Re Harris, G.R. v. General Machinery & Equipment [1987] FCA 123

Settlement and entry of orders 1s dealt with in Rule 124 of the Bankruptcy Rules.

BANKRUPTCY DISTRICT OF THE SQUTHERN DISTRICT OF THE STATE OF QUEENSLAND )

This petition for a sequestration order was based on a bankruptcy notice The judament debtor seeks tc ace benind the

Judgrent debt and the matter nas been partly heara.

It appears thet early in 1985 one Robert Harris bought a motor, not from the petitioning creditor, and used it for about a year. It began to malfunction and that is said to have been due

Robert Harris used the motor on his farm, but he 1s said to have been absent when the trouble arose and his son, the judgment debtor, Garry Harris, contacted the vendor. Not obtaining any satisfaction there, he phoned the present petitioning creditor, the Queensland agent for the sale of the

Conversations took place about which there is no consensus. The petitioning creditor's case is that the judgment debtor agreed to buy a new motor and pay for it straightaway. The debtor says the motor was sent by way of fulfilment of a warranty

It seems to me improbable that the petitioning creditor would have agreed to replace the old motor for no charge, when it had no means of knowing whether the original motor had been deficient when sold. On the other hand, there is a degree of improbability about the petitioning creditor's case. It is said the judgment debtor, Garry Harris, who asked for the new motor, was thought to be the same person as the R. Harris to whom the new motor was sent. It 1s, possibly, more likely that Garry Harris did not claim to be R. Harris and that, when the petitioning creditor agreed to send the new motor, 1t made no assumption that

Garry Harris and R. Harris were one and the same person.

There must be some substantial reason for going behind a judgment and, here, that 1s perhaps supplied by the mere circumstances that both the invoices for the motor which have been tendered were sent to R. Harris. It may be a reasonable inference that they were intended for Robert Harris, not for the judgment debtor. Perhaps the principal reason that Garry Harris has found himself involved in these proceedings is that, as the correspondence shows, he contacted the judgment creditor after the invoices were sent. It appears to me to be a curiosity, if Garry

Harris was to be liable, that the invoices were sent to R. Harris,

and no claim seems to have been made against him until he wrote

Were there nothing in the case but the question whether the new motor was sent on the basis that it was not to be paid for, I would certainly not go behind the judgment. Unfortunately for the jugment creditor, there could be reason to question whether the person liable to pay for the new motor is, 1f anyone, Garry Harris rather than Robert Harris. An additional reason for questioning the judgment may be that it includes the price of work done on the repair of the old motor which seems, plainly, to have

At this stage it is unnecessary to attempt any final conclusion on the matter, for the judgment creditor has asked for an adjournment. It appears to me, as a matter of fairness, that it is necessary to grant the adjournment. When the matter was last heard, the judgment debtor relied upon affidavits which were filed but not served, so that the judgment creditor became aware of their existence for the first time when the matter was called

Since that date, I have been informed the new motor has been returned to the creditor. That was in response to a suggestion made on 6 March, namely that it was rather unfair to keep it, as Robert Harris appeared to suggest, merely to put

In the circumstances, 1t may be necessary to give the judgment creditor an opportunity to call further evidence, 1f it so desires, to counter that produced rather late by the judgment debtor. I have thought it might be helpful, however, to set out, by way of giving reasons for granting the adjournment, the initial impression that the facts so far elicited have created on my mind. It may be that calling further evidence would resolve the doubts I

The matter will be, as requested by the petitioning

creditor, adjourned for hearing until Friday, 27 March 1987 at

It should be mentioned, however, that unless' some special arrangement is made in the meantime, that will have to he treated as a mention date only, because there will not be a judge

i certify that this and the > preceding pages are a true copy of the reasons for judgment herein of His Honour