Guymer, R.M. v E.F. & F. Vella Ltd

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NOT FOR DISTRIBUTION	,
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IN THE FEDERAL COURT OF AUSTRALIA

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GENERAL DIVISION

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BANKRUPTCY DISTRICT OF

Li.569

No.

1985

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THE STATE OF NEW SOUTH WALES AND

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THE AUSTRALIAN CAPITAL TERRITORY

)

BETWEEN:

ROBYN MARGARET GUYMER

Applicant

m:	E F & F VELLA LIMITED
Respondent

CORAM :	WILCOX J
PLACE :	SYDNEY
-	DATE :	15 MAY 1986

MINUTES OF ORDER

THE COURT ORDERS

THAT:

1. The application for annullment of the sequestration order made against the applicant on 24 June 1985 be dismissed.

2. The applicant, Robyn Margaret Guymer, pay to the

respondent, E F & F Vella Limited, its Costs

Of the

application.

NOTE:

Settlement and entry of orders is dealt with by

Bankruptcy Rule 124.

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NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
GENERAL DIVISION	)

BANKRUPTCY	DISTRICT OF	) No.	W.569	of 1985
1

THE STATE OF NEW SOUTH WALES AND

)

THE AUSTRALIAN CAPITAL TERRITORY

)

I I

BEXWEEN: ROBYN MARGARET GUY=

Applicant

AND:	E F & F VELLA LIMITED

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Respondent

CORAM :

WILCOX J

PLACE	:	SYDNEY
W:	15 MAY 1986

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EXPEMPORE REASONS FOR JUDGMENT

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This is an application by

a bankrupt, Robyn Margaret

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Guymer, against whom

a sequestration order was made on

24 June

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1985, pursuant to s.l51(l)(a)

of the Bankruptcy Act

1966.

The

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application is that the sequestration order

b annulled on

the

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I	ground that the order ought not to have been made.

Q-

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The case presented on behalf of Mrs Guymer

is that

the sequestration should not have been made because she was

not in fact served with

a sealed copy of

the bankruptcy

petition and copies of the various supporting affidavits as

was claimed in an affidavit of service sworn by Timothy

Tierney on

6 May 1985, which affidavit was read at the hearing

of the petition.	. ..
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There is conflicting evidence as to the events which

occurred on the date of the alleged service, namely, Friday 19

April, 1985. It appears to be the position, beyond any doubt,

that at about

2 pm on that day Mrs Guymer and her partner Mr

Paul Ezzy arrived in Young in order that

Mr Ezzy might obtain

dental treatment from

a dentist, Peter Smith. Mr Ezzy says

that he had that day arrived back from

a trip to Newcastle

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which city he

had delivered a load of bulk oats and from

which

he returned with

a load of bulk fertiliser. He says

that he

arrived at the property owned

by Mrs Guymer and her husband,

and at which he resided, namely, "Bonnie Doon", Wirrimah. at

about 12 noon that day. The property is situate some

18 miles

from the town of Young. In support of his evidence

Mr Ezzy

referred to

the driver's log book kept

by him setting out the

times when he was driving

his sem-trailer and also showing

rest periods. The relevant entry for 19 April shows that he

travelled from Newcastle, leaving Newcastle at midnight on

t e

night of 18/19 April and that he stopped at Dunedoo

at about 4

am. He recommenced his journey

at about 7 am and, according

to the log book, arrived at Wirrimah at about

12 noon. The

legal position, as understood

by Mr Ezzy, is that he was bound

to have

a rest period after any period of five hours'

continuous driving. Mr Ezzy said in evidence that, after he

arrived back

at "Bonnie Doon", he had

a wash in the kitchen

sink and

a cup of coffee and that

e then went to the dentist

with Mrs Guymer.

Both Mrs Guymer and

Mr Ezzy claim a recollection that

as they were en route to Young

a vehicle passed them

travelling in the opposite direction,

that is to say towards

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Wirrimah. This vehicle they thought to be similar to the

vehicle normally driven by

Mr Tierney, namely

a red Holden

utility.	.	I,
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Mr Tierney says that, on

19 April, he did not drive

his usual vehicle. He drove his wife's vehicle, which was

yellow Toyota Corona motor car.

He had spoken to

a friend,

Joseph Duffy, the previous day and invited

Mr Duffy to

accompany him

to Wirrimah on 19 April. Apparently the two men

are old friends and as

Mr Duffy is not employed all

the time

they have formed the practice that Mr Duffy often goes with Mr

Tierney, "for the ride", when he has	to travel to the
country.

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Mr Tierney picked up Mr Duffy in the main street of

Young; he says at about 10 am. Apparently one

f the tyres

had a slow leak and the vehicle was then driven to

a tyre

repair station. After repair of the tyre, the

two men called

into a sandwich shop and then went out to Wirrimah.

There are some discrepancies

n the times given by Mr

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Tierney and

Mr Duffy respectively, but the two witnesses agree

in putting the time of arrival

at Wirrimah at about 1 pm.

Each of these witnesses was cross-examined in detail about the events which occurred when they arrived at Wirrimah, including

questions such as where the vehicle was parked; what

Tierney then did; what papers he had, etc. There was no

discrepancy between their evidence on those matters.

I am

left with the situation

that either there was

a high degree

collusion between them on matters which they did not set out

in their affidavits,

or alternatively each of the men has an

independent and fairly accurate recollection

of what occurred

at the time. If this matter depended in some way upon recollection of a relevant time, or even date, I would have	.~
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some hesitation in placing

much faith in Mr Duffy's evidence.

I say that without any criticism of him.

He had no reason to

note either the time or the date: he was simply going along

as a friend. But I think that his recollection	i those
matters might not be very reliable.

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On the other hand there is no reason to doubt the

accuracy of his recollection on things that he could see

as he

was sitting in the car and observing what happened.

I was

impressed with the high degree

of correlation between his

recollection and that of Mr Tierney on such matters and

I see

no reason to doubt the accuracy of what they say.

Mr Tierney, of course,

has some interest in

maintaining the claim that he made

a f w days later to those

who had instructed

him to serve the process, namely that he

had, in fact, properly served the process.

I approach his

evidence in that light. Mr Duffy

is an old friend of

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Tierney and night be persuadable to assist him with false	!
evidence. However, I see no reason to doubt the veracity of

either man. As I say, in matters about which

t would have

been very difficult for then to have colluded successfully,	b'. ..
their evidence coincided.	! .

So far as Mr

Ezzy's evidence is concerned,

I have no

reason to doubt his Intrinsic honesty.

I think it is highly

improbable that he saw Mr Tierney at the property on that

date, if in fact he was there. There are two possible

explanations of the situation. One is that he in fact arrived

back at "Bonnie Doon" later than

12 noon and that he showed

the hour

of arrival as being 12 noon in order to avoid showing

a period of more than five hours' continuous driving. Another

possibility, although

I think rather less likely, is that he

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had in fact arrived at

the time of the service but that

e did

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not see

Mr Tierney drive up or come to the back door.

So far as Mrs Guymer's evidence

is concerned, I

regret to say that

I have little confidence in

her

reliability.

I thought that she was evasive on

a umber of

matters and she has an obvious interest to deny receipt

of the

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petition. In a situation where one has two witnesses on each

side deposing to evidence

which is mutually contradictory, it

is helpful to consider such evidence as is common ground.

this case there was evidence from

Mr Frederick Vella, who is

the managing director

of the petitioning creditor, that he had

a telephone call from Mrs Guymer on

a date which e believed

to be

4 May 1985. The petition claimed to have been served by

Mr Tierney had been adjourned from time to time and the

document which was annexed to the affidavit of service had a

notation that the date for the hearing

of the petition had

been amended to Tuesday,

7 May, 1985.

Mr Vella said that Mrs Guymer on the telephone said

to him words to the effect:

"I have to come to court on

Monday.

I can't possibly make it because my car won't get

there". Mr Vella then had

a conversation with her in which he

suggested that she get

a bus or train and there was some

discussion'about her husband, who was apparently in Sydney,

coming to the Court on her behalf. Mrs Guymer is said to have

responded that she could not get her husband to come to Court

because "once he shows his face in court they will probably

grab him for other debts".

Mr Vella has not been cross-examined on any part

this conversation and

I therefore have no hesitation in

accepting its accuracy. Acceptance is reinforced by the fact

that Mrs Guymer herself admitted that she had

a conversation

with Mr Vella at about that time. The day

of the week

referred to

-- according to Mr Vella

-- by Mrs Guymer was

Monday; whereas 7 May 1985 was

a Tuesday. However, the

significant matter which emerges from the conversation

is that

Mrs Guymer realised that the matter would be	in Court early
the following week.

No satsifactory explanation has been given as to how

she could have

known of that fact if she had not been served

with the petition. The suggestion was put by her counsel that

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she may have learned of the adjourned hearing date from the	L ',
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solicitor acting on behalf of the petitioning creditor,

Mr Ian

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Thompson of Strong, Brown and Associates.

Mr Thompson had

acted in the matter for some time and his name had been shown	l
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on the bankruptcy notice which had been served by another	..
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process server upon Mrs Guymer as long ago as

6 March 1984.

However, so far as the evidence indicates, there had been no

contact between

Mr Thompson and Mrs Guymer between that time

and the date

of receipt by Mrs Guymer

of a letter from

Thompson, dated

9 May 1985, in

which he advised her of

the

adjournment of the hearing

of the matter from

7 May 1985 to 28

May 1985. It seems to

me extremely improbable that Mrs Guymer

would have telephoned

Mr Thompson "out of

the blue" and

thereby discovered that the hearing of the petition was

imminent. It must be borne in mind that the petition had been

issued as early as 19 September

1984.

Mrs Guymer did not claim any recollection of any such	I .
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telephone call. Mr Thompson was cross-examined on the matter.

He said that he had no recollection of such

a call and he

thought that there was no such call. Mr Thompson gave

evidence that

it was his custom to keep diary notes of

significant telephone conversations and he said that

he would

have recorded any conversation in which it was alleged that

the petition had not been served. This is

an allegation which

Mrs Guymer said that she subsequently made.

I think that it is consistent with

Mr Thompson's

practice that, if he had received

a telephone call from Mrs

Guymer, being the first communication for some time, he would

have made some note of

that fact.

I was impressed with

Thompson's evidence and the fact that he does apparently have

a careful system of making notes.

I regard the absence of any

note of a conversation such as that suggested as being

significant. The probable explanation of Mrs Guymer's

knowledge of

the fact that the matter would be listed for

hearing on

7 May 1985 is that she had learnt this from reading

the notation on the petition.

Having considered the whole of the evidence, both in	L. .
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affidavit form and cross-examination,

I am satisfied that

fact the petition was served as claimed by

Mr Tlerney. It

follows that	I reject the submission that	the sequestration	I.
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order should not have been made. Consequently the application

must be dismissed with costs.

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I certify that this and the eight

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preceding pages are

a true copy of

the Reasons for Judgment

his Honour

Mr Justice Wilcox.

Associate:

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Date :

May

1986

Counsel for the applicant: Mr

S E Torrington

Solicitors for the applicant: Messrs David

G F'rancis & CO

Counsel for the respondent: Mr

J Wilson

Solicitors for the respondent:

Messrs David Brown & Partners

Date(s)

hearing:

May

986

[1986] FCA 206

15 May 1986