Efstratiadis P. v Commonwealth of Australia

[1990] FCA 170

Re: PETROS EFSTRATIADIS
And: COMMONWEALTH OF AUSTRALIA
No. 1083 of 1989
FED No. 170
Bankruptcy
22 FCR 167

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Von Doussa J.(1)

CATCHWORDS

Bankruptcy - bankruptcy notice - application to set aside - whether abuse of process in issuing second bankruptcy notice - whether debt compounded to satisfaction of judgment creditor - whether Department of Social Security agreed to accept repayment of benefits fraudulently obtained by instalments - whether Department had authority to take recovery action after Director of Public Prosecutions assumed conduct of proposed action against the debtor - whether recovery action in District Court instituted against debtor in breach of forebearance to sue - whether Court should go behind default judgment - application dismissed.

Social Security Act 1947, ss.13, 14, 246, 251

Director of Public Prosecutions Act 1983, s.6

HEARING

ADELAIDE

#DATE 30:4:1990

Counsel for the judgment debtor : Mr A.M. Burtt

Solicitor for the judgment debtor : Andersons

Counsel for the judgment creditor : Mr R.C. White

Solicitor for the judgment : Director of Public Prosecutions
creditor

ORDER

The application to set aside the bankruptcy notice be dismissed with costs.

Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.

JUDGE1

This application to set aside a bankruptcy notice which was issued on 16 November 1989, and served on 26th November 1989, is based on two grounds identified in the debtor's affidavit filed in support of the application: that the judgment debtor has compounded the debt to the satisfaction of the judgment creditor, and that the issue of the bankruptcy notice is an abuse of process as a previous bankruptcy notice ("the first bankruptcy notice") based on the same judgment debt had been set aside by this Court on 6 November 1989.

1. To understand the contentions of the debtor it is necessary to outline the background facts. Between 1979 and 1987 the debtor obtained a total of $26,231.50 as benefits under the Social Security Act 1947 to which he was not entitled. During 1988 he was charged with, and pleaded guilty to, 55 offences against s.29A of the Crimes Act 1914 (defrauding a public authority under the Commonwealth by a false pretence). On 16 August 1988 he was sentenced to a term of two and a half years imprisonment, however pursuant to para.20(1)(b) of the Crimes Act it was ordered that he be released after serving six months imprisonment upon the conditions of a bond. Shortly prior to being arraigned on these charges the debtor made restitution to the extent of $5,000.

2. On 5 March 1987 the debtor had been granted an invalid pension. From 18 August 1988 (the first payment date after he was sentenced) moneys were withheld from his pension by the Department of Social Security on account of the outstanding balance of the payments made in consequence of his fraudulent conduct. The debtor was entitled to receive two payments of invalid pension after commencing to serve his sentence, but by mistake he was sent an extra payment which created a second "overpayment", the repayment of which was claimed from the debtor but not forthwith repaid by him.

3. On the debtor's release from gaol he again became entitled to receive the invalid pension. Payments resumed on 31 March 1989.

4. On 31 March 1989 the debtor signed a document proferred to him by the Department of Social Security at the Modbury Office ("the undertaking to repay"). The body of the document, which for the most part is a printed form, reads :
   

"Commonwealth of Australia

Department of Social Security

ACKNOWLEDGEMENT OF DEBT AND UNDERTAKING TO REPAY I PETER EFSTRATIADIS of 32 Bendigo Cres, Modbury 5092 hereby acknowledge that I owe the Department of Social Security the sum of $20375.70 which is an overpayment of Sickness Benefit that occurred when -.

I offer to pay this amount by instalments of $40.00 per week/fortnight/month until the debt is fully paid.

If I keep up with these payments the Commonwealth will not take any legal proceedings to recover the debt. I am aware that if I fail to pay any instalment, that part of the debt that is still unpaid will become immediately due and payable and proceedings in a Court of Law may begin to recover that amount.

Note: I understand that I do not have to sign this acknowledgement of debt and agreement to repay by instalments, but I understand that if I choose not to sign, legal proceedings may be instituted to recover the debt in a Court of Law. This acknowledgement may be used as evidence of the debt and may affect the time within which the Commonwealth may take proceedings against me."

1. In the body of the document the word "fortnight" has been circled indicating an offer to pay by instalments of $40.00 per fortnight. At the foot of the document there is provision for the signature of the person giving the undertaking, and for the "Delegate's signature Department of Social Security". By the appearance of the photocopy of the undertaking to repay exhibited to the affidavit of Mr J. Ruciak, a solicitor in the employ of the Adelaide Office of the Director of Public Prosecutions ("the DPP"), the document was signed by the debtor, and also initialled by a "delegate". As Mr Ruciak deposes, it seems someone at the Modbury Office of the Department of Social Security purported to enter into an agreement with the debtor in the terms recorded in the undertaking to repay. From payments of invalid pension made on 31 March 1989 and 13 April 1989 sums of $40.00 were deducted. Notwithstanding the reference to an "overpayment of Sickness Benefits" in the text of the undertaking to repay, these withholdings of invalid pension (and others which were deducted each fortnight in succeeding weeks) were first applied to recoup the overpayment of invalid pension which arose during the debtor's imprisonment. However it is not suggested anything turns on that fact which, on the information before the Court, was not known to the debtor.

2. On 17 April 1989 the Department of Social Security by letter advised the debtor :
   

"To recover an overpayment, $40.00 will be withheld from your pension each fortnight from 27 April

1989. The amount payable to you will be $167.10 a fortnight".

Two days later another letter from the Department of Social Security, dated 19 April 1989, advised the debtor that :

"To recover an overpayment the amount withheld from your pension has been varied to $29.00 each fortnight from 27 April 1989. The amount payable to you will be $178.10 a fortnight."

1. According to the affidavit of Mr Ruciak, in June 1988 the Criminal Assets Branch of the Office of the DPP in Adelaide "assumed control of the civil remedies in relation to the overpayment...pursuant to section 6 of the Director of Public Prosecutions Act 1983." The "overpayment" referred to was the amount received by the debtor by his fraudulent conduct in the years between 1979 and 1987. The material part of s.6 of the Director of Public Prosecutions Act 1983 reads :
   

"6.(1) The functions of the Director are - ...

(h) in respect of relevant matters that are matters in relation to which an instrument under sub-section (3) is in force -

(i) to take civil remedies on behalf of and in the name of the Commonwealth and authorities of the Commonwealth; or

(ii) to co-ordinate or supervise the taking of civil remedies by or on behalf of the Commonwealth and authorities of the Commonwealth;

...

(3) The Attorney-General may, by writing signed by the Attorney-General, specify a matter or class of matters for the purposes of paragraph (1)(g) or

(h) and, where the Attorney-General so specifies a matter or class of matters, a copy of the instrument specifying that matter or class of matters shall be published in the Gazette when the Attorney-General considers it appropriate to do so."

A "relevant matter" is defined by sub.s.6(8) and includes a matter connected with, or arising out of, a prosecution of the kind which was instituted against the debtor for offences under s.29A of the Crimes Act. On 21 August 1985 the Attorney-General of Australia, pursuant to sub.s.6(3) had specified for the purposes of para.6(1)(h) matters giving rise to a liability on the part of any person to repay moneys obtained under the Social Security Act 1947. A copy of that instrument was published in the Gazette on 17 September 1985.

1. The Criminal Assets Branch of the DPP was not aware until much later of the action taken by the Department of Social Security on 31 March 1989, or of the withholdings being made from the payments of invalid pension. On 17 April 1989 a summons was issued on behalf of the judgment creditor (the Commonwealth) by the DPP in the District Court of Adelaide claiming the balance still outstanding of the money received by the debtor in consequence of his fraudulent conduct. The summons was served on 20 April 1989. The affidavit of Mr Ruciak deposes that correspondence followed between the Office of the DPP and solicitors acting for the debtor, but the contents of those communications (to which the debtor's affidavit makes no reference), has not been disclosed to the Court. Whatever the communications, no appearance to the summons was filed by or on behalf of the debtor, and a judgment by default was entered in favour of the Commonwealth on 7 June 1989. Upon that judgment the first bankruptcy notice was issued on 25 August 1989 and served on 30 September 1989. The debtor made application to set aside the bankruptcy notice on the ground that he had already compounded the debt to the satisfaction of the Commonwealth. The debtor relied on the letters from the Department of Social Security dated 17 and 19 April 1989 as evidence of that fact.

2. On 6 November 1989 the Commonwealth consented to the bankruptcy notice being set aside with costs. Then on 16 November 1989 the bankruptcy notice, the subject of the present application, was issued ("the second bankruptcy notice").

3. The debtor's contention that the second bankruptcy notice is an abuse of process can be disposed of shortly. The contention was not pressed on the hearing of the application. The uncontested affidavit evidence from Mr Ruciak is that the DPP consented to the dismissal of the first bankruptcy notice for the reason that the DPP, having only recently become aware of the withholdings made from the debtor's invalid pension by the Department of Social Security from 31 March 1989, was not able at 6 November 1989 to assure the Court that the amount stated in the bankruptcy notice (which included a sum for interest calculated from 7 June 1989) was the correct amount due. This explanation was given to the solicitors acting for the debtor and to the Court at the time. The extent of the moneys withheld was then ascertained, the precise amount still due under the judgment was recalculated, and the second bankruptcy notice issued. In my opinion the issue of the second bankruptcy notice in these circumstances did not involve an abuse of process.

4. The affidavits filed in opposition to this application sought to advance an argument that the Department of Social Security on 31 March 1989 had no authority to enter into any arrangement with the debtor for the recovery of the balance outstanding of payments made in consequence of the debtor's fraudulent conduct. The argument was that once the Criminal Assets Branch of the Office of the DPP assumed control of the civil remedies in relation to that conduct, the DPP had exclusive authority on behalf of the Commonwealth to pursue civil remedies in the name of the Commonwealth. No argument was advanced on behalf of the Commonwealth on the hearing of the application in support of this submission, but counsel said it was not abandoned. In my view the point is without substance. It is convenient at this point to refer to relevant parts of ss.246 and 251 of the Social Security Act 1947 which provide :
   

"246.(1) Where, in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance or benefit under this Act which would not have been paid but for the false statement or representation, failure or omission, the amount so paid is a debt due to the Commonwealth.

(2) Notwithstanding anything contained in this Act, where -

(a) an amount has been paid by way of pension, benefit or allowance under this Act that should not have been paid; ...

and the person to whom that amount was paid is receiving, or is entitled to receive, a pension, benefit or allowance under this Act (other than a funeral benefit under Part VIII), that amount (including any amount payable by the person under subsection (3)) shall, unless the Secretary takes action under sub-section 251(1) in relation to that amount, be deducted from that last-mentioned pension, benefit or allowance by reducing each payment of that pension, benefit or allowance by a proportion of that pension, benefit or allowance, being a proportion decided by the Secretary in each particular case, until the sum of the amounts by which the payments are reduced equals that amount.

251.(1) The Secretary may, on behalf of the Commonwealth, decide to -

(a) write off debts arising under or as a result of this Act, or debts arising under or as a result of this Act that are included in a class of debts specified by the Minister by notice in writing published in the Gazette;

(b) waive the right of the Commonwealth -

(i) to recover from a person the whole or a part of a debt that is payable by the person under or as a result of this Act; or

(ii) to recover debts under or as a result of this Act included in a class of debts specified by the Minister by notice in writing published in the Gazette; or

(c) allow an amount that is payable by a person to the Commonwealth under or as a result of this Act to be paid in instalments. ...

(3) Where an amount becomes payable by a person to the Commonwealth under or as a result of this Act because of -

(a) a false statement or representation made by any person; or

(b) a failure or omission by any person to comply with a provision of this Act, proceedings for the recovery of that amount may be commenced at a time within the period of 6 years commencing on the day on which an officer becomes aware that the statement or representation was false or that the person had not complied with that provision, as the case may be."

1. By force of sub.s.246(1) the benefits received by the debtor in consequence of his fraudulent conduct became a debt due to the Commonwealth. Sub-section 246(2) provides, subject to action by the Secretary under sub.s.251(1), for the automatic withholding of amounts from future payments of the debtor's invalid pension. In my opinion sub.s.246(2) does not exclusively govern the rights of recovery available to the Commonwealth in cases which fall within the scope of the sub-section. The Act itself provides another mode of recovery in s.162, and I consider it is open to the Commonwealth to take recovery action in a court of competent jurisdiction in respect of the debt created by force of sub.s.246(1). In such a case whatever independent action is taken may occur in parallel with the remedy provided by the scheme under sub.s.246(2). That scheme takes effect unless the Secretary, under paras.251(1)(a) or (b) has written off or waived the debt, or has allowed the debt to be repaid otherwise by instalments under para.251(1)(c). Apart from the operation of s.6 of the Director of Public Prosecutions Act the Secretary (or a delegate appointed under s.14 of the Social Security Act) has power to enter into an agreement for the payment by instalments of a debt due to the Commonwealth by force of sub.s.246(1), and the Secretary pursuant to s.13 (or his delegate) has power to issue proceedings of the kind to which sub.s.251(3) refers to recover the debt.

2. In the construction of ss.246 and 251 it is helpful to have regard to their history. Prior to section renumbering brought about by the Social Security Amendment Act 1987 (No.77 of 1987) and the Social Security (Review of Decisions) Act 1988 (No.85 of 1988) the precursor to s.246 was s.140 of the Social Security Act. Immediately prior to amendment by s.71 of the Social Security and Repatriation (Budget Measures) Amendment Act 1985 (No. 127 of 1985) sub.ss140(1) and 140(2) read :
   

"140.(1) Where, in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, or benefit under this Act which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth.

(2) Notwithstanding anything contained in this Act (other than sub-section (3)), where, for any reason, an amount has been paid by way of pension, allowance, or benefit under this Act which should not have been paid, and the person to whom that amount was paid is receiving, or entitled to receive, a pension, allowance or benefit under this Act (other than a funeral benefit under Part IVA), that amount may, if the Director-General in his discretion so determines, be deducted from that pension, allowance or benefit."

1. The construction of those sub-sections was considered in Director-General of Social Security v. Harris (1982) 44 ALR 645, Director-General of Social Services v. Hangan (1982) 45 ALR 23 and Director-General of Social Services v. Hales (1983) 47 ALR 281. In those cases submissions were made on behalf of the Director-General that sub.s.140(1) was a "self-operating" provision which created a debt due to the Commonwealth if the specified circumstances existed, and recoverability was therefore not dependent on any departmental decision which could be the subject of an appeal to the Administrative Appeals Tribunal. In the two last-mentioned decisions it was held that action taken pursuant to sub.s.140(1) to recover amounts paid in consequence of circumstances falling within the sub-section did involve departmental decisions. But it was accepted that the sub-section operated of its own force, if the circumstances existed, to make the over-payment recoverable as a debt (see in particular Director-General of Social Services v. Hangan, supra, at 43 per Fitzgerald J.). Then in 1985 sub.s.140(1) was amended to read as it now stands, a new sub-section 140(2) was inserted, and s.146 (now s.251) was enacted. These amendments eliminated the necessity for certain departmental decisions under s.140, and also served to emphasise that sub.ss.140(1) and (2) as amended are "self-operating" in the imposition of liability.

2. It is clear that prior to the amendment sub.s.140(1) the concluding words "a debt due to the Commonwealth" meant a debt immediately due and payable to the Commonwealth. In Clyne v. Deputy Commissioner of Taxation (1981-1982) 150 CLR 1 the High Court held that the word "due" in its primary sense when used in relation to debts and in the absence of anything in the context in which it is used to suggest otherwise, has the meaning of: "sums certain which any person is legally liable to pay, whether such sums had become actually payable or not" (see in particular Mason J. at 15). The wording of sub.s.140(1) after amendment, and now sub.s.246(1), if read without regard to the history of the sub-section could possibly give rise to a doubt about the meaning of "debt due to the Commonwealth", but the history removes that possibility.

3. Assuming the "debt due to the Commonwealth" created by sub.s.246(1) is a debt immediately due and payable, the purpose of para.251(1)(c) is readily apparent. The Secretary (or the delegate) may "allow an amount that is payable" under or as a result of the Act to be paid by instalments.

1. By s.6 of the Director of Public Prosecutions Act, in this instance para.6(1)(h), the DPP is also empowered in cases to which the provisions of that section apply to prosecute civil remedies. In this case both the Secretary (or his delegate) of the Department of Social Security and the DPP had power to take civil remedies against the debtor. It is impossible to construe the power in para.6(1)(h) of the Director of Public Prosecutions Act as an exclusive power. The power in sub.para.6(1)(h)(ii) "to co-ordinate or supervise the taking of civil remedies by or on behalf of the Commonwealth and authorities of the Commonwealth" makes it clear that the DPP is not invested with the exclusive power to take such remedies.

2. In the present case in March-April 1989 both authorities of the Commonwealth - the Department of Social Security by its Secretary, and the DPP - had statutory authority to act on behalf of the Commonwealth in respect of the debt due by the debtor created by sub.s.246(1). Any binding agreement as to the payment of that debt reached by one of those authorities with the debtor would bind the Commonwealth even if the other authority, unknown to the debtor, did not approve of that agreement. In the present case the undertaking to repay was obtained by the Modbury Office of the Department of Social Security without reference to the Office of the DPP.

3. Counsel for the Commonwealth contended that the undertaking to repay did not amount to a binding agreement; it was only an offer by the debtor, and the letters from the Department dated 17 and 19 April 1989, in particular the second of those letters, should be understood as indicating that the offer was not accepted. He argued that the withholdings of invalid pension made from and after 31 March 1989 should be treated as made pursuant to sub.s.246(2) of the Social Security Act, and not as evidence of acceptance of the debtor's offer. I am unable to accept this submission. In my opinion the evidence before the Court indicates that the debtor's offer made in the undertaking to repay was accepted. First there is the appearance of an initial of a "delegate" at the foot of the document indicating an acceptance; then deponents of the affidavits filed on behalf of the Commonwealth speak of a purported agreement with the debtor, the argument being advanced that the relevant delegate who purported to make the agreement acted without authority, not that the offer was not accepted; and finally the amounts withheld from invalid pension payments made on 31 March and 30 April 1989 were $40.00. By inference that was not an amount which would otherwise have been deducted pursuant to sub.s.246(2). The affidavit of Ms Lynette Sayer, the officer in charge of Recovery in the relevant area of South Australia of the Department of Social Security, deposes to the withholdings at the rate of $29.00 per fortnight (later revised to $30.20 per fortnight) being "the correct amounts of statutory withholding" pursuant to s.246. When the debtor received the letter of 17 April 1989 he would reasonably have assumed that his offer to repay the Commonwealth at the rate of $40.00 had been accepted. The letter of 19 April 1989 might well have perplexed him, but as the unilateral variation in the amount to be withheld was favourable to him it is understandable that he did not question the letter. I consider he was entitled to accept that variation and to treat his agreement with the Commonwealth, by the agency of the Department of Social Security, as continuing in force in all other respects.

4. The undertaking to repay, and the acceptance of it, constituted a forbearance to sue which was binding on the Commonwealth. The terms of that forbearance were hardly appropriate to the case having regard to the amount of the debt under sub.s.246(1). The terms make no provision for review or for increase in the amount of instalments over the years as the onward march of inflation devalues the dollar. But the undertaking to repay, prepared by using a printed form, was proferred by the Commonwealth, and in accordance with well established rules of construction, the construction least favourable to the Commonwealth should be adopted against it. It follows that the taking of legal proceedings in the District Court of Adelaide was a breach of that agreement. At the time those proceedings were issued the instalments of $40.00 per fortnight agreed to by the parties were up to date. On the assumption that the debtor was entitled to treat the varied withholdings which the Department of Social Security thereafter made as sufficient performance of the agreement he had reached, the sum claimed by the Commonwealth was not payable either at the date when the summons was issued or when the default judgment was obtained.

5. The fortnightly withholdings continued until 26 October 1989 when the Department of Social Security ceased making them, apparently without prior reference to the debtor. It was then realised that recovery of the total amount outstanding from the debtor would take very many years under the scheme of sub.s.246(2), and by that time the debtor was also challenging the first bankruptcy notice.

6. It is common ground that since the default judgment was obtained there has been no agreement between the debtor and the Commonwealth. The "compounding of the debt" relied on by the debtor is the agreement constituted by the acceptance of the undertaking to repay on 31 March 1989. The question is whether, in the events which have happened, the debtor is entitled, on the basis of that agreement, to have the bankruptcy notice set aside. I have reached the conclusion that he is not so entitled.

7. The proper time for the debtor to raise the point that he had reached an agreement with the Commonwealth to repay the debt was when the summons was served. He could have defended the claim on the ground that the debt was not presently payable as he was not in default under the terms of the agreement evidenced by the undertaking to repay. As I have already observed, the debtor was at the time represented by solicitors who were corresponding with the agency of the Commonwealth which had issued the summons. Whilst the contents of that correspondence has not been made known to the Court, it is for the debtor to establish an entitlement to have the bankruptcy notice set aside. As he has chosen not to refer to the role which his solicitors played at that crucial time, I am not prepared to infer that the solicitors were unaware of the undertaking to repay.

8. When the Commonwealth entered judgment the debt created by force of sub.s.246(1) merged in the judgment. The judgment is a right in the Commonwealth which is of a higher nature than the underlying debt: King v. Hoare (1844) 13 M and W 494 at 504 per Parke B., approved in Kendall v. Hamilton (1878-1879) 4 App Cas 504. There has been no compounding of the judgment debt to the satisfaction of the Commonwealth in the sense in which that notion is relevant to the happening of an act of bankruptcy following service of a bankruptcy notice: see para.41(1)(a) of the Bankruptcy Act 1966, and rule 8 and form 4 of the Bankruptcy Rules; see also s.42 of the Bankruptcy Act. The present case is therefore distinguishable from cases such as Re Smith; Ex parte Durban (1903) 1 KB 33 and Re Williams; Ex parte General Credits Limited (1983) 68 FLR 202. Nor has any step been taken by the debtor at any stage to set aside the default judgment.

9. In effect, what the debtor is inviting the Court to do is to go behind the judgment of the District Court of Adelaide. A Court exercising jurisdiction in bankruptcy has an undoubted power to go behind a judgment, particularly a judgment entered by default, where there is reason to question whether behind that judgment there was in truth and reality a debt or, as it is sometimes said, whether there was consideration for it: Corney v. Brien (1950-1951) 84 CLR 343 at 347 and Wren v. Mahony (1971-1972) 126 CLR 212 at 224-225. But in the instant case there is no reason to doubt the existence of the debt which was created by sub.s.246(1) of the Social Security Act. The only question is whether that debt was at the relevant time immediately payable, or would only become payable in instalments on future dates. If an act of bankruptcy were committed by the debtor the fact that a debt which is due may not be immediately payable would not prevent that debt being capable of supporting a creditor's petition: sub.para.44(1)(b)(ii) of the Bankruptcy Act and see Re Agrillo: Ex Parte The Bankrupt (1977) 29 FLR 484. In my opinion, as at all relevant times the debtor has undoubtedly been legally liable to pay to the Commonwealth an amount equal to the judgment debt, and as no explanation has been offered by the debtor as to why the summons was not defended, or as to why no steps have been taken to set aside the judgment, this Court should not now go behind the judgment. The Court should exercise the discretion which it has (Wren v. Mahony, supra, at 224) in favour of treating the judgment as sufficient proof of the debt upon which the bankruptcy notice is founded. The debtor has not compounded the judgment debt to the satisfaction of the Commonwealth.

10. A general plea by the debtor for the application of broad notions of fairness in the exercise of the discretion do not assist him. The only unfairness to him in the events which have happened if he becomes bankrupt is that he could not hold the Commonwealth to the extraordinarily favourable agreement he reached with an officer of the Department of Social Security who, as it now turns out, should not have entered into it without reference to the Office of the DPP, which Office would have vetoed the proposal. The bankrupt had the opportunity after service of the summons to seek to hold the Commonwealth to that agreement, but for reasons which remain unknown he failed to pursue that right. On any resort to broad action of fairness, the interests of the wider community including the need to protect the public purse from the consequences of fraud must come into account, and on this consideration the scales are clearly tipped against the debtor.

11. In my opinion no ground has been established by the debtor to have the bankruptcy notice set aside, and the present application should be dismissed with costs.