All Options Pty Ltd v Mathews (No 2)
[2021] FCCA 1639
•20 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
All Options Pty Ltd v Mathews (No 2) [2021] FCCA 1639
File number(s): MLG 4442 of 2019 Judgment of: JUDGE A. KELLY Date of judgment: 20 July 2021 Catchwords: BANKRUPTCY – application for review of exercise of power by a registrar – decision by registrar to make sequestration order – ground of opposition to petition that respondent not indebted to petitioner – judgment at trial affirmed on appeal – whether in truth and reality a debt owed – de novo hearing of petition – proof of matters required of petitioner established – no evidence of solvency – onus on debtor to persuade court that for other sufficient reason petition ought be dismissed – sequestration order affirmed. Legislation: Bankruptcy Act 1966 (Cth) ss 35A, 40, 52, 109
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) r 7.05
Federal Circuit Court of Australia Act 1999 (Cth) s 104Federal Circuit Court Rules 2001 (Cth) rr 20.03, 21.02
Cases cited: All Options Pty Ltd v Flightdeck Geelong Pty Ltd & Anor [2019] FCA 588
All Options Pty Ltd v Flightdeck Geelong Pty Ltd (No 2) [2019] FCA 1344
All Options Pty Ltd v Mathews [2021] FCCA 236
Bechara v Bates [2021] FCAFC 34
Cain v Whyte (1932) 48 CLR 639
Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106
Flightdeck Geelong Pty Ltd & Anor v All Options Pty Ltd [2020] FCAFC 138
Petrie v Redmond [1943] St R Qld 71
Pineview Property Holdings Pty Ltd v Dimitriou (No 2) [2019] FCA 1416
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132
Sayer-Jones v Juju Bean Investments Pty Ltd [2020] FCA 117
Stratton v Bowles (No 2) [2015] FCA 43
Wren v Mahony (1972) 126 CLR 212Number of paragraphs: 48 Date of hearing: 26 April 2021 Place: Melbourne Counsel for the Applicant: Mr S. Freire Solicitor for the Applicant: HWL Ebsworth Lawyers The Respondent In person ORDERS
MLG 4442 of 2019 BETWEEN: ALL OPTIONS PTY LTD (ACN 123 320 169)
Applicant
AND: DARREN MATHEWS
Respondent
ORDER MADE BY:
JUDGE A. KELLY
DATE OF ORDER:
20 JULY 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by audio and video link.
2.The Order made on 15 October 2020 for the sequestration of the estate of Darren Mathews under the Bankruptcy Act 1966 (Cth) be affirmed.
3.The application for review filed on 10 November 2020 be dismissed.
4.The respondent pay the applicant’s taxed costs of the application for review, including reserved costs, such costs to be paid in the priority accorded by s 109(1)(a) of the Bankruptcy Act 1966 (Cth).
5.Pursuant to r 21.02(2)(a)-(b) of the Federal Circuit Court Rules 2001 (Cth), the method by which the costs payable pursuant to paragraph (4) of this Order are to be calculated be as follows:
(a)within 7 days, the petitioning creditor file and serve an itemised list of the costs and disbursements sought in relation to the application for review;
(b)within 14 days of service of such itemised list, the applicant for review file and serve any notice objecting to any item of cost or any disbursement as sought by the petitioning creditor;
(c)the quantum of such costs be determined on the papers and fixed as a lump sum.
REASONS FOR JUDGMENT
JUDGE A. KELLY
Introduction
These reasons for judgment explain why orders are made dismissing an application for review of a decision by registrar who, on 15 October 2020, made an order for the sequestration of the respondent’s estate.
The application for review requires this court to conduct a de novo hearing of the creditor’s petition. In summary, I am satisfied by the petitioning creditor, All Options Pty Ltd
(All Options), of the matters of which proof is required by s 52(1) of the Bankruptcy Act 1966 (Cth) (Act) and of the matters required by the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth). Solvency was not put in issue. The substantive basis upon which the respondent, Mr Mathews, opposed the making of the sequestration order was that All Options had not proved its case in proceedings in the Federal Court of Australia brought against him and the company he controlled, Flightdeck Geelong Pty Ltd (Flightdeck). A difficulty confronting acceptance of that contention was that the judgment given in the Federal Court by Steward, J on 29 August 2019 was affirmed by an order of the Full Court made on 14 August 2020. I am not satisfied that for other sufficient cause the petition ought to be dismissed: Act, par 52(2)(b).Background
Many of the matters are below are drawn from judgments of the Federal Court of Australia and the parties’ submissions and affidavits filed in this proceeding.
Flightdeck, together with its sole director and shareholder, Mr Mathews, were sued for having engaged in misleading and deceptive conduct in connection with its sale of a trampoline business to All Options. The conduct relied upon was that the past sales and projected future profitability had been inflated and that this constituted the impugned conduct.
During the period 2016–2018, the respondents had been legally represented in the proceeding but were self-represented at the hearing. Following a contested trial, on 23 August 2019, the respondents were adjudged jointly and severally liable for damages quantified at $1,440,730 together with interest of $227,783.36 (in all the sum of $1,668,513.36) and costs. Those orders reflected the court’s reasons for judgment given on 30 April 2019: All Options Pty Ltd v Flightdeck Geelong Pty Ltd & Anor [2019] FCA 588. A finding made by the learned trial judge was that each week Mr Mathews had concocted the financial records of Flightdeck by adding an extra $10,000 to the actual figures in its weekly till reconciliation reports. A series of adverse findings were made respecting other such financial information and conduct.
It is also of some use to record that in a further judgment addressing issues arising from the deregistration of Flightdeck (which was undisclosed before delivery of reasons for judgment), Steward, J recorded his contemporaneous understanding of Mr Mathews’ submissions that he made “no real complaint about the quantification of the damages sought”: All Options Pty Ltd v Flightdeck Geelong Pty Ltd (No 2) [2019] FCA 1344, [6].
On 11 September 2019, a bankruptcy notice was served on Mr Mathews seeking payment of the sum of $1,668,513.36 pursuant to the judgment.
On 13 September 2019, a notice of appeal was filed seeking orders to set aside the judgment given on 23 August 2019. The notice of appeal was prepared by lawyers representing the appellants. Grounds 1-2 of the notice contended that the appellants had been denied procedural fairness in that inadequate assistance had been provided to them as self-represented litigants. Ground 3 made an ancillary complaint respecting the principles to be applied where a corporation sought to be represented by a director. Grounds 4-5 complained of the use of All Options’ expert report and the opinion evidence given upon damage and quantum. Orders were sought including that the judgment be set aside.
While Mr Mathews applied to set aside the bankruptcy notice, orders were made by a registrar on 5 December 2019 dismissing that application but extending the time for compliance with the notice to 12 December 2019. Mr Mathews did not so comply.
On 16 December 2019, All Options filed a creditor’s petition together with certain affidavits and a consent of Mr N Mellos to act as trustee.
On 15 January 2020, a mediation was conducted between the parties. Further, Mr Mathews was served with the creditor’s petition on that date.
On 10 February 2020, Mr Mathews’ solicitor filed a notice of appearance together with a notice stating the grounds of opposition and an affidavit in support of those grounds. From the notice, Mr Mathews contended that, within the meaning of s 52(1) of the Act, the court should not be satisfied he was indebted to All Options by reason that the judgment upon which the bankruptcy notice was founded was the subject of an appeal. He relied upon those facts as constituting a sufficient cause within the meaning of par 52(2)(b) of the Act to dismiss the petition.
The creditor’s petition was first returnable on 13 February 2020 and on that date orders were made, by consent, adjourning the petition. The adjournment was agreed so as to allow for the determination of the appeal.
On 24 July 2020, a Full Court heard argument on the appeal. At that hearing, Flightdeck and Mr Mathews were represented by two counsel who, in turn, were instructed by the lawyers who had, and have since, been retained by Mr Mathews and his company in the period 2016 – 2020.
On 14 August 2020, the Full Court dismissed the appeal brought from the judgment given on 23 August 2019: Flightdeck Geelong Pty Ltd & Anor v All Options Pty Ltd [2020] FCAFC 138. As the Full Court recognised, while the central issue in the appeal turned upon the scope of the duty to assist an unrepresented litigant in the conduct of a trial, the complaint was without merit. The Full Court concluded there was nothing to suggest any lack of assistance had the potential to affect the outcome of the case. Relevantly to the present application Grounds 4-5 were also rejected for the reasons below. The Full Court’s reasoning was comprehensive.
On a second and third occasion (17 August and 3 September 2020), the petition was again adjourned and directions were made affording Mr Mathews opportunities to file any amended grounds of opposition and affidavit in support. Those directions were made so as to enable Mr Mathews some opportunity to obtain from the Federal Court access to a box of documents which had been tendered before Steward, J. While some dispute had been raised before the registrar as to access to those documents, ultimately it was accepted that such access had been provided on 2 October 2020 and a finding was made that Mr Mathews had been afforded a reasonable opportunity to examine those documents for the purposes of this proceeding.
Mr Mathews did not file any amended grounds of opposition to the petition. Until 14 October 2020, Mr Mathews had been legally represented.
The hearing of the petition was adjourned to 15 October 2020 and on that date a further adjournment was sought by Mr Mathews, which application was refused. Instead, an order was made for the sequestration of Mr Mathews’ estate. The court noted 12 December 2019 as the date of commission of an act of bankruptcy. It also noted the trustee’s consent to act had been filed.
On 10 November 2020, Mr Mathews filed an application for the review of the registrar’s exercise of power in making the sequestration order and sought an order setting aside the sequestration order and for the enforcement and administration of the sequestration order to be stayed, pending determination of that review.
In an affidavit affirmed by Mr Mathews on 2 November 2020 in support of his application for review, he merely deposed that:
I confirm that I have submitted a form B3A today to the Federal Court via e-lodgement and that this review is within the 21-day period of which I must submit this application.
The application for review, which had been listed administratively for directions on 3 December 2020 was adjourned to 9 February 2021. In the period between filing the application and that hearing date, Mr Mathews filed no further evidence.
In the course of the hearing on 9 February 2021, I was clear in informing Mr Mathews that on the basis of his one-paragraph affidavit above, his present application for review must fail and that it would be in his interests to obtain legal advice. The bankrupt submitted that in November 2020 he had sought legal advice but that he had been told, in effect, that a lawyer would need some time to look at the matter. In my view, Mr Mathews had already had a significant amount of time for the matter to be looked at, and I emphasised the importance of him not sitting on his hands and taking any steps that were properly open to him to adduce evidence upon which he might rely in support of his application for review of the sequestration order. Orders and directions were made regulating the filing of any further affidavits and adjourning the proceeding for hearing on 26 April 2021. There being no cogent evidence in support of it, the application for a stay of the sequestration order was dismissed: All Options Pty Ltd v Mathews [2021] FCCA 236.
By the order made on 9 February 2021, Mr Mathews was to file any further affidavit by 9 March 2021 and All Options was to do so by 23 March 2021. That is, Mr Mathews was allowed one month to prepare further material while the petitioning creditor was allowed a period of two weeks to do so.
In the event, on 26 March 2021 (rather than by 9 March 2021), Mr Mathews filed an affidavit that he had sworn on 12 March 2021, deposing to the matters on which he relied in support of his contention that “the court should look behind the judgement under s 52(1)(c) of the Bankruptcy Act (“the Act”) and find that there is no judgment [sic] owing to the Applicant upon which [the] sequestration order could have been made.” Mr Mathews’ affidavit was arranged in essentially four parts by which he addressed the following topics: (1) self-representation at trial; (2) sales figures; (3) valuation evidence of the business and assets; (4) conclusion. I have examined that affidavit and the documents exhibited to it.
Consideration
Each of the parties made written and oral submissions which I have considered.
While Mr Mathews’ application sought the review of the registrar’s decision “per subsection 35A(5) of the Act and Rule 7.05 of the Rules”, seemingly with reference to the applicable provisions of the Federal Court of Australia Act 1976 (Cth) and Federal Court (Bankruptcy) Rules 2016, the application was clearly intended to engage the entitlement conferred by
s 104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) to apply to this court for a review of the exercise of power by a registrar of this court. On such an application, this court may make any order or orders it thinks fit in relation to the matter in respect of which power had been exercised by a registrar: s 104(3).The review of an exercise a power by a registrar must proceed by way of a hearing de novo: Federal Circuit Court Rules 2001 (Cth), r 20.03; Bechara v Bates [2021] FCAFC 34.
The court hears the creditor’s petition afresh and for that reason it is the creditor who bears the onus of proving the matters of which the court is to require proof engaging the discretionary power to make a sequestration order. Those matters are provided by s 52(1) of the Act which provides that at the hearing of a creditor’s petition the court shall require proof of the matters stated in the petition, service of the petition and the fact that the debt or debts on which the petitioning creditor relies is or are still owing. The petitioner’s verifying affidavit may be accepted as sufficient proof of those matters.On 23 August 2019, All Options obtained a final judgment, the execution of which has not been stayed. Subject to the matters which follow, I am further satisfied that Mr Mathews committed an act of bankruptcy constituted by his failure, before 12 December 2019, to comply with the bankruptcy notice that had been served upon him: Act, par 40(1)(g).
Subject to the question of debt, I accept the affidavit verifying the petition as being sufficient proof of the matters stated in the petition: Act, par 52(1)(a). I was satisfied of proof of service of the petition and that the debt[s] relied upon are still owing: Act, pars 52(1)(b)-(c).
All Options thus established a prima facie entitlement to the making of a sequestration order against the estate of Mr Mathews: Cain v Whyte (1932) 48 CLR 639, 646.
Section 52(2) confers power to dismiss a petition in a variety of circumstances including where the court is not satisfied of proof of the matters required by s 52(1) or is satisfied by the debtor that he or she is able to pay his or her debts or “that for other sufficient cause a sequestration order ought not to be made.” No evidence of solvency was adduced.
Mr Mathews’ notice of grounds of opposition to the petition focused upon the court going behind the judgment under s 52(1)(c) of the Act. Despite the focus of his grounds of opposition, I considered Mr Mathews submissions as directed both to pars 52(1)(c) and 52(2)(b) of the Act: cf Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132, [58], [77], [110].
Mr Mathews’ submission asserted that it had been made clear on 9 February 2020 that he “did not have the ability to respond to the applicant’s affidavit” and that while he had “found this strange I at least took this in my stride.” Contrary to that submission, it had been explained to Mr Mathews that his application for review of the decision to make a sequestration order must fail on the basis of his one paragraph affidavit and that he ought to consider obtaining legal advice and adducing such evidence as he sought to rely upon. It was in consequence of the matters to which Mr Mathews attention had been directed on 9 February 2020 that he made a further affidavit identifying the matters upon which he relied in opposing the petition.
While Mr Mathews complained of the late service of the petitioners’ submissions, he appeared to overlook that its delay in doing so mirrored his own delay in serving his own affidavit. Mr Mathews did not explain why his affidavit sworn on 12 March 2021 had not been filed until 26 March 2021. Although Mr Mathews also complained of the length of All Options’ submissions, in truth those submissions addressed a number of matters which reflected the petitioner’s recognition that Mr Mathews would be self-represented at the hearing and provided useful background illuminating the issues that his affidavit foreshadowed would be relied upon on the application for review. In particular, the careful written submissions of the petitioners’ counsel identified the applicable legal principles, including those upon which it was necessary for Mr Mathews to rely in his application for review and those which were relevant to an evaluation whether the petitioners own submissions ought to be accepted. They also annexed a series of documents comprising comparative sales data and the parties’ respective submissions at trial. The necessity to do so arose from matters in Mr Mathews’ affidavit.
It was common ground that the court has power to go behind a judgment for the purposes of deciding whether a sequestration order should be made: Wren v Mahony (1972) 126 CLR 212, 221-226; Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132, [68]. Two substantive considerations are involved in the exercise of power to ‘go behind’ a judgment. First is that the Bankruptcy Court is to be satisfied whether in truth and reality there is a debt upon which the petitioning creditor may obtain a sequestration order. Secondly is recognition that the exercise of power to make the order is one which directly interferes with the interests of other creditors: Ramsay Health Care (2017) 261 CLR 132, [55]-[56], [71], [92], [98], [109].
In Ramsay Health Care, Kiefel CJ, Keane and Nettle JJ, with whom Edelman J agreed, recognised that a judgment may usually be taken as a reliable indication of the true state of a party’s indebtedness, particularly where that judgment reflected the testing of the relative merits of a claim, defence and any counterclaim following the conduct of a proceeding “under the rigours of adversarial litigation”: [68], [96]. Their Honours acknowledged the need to look with suspicion upon judgments obtained by default or consent or where evidence had not been adduced in good faith such that the interests of other bona fide creditors may be prejudiced by the making of a sequestration order: [55], [69]-[71]. Although dissenting in the result, upon a detailed examination of the authorities, Gageler J at [92] adhered to the foundational consideration “that, under whatever circumstances a judgment may have been obtained” the interests of other bona fide creditors should not fall victim of a failed legal process and accordingly, a Bankruptcy Court retained jurisdiction “to go behind a judgment entered into after a trial on the merits were a prima facie each case of miscarriage of justice can be shown.” The point of principle upon which his Honour dissented was that the discretion conferred by s 52 to dismiss a petition should not extend to cases where, after a fully contested trial, a debtor sought, retrospectively, to go behind the judgment on the basis of poor forensic choices which may have been made in the course of that trial. In such cases, bona fide creditors were as much bound by the result of the litigation as were the parties to it: [92]. The plurality also recognised the force of those considerations but concluded the interests of other bona fide creditors should not have been prejudiced by the making of a sequestration order where the evidence left open whether a debt was truly owing: [71]. Edelman J, observed that, absent some evidence of fraud, collusion, or miscarriage of justice, once a judgment had been established following a contested trial, a Bankruptcy Court “will rarely have substantial reasons to investigate whether the debt which merged in the judgment was truly owed”: [111]; see also Sayer-Jones v Juju Bean Investments Pty Ltd [2020] FCA 117, [11] (Bromwich, J).
Necessarily, in some cases, the enquiry may be fact intensive, but where litigation has been fully contested and a judgment given upon evidence and submissions, and affirmed on appeal, substantial reasons or special circumstances must be demonstrated by the debtor to the requisite standard before a Bankruptcy Court will be persuaded to dismiss the petition.
For the purpose of satisfying itself as to the existence of the debt upon which a bankruptcy notice is based, “the principles must be applied flexibly in view of the myriad circumstances that might arise” and further “the circumstances in which the Court will go behind a judgment are not closed or constrained to any fixed categories”: Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, [60]; Pineview Property Holdings Pty Ltd v Dimitriou (No 2) [2019] FCA 1416, [50]. Those broad statements rest upon settled principles including that for the purposes of ‘going behind’ a judgment a distinction is to be drawn between a judgment which has been obtained by default, by consent, in consequence of a compromise and judgment given following a fully contested hearing in adversarial litigation. Even in the latter circumstance, the fact that the judgment was obtained following a contested hearing does not foreclose the court from going behind a judgment.
Nonetheless, as was emphasised in Wren v Mahony (1972) 126 CLR 212, 222-223, “the Bankruptcy Court will not as a matter of course inquire into the validity of a judgment debt.” To the contrary, the debtor bears the onus of establishing, to the requisite standard, that special circumstances or substantial reasons exist such that the court ought to exercise its discretion to conclude that there is not in truth and reality a debt established by the judgment upon which the bankruptcy notice was founded. Expressed in the terms of par 52(2)(b), the court may dismiss a petition where satisfied by the debtor that for other sufficient reason a sequestration order ought not be made. Illustrations of the circumstances in which the court might be so persuaded is where a debt had been established by judgment but the debtor has taken active steps to apply to set aside or appeal from, the judgment. The taking of those steps merely engages the discretion to dismiss the petition: Stratton v Bowles (No 2) [2015] FCA 43, [51]. The court is ultimately concerned to evaluate whether “in truth and reality” a debt exists. It is for this reason the Bankruptcy Court may look with suspicion on a default or consent judgment in the circumstances of a particular case. The power to dismiss a petition is discretionary.
The present case is to be distinguished from those in which a debtor seeks that the court ‘go behind’ a judgment that was obtained by default or consent, including as a result of a compromise. And nothing in the reasons of the trial judge or the Full Court afford any basis for a conclusion that the circumstances tend to show fraud, collusion or any miscarriage of justice. The debt upon which the petitioning creditor relied has been established by a judgment of the Federal Court of Australia and affirmed by a decision of the Full Court of the Federal Court: All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588; Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 147 ASCR 227. In each case, the judgment was the product of a contested hearing in an otherwise adversarial proceeding.
I have examined the reasons of the learned trial judge and those of the Full Court and see nothing in those reasons as might support a conclusion that there are in this case special circumstances or substantial reasons as might persuade this court to conclude that there is not in truth and reality a debt established by the judgment upon which the bankruptcy notice was founded: cf Petrie v Redmond [1943] St R Qld 71, 75-76; Wren v Mahony (1972) 126 CLR 212, 224-225, Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132, [65], [69], [110]. Nor am I persuaded otherwise to exercise the discretion to dismiss the petition.
As the Full Court observed, the appellants had been legally represented for some time before the hearing and, upon its examination of the manner in which the learned trial judge had conducted the hearing, Steward, J had been careful to advise Mr Mathews about material aspects of the conduct of the trial. Further, for the purposes of their appeal, Mr Mathews and Flightdeck had been represented by counsel with specialist experience in commercial law. The Full Court observed that having identified the expert evidence upon the issue of quantum, the trial judge enquired of Mr Mathews whether he had any further questions to ask of the court.
Relevantly for present purposes, the Full Court concluded the objective circumstances revealed Mr Mathews to have a detailed understanding of the case and an intimate familiarity with the financial position of the subject business. It recognised also that Mr Mathews had acumen, intelligence, substantial business experience and “knowledge of the valuation of businesses [which] exceeded that of most people”. The latter finding was made in the context of the manner in which Mr Mathews had questioned the appropriateness of an expert adopting a particular earnings multiple for the purposes of assessing quantum in the case.
Each matter of complaint upon which Mr Mathews sought to rely for the purposes of his appeal was addressed in detail by the Full Court. On appeal, no challenge was raised in relation to the question of liability. Only the adequacy of assistance and quantum were in issue.
As concerned the question of quantum, Grounds 4-5 were addressed by the Full Court at
[128]–[160]. It concluded no error was shown in the trial judges adoption of values given by an expert in the first of her three reports and, on that basis, concluded that each of these grounds of appeal must fail. While I do not rehearse the entirety of the Full Court’s analysis of these grounds, it recognised that: All Options had advanced its claim for damages on an orthodox basis, being that had the representations not been made it would not have purchased the business; the trial judge had adopted a midpoint between two values arrived at by two distinct methodologies; expert reports comprising two valuations prepared on behalf of the appellants had been rejected; while rejecting the third of three expert reports prepared on behalf of All Options, otherwise, the opinions expressed by that expert were found to be reasonably based; no objection had been taken to the tender of the reports of All Options’ expert; it had rejected the appellants’ complaints respecting the reliance placed by All Options’ expert upon the financial records; Mr Mathews had demonstrated a capacity to cross-examine All Options’ expert and, while his cross examination revealed an awareness of the basis of her calculations, the expert had not been cross-examined about the veracity of her valuation based on net asset value; the objection to the expert evidence had been raised for the first time on appeal; in any event, it was not without significance that it was not submitted the expert’s interpretation of relevant data was in error; the expert’s report was otherwise not inadmissible; a putative error in in relation to the use of a single line item from the financial accounts was a wholly unacceptable basis for rendering the expert valuation to be erroneous.For all of those reasons the Full Court rejected Grounds 4-5, concluding that the appellants had not established any error in the reasoning of the primary judge in relation to the acceptance of the opinion evidence of All Options’ expert both upon her business valuation and assessment of damages. Relatedly, the Full Court refused an application for leave to amend Ground 4 as to the admissibility and proof of facts underlying her expert report: [158], [159].
I am satisfied that in truth and reality Mr Mathews liability to All Options for the alleged debts was established by the judgment given following a contested hearing and as affirmed on appeal by the Full Court and that there is neither substance in his contentions, nor any special circumstances shown, to question otherwise. None of the matters now suggested by Mr Mathews are new, they having been addressed at trial and ventilated, unsuccessfully, on appeal. For those reasons, Mr Mathews has not satisfied me that for some other sufficient cause a sequestration order ought not to be made or that the petition should be dismissed. Had I been so satisfied, in this case I would not have exercised the discretion to dismiss this petition.
Rather, upon this de novo hearing, I am satisfied that a sequestration order should be made and, conformably with established practice, orders are made dismissing the application for review and affirming the making of the sequestration order. Each of the parties having sought costs on the review, All Options is entitled to an order for the costs of Mr Mathews’ application for review. All Options had prepared a short form itemised bill of costs as at September 2020 and should update that, in short form, in order that Mr Mathews is afforded an opportunity to raise objection to any particular item that is claimed. The costs should be fixed in a lump sum.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Kelly. Associate:
Dated: 20 July 2021
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