Gott & Ors v Toogood & Anor
[2020] FCCA 3454
•24 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOTT & ORS v TOOGOOD & ORS (No.2) | [2020] FCCA 3545 |
| Catchwords: BANKRUPTCY – Proceedings in connection with sequestration – Petition and sequestration order – Hearing of creditor’s petition and form of sequestration order – Going behind judgment |
| Legislation: Bankruptcy Act 1966 (Cth), ss. 52, 153B(1) |
| Cases cited: Chao v Chao (No 2) [2008] NSWSC 612 Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 Toogood v Gott [2019] FCA 1792 |
| First Applicant: | JAMES PATRICK CECIL GOTT |
| Second Applicant: | CASSOWARY COAST REGIONAL COUNCIL |
| Third Applicant: | TRACEY TAYLOR |
| Fourth Applicant: | RICKY KENNETH TAYLOR |
| Fifth Applicant: | JOHN KREMASTOS |
| First Respondent: | STEVEN PAUL TOOGOOD |
| Second Respondent: | JULIANNE TOOGOOD |
| File Number: | BRG 337 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 17 January 2020 |
| Date of Last Submission: | 18 December 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 24 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Raeburn |
| Solicitors for the Applicant: | Connolly Suthers |
| The Respondents appeared in person |
ORDERS
On the application in a case filed on 12 November, 2020:
the applicants have leave to reopen the case and adduce further evidence and in particular, have leave to rely upon the affidavit of Steven Paul Toogood filed on 12 November, 2020;
Costs reserved;
On the application in a case filed on 3 December, 2019:
set aside the order made on 2 December, 2019 pursuant to FCCR 16.05(2)(a);
Costs reserved;
On the application in a case filed on 22 November, 2019:
set aside the order made on 21 November, 2019 pursuant to FCCR 16.05(2)(a);
Within twenty-one (21) days of the date of these orders the parties must confer an attempt to reach agreement on directions to be made by the court for the purposes of resolving the remaining issues in dispute;
In the event the parties are unable to reach agreement about the form of directions to be made by the Court, each party must, within twenty-one (21) days of the date of these orders provide to the Court the directions for which that party contends;
Directions will thereafter be made on the papers;
The creditors’ petition is adjourned for directions to 25 January, 2020 at 9:30 am; and
The creditors’ petition is adjourned for hearing to 8 March, 2020 at 10:00am.
Costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 337 of 2019
| JAMES PATRICK CECIL GOTT |
First Applicant
| CASSOWARY COAST REGIONAL COUNCIL |
Second Applicant
| TRACEY TAYLOR |
Third Applicant
| RICKY KENNETH TAYLOR |
Fourth Applicant
| JOHN KREMASTOS |
Fifth Applicant
And
| STEVEN PAUL TOOGOOD |
First Respondent
| JULIANNE TOOGOOD |
Second Respondent
REASONS FOR JUDGMENT
Before me is an application to set aside an order made by me that dismissed an application which itself sought that a sequestration order I made against the respondents estates in bankruptcy on 21 November, 2019 be set aside. There is also an application by the respondents to reopen their case and lead further evidence in support of their applications.
Ultimately, the issue for determination in this case is whether the respondents have demonstrated that if the sequestration orders are set aside and there was another hearing of the creditors’ petition different orders might be made to those that were made on 21 November, 2019.
The conclusion I have come to about that issue is that it is likely that a Court hearing the creditors’ petition afresh would, at least on a preliminary basis, make orders different to those already made.
Background
The evidence shows that the bankruptcy notice upon which the creditors’ petition in this case is founded was issued on 5 March, 2019. The bankruptcy notice relied upon orders made in the District Court of Queensland at Townsville on 26 April, 2018 (Lynham DCJ) whereby the respondents were ordered to pay the petitioning creditors’ costs of the proceedings then before that court. There were three separate costs orders in respect of three separate applications dealt with by those orders. The bankruptcy notice also attached an amended costs assessor’s certificate dated 16 January, 2019 assessing the costs due under each of the orders. The costs as assessed were $74,157.96. Also attached to the bankruptcy notice was an order made by a registrar of the District Court at Townsville on 24 January, 2019 whereby the respondents were ordered to pay the petitioning creditors costs under the order of 26 April, 2018 in the sum of $74,157.96.
On 25 March, 2019 the respondents applied to the Federal Court of Australia to set aside the bankruptcy notice. The application to set aside the bankruptcy notice was dismissed on 3 April, 2019 by a registrar. The respondents sought review of that decision by a judge of the Federal Court of Australia. That application was heard on 31 July, 2019 and judgment was delivered on 31 October, 2019: Toogood v Gott [2019] FCA 1792. In his reasons for judgment, Greenwood J set out the history of the matter between the respondents and the petitioning creditors. That history accords with what I have read in the material I have referred to above. Recording the history of proceedings between these parties is necessary to understand the context of the applications presently before me. After setting out the nature of the applications before the District Court and commencing with the making of the orders to which I have referred to above, in his reasons, Greenwood J recited the following:
18. Judge Lynham gave judgment on 26 April 2018 in relation to those applications.
19. As to the first application described at [15] of these reasons, Judge Lynham made the following orders:
1. That pursuant to rule 171 Uniform Civil Procedure Rules the following parts of the defence filed on 7 September 2017 be struck out:
(a) Paragraphs 4, 10, 11, 12, 13, 16, 17, 18, 19, 20, 21, 22 and 23 in their entirety.
(b) Paragraph 3 – with the exception of the first sentence, the remainder of paragraph 3.
(c) Paragraph 14 – subparagraphs (c) and (e) to (n).
2. That pursuant to rule 166 Uniform Civil Procedure Rules the defendants are taken by the following paragraphs of their defence to have admitted the following paragraphs of the statement of claim:
(a) Defence paragraph 1 is taken to admit statement of claim paragraph 1.
(b) Defence paragraph 5 is taken to admit statement of claim paragraph 12.
3. That the plaintiff’s strike out application in respect to paragraphs 8 and 9 be adjourned for further argument.
4. That the plaintiff’s application that defence paragraph 6 be taken to have admitted statement of claim paragraphs 13 to 45 be adjourned for further argument.
5. That the defendants pay the plaintiff’s costs of and incidental to the application on the standard basis.
6. That the parties have liberty to apply upon giving 7 days clear notice in writing.
[emphasis added]
20. As to the application described at [16] of these reasons, Judge Lynham made the following orders:
1. That pursuant to rule 171 Uniform Civil Procedure Rules the entirety of the counterclaim be struck out.
2. That the plaintiffs by counterclaim [the present applicants] pay the defendants by counterclaim costs of and incidental to the application on the standard basis.
[emphasis added]
21. As to the application described at [17] of these reasons, Judge Lynham made the following orders:
1. That the application to strike out the statement of claim pursuant to rule 171 Uniform Civil Procedure Rules is dismissed.
2. That the application to withdraw the admissions in paragraphs 1 and 5 of the defence which are taken to admit paragraphs 1 and 12 of the statement of claim is dismissed.
3. That the application to withdraw any deemed admissions in paragraph 6 of the defence be adjourned for further argument.
4. That the application for leave pursuant to rule 375 Uniform Civil Procedure Rules to amend the defence be adjourned for further argument.
5. That the application for leave pursuant to rule 375 Uniform Civil Procedure Rules to amend the counterclaim is dismissed.
6. That the application to add parties to the counterclaim pursuant to rule 62 Uniform Civil Procedure Rules is dismissed.
7. That the application to refer the plaintiff and/or the plaintiff’s solicitors to the Crime and Corruption Commission or the Legal Services Commission is dismissed.
8. That the application to transfer the proceedings is dismissed.
9. That the application for disclosure pursuant to rule 222 or rule 229 Uniform Civil Procedure Rules is dismissed.
10. The application to stay enforcement action by the second defendant to the counterclaim in Magistrates Court matter M00519/16 is dismissed.
11. The defendants (plaintiffs by counterclaim) [the present applicants] pay the plaintiff’s (and defendants by counterclaim) [the present respondents] costs of and incidental to the applications on the standard basis.
[emphasis added]
22. As a result of the various costs orders described above, the respondents (to these proceedings) filed, on 17 August 2018, a Cost Statement in which they claimed $77,220.88 pursuant to the orders and provided a breakdown of those costs.
23. On 7 September 2018, the present applicants filed a notice of objection to the whole of the sum claimed by the respondents.
…
27. It seems that prior to the delivery of judgment in the District Court proceedings, the present applicants had applied to the Queensland Civil and Administrative Tribunal (“QCAT”) on 3 August 2017 seeking damages of $100,000 for a “breach of privacy as per the letter from the OIC [Office of the Information Commissioner] 21 July 2017 as attached”. Effectively, this complaint related to an allegation by Mr Toogood that the Mayor of the Council disclosed to the Deputy Mayor of the Council that Mr Toogood was the source of screenshots taken from an online same‑sex “dating site” Grindr that were said to be of the Deputy Mayor.
28. On 29 November 2018, Applegarth J of the Supreme Court of Queensland heard an application by the Council to declare the applicants as vexatious litigants pursuant to ss 5 and 6 of the Vexatious Proceedings Act 2005 (Qld).
29. Justice Applegarth made the following orders:
UPON THE Respondents Stephen Paul Toogood and Julianne Toogood undertaking not to file any further proceeding in a Court or Tribunal without the prior leave of a Judge of the Supreme Court or the District Court until the hearing and determination of the Amending Originating Application filed by leave on 29 November 2018:
1. The application is adjourned is adjourned [sic] to a date to be fixed.
2. The Respondents are to file and serve by 9 January 2019:
(a) Any further responding affidavit material upon which they intend to rely; and
(b) A schedule or similar document which responds to the Applicant’s Outline of Submissions and schedules thereto.
3. The hearing of the application under Sections 5 and 6 of the Vexatious Proceedings Act 2005 be set down for a hearing to last less than one day in the Civil List in Brisbane.
4. The matter not be listed until after March 2019 and only after Applegarth J has ascertained from the parties their availability and the availability of their Counsel.
30. Separately, on 17 December 2018, the present applicants filed an application for leave to appeal and for an extension of time within which to do so in the Queensland Court of Appeal from the orders of Judge Lynham without seeking prior leave of the court.
31. On 1 February 2019, Morrison JA published ex tempore reasons (see Gott v Toogood [2019] QCA 8) holding that the applicants had filed their application for leave in breach of the undertaking and order of Applegarth J.
32. Accordingly, Morrison JA made the following orders:
1. Application for leave to appeal, CA No 13879 of 2018, is struck out, without prejudice to the right of Mr and Mrs Toogood, the named appellants, to file an application for leave to appeal should leave be granted within the terms of the order of Applegarth J made on 29 November 2018.
2. The respondents are to pay the applicant’s costs on the indemnity basis.
33. On 13 March 2019, Ryan J of the Supreme Court of Queensland dismissed an application by the applicants to vary the undertaking given by them not to file further proceedings without leave: see Toogood & Anor v Cassowary Coast Regional Council [2019] QSC 60.
34. In particular, Ryan J observed at [26] that:
The applicants suggest some impropriety on the part of the respondent in relation to the bankruptcy notice, the enforcement warrant and an application to his Honour under rule 667 which would warrant my setting aside or staying my order. I do not accept that the respondent has acted improperly in any respect.
35. Apart from these proceedings, there are, apparently, also criminal proceedings on foot concerning the applicants, the relevance of which will be discussed later in these reasons. For present purposes, it is sufficient to note that the present applicants were charged on 21 June 2017 with stalking offences with respect to the Deputy Mayor of the Council. The applicants contend that the stalking charge arises out of a complaint by the Deputy Mayor concerning emails sent to “Councillors, a Politician and Council related persons”, concerning the contended conduct of the Deputy Mayor on Grindr.
Next, a chronology of the proceedings before me is necessary. I decided another application in the present proceedings and delivered reasons for doing so: Gott & Ors v Toogood & Anor [2020] FCCA 3111. In those reasons, I set out a chronology. For ease of reference I set out those parts relevant to the present application again.
The petitioning creditors filed a creditor’s petition on 5 April, 2019. On 7 May, 2019 the respondents filed a notice stating grounds of opposition to the petition and a notice of appearance. The petition came before a registrar on 31 July, 2019 at which time the application was adjourned so that the respondents might file and serve further affidavit material upon which they intended to rely.
On 29 August, 2019 a registrar adjourned the application to 6 November, 2019 again with directions for the respondents to file and serve any further affidavits upon which they intended to rely by a particular date.
On 5 November, 2019 the respondents filed an application in a case seeking an order that the hearing of the petition be adjourned to a date to be fixed and not before the finalisation of certain criminal proceedings and other investigations said to be being undertaken by the Office of the Independent Assessor. Those investigations are into the alleged illegality of certain resolutions by the creditor Council. They also sought an adjournment of the petition pending the hearing of an appeal by the respondents against a judgment of 26 April, 2018 upon which the amount claimed in the creditor’s petition is based. The application also sought orders that certain of the petitioning creditors be available for cross-examination “in person”. It sought orders as to disclosure.
On 6 November, 2019 the hearing of the petition was adjourned to a date to be fixed before a judge of the Federal Circuit Court of Australia. Although there was no order expressly referring the hearing of the respondents’ interlocutory application to a judge, the parties proceeded on the basis that that application was transferred along with the creditor’s petition more generally.
The creditor’s petition came before me for hearing on 21 November, 2019. On that day the petitioning creditors appeared by counsel. The respondents, the day before the hearing, sought leave to appear by telephone. The respondents request to appear by telephone did not indicate whether the petition creditors agreed to the request. At the commencement of the hearing at about 9:50am on 21 November, 2019 I enquired of the petitioning creditors’ counsel as to whether there was any objection to the respondents appearing by telephone. I was informed there was not.
Accordingly, I directed my associate to telephone the respondents. The number given by the respondents to the Court to contact them for the purposes of the telephone appearance, however, was disconnected. The record demonstrates that there was at least three occasions between 9:49am and 10:00am when the number provided by the respondents to the Court for the purposes of the telephone appearance was called. On each occasion the number was disconnected.
For reasons that I then delivered, I determined to proceed with the hearing of the creditor’s petition. After hearing submissions from counsel for the applicants and considering the written submissions filed by the applicants, I made a sequestration order against the estate of each of the respondents.
The next day, the respondents filed an application pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to have the orders made on 21 November, 2019 set aside. That application was listed for hearing on 2 December, 2019 at 9:30am.
The application was called on 2 December, 2019 at 9:42am. Counsel appeared for the petitioning creditors. There was no appearance by the respondents. There had been a request made by the respondents for leave to appear by telephone using the same number which had returned a disconnected signal on the previous hearing. The transcript records what then occurred:
HIS HONOUR: Didn’t we give leave to appear by telephone?
COURT OFFICER: We didn’t, your Honour.
HIS HONOUR: We didn’t?
COURT OFFICER: Because they didn’t provide us a number which wasn’t .....
HIS HONOUR: Right. Just try that number again. Just bear with us and we’ll see if we can get the – whoever they are on the telephone.
MR A.L. RAEBURN: Thank you, your Honour.
COURT OFFICER: Your Honour, when I rang through ..... there was a single tone and then there was silence.
HIS HONOUR: Can we do it in open court on the recording, do you think? Let’s have a crack at that. Hello? Hello? Thank you. Can you read into the record the number that you called?
COURT OFFICER: The number was 0429 930 980.
HIS HONOUR: Thank you. Yes.
MR RAEBURN: Your Honour, I understand there’s an application to set aside the sequestration order you made on the 21st.
HIS HONOUR: Yes.
MR RAEBURN: Your Honour, there’s no appearance. I seek the application be dismissed.
Thereafter I proceeded to give judgment on the application made by the respondents. I dismissed that application.
On 3 December, 2019 the respondents made a further application to set aside the orders made on 21 November, 2019 as well as the orders made on 2 December, 2019. Alternatively, they sought an order that pursuant to s.153B(1) of the Bankruptcy Act 1966 (Cth) the Court annul the bankruptcy and in the further alternative that the Court dismiss the creditors petition. In the event that the Court ordered the setting aside of the sequestration order but not the dismissal of the petition, or in the absence of setting aside the sequestration order did not order the annulment of the bankruptcy, the respondents sought substantially the same relief as they sought in their application in a case filed on 5 November, 2019.
That application came before me on 6 December, 2019. The respondents appeared personally by telephone. The petitioning creditors appeared by counsel. The male applicant, Mr Toogood, by and large conducted the matter on behalf of both respondents. I commenced to hear the respondents’ application. I invited them to identify the material upon which they relied and I invited the petitioning creditors’ counsel to do the same. During the course of counsel for the petitioning creditors identifying the material upon which his clients wished to rely, an issue arose about whether certain affidavits had been given to, or received by, the respondents. Counsel for the petitioning creditors asserted that the relevant documents had been sent by email to the respondents and both Mr and Mrs Toogood denied that they had been received. More than that, they denied that they had been sent to them at all. I asked to see a copy of the emails sending the documents to the respondents. That email was not immediately available and so the matter was stood from the list while a copy of that email was obtained. The application resumed about 90 minutes later. A copy of the relevant email was produced to me by counsel for the petitioning creditors. Counsel also confirmed that the email had been re-sent to the respondents whilst the application had been stood from the list.
The respondents informed me that they did not have the documents. Despite the assertion of counsel for the petitioning creditors that the documents in question had been sent again by email whilst the matter had been stood from the list, the respondents asserted that the email and relevant documents had not been received by them.
After further discussion about whether the relevant emails had been sent and received and which party ought to be believed about that, I determined to fix the application then before me for hearing on 19 December, at 9:30am. I asked each of the parties if that suited them. Counsel for the applicants agreed that it was suitable. The respondents did not dissent from that date. Rather, they suggested that the date could be used for a final hearing of the creditor’s petition and that the witnesses upon which the petitioning creditor relied in its petition should be available for cross-examination on that day. I declined to order that the witnesses be available for cross-examination because the hearing of the creditor’s petition was not before me, but rather it was an application by the respondents for various relief including the setting aside of the sequestration order.
On 19 December, 2019 the application came before me in Brisbane. The petitioning creditors appeared by counsel. There was no appearance by the respondents. Counsel for the petitioning creditors brought to my attention that on 18 December, 2019 the respondents filed an application for me to disqualify myself from further hearing the application then before the Court.
I then resolved to move the hearing of the application to Townsville so that there was a greater possibility that the respondents would appear personally at court when the application was heard. After discussing the matter with counsel for the petitioning creditors, 17 January, 2020 was fixed for hearing of the application in Townsville, not before 11:30am. It was the hearing of the interlocutory application then before me that was listed at that date and time in Townsville.
The application was called on for hearing on 17 January, 2020 at just after midday in Townsville. Counsel appeared for the petitioning creditors and each respondent appeared in person. I conducted the hearing by video link from Brisbane. I reserved my decision.
On 12 November, 2020 the respondents filed a further application in a case seeking an order that they be permitted to reopen the case and rely on further evidence which some of which could not be obtained by the respondents prior to the last hearing. They reiterated their applications to set aside the orders of 2 December, 2019 and 21 November, 2019 or alternatively an order annulling the bankruptcy pursuant to s.153B(1) of the Bankruptcy Act or alternatively, an order dismissing the creditors petition.
At the kernel of all of these applications is the respondents’ contention that there is in truth no debt owing by them to the petitioning creditors sufficient to support the making of sequestration order. They ask the Court to determine to go behind the judgment debt and to conduct a hearing so as to conclude that there is in fact no debt sufficient to support the making of a sequestration order against their estates.
The application filed on 12 November, 2020
By this application the respondents seek leave to reopen their case and to place fresh evidence before the Court which they say bears on the issues under consideration and in particular they seek leave to rely upon the affidavit sworn by Steven Toogood and filed on 12 November, 2020.
In Chao v Chao (No 2) [2008] NSWSC 612 Brereton J summarises the relevant principles to be applied on such an application following the trial of proceedings as follows:
2 For present purposes, the principles governing such an application are to be found in the judgment of Goldberg J in Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. They may be summarised as follows. The Court has a discretion to grant a party leave to re-open its case after final submissions have been concluded and the Court has reserved its decision. The ultimate question is whether the interests of justice are better served by allowing or rejecting the application. It is relevant to consider whether prejudice would be occasioned by the late introduction of the evidence to the other party. It will also be relevant to consider the materiality of the proposed additional evidence, and whether it could by reasonable diligence have been discovered before, or at least any explanation for its not having been adduced earlier. If there was a deliberate decision made not to call the evidence when it ought to have been called in the ordinary course of proceedings, that will typically tell decisively against allowing a reopening, although there is no hard and fast rule requiring the Court to reject an application even where the decision not to call a witness or tender a document was a deliberate one.
Although the present application is made in the context of interlocutory proceedings rather than a trial, in my view the essential principle remains. Are the interests of justice better served by allowing or rejecting the application.
Some of the documents relied upon by the respondents in the affidavit of 12 November, 2020 are documents that were available to them before the last hearing. However a number of the documents were only available following the last hearing either because they were generated afterwards or alternatively were only made available to the respondents after a successful application by them for release of the documents. Those documents are:
a)a Cairns Post news article dated 15 February 2020 reporting on Council’s insurance coverage (exhibit ST-50);
b)a Cairns Post news article dated 15 February 2020 reporting on Council’s insurance coverage (exhibit ST-51);
c)an internal Council register of legal matters (exhibit ST-52);
d)remittance advice from Council’s insurers (exhibits ST-53 and ST-54);
e)a media release issued by James Gott on 6 August 2020 (exhibit ST-55); and
f)a Cairns Post news article dated 8 August 2020 reporting on the RTI decision and media release aforesaid (exhibit ST-56).
Notwithstanding that leave was opposed by the petitioning creditors, I have decided to grant the respondents the leave for which they have applied. I consider that the interests of justice are better served by allowing the application and receiving Mr Toogood’s affidavit filed on 12 November, 2020. It was not suggested by the petitioning creditors that there would be any particular prejudice to them if the application was granted.
The application filed on 3 December, 2019
The Court has power to set aside an order made in the absence of a party: rule 16.05(2)(a) Federal Circuit Court Rules 2001. To set aside an order made in the absence of a party is a discretionary exercise. The discretion is unfettered, but nonetheless is to be exercised judicially and bearing in mind the public interest in there being an end to litigation.
There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under FCCR 16.05(2)(a), but no one of which is decisive, namely:
a)a reasonable explanation for the applicant’s absence at the trial or hearing;
b)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and
c)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.
Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:
a)whether a party with notice of the proceedings disregarded the opportunity of appearing at and participating in the trial;
b)delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it; and
c)the conduct of the applicant since the judgment or order sought to be set aside was made.
I am satisfied by the respondents’ material that there is a reasonable explanation for their absence at the hearing before me on 2 December, 2019. The order made on 2 December, 2019 dismissed the respondents application in a case filed on 26 November, 2019. I am not satisfied that the respondents disregarded in the opportunity that they might have had to appear and participate in that hearing but rather, by reason of a confusion of communication or miscommunication, they made no appearance on 2 December, 2019. The evidence of Mr Toogood satisfies me that the failure to appear was not deliberate. There was no delay by the respondents in bringing the application to set aside the orders made on that day and there is nothing in their conduct since then which bears on this particular issue. For reasons that I have set out below relating to the setting aside of the orders made on 21 November, 2020 it is likely that a different order than that which was made on 2 December, 2019 would have been made had the applicants appeared on that occasion. Accordingly, I set aside the order made on 2 December, 2019 pursuant to FCCR 16.05(2)(a).
The application filed on 22 November, 2019
I am satisfied that the respondents have a reasonable explanation for their absence at the hearing of the creditors’ petition on 21 November, 2019. I am satisfied by the evidence that they were unaware that the telephone had been disconnected and the Court could not contact them using that number.
I am not satisfied that there is any prejudice to the petitioning creditors if the orders made on 21 November, 2019 is set aside and which cannot be adequately addressed by orders for costs.
Further, I am satisfied that the respondents have material arguments available to them that might reasonably lead to the making of an order different to that sought to be set aside. I have reached that conclusion for the following reasons.
The respondents argue that there is no true debt owing by them to the petitioning creditors. They ask the Court to go behind the orders for costs and conclude that there is no debt owed by the respondents to the petitioning creditors. Wrapped up in that proposition are two issues raised by the respondents in argument, namely:
a)whether the costs orders in the District Court are liable to be set aside for fraud or other deceptive conduct by the petitioning creditors; and
b)assuming that the petitioning creditors have been reimbursed their costs by an insurer or other third-party, whether there is anything due to the petitioning creditors.
It is not in dispute that the Court has power to go behind the debt upon which the creditors’ petition is based. The principles are, with respect, conveniently summarised most recently in Lowbeer v De Varda (2018) 264 FCR 228. At [53] the Full Court of the Federal Court of Australia said:
[53] On the hearing of a creditor’s petition, the court has a statutory duty to be satisfied for the purposes of s 52 of the Bankruptcy Act 1966 (Cth) as to the existence of the petitioning creditor’s debt. Therefore, on such an application, a judgment or order is never conclusive of the existence of a debt. Rather, the court must decide whether to accept the judgment or order as proof of the debt or to go behind the judgment or order (sometimes described as a discretion). Usually, a determination after a contested hearing will provide a practical guarantee of reliability that will mean that the court will not go behind the judgment or order. The court looks with suspicion on consent judgments and default judgments. However, all depends upon the circumstances. If the court is persuaded to go behind the judgment or order then it will investigate the debt upon which the creditor’s petition is based. For a creditor’s petition to be dismissed on the basis that in truth and reality there is no debt behind the judgment, there must first be a proper basis to exercise the discretion to go behind the judgment and then an assessment that, in truth and reality, there is no debt. These are separate questions that might be determined separately. As to these matters, see the judgment of Kiefel CJ, Keane and Nettle JJ in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 at [16], [37]‑[38], [65]‑[71].
In Ramsay Health Care (above) Kiefel CJ, Keane and Nettle JJ explained (citations omitted):
68. For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.
Consideration
The fraud ground
On 7 May, 2019 the respondents filed a notice stating grounds of opposition to the petition. The grounds were threefold. The first was that there was a review of the registrar’s decision to refuse the setting aside of the bankruptcy notice set down for hearing on 22 July, 2019. The second was that the application for review had been served on the respondents (which I assume is intended to be a reference to the petitioning creditors) on 30 April, 2019 and third “the grounds on which this application is opposed is as set out in the application for review in the affidavit accompanying this application”.
On 8 May, 2019 the respondent Steven Toogood filed an affidavit in which he asserts (at paragraph 7 and onwards) that the petitioning creditors were aware that the respondents “have disputed this debt since September 2017”. He sets out in the affidavit that the debt arose as a result of defamation proceedings brought by one of the petitioning creditors. He points out that the proceedings were brought by the petitioning creditor, James Gott, “in his personal capacity and not as Chief Executive Officer of the Council”. Presumably because the defamation proceedings were brought in Mr Gott’s personal capacity, the respondents assert that Mr Gott improperly conspired with another Cassowary Coast Regional Councillor and used material belonging to Cassowary Coast Regional Council to settle his personal defamation claim with the respondents. The relevant material, he says, was a recording of a telephone conversation between that other Councillor and the respondent Julianne Toogood said to have taken place on 27 May, 2017. Mr Toogood asserts in his affidavit that Mr Gott “directly mislead (sic) the District Court from 31 July 2017 to the current date and stated that there was no recording and that he had no access to a recording.” He also asserts “James Gott has directly benefited from misleading the District Court”.
Further, in his affidavit Mr Toogood says:
25. We wholly dispute any amount is owing pursuant to the fraud by the plaintiff James Gott in the defamation proceeding.
26. It is our case that the judgment was obtained by fraud and the plaintiff James Gott is precluded by law from using the materials he relies upon to bring his defamation case.
The fraud relied upon in the proceedings before me is said to arise from the petitioning creditors misleading Lynham DCJ who heard and determined the applications in which the costs orders were made about whether a particular telephone conversation in which Mr Gott claims he was defamed by the respondents or one of them. The conversation was apparently recorded, but when the issue was raised by the respondents in the District Court applications, Mr Gott and his advisers apparently denied that the conversation had been recorded.
In paragraph [152] of Judge Lynham’s judgment of 26 April, 2018 (the judgment in which the applications were determined and the costs orders were made) the Learned District Court judge referred to the issue in this way as follows:
The plaintiff has consistently asserted that the conversation alleged in paragraph 12 of the statement of claim was not recorded electronically or otherwise. As pleaded, paragraph 12 makes no mention of a “recording” or a “document” from which it might be inferred the conversation was recorded in some fashion. Whilst the defendants maintain that there is evidence that the conversation alleged in paragraph 12 of the statement of claim was recorded by Mr Kimberley (I have summarised the evidence relied upon earlier), I am far from convinced as to the veracity of that evidence. In light of the plaintiff’s clear and express denials as to the existence of any such a recording, there is no basis upon which the court can make an order for disclosure of the purported recording. This part of the application must be refused.
Later, on 26 September, 2018 the learned District Court judge published a further judgment in respect of various other applications of the respondents which had been filed on 10 July, 2018. The respondents had again raised the issue of the telephone recording in those applications. By that time it was apparent that there was, in fact, a recording of the telephone conversation in question. In that judgment, Lynham DCJ addressed the allegation that he had been misled by the petitioning creditors by the non‑disclosure of the recording of the conversation. Of that his Honour said this:
[4] There is, in my view, no basis whatsoever for making any of the orders sought by the applicants in paragraphs 19, 20 and 21 of the application. In respect to the orders sought in paragraph 19, it is to be borne in mind that the applicants were a party to the phone conversation and can reasonably be expected to have an independent recollection of what they are purported to have said in the phone conversation on 29 May 2017 and, therefore, whether the statement of claim accurately pleads what they are alleged to have said in the conversation relied upon by the plaintiff as containing defamatory imputations. Moreover, the applicants, in pleading in their defence to that aspect of the plaintiff’s statement of claim, did not deny the phone conversation or the contents of the conversation as pleaded by the plaintiff. Therefore the involvement of the [sic] either the plaintiff or his solicitor in the recording, publishing, transcribing and using the phone conversation has no obvious relevance to any matter in dispute relating to the phone conversation and therefore I see no proper basis for requiring either the plaintiff or the plaintiff’s solicitor to depose an affidavit detailing their respective involvement in that phone conversation.
As I have set out above, on 31 October, 2019 Greenwood J disposed of the respondents’ application to review the decision of a registrar to refuse to set aside the bankruptcy notice. Greenwood J refused to set aside the bankruptcy notice. In doing so, his Honour recorded the respondents’ central contention before him as follows:
[37] The applicants also, importantly, say that the BN was obtained by “fraud” or otherwise “improperly obtained” as Judge Lynham was misled by the respondent concerning the existence of a recording of the telephone conversation of 29 May 2017. The applicants say that this circumstance raises a question about whether this Court, as a court exercising bankruptcy jurisdiction under the Bankruptcy Act 1966 (Cth) (the “Bankruptcy Act”), ought to “look behind” the costs order the subject of the BN to determine whether the order was obtained by fraud or obtained by other improper conduct such that the BN should be set aside in the exercise of a statutory power under the provisions of the Bankruptcy Act: see also, as to matters of principle, Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 (“Ramsay”).
That contention is one of the centrally important contentions here although it arises not in connection with setting aside the bankruptcy notice as it did before Greenwood J, but in determining the creditors’ petition. Notwithstanding those different contexts, the approach remains the same: Toogood v Gott (above) at [48].
As Greenwood J observed at [51] – [56] the position of a costs order was considered in Waterton v Lafferty [2019] FCA 1267. Of that decision, his Honour said:
[54] Justice Banks‑Smith observed that, in her Honour’s view, care must be taken not to attribute to a debt which arises as a result of a costs order “special protection”: [69]. Her Honour observed that “if an underlying judgment itself is open to question as to whether there has been fraud, collusion or a miscarriage of justice then there may be a sufficient connection between the costs and the judgment to justify going behind the costs judgment and the underlying judgment”: [73].
Again, as Greenwood J observed at [55] the proceeding in which the costs orders were made was the hearing of at least three interlocutory applications about the pleadings and related matters in the defamation proceedings commenced by Mr Gott and the counterclaim by the respondents. The respondents were unsuccessful on those applications and one of the consequences of that lack of success was the making of the costs orders in question.
At [56] of his reasons, Greenwood J then observes (my emphasis):
56. The applicants’ essential and central complaint concerns a contention that the individual respondents and the Council misled Judge Lynham concerning the existence of a recording of the telephone conversation of 29 May 2017 between the applicants and Councillor Kimberley said to give rise to the contended defamatory imputations against a member of the Council. For the purposes of these proceedings, I have had the benefit of reading the reasons for judgment of Lynham DCJ in relation to the competing interlocutory applications. The judgment is extensive. It comprises 58 pages and comprehensively examines the various challenges to the defence of the applicants in that proceeding and the efficacy of the cross‑claim put on by the present applicants. There is no doubt that the costs order has arisen out of the determination on the merits by Lynham DCJ on the three applications heard and determined by him.
At [57] Greenwood J concluded:
Having regards to all of those matters, I am not satisfied that the particular controversy in relation to whether the conversation of 29 May 2017 was recorded or not (recognising that the pleaded content of the conversation was not put in issue by the present applicants) raises a substantial question as to whether the debt upon which the respondents rely to support the BN is, in fact, owing such that this Court should set aside the orders of Registrar Buckingham made on 3 April 2019.
The significance of the issue arising from the recording of the telephone conversation, the denial of its existence and the subsequent recanting of that position by the petitioning creditors in the District Court proceedings to the making of the costs orders has been argued and determined more than once. The judge said to have been misled by the petitioning creditors’ asserted subterfuge has considered the point and rejected its relevance to the orders made by him in the District Court. It was also rejected by Greenwood J as raising a basis upon which it might be said that there was no true debt owing by the respondents to the petitioning creditor in the context of the application to set aside the bankruptcy notice.
I too, reject the argument. The conduct of the petitioning creditors concerning the disclosure of the telephone recording had no bearing on the determination of the underlying applications in which the costs orders were made. They were made because of the respondents’ failure to succeed on those applications, something which was not dependent upon the existence or otherwise of the recording in question. This argument demonstrates no proper basis upon which the Court might go behind the relevant costs orders.
The payment ground
In an affidavit sworn by Steven Toogood and filed on 15 August, 2019, the respondents, seemingly for the first time, asserted (at paragraph 2) that “Messrs Gott, Kremastos and Taylor (and Taylors (sic) wife Tracy) are purported ‘creditors’ to this bankruptcy proceeding – purported as in they have not paid any money for legal costs nor are they owed any money for legal costs.”
Wading through the morass of affidavits, annexures, affidavits annexed to affidavits and voluminous submissions in pejorative and inflammatory language, it seems that this aspect of the case comes down to the following propositions:
a)each of the petitioning creditors except for the Council had, or will have, their legal costs and in particular the costs the subject of the costs orders met by the Council;
b)the Council has received a payment from a third party from which the Council has reimbursed itself for any costs paid by it to its lawyers and any costs that it has paid on behalf of the other petitioning creditors; and
c)the circumstances in which the Council received payment for its legal costs are not such as to give rise to a right of subrogation between the payer and the Council.
On the basis of those propositions, the respondents argue that nothing is due to the petitioning creditors, there is no debt to be paid by the respondents and the creditors’ petition should be dismissed.
There is evidence that establishes the first of the propositions. In his affidavit filed on 12 November, 2020 the respondent Steven Toogood annexes two documents which both make claims that the Council will indemnify the other petitioning creditors for their legal costs. The first is a letter dated 20 December, 2018 and authored by Mr Gott in his capacity as Chief Executive Officer of the Council (see exhibit ST-44 to Mr Toogood’s affidavit filed on 17 November, 2020). In that letter addressed to the respondents, Mr Gott says:
Your starting complaint appears to be that the Council has indemnified me in respect of the costs of my personal defamation action against you and Mr Toogood.
In circumstances where you and Mr Toogood have chosen to egregiously defame me in my capacity as Chief Executive Officer, it is entirely appropriate that the Council fund my defamation claim against you and Mr Toogood, and the Council by resolution has determined that it will do so.
That statement by Mr Gott demonstrates that he is in fact not paying and has not paid any legal costs in respect of his defamation action. That must necessarily include the costs which are the subject of the costs orders at issue in these proceedings.
The second document are minutes of a meeting of the Council held on 26 September, 2019 (see exhibit ST-45 of Mr Toogood’s affidavit filed on 17 November, 2020). The minutes deal with questions concerning legal proceedings in which the Council was then involved and the legal costs incurred in those proceedings. Concerns were apparently being expressed amongst ratepayers about the expenditure of ratepayers’ funds on the litigation. The minutes record that the petitioning creditor John Kremastos (the Mayor of the Council) read a statement to the meeting which relevantly said:
This statement is to address specific allegations of legal fees being spent by Council on recent legal action.
Council has been asked how much is this costing?
Council is bound by legal privilege and cannot disclose the exact figure, but ratepayers will not pay for these legal costs, they will be covered by our insurers.
To date the legal fees incurred by Council in properly defending it and its employees are considerable. To date, and confirming Council’s position, the Courts have made a significant number of costs orders in favour of Council and its employees, and Council is taking every step open to it to recover those costs.
This is just on matters which have been heard - there remain outstanding matters and Council will in those matters continue to seek costs orders to vindicate its position.
Once a legal action is commenced against Council or a counterclaim is launched, Council has an obligation to defend itself and protect ratepayer’s money against this legal action.
It is a shame that through no fault of its own Council and its resources are tied up in legal action - however, ratepayers will not pay for these legal costs as Council’s insurer has confirmed that it will.
Ratepayers will not pay for these legal costs. Council’s insurers will cover these legal costs.
Much of this rumour has been spread on unreliable social media platforms with no accountability for journalistic ethics, nor are they a verified news source and nor is there transparency around who is administrating the social media sites. This has then been re-reported as fact in newspapers and at public rallies.
Council’s insurer has stated that they have a small handful of vexatious cases such as these being carried out against other local government. Council’s insurer takes these cases very seriously and has reiterated to Council that it will cover Council’s expenses and pursue these matters through to the end - to protect Council.
To protect ratepayers and Council it is the right thing to do, to see those matters through to their conclusion, as quickly and cost effectively as we can. However, the timeframes are at the subject of the courts and the legal system.
Ratepayers will not pay for these legal costs.
Council’s insurers will cover these legal costs.
From that statement, it is clear that the legal fees incurred by the Council are to be paid by the Council’s “insurers”. More than that, those costs will include the costs incurred by employees of the Council. Apart from the petitioning creditor Tracy Taylor and the Council itself, the other three petitioning creditors are employees, or members, of the Council.
According to Mr Toogood’s evidence, the statement read out by Mr Kremastos was published by the Council on social media. It also seems that Council caused other statements to be posted on social media dealing specifically with the defamation proceedings in which the costs orders were made (see exhibit ST-46 to Mr Toogood’s affidavit filed on 17 November, 2020). That post provides as follows:
MYTH BUSTER: the defamation case referred to in comments on this post, is covered by insurance retrospectively to the time the defamation action was commenced. Council’s insurer covers all councillors and the CEO with the defamation action.
Those statements lead to further questions. The first is the nature and extent of the retainer between each of the petitioning creditors and the solicitors representing them in the defamation proceedings. The text of the statements and particularly that of Mr Kremastos’s statement suggests that it is the Council that has incurred the legal fees on behalf of its employees. The letter from Mr Gott, in a part that I have not extracted above, confirms that Council has extended its “brief to its lawyers to appear on behalf of Council offices and counsellors and their respective families as determined necessary by” Mr Gott in respect of some criminal proceedings. That statement together with the statement from Mr Kremastos suggests that the coverage of the Council’s brief might also extend to those persons in the defamation proceedings.
In those circumstances, it is unlikely that there is indeed a liability for legal costs on the part of Mr Gott, Mr Kremastos, Mr Taylor and Mrs Taylor. That is because it is the Council that is briefing the lawyers. There is no evidence before me about the retainers or costs agreements between the petitioning creditors and their lawyers in the defamation proceedings despite this issue having been raised by the respondents from the commencement of these proceedings (although not in the terms of my analysis).
The second issue that arises from the statements is that the Council has a right of indemnity or reimbursement for its legal costs from its “insurer”. Subsequent annexures to Mr Toogood’s affidavit filed on 12 November, 2020 confirm that the Council anticipated and then indeed received a payment from what is described as its “insurer”. Annexure ST-51 to Mr Toogood’s affidavit is a newspaper article which purports to carry statements from the petitioning creditor John Kremastos who is reported to say that a $318,000 payment received by the Council was in respect of litigation “in regards to Bingle Bay couple Steven Paul and Julianne Toogood”.
Other evidence confirms that statement. On 18 March, 2020 a remittance advice was sent to the Council from an organisation described as LGM Liability. It recorded a payment to the Council of $167,500 (see annexure ST-53 to Mr Toogood’s affidavit filed on 12 November, 2020). The payment was divided into two parts one payment of $75,000 and the other of $92,500. Both related to a reference number LI0060703. The significance of that reference number is explained by the previous annexure, annexure ST-52 to Mr Toogood’s affidavit which records that that number relates to what is described as case number 171186 “CCRC v Toogood – Defamation Counterclaim” and case number 180434 “Toogood – Vexatious Applicants”. Either payment is sufficient to discharge the amount of the costs orders.
Thus far, the statements made by the petitioning creditors to which I have just referred, talk about payments from the Council insurer. The organisation described as LGM liability might be thought to be the insurer. However, annexed to Mr Toogood’s affidavit filed on 15 December, 2020 is a letter from LGM Liability dated 30 April, 2020. In that letter there is the following explanation:
As you may appreciate, JLT is the Scheme Manager for the Local Government Mutual Liability. Through the LGM Board of Management, the LGAQ as Trustee of LGM oversees the administration of the Scheme.
…
LGM operates as a discretionary trust fund. You will see from previous correspondence that LGM has determined to exercise its discretion in the circumstances, in order to assist Council in this regard.
That information from the organisation, which appears to be the maker of the payments to Council in respect of legal costs, tends to suggest that the relationship between Council and LGM Liability is not one of insured and insurer. The suggestion that payments are made to the Council on a discretionary basis tends to discount the proposition that there is a contract of indemnity in place through which the Council is indemnified for its legal costs. In those circumstances it cannot be assumed that there is a right of subrogation whereby the maker of the payments stands in the shoes of the Council and is able to exercise the legal rights and entitlements of the Council to enforce the costs orders.
The respondents have directed my attention to the decision of the Full Court of the Federal Court of Australia in Lowbeer v De Varda (above). In that case, the petitioning creditor secured a costs order against two debtors. In simple terms, the petitioning creditor was entitled to and received reimbursement for his costs of the proceedings and was reimbursed for those costs. The debtor resisted the making of a sequestration order on the basis that there was no true debt owed to the petitioning creditor because it had been paid to him by his indemnifier.
The Full Court observed:
17. [The debtors] said that there was no outstanding debt owed to Mr Lowbeer because the assessed amount of the 2014 costs order had been paid by the Congregation. Counsel for Mr Lowbeer explained his position as being that the payment by the Congregation had been made “by way of indemnity” and was “subject to equitable subrogation and a right of recoupment”.
18. The reliance upon principles of equitable subrogation gave rise to a need to establish a basis for the application of the doctrine. Where a claim is made on the basis of a right to subrogation it is important to be precise as to the nature of the claim because subrogation is not a cause of action and the relevant equitable considerations respecting a claim to subrogation may differ depending upon the basis upon which subrogation is said to arise: Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 at [6] and [90]‑[94].
…
23. For all these reasons, it was important to know the precise basis upon which the alleged obligation of the Congregation to indemnify Mr Lowbeer was said to arise in order to determine whether the doctrine of subrogation applied.
…
24. The fact that the application for sequestration orders based on the assessed amount of the 2014 costs order was said to be brought in the exercise of a right of subrogation or recoupment necessarily required a consideration of whether there were circumstances that gave rise to such a right.
25. Notably, the claim made as to why there was a debt due to Mr Lowbeer even though the costs had been paid by the Congregation was of a kind that depended upon (a) an obligation to indemnify Mr Lowbeer by reason of a provision in the articles of association of the Congregation; (b) the existence of a liability on the part of Mr Lowbeer for the costs of Austin Legal; and (c) payment of the costs by the Congregation in discharge of the obligation to indemnify.
Despite these issues having been raised by the respondents for some time, the petitioning creditors have led no evidence which would demonstrate the basis upon which the legal costs incurred by the petitioning creditors and each of them have been paid. The arrangements between Council and the other petitioning creditors for the indemnification of the legal costs is not in evidence. Nor are the arrangements between the solicitors and each of the petitioning creditors or the Council for the payment of legal costs in respect of the District Court proceedings. There is no evidence of the arrangements between the Council and LGM Liability concerning the payments made by the latter to the former in respect of legal costs of the District Court proceedings. The only evidence led by the petitioning creditors about the debt are the affidavits of debt sworn by each of the petitioning creditors. But in the circumstances I have described above, the evidence tends to suggest that despite their depositions, they are not owed any money because they have received satisfaction for the costs orders.
Here, the evidence suggests that:
a)each of the petitioning creditors, save for the Council, was entitled to be reimbursed his or her legal costs by the Council;
b)the Council instructed the solicitors who appeared for the petitioning creditors in the District Court proceedings;
c)the Council was the solicitors’ client for the purposes of the District Court proceedings;
d)the Council received a payment in satisfaction of its legal costs due to the solicitors;
e)the nature of the payment was not such as to attract the description of an indemnity pursuant to a policy of insurance but is described by the maker of the payment as a payment from a discretionary trust fund; and
f)it has never been suggested that enforcement of the costs orders is being undertaken by the maker of the payment to the Council pursuant to some subrogated right to do so.
Those circumstances, in my view, establish substantial reasons to think that there may not be a debt truly owed by the respondents to the petitioning creditors and as a matter of discretion there ought be an enquiry into whether there is a debt truly owed by the respondents.
Disposition
I have concluded that there are material arguments available to the respondents that might reasonably have led to the making of an order different to that made on 21 November, 2019. Rather than ordering the sequestration of the respondents’ estates on that occasion, an order most likely would have been made that in the exercise of the Court’s discretion the Court should go behind the costs order to determine whether there is a debt truly owed by the respondents to the petitioning creditors.
Given the findings I have made about the respondents’ failure to appear, the lack of prejudice to the petitioning creditors and at the conclusion I have reached that it is appropriate to exercise the court’s discretion to go behind the costs orders which form the basis of the creditors’ petition, I am satisfied that the application filed on 22 November, 2019 should succeed and the orders made on 21 November, 2019 set aside pursuant to FCCR 16.05(2)(a).
It is appropriate to exercise the Court’s discretion go behind the costs order relied upon by the petitioning creditors. It is now to determine how to manage the case forward so that an enquiry into the amount owed, if any, by the respondents to the petitioning creditors can be conducted. In that regard, I direct that the parties confer and within the next 21 days send to my Chambers a minute of directions agreed between them for that purpose. In the event that the parties are unable to reach agreement about that, they must each send, within 21 days of the date of these orders, a copy of the directions contended for by that party to my Chambers and I will make appropriate directions on the papers.
The application should be listed for further hearing. I will fix the matter for hearing and determination on 8 March, 2020 at 10:00am in Townsville. The parties’ directions should take that hearing date into account. I will list the matter for a directions hearing prior 8 March, 2020 to ensure the readiness of the application for hearing on that date.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2020.
Associate:
Date: 24 December, 2020.
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