into the existence of the debt, it does not set aside the judgment; it has no power to do that: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (Full Court) at 588. Rather, it 'goes round the judgment, and inquires into the subject matter' for the purpose of satisfying itself that the petitioning creditor founds his petition on a 'good debt': In Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633 at 636 (Lord Esher MR). 37 The principles governing the discretion to "go behind" a judgment were conveniently stated by Wigney J in Katter v Melhem (No 2) [2014] FCA 1176; (2014) 319 ALR 646 (Katter) at [69] - [79] as follows: Relevant principles - 'going behind' a judgment 69. The existence of a judgment is prima facie evidence of a debt: Corney v Brien (1951) 84 CLR 343 (Corney v Brien) at 355 (Fullagar J). However, a judgment is never conclusive in bankruptcy and the Court has a discretion to 'go behind' the judgment to investigate whether there was a good debt to support it: Corney v Brien at 347 (Dixon, Williams, Webb, Kitto JJ), 353-354 (Fullagar J). 70. The Court will not, however, inquire into the consideration for a judgment as a matter of course: Wren v Mahoney (1972) 126 CLR 212 at 222-223 (Barwick CJ). Whilst the circumstances in which the Court will inquire into the validity of a judgment debt are not closed (Commonwealth Bank of Australia v Jeans [2005] FCA 978 (Commonwealth Bank v Jeans) at [15]) and there is no inflexible rule (Re Wong; Ex parte Kitson (1979) 27 ALR 405; Chancliff Holdings Pty Ltd v Bell [1999] FCA 1708 (Chancliff) at [90]), it is possible to identify a number of guiding principles. 71. First, the Court looks with suspicion on consent judgments and default judgments: Corney v Brien at 348 (Dixon, Williams, Webb and Kitto JJ) citing Latham CJ in Petrie v Redmond (1942) 13 ABC 44 at 48-49. Where the judgment in question is a default judgment, it appears that the Court will always 'go behind' the judgment if there is what it regards as a bona fide allegation that no real debt lay behind the judgment: Corney v Brien at 357-358 (Fullagar J). 72. Second, if the judgment in question followed a full investigation at a trial at which both parties appeared, the Court will not reopen the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out: Corney v Brien at 356-357 (Fullagar J). In Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 at 86, Fry LJ said: 'this power has never, so far as I am aware, been extended to cases in which a judgment has been obtained after issues have been tried out before a [c]ourt'. In Corney v Brien, Fullagar J said (at 358) that he had not been able to find any such case since Fry LJ made this statement in 1888. 73. Third, where judgment has been entered in pursuance of a compromise, grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened: Corney v Brien at 357 (Fullagar J). That is because it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 (Harrison v Charalambous) at [9]. 74. Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not generally be reopened: Corney v Brien at 357. The presumption in such circumstances is that it is difficult, although not impossible, to impugn the compromise: Harrison v Charalambous at [9]. One instance where the Court may go behind a judgment in these circumstances is where both parties knew the original claim was not a bona fide claim and the judgment or compromise was obtained by dishonesty known to both parties: Ex parte Banner; In re Blythe (1881) 17 Ch D 480 (Re Blythe). If, however, counsel had full knowledge of all relevant facts, and no suspicion of unfairness or impropriety in the compromise arises, a court may decline to go behind a judgment submitted to on the advice of counsel: In re A Debtor [1929] 1 Ch. 125; Chancliff at [100]; Smith v Abbott, Stillman & Wilson [2007] FCA 1256. 75. The fact that the debtor may have been pressured by his legal advisers to compromise the claim, despite the merits of his defence, will not generally be sufficient to warrant going behind the judgment entered pursuant to that compromise. That will particularly be the case where the judgment creditor was unaware of, or was not implicated in, the alleged undue pressure: Harrison v Charalambous at [11]. In that case, Finkelstein J said (at [12]): To my mind, what has occurred in this case is not a sufficient basis to go behind the judgment based on the compromise. Although the debtor may have been placed under undue pressure to enter into the compromise, I cannot discern any unfairness or impropriety of such a kind as would justify me in looking behind the judgment. The reality is that the debtor, perhaps through no fault of his own, was placed in a position where his commercial interests necessitated a compromise and he agreed to it in accordance with those interests. In one sense the position the debtor found himself in is not very different to the circumstances which other litigants have often had to confront. I do not doubt that litigants regularly compromise actions otherwise than in accordance with the true merits of the claims made, but that is not a sufficient reason to deny efficacy to the agreements to compromise that these litigants reach. It is certainly not a sufficient reason in this case. 76. It is implicit in this statement that the mere fact that the compromise may not have been 'in accordance with the true merits of the claims made' will not be sufficient to impugn the compromise. Such a circumstance alone will therefore not warrant the Court going behind the judgment. 77. Fourth, the Court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced and would not support a finding that there was, in truth, no debt at all: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589; Olivieri v Stafford (1989) 24 FCR 413 (Olivieri v Stafford) at 431-432 (Gummow J); Re Cosimo Longo Ex parte: Cosimo Longo [1995] FCA 1324 at [23]-[25]; Cumins v Deputy Commissioner of Taxation (2008) 172 FCR 425 at [7]-[10]; Re Riviere; Ex parte Original Mont de Piete Ltd (1919) 20 SR (NSW) 77 (Re Riviere) at 83-84. 78. The particular circumstances of any given case may no doubt throw up other considerations relevant to whether the Court should exercise its discretion to go behind a judgment. Where the judgment debtor seeks to go behind the judgment on particular grounds, it is difficult to see why it would not be a relevant consideration that those grounds could have been, but were not, raised in opposition to the judgment, or in an application to set aside the judgment. Parties are ordinarily bound by the way they have chosen to conduct litigation. The fact that, for whatever reason, a party did not put particular arguments before the court that made (or refused to set aside) the judgment does not mean that there was no relevant hearing on the merits: Commonwealth Bank v Jeans at [18]-[21]; Olivieri v Stafford at 424 (Beaumont J). 79. The question whether the judgment is to be reopened or 'gone behind' at all will usually involve some preliminary investigation of the merits of the attack of the judgment: Corney v Brien at 358. That question can and often is dealt with as a preliminary question: see for example Commonwealth Bank v Jeans. Once the Court decides that it will go behind the judgment 'the whole [of the] matter is open': Corney v Brien at 358. Where it is legitimate to go behind a judgment entered after trial, there would effectively be no alternative but to retry the whole case. 38 In the present case, the judgment debt sustaining the bankruptcy notice was the Allocatur. Although issued pursuant to the order of Master Dart, the Allocatur, in its legal context, is the progeny of the indemnity costs order made by Parker J in the Supreme Court Proceedings. When viewed in its proper legal context, the Allocatur owes its existence to at least three related compromising decisions made by Mr Psevdos both before and after judgment in those proceedings and at times when Mr Psevdos was legally represented. The first decision involved Mr Psevdos' abandonment of more than half of his defence, thus limiting his position in the proceedings to his argument that the caveat gave him a superior interest in the Schutara land to that of CBA. CBA's evidence that he had knowledge of CBA's mortgage at critical times was no longer contradicted. Allegations that the Psevdos mortgage predated the CBA mortgage were also abandoned. The circumstances in which that abandonment occurred were summarised by the judgment of Bampton J in which her Honour determined that Mr Psevdos should pay security for CBA's costs of the appeal. Her Honour said at [9]: During Mr Psevdos' cross-examination, counsel for the CBA placed before him an email dated 29 June 2009 (the Graetz email) that had come from Ms Graetz's conveyancing file produced under subpoena. In the Graetz email addressed to Mr Psevdos, Ms Graetz wrote 'I also confirm your instructions that I am not to caveat the properties known as Tenance - Bonython Rd Bugle Ranges via Mt Barker Road until the CBA refinance has gone through. I check searched these titles today and note that the mortgage to Provident is still registered and there are no unregistered documents showing up therefore CBA's mortgage has not been lodged to date'. Mr Psevdos was cross-examined about the Graetz email in the context of his evidence that he knew nothing of the CBA mortgage. Mr Psevdos gave evidence that he had no recollection of the email. It was put to him that he responded to the Graetz email saying 'And the Cba needs to register first on the balance of five lots Bonython Road'. In other words, the CBA submitted that Mr Psevdos was not merely being told by his conveyancer of the proposed CBA mortgage coming in as a first registered mortgage but that he responded in a confirmatory way to his conveyancer. It was put to Mr Psevdos that he had collected the original Graetz file and delivered it to his solicitors for the purposes of discovery being made in the proceedings and yet the file, as discovered, had removed from it, or did not include within it, documents such as the Graetz email regarding the registration of the mortgage. Following this cross-examination, counsel for Mr Psevdos informed the Court that he had instructions that the equitable argument would not be pursued. 39 The second related compromise was Mr Psevdos' acquiescence to (or at least failure to oppose) an indemnity costs order in the Supreme Court Proceedings occasioned by the time wasted at trial by his late change in position. The third compromise was Mr Psevdos' consent to the issue of an interim Allocatur in a specified amount. It may be more appropriate to describe the latter compromises as "consents" although nothing of importance turns on the label that is given. The point is that the principles in Wren v Mahoney (1972) 126 CLR 212 as summarised in Katter do not apply in the same way as they might in a case where, for example, a pre-existing debt merges in a judgment and then becomes the subject of a bankruptcy notice. CBA did not sue on a debt. It sued for declaratory relief in respect of an equitable priority dispute. The debt sustaining the bankruptcy notice arose by the exercise of the power of the Supreme Court of South Australia to make orders as to costs and, more particularly, to compensate a party for costs thrown away by reason of the abandonment of a claim or defence. 40 Mr Psevdos' submission on the appeal largely ignored that important background. He instead sought to raise the same arguments on this appeal that he had abandoned in the Supreme Court Proceedings. To a large degree, the allegations are to the effect that the Psevdos mortgage predated the CBA mortgage and that CBA's priority claim was fraudulently concocted. That is a directly contrary position to that ultimately taken by Mr Psevdos in the Supreme Court Proceedings where, after more than four days of trial, he did not seek to contradict the evidence adduced by CBA and instead sought to rely solely on his argument that his caveat gave him a superior interest to that of CBA. 41 Mr Psevdos submits that the FCC should nonetheless have gone behind the Supreme Court judgment because it was affected by fraud. What, then, is the alleged fraud? When pressed in arguendo on that question, Mr Psevdos made a submission to the effect that the CBA had alleged in the Supreme Court Proceedings that Mr Marshall was its employee. Mr Marshall had given evidence in the Supreme Court Proceedings to the effect that he was a CBA employee and that he had possession of certificates of title on CBA's behalf in relation to the Schutara land at a time predating the Psevdos mortgage. Mr Psevdos submitted that it could now be demonstrated that Mr Marshall was not an employee of CBA, but an independent contractor. He further asserted that Mr Marshall was not otherwise entitled to receive the certificates of title on CBA's behalf, although he acknowledged he was not in a position to make good that assertion or other generalised assertions of fraud by reference to any evidence presently in his possession. 42 In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (Wentworth) at 538 - 539, Kirby P (Hope and Samuels JJA agreeing) stated the principles governing an application or appeal to set aside a judgment alleged to have been procured by fraud. With appropriate modifications, the same principles apply in the context of bankruptcy proceedings in which it is alleged that the Court should go behind a judgment creating a debt forming the subject of a bankruptcy notice where it is said that the judgment was procured by fraud. The principles stated in Wentworth may be summarised as follows: (1) First, the essence of the action is fraud. Particulars of the fraud must be exactly given and the allegations must be established by the strict proof which such a charge requires. (2) Second, it must be shown that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. (3) Third, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. (4) Fourth, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. (5) Fifth, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. (6) Sixth, the burden lies on the party impugning the judgment. It is for the party to establish the fraud and to do so clearly. 43 See also Bhagat v Global Custodians Ltd [2002] FCAFC 331 at [13] (Moore, Madgwick and Goldberg JJ). 44 CBA submitted that Mr Psevdos fails on each of these principles. I agree. Whilst I have no doubt that Mr Psevdos subjectively believes that CBA obtained judgment in the Supreme Court Proceedings (including as to costs) by conduct amounting to "fraud and collusion", he has not established on this appeal that he adduced sufficient evidence before the learned primary judge to support the allegations. Mr Psevdos' attempts to obtain further evidence in support of his claims by the exercise of compulsive powers of this Court was unsuccessful for the reasons I have given in the interlocutory judgment. I will not repeat those reasons here. 45 In the circumstances, I am not satisfied that the learned primary judge erred in determining that no exceptional circumstances existed to justify going behind the Allocatur. 46 Nor am I satisfied that the learned primary judge erred in failing to dismiss the creditor's petition on the basis that Mr Psevdos had stated an intention to reinstate and prosecute the appeal against the judgment of Parker J in the Supreme Court Proceedings. In that regard, the learned primary judge properly identified the commencement of the appeal as a relevant consideration (Sequestration Judgment [17] and [21]). Having done so, his Honour determined, correctly, that the judgment debt sustaining the creditor's petition was the Allocatur which in turn was founded on an indemnity costs order that Mr Psevdos had not opposed. His Honour also took into account the circumstance that Mr Psevdos had not promptly prosecuted the appeal, such that it had lapsed by the operation of r 296 the Supreme Court Civil Rules 2006 (SA). 47 It is important to bear in mind that the existence of the Supreme Court appeal (and Mr Psevdos' stated intention to reinstate it) was relevant to the question of whether, "for other sufficient cause" the sequestration order ought not to be made: s 52(2)(b) of the Bankruptcy Act. The task of the primary judge involved the ascription of weight to competing considerations so as to evaluate whether the reasons advanced by Mr Psevdos for not making the sequestration order were "sufficient". The task on this Court is not to substitute its own view of the conclusion arrived at by the primary judge, but to assess whether his Honour's discretion miscarried in the sense explained by the High Court in House v The King (1936) 55 CLR 499 (House). It has not been demonstrated on this appeal that the conclusion of the primary judge in respect of any issue connected with the Supreme Court appeal was affected by any such error. 48 In my opinion, the same considerations apply to the determination by the learned primary judge not to go behind the Supreme Court judgment. Putting aside for a moment the issue of whether Mr Psevdos was personally liable to pay the amount specified on the Allocatur, the learned primary judge did not err in finding that CBA had discharged its onus of proving the fact that the debt on which it relied was still owing: see s 52(1)(c) of the Bankruptcy Act. 49 The fraud allegations made by Mr Psevdos were not relevant to that issue, but to the issue of whether there existed sufficient cause to dismiss the creditor's petition under s 52(2)(b) (notwithstanding the existence of a debt still owing). That issue, as I have said, attracts the principles stated in House. Once again, Mr Psevdos cannot succeed on this appeal by inviting the Court to substitute its own view as to whether the fraud allegations constituted a "sufficient cause" so as to arrive at, and substitute, a different result. 50 If I am wrong in perceiving the test on this appeal in that way, I would in any event find that the learned primary judge did not err in determining, as his Honour implicitly did, that the allegations of fraud were insufficient to render the debt stated on the Allocatur itself non-existent or unenforceable such that no debt could be said to be "still owing". 51 I turn now to the question of whether the debt was owed by Mr Psevdos personally, notwithstanding that the transaction he relied upon in the Supreme Court Proceedings was entered into by him in his capacity as trustee of a trust.

Mr Psevdos' personal liability for the debt: Notice of Appeal, paragraphs 4I and 8I - XII 52 On this topic, Mr Psevdos submitted that he "acted solely in his capacity as trustee for Orio and pledged Orio's trust funds and assets only as surety in substance for costs". He alleged that "terms of engagement" in the Supreme Court Proceedings were agreed between CBA and him "in his character and capacity as trustee for Orio" and that CBA is "estopped by judgment, acquiescence and/or laches" from asserting that he is personally liable to pay the amount specified in the Allocatur. 53 The general principles governing the liability of a trustee to pay the debts of the trust are well settled. They are not disputed by Mr Psevdos. They are, in short: (1) a trust is not a separate legal entity, nor does the common law recognise a trustee as having assumed an additional or qualified legal personality: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 at 253 (Gummow J); Mercedes Holdings Pty Ltd v Waters (No 2) (2010) 186 FCR 450 at [111] (Perram J); Heydon JD and Leeming MJ, Jacobs' Law of Trusts in Australia (8th ed, Butterworths, 2016) at [1-01]; (2) as the legal owner of trust property, a trustee is personally liable for debts he or she incurs in performing the trust, such that the trustee's liability is not limited by the extent of the trust assets: In re Johnson; Shearman v Robinson (1880) 15 Ch D 548 at 552; (3) accordingly, an individual trustee may be bankrupted in respect of a debt incurred in the performance of the trust: Heydon JD and Leeming MJ, Jacobs' Law of Trusts in Australia (8th ed, Butterworths, 2016) at [21-02]; (4) a trustee may have recourse to trust property to satisfy debts properly incurred on the trust's behalf, and may also enforce an indemnity against trust beneficiaries of full capacity for reimbursement; Trustee Act 1936 (SA), s 35(2); Vacuum Oil Company Proprietary Limited v Wiltshire (1945) 72 CLR 319 at 335 - 336; Octavo Investments Proprietary Limited v Knight (1979) 144 CLR 360 at 367; Balkin v Peck (1998) 43 NSWLR 706 at 710; and (5) depending on the terms of the trust, a trustee may discharge liabilities directly out of the trust property, rather than expending his or her own funds and subsequently seeking reimbursement: Holden v Black (1905) 2 CLR 768. 54 In support of his contention that there existed "terms of engagement" excluding his personal liability for costs, Mr Psevdos relied on a letter from CBA's solicitors to his solicitors dated 7 May 2014. The letter concerns earlier possession proceedings commenced by CBA as plaintiff against Schutara as defendant in February 2013. Mr Psevdos had made an application to be joined as a defendant in the possession action to assert his claimed entitlements in the equity dispute. The letter expresses CBA's view that the possession action was not the appropriate vehicle for the resolution of the priority dispute between CBA and Mr Psevdos. CBA put forward a proposal that Mr Psevdos withdraw his application to be joined as a party in the earlier action, that he withdraw the caveat so as to permit the subject land to be sold, and that CBA commence separate proceedings to have the priority dispute determined. CBA acknowledged, as part of that proposal, that the withdrawal of the caveat by Mr Psevdos would in no sense prejudice any right he may have in the priority dispute. 55 Mr Psevdos alleges that he accepted that proposal on the condition that he not be personally liable for costs in the Supreme Court Proceedings ultimately commenced by CBA. The only evidence relied upon by Mr Psevdos to support the existence of such a condition is the Defence he filed in the Supreme Court Proceedings. By [2] of the Defence, he pleaded that "with respect to the issues raised in these proceedings, [he] acted as trustee of the Orio Investment Trust and not in his personal capacity". 56 Mr Psevdos submitted that the form of words used in the Defence was analogous to those used in an agreement construed in favour of trustees by the House of Lords in Gordon v Campbell (1842) 1 Bell App 428 (Gordon). In that case, the trustees of a deceased estate entered into a bond. The House of Lords held that upon its proper construction, the bond evinced an intention that the liability of the trustees to repay the bond be limited to the extent of the trust property. Their Lordships appear to have proceeded on the basis that it was sufficient that the clause expressly specify that the trustees covenanted in that capacity. Lord Brougham held (at 456): … the warrant ... must be taken to be confined to them in their character as trustees, and only to impose upon them a liability to the extent to which they were concerned in the trust fund. 57 Lord Cottenham agreed (at 456). Lord Campbell said (at 458) of the terms of the bond: He takes care to state that he contracts in his character of trustee, in words which I need not repeat, treating the trustees as a body, like a corporation, avoiding personal liability; and therefore I think that he was not [personally] liable … 58 Lord Campbell's decision not to repeat the terms of the bond is a merciful one. The five-page clause in question is as lengthy as it is opaque. I reject Mr Psevdos' invitation to draw any analogy between the warrant under construction in Gordon and the terms of the agreement he alleges in the present case. 59 Insofar as the decision in Gordon stands for the proposition that trustees may avoid personal liability for debts incurred in the performance of the trust (including debts arising under contract) by expressly making it known that they covenant in the capacity as trustees (or qua trustees, as that phrase was used in Gordon), that proposition is not good law. 60 In the later decision of Muir v City of Glasgow Bank and Liquidators (1879) 4 AC 337 (Muir), the three trustees of a trust estate took shares in a bank. They executed the deed of transfer "as trust disponees" for the two named beneficiaries of the trust. Calls were made on the shares against the trustees in their personal capacities. The Court of Sessions held that the trustees were personally liable to pay out of their private property all of the calls that had been made on the shares. On appeal, the House of Lords affirmed the decision. Lord Penzance said (at 368): Speaking generally, there might no doubt arise an inference (if not rebutted by other circumstances) that a person who derived no benefit himself, and who acted only for the benefit of others, in contracts or engagements of any kind into which he might enter, would not intend thereby to expose himself to personal liability if it could be avoided. A general consideration of this character has, I think, largely pervaded the reasoning upon which the exemption of the Appellants from personal liability has been based and enforced in argument. But meanwhile it will not be doubted that a person who, in his capacity of trustee or executor, might choose to carry on a trade for the benefit of those beneficially interested in the estate, in the course of which trade debts to third persons arose, could not avoid liability on those debts by merely shewing that they arose out of matters in which he acted in the capacity of trustee or executor only, even though he should be able to shew, in addition, that the creditors of the concern knew all along the capacity in which he acted. … To exonerate him it would be necessary to shew that upon a proper interpretation of any contract he had made, viewed as a whole-in its language, its incidents, and its subject-matter - the intention of the parties to that contract was apparent that his personal liability should be excluded; and that although he was a contracting party to the obligation the creditors should look to the trust estate alone. 61 In Astram Financial Services Pty Ltd v Bank of Queensland Ltd [2010] FCA 1010 Buchanan J helpfully summarised (at [364] - [367]), more recent Australian authorities to the same effect: 364. … Under the general law there is no distinction to be made, so far as third parties are concerned, between a trustee in his personal capacity and a trust he administers as trustee. It is not sufficient, to exclude personal liability, that a trustee executes a document with a statement that he does so as trustee. The trustee remains personally liable, even if he may have a claim against the trust assets. 365. In Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773 ('Helvetic') Glass JA (with whom Samuels JA agreed) accepted the following two propositions (at 773): 1. A trustee who enters into a contract will normally incur unlimited personal liability unless by appropriate language or expressed stipulation such liability is restricted. 2. A mere description of the capacity in which he contracts as that of trustee is insufficient to exclude full personal liability. 366. Similarly, in Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 Gummow J said (at 253): It is fundamental that the common law does not recognise a trustee as having assumed an additional or qualified legal personality. This means that the liability of the trustee for debts he incurs includes those incurred in the course of performance of the trust. His liability to creditors is not limited or quantified by reference to the extent of the trust assets ... The debts are his debts … clear words are necessary to achieve a result whereby what is prima facie the unlimited personal liability of a trustee is … qualified: Helvetic Investment Corp Pty Ltd v Knight (1984) 9 ACLR 773. 367. In Re Interwest Hotels Pty Ltd (in liq) (1993) 12 ACSR 78 Eames J in the Supreme Court of Victoria also referred to the Helvetic case, saying (at 83): Where a trustee acting on behalf of a trust entered a contract then as a matter of law the trustee would be taken to be personally liable as well as having made the trust liable under the contract. Clear and unambiguous words would be required before the court would accept that the personal liability of the trustee had been excluded … 62 The learned primary judge in the present case held that the content of the Defence did not bring Mr Psevdos outside of the principles of trustee liability, particularly in respect of the Allocatur, because there was no contract between Mr Psevdos and CBA of the kind dealt with in the authorities such as Muir. I accept Mr Psevdos' submission that the reasons of the learned primary judge in both the Review Judgment and the Sequestration Judgment make no reference to CBA's letter of 7 May 2014. His Honour's reasons do not deal with the contention that there existed a contract between Mr Psevdos and CBA evidenced by that letter, by Mr Psevdos' withdrawal of his application in the possession proceedings and by the content of the Defence. I accept Mr Psevdos' submission that by the making and acceptance of the proposal, Mr Psevdos and CBA exchanged promises for valuable consideration intending to be legally bound by them. The essential elements of a contract appear to be present. 63 However, that circumstance does not justify the allowance of the appeal. That is because the words of [2] of the Defence do no more than to make an allegation as to the capacity in which Mr Psevdos transacted (in the past tense) with Schutara in the land forming the subject matter of the Supreme Court Proceedings. It does not constitute or evidence any common accord between CBA and Mr Psevdos to the effect that Mr Psevdos would not be personally liable in respect of any adverse costs order made against him in those proceedings. The Defence does nothing more than to assert a fact at a time after the Supreme Court Proceedings were commenced. There is nothing to suggest that CBA and Mr Psevdos agreed to limit Mr Psevdos' personal liability for costs as a term of the proposal it put forward in its letter of 7 May 2014, or that it agreed such a term proffered by Mr Psevdos at any other time prior to the commencement of the Supreme Court Proceedings. There were no other communications relied upon before the learned primary judge, or sought to be relied upon before me, capable of evidencing an agreement to such a term. Nor does the evidence support Mr Psevdos' claim that CBA was estopped from alleging, as it did on the bankruptcy notice, that Mr Psevdos was personally liable to pay the debt quantified on the Allocatur so that CBA must be limited to the property of the Orio Trust for its payment. Insofar as [2] of the Defence reflected Mr Psevdos' subjective intentions not to be personally bound by an adverse costs order, it was a unilateral statement of intention to which CBA neither agreed nor acquiesced. 64 Thus, even accepting that there was a contract between CBA and Mr Psevdos based on an agreement to the proposal made in CBA's letter of 7 May 2014, I am not satisfied that the terms of any such contract are to the effect contended for by Mr Psevdos. I would not disturb the conclusion of the learned primary judge that Mr Psevdos was personally liable for the debt specified in the bankruptcy notice.

The Deposit: Notice of Appeal, paragraphs 2, 6, 8XII - XVI, 14, 16 and 18 65 There were three limbs to Mr Psevdos' submissions concerning the payment of the Deposit into the trust account of CBA's solicitors. 66 The first is that the refusal to accept the payment evidenced CBA's collateral purpose and rendered the continuation of the creditor's petition an abuse of process. The second limb of the argument is that the learned primary judge erred in failing to find that the debt specified in the bankruptcy notice remained due and payable. The third limb is that the learned primary judge erred in failing to determine that Mr Psevdos' willingness and ability to pay the Deposit proved his solvency. 67 In McIntosh v Shashoua (1931) 46 CLR 494 (McIntosh) a debtor refused to accept payment of an assigned judgment debt after the creditor's petition in respect of the debt had been lodged. Starke J said (at 508): It would be quite contrary to the spirit of the Bankruptcy Act to compel a creditor to receive payment of the debt after an available act of bankruptcy had been committed. 68 Gavan Duffy CJ and Dixon J said (at 505): The fact that after the presentation of the petition, the debtor tended payment of the assigned debt and the tender was refused cannot in this case affect the result. A petitioning creditor is entitled to refuse payment and proceed with the petition. The refusal of the tender in this case is consistent with the conclusion, if it does not strengthen it, that the petition are truly desired to obtain a sequestration order; and it in no way tends to show that the reason why such an order was desired was anything but legitimate. (footnote omitted) 69 See also McTiernan J (at 521). 70 The Bankruptcy Act as in force at the time when McIntosh was decided required, on the presentation of a creditor's petition, proof of the debt of the petitioning creditor, of service of the creditor's petition and of the act of bankruptcy relied upon: Bankruptcy Act 1924 (Cth), s 56(2). The requirements of proof were not materially different from the requirements of proof now prescribed in s 52(1) of the Bankruptcy Act. CBA was entitled, in accordance with the principles stated in McIntosh to refuse to accept the Deposit: Tov-Lev v Lowbeer (No 2) [2014] FCA 379 at [84] (Rares J); Picone v Velos [2007] FCA 1183 at [16] (Sundberg J). Accordingly, the making of the Deposit did not bring about the result that the debt upon which CBA relied had been paid or was not "still owing" within the meaning of s 52(1) such that there could be no power to make a sequestration order. The learned primary judge did not err in so finding. 71 As to solvency, the onus was on Mr Psevdos to satisfy the learned primary judge that he was able to pay his debts: see s 52(2)(a) of the Bankruptcy Act. The question of solvency is one of fact, such that findings in relation to it ought not be disturbed on appeal except in accordance with the principles stated in Warren v Coombes (1979) 142 CLR 531. The material before the FCC on the question of solvency included an email from Mr Psevdos to CBA's solicitors of 30 May 2016 in which he first proposed to tender payment of the sum specified in the Allocatur. It read, in part: Wendy, I have been thinking and I have spoken to my mother who does support me from time to time. Even at our age (49), yes I agree not good. However, Australian-Greeks do that. I pay your client in 72 hours or sooner but no longer $122 000.00 if not I consent to a self executing order which will result in bankrupting me. Get instructions. That is what I will put to the Court this afternoon 72 The learned primary judge also had before him correspondence passing between Mr Psevdos and Mr Dean, the person who appears to have put up the funds to pay the Deposit. It is implicit in the reasons for the Sequestration Judgment that his Honour was not satisfied that Mr Psevdos was solvent. That conclusion was available to be drawn on the available evidence. No appealable error is demonstrated. 73 Consistent with what I have said at [47] above, the question of whether the making of the Deposit otherwise constituted "sufficient cause" not to make the sequestration order within the meaning of s 52(2)(b) of the Bankruptcy Act involves an evaluative judgment that should not be disturbed on appeal unless an error of the kind identified in House is identified. Once again, it was open to the learned primary judge to conclude that CBA's refusal to accept the Deposit was not a "sufficient cause" to refuse CBA relief. The learned primary judge was entitled to consider, as he did, whether the payment of the Deposit would affect Mr Psevdos' personal estate such that the payment might in any event be avoided upon a sequestration order being made on the petition of either one of the two supporting creditors waiting in the wings of the proceedings. 74 The appeal is dismissed. I will hear the parties as to costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.