Christodoulou, Re E.R. Christodoulou, Ex Parte E.R.

[1986] FCA 524

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD E894 of 1986
BANKRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	)

RE: ELFRIEDE RUTi CHRISTODOULOU

M PARTE: ELFRIEDE RUTH CHRISTODOULOU

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	3 NOVEMBER 1986
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The sequestration order made against the estate of

Elfriede Ruth Christodoulou on 6 October 1986 be

set aside.

2.

The costs of the applicant, Mrs. Christodoulou, of affidavits, be taxed and paid by the petitioning creditor to the said applicant.

Settlement and entry of orders is dealt with in

Rule 124 of the Bankruptcy Rules.

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IN THE FEDERAL COURT OF AUSTRhLIA

GENERAL DIVISION	QLD E894 of 1986
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND

RE: ELFRIEDE RUTH CHRISTODOULOU

EX PARTE: ELFRIEDE RUTH CHRISTODOULOU

PINCUS J. 3 NOVEMBER 1986

EX TEMPORE REASONS FOR JUDGMENT

This is an application made by Mrs. Elfrlede Ruth i

Christodoulou for an order that a sequestration order made by me

against her estate on 6 October 1986 be set aside. Among the

materials upon which I acted in making that order was an affidavit

of Mr. John Andrew Gibbison as follows:

I "On Monday the eighth day of September 1986 at 11.10

o'clock in the forenoon, I served Elfriede

Christodoulou with an official copy of the petition

of Budget Shopfitters Pty. Ltd. together with a

copy of the affidavit of Philip Francis Richards

sworn the twenty-eighth day of July 1986, verifying

paragraphs 1, 2 and 3 of the petition, a copy of

the affidavit of Tracy Leigh Robins sworn the

thirtieth day of July 1986, verifying paragraph 4

of the petition, and a copy of the affidavit of

Philip Francis Richards sworn the 21st day of personally at 594 Stanley Street, South Brisbane in

the said State. "

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The expression "delivering to her personally" does not,

to me, mean leaving on a table for her. Paragraph 2 reads as

follows :

"I identified the person I served by: virtue of the

fact that at the time of service the said Elfriede

Christodoulou admitted to me that she was the

person referred to herein as the Debtor."

The evidence In that affidavit has been challenged by the three

witnesses who have made affidavits and were called before me,

namely Mrs. Christodoulou herself, Tracey-Jayne Osborne, and Mrs.

Christodoulou's son, Peter John Wolff. The affidavlts of these

three persons are not entirely consistent with one another. The

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inconsistencies, however, do not greatly concern me. They seem to

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be the sort of variatlon one would expect to find between the

versions of people trying to recall events which were not, at the

time, of any great significance to them.

Their stories are, however, at one, in that they all say

the papers were not handed to Mrs. Christodoulou. For example, ! ' ,

Mrs. Christodoulou's version of events is that she had gone to the

toilet at the time when the papers were left; that is, she was

absent from the room. Peter John Wolff's verslon of events is

that he saw the man who is apparently Mr. Gibbison about 10 or 15

yards away from his mother and heard him call out; she did not

respond and left the factory, and the man shortly thereafter left	, y
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the papers on a table.

The account of events given by	Mr. Gibbison includes the	I. ,'
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following, that he spoke to Mrs. Christodoulou, told her that he	!
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wanted to see her and had some documents	o hand to her, that he	1-
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followed her to the rear door where, as she walked throuuh the

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I	door, she attempted to slam it in his face and	he prevented that,
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that she walked through a small ante-room. He then goes on:

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"I entered also and as the Defendant was walklng out

of this room, I informed her 'Mrs. Chrlstodoulou, I

have a Creditor's Petition for service on you. I

have already served Chris wlth a copy and he

informed me you would be here thls mornlng. Are

you the person named in the document as the

Judgment Debtor, Elfriede Chrlstodoulou?' I was

holding the Creditor's Petition out in front of me.

I She looked back, appeared to see the Credltor's

Petition and said 'Yes' or 'Yeah'. I said to her

'I'll leave the document on this table for you'. I

indicated towards the only table In the ante-room.

She looked around and appeared to see where I had

indicated. She did not respond, she continued to

walk towards the toilet room on the rear landing

section of the building. I left the premises again

by the rear stairway."

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My experience of professional process servers is such as

to make me rather doubtful about this account. I would have

thought that Mr. Gibbison would have attempted more firmly than he

did to give the papers to Mrs. Christodoulou. I , I ,-

Mr. Ambrose, who appears for the creditor, points out

that if Mr. Gibblson's account of events is correct, that would

have constituted due service, and	I agree with what he says.	a	,
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However, the real point I have to decide is: why were the papers

left on the table? Were they left on the table, as Mr. Gibbison

says, because Mrs. Christodoulou was moving away, or were they

left on the table because she was gone? It seems to me a little

more probable they were left on the table because she was gone. I

think that the suggestion that a process server would leave

documents on the table, as opposed to handing them to the person

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to be served, where there was an alternative open, is not

attractive, and I am also influenced somewhat by the fact that the

version of events now given, as it seems to me, 1s difficult to

reconcile with that on which I acted when I made the sequestration

order. :-.

It is true that one may find an excuse for the swearing

of the latter version in that a printed form was being followed. to me that Mr. Gibbison should have said, if that was the fact, "I

dld not dellver them to her personally. I left them on a table

near her and told her what the documents were."

I also agree with the suggestion made by Mr. Lee of

counsel, for Mrs. Christodoulou, that the statement i paragraph 2

of the affidavit of September which I have quoted is not easy to

reconcile with Mr. Gibbison's present evidence. However, I

hesitate to reject Mr. Gibbison's evidence. He was an impressive

witness and the task of determining who to accept is not an easy

one. There are legitimate points to be made, and they have been

made by Mr. Ambrose, against the evidence of Mr. Wolff, Miss

Osborne, and Mrs. Christodoulou, but in the end I prefer their

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evidence to that of Mr. Gibbison and propose to act on that basis.

It will therefore be ordered that the sequestration I

order made against the estate of Elfriede Ruth Christodoulou on	6
October 1986 be set aside.

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I will order that thc costs of thc applicant, Mrs.

Christodoulou, of and incldental to the hearing today, including i

the affidavits, be taxed and paid by the petitioning creditor I '

l respondent to the said applicant.

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