Harris v De Robillard
[2017] FCCA 2451
•10 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRIS & ORS v DE ROBILLARD | [2017] FCCA 2451 |
| Catchwords: BANKRUPTCY – Application for review of sequestration order made by Registrar – whether creditors have established right to a sequestration order – whether judgment debt on the basis of which the bankruptcy notice founding the act of bankruptcy on which creditors relied is a judgment against the debtor – whether debtor has shown there is some other sufficient cause for not making sequestration order – application for review dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41, 52, 306 Bankruptcy Regulations 1996 (Cth), reg.4.01 Federal Circuit Court of Australia Act 1999 (Cth), s.104(2) |
| Cases cited: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Conlan v Mladenis [2007] FCA 1129 Doyle v Hall Chadwick [2007] NSWCA 159 Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509 Mills v Futhem Pty Ltd [2011] NSWCA 252 Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 |
| First Applicant: | CHRIS HARRIS |
| Second Applicant: | NEWTON DE BRIERLEY |
| Third Applicant: | M DRAKE-BROKMAN |
| Fourth Applicant: | CHRIS HOLLEY |
| Respondent: | CHRISTIAN ROGER DE ROBILLARD |
| File Number: | SYG 706 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 September 2017 |
| Date of Last Submission: | 18 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2017 |
REPRESENTATION
| Counsel for the Applicants, the Respondents on the application for review: | Mr P Newton |
| Solicitors for the Applicants, the Respondents on the application for review: | Thomas Henry Bray Lawyer |
| The Respondent, the Applicant on the application for review, in person |
ORDERS
The application for review of the orders made by the Registrar on 17 August 2017 that:
(a)the estate of the applicant to the review, Mr Christian Roger de Robillard (applicant), be sequestrated; and
(b)the costs of the respondents to the review (respondents) be fixed in the sum of $5,022.10 and be paid from the estate of the applicant to the review,
is dismissed.
The respondents’ costs of the review be paid out of the estate of the applicant and have the same priority as the costs of the petition.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 706 of 2017
| CHRIS HARRIS |
First Applicant
| NEWTON DE BRIERLEY |
Second Applicant
| M DRAKE-BROKMAN |
Third Applicant
| CHRIS HOLLEY |
Fourth Applicant
And
| CHRISTIAN ROGER DE ROBILLARD |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 1 September 2017 Mr de Robillard seeks a review of orders made by a Registrar of this Court on 17 August 2017. One of those orders was to sequestrate Mr de Robillard’s estate. That order was made on the joint petition of Mr Chris Harris, Ms Newton De Brierley, Mr Chris Holley, and Mr M Drake-Brockman (Creditors).[1]
[1] In the documents filed on behalf of the Creditors in these proceedings, Mr Drake-Brockman’s name is misspelt “Drake-Brokman” and Ms Newton De Brierley’s name has been recorded in other documents as “De Brierley Newton”. No point has been made of these apparent errors.
The asserted act of bankruptcy on which the sequestration order was made is Mr de Robillard’s failure to comply with the requirements of a bankruptcy notice demanding payment of $53,107.92. That is the sum of a judgment debt for $45,615.00 that was purportedly entered against Mr de Robillard in the Local Court of New South Wales (Local Court) on 29 April 2014 together with interest of $7,492.92.
The judgment was entered in response to the Creditors registering with the Local Court two certificates of determination of costs assessment, one for $42,928.59 and the other for $2,602.41 (Costs Certificates).[2] The Costs Certificates were issued following an assessment of costs that was undertaken pursuant to two orders for costs made against Mr de Robillard in proceedings he commenced against the Creditors in the Supreme Court of New South Wales (Supreme Court Proceedings).
[2] To the sum of the amounts stated in the Costs Certificates there was added a fee of $84 for filing the Costs Certificates.
Mr de Robillard claims that the form of judgment that is annexed to the bankruptcy notice does not accurately record the judgment that was entered in the Local Court’s computer system on 29 April 2014. For this reason it will be necessary to distinguish between the judgment that was entered on 29 April 2014 (Judgment) and the evidence of the Judgment that is recorded in the form of judgment that is annexed to the bankruptcy notice (Form of Judgment).
Nature of hearing and issues raised
Mr de Robillard’s application for review is made pursuant to s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act). A review under s.104(2) of the FCC Act is a “hearing de novo”. That means that an: [3]
applicant for review under s.104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar’s exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Pattison v Hadjimouratis [2006] FCAFC 153 at [153]- [154].
[3] Conlan v Mladenis [2007] FCA 1129 at [5] (Sundberg J)
Where the decision sought to be reviewed is a sequestration order made under s.52 of the Bankruptcy Act1966 (Cth) (Act), the judge who hears the application for review:[4]
[4] Totev v Sfar (2008) 167 FCR 193 at 197, [14]-[15] (Emmett J); see also the reasons of Cowdroy J (with whom Bennett J agreed) at [97]-[100]
must hear the petition afresh and must be satisfied as to the matters referred to in s 52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of:
· the matters stated in the petition;
· the service of the petition; and
· the fact that the debt or debts on which the petitioning creditor relies is or are still owing.
The reviewing judge must also exercise afresh the discretions conferred by s 52(2).
In particular, unless the [Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)] are waived, the judge must have the affidavits referred to in r 4.06 of the [of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)], which must be sworn shortly before the hearing. Except in the case of a review on the same day as the sequestration order was made, the affidavits relied upon before the registrar would not satisfy r 4.06 [of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)]. In the absence of fresh affidavits, it would be necessary that compliance with the Bankruptcy Rules be waived.
Thus, in this application for review, I must consider two things or classes of things. The first is whether the Creditors have proved the matters specified in s.52(1) of the Act and the relevant rules of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules). Mr de Robillard here submits that the material on which the Creditors rely proves no debt. The basis of that submission is what appears to have been a typographical error in the spelling of Mr de Robillard’s name in the Form of Judgment; it incorrectly included the letter “i” in Mr de Robillard’s name so as to read “Christian Roger De Robilliard” (emphasis added). Given the relatively minor difference between the names “de Robillard” and “de Robilliard”, I will in these reasons identify the incorrectly spelled name as “de ROBILLIARD”, and the correctly spelled name “de Robillard”.
Assuming the Creditors prove the matters specified in s.52(1) of the Act, it will then be necessary to consider the grounds of opposition on which Mr de Robillard relies. These are: (a) the bankruptcy proceedings the Creditors have initiated against Mr de Robillard are an abuse of process; (b) the “indemnity principle” prevents the Creditors from being granted the benefit of an order for costs; (c) there was no fee agreement between the Creditors and the lawyers who acted for the Creditors in the Supreme Court Proceedings; and (d) Mr de Robillard has counter-claims, set-offs, or demands equal to more than the sum demanded in the bankruptcy notice.
I will proceed as follows. First, I will set out the relevant background, and in particular the evidence in relation to the issuing and registration of the Costs Certificates, and the issuing of the bankruptcy notice. The evidence is not disputed and, unless I say otherwise, my summary of the evidence is to be taken to reflect my findings of fact. Second, I will consider whether the Creditors have established the matters referred to in s.52(1) of the Act and in the Bankruptcy Rules. I will initially consider that question on the assumption that the Judgment reflects a judgment against Mr de Robillard. Third, I will consider Mr de Robillard’s submission that the Judgment does not reflect a judgment against him. Finally, I will consider the other grounds on which Mr de Robillard relies.
Background
On 16 August 2011 Mr de Robillard commenced the Supreme Court Proceedings against the Creditors. It is unnecessary to describe the nature of the claims Mr de Robillard made in those proceedings.
On 17 August 2011 Mr Harris, after a discussion with the other Creditors, met with Mr Riches of the law firm Taylor & Scott Lawyers. Mr Harris retained Mr Riches to act on behalf of the Creditors in the Supreme Court Proceedings. On or about 19 August 2011 Mr Riches provided to Mr Harris a “Retainer & Costs Disclosure Cost Agreement” (Costs Agreement).[5] Mr Harris provided a copy of that document to the other Creditors with a request that they each sign and return it to Mr Riches. Mr Harris himself signed a copy and posted it to Mr Riches.[6] The Costs Agreement described the scope of the work that was covered by the agreement as follows:
To represent Chris Harris, De Brierley Newton [sic], Chris Holley and Matthew Drake-Brockman in relation to the proceedings instituted against them in the Supreme Court numbered 2011/264405 including receiving instructions, advising generally, appearing before the Court facilitating as to mediation, advising of significant developments in your case as they occur and taking instructions from you as necessary, negotiating settlement if appropriate etc.
[5] Harris affidavit, [15]; exhibit CDH 1, pages 1-9
[6] Harris affidavit, [15]
On 8 February 2012 Einstein J made an order that Mr de Robillard pay the Creditors’ costs of the proceedings to date on an indemnity basis.[7] On 2 March 2012 Bergin CJ in Eq ordered that the Supreme Court Proceedings be dismissed and that Mr de Robillard pay the Creditors’ costs “for today”.[8]
[7] Harris affidavit, [21]-[22]; exhibit CDH 1, page 14
[8] Harris affidavit, [25]; exhibit CDH 1, pages 32-33
By 17 August 2012 a bill of costs was finalised in relation to the Creditors’ costs that were the subject of the orders for costs made in the Supreme Court Proceedings.[9] At around that time Mr Riches lodged an application for assessment of party/party costs.[10] On 18 August 2012 Mr Harris delivered by hand to the letterbox at Mr de Robillard’s residential address a letter dated 17 August 2012 from Taylor & Scott Lawyers addressed to Mr de Robillard that attached the application for assessment of party/party costs and a bill of costs.[11] Mr de Robillard did not participate in the assessment of costs, and he has not suggested he was unaware of the Creditors’ application for an assessment of party/party costs. The Creditors’ costs were assessed and the Costs Certificates were issued. Both Costs Certificates identified the costs respondent as “Christian Roger de ROBILLIARD”.[12]
[9] Harris affidavit, [32]
[10] Exhibit CDH 1, pages 104-106
[11] Harris affidavit, [33], [34]; exhibit CDH 1, page 97A, 103
[12] Exhibit CDH 1, pages 107, 108
On 28 April 2014 Mr Harris filed with the Local Court a document titled “Registration of Certificate of Judgment/Order”.[13] That was in a form prescribed by the Civil Procedure Act 2005 (NSW) (CP Act) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The document was signed by each of the Creditors and provided for the attachment of a “copy of certificate of judgment/order”. I infer that the Costs Certificates were attached to the “Registration of Certificate of Judgment/Order” at the time Mr Harris filed the document. The “Registration of Certificate of Judgment/Order” described the defendant as “Christian Roger de ROBILLIARD”.
[13] Harris affidavit, [41]; exhibit CDH 1, pages 122- 125
On 4 May 2016 Mr Harris noticed the Costs Certificates had misspelt Mr de Robillard’s name in that it included an additional “i”.[14] Mr Harris wrote to the Manager of Costs Assessment at the Supreme Court of New South Wales requesting that the Costs Certificates be amended to correct the spelling of Mr de Robillard’s name.[15] Under cover of a letter dated 4 May 2016 the “Manager, Costs Assessment” forwarded to Mr Harris what the letter described as “the Amended certificate(s) of determination dated 5 November 2013”.[16] The certificates of costs that were provided to Mr Harris were the same as the Costs Certificates that had been originally issued except the printed word “ROBILLIARD” had been crossed out and replaced by hand with “Robillard”.
[14] Harris affidavit, [59]
[15] Harris affidavit, [60]
[16] Harris affidavit, [61]; exhibit CDH 1, pages 132-139
Mr Harris took the amended Costs Certificates to the Local Court for the purpose of obtaining a form of judgment that correctly spelled Mr de Robillard’s name. That resulted in the Local Court issuing the Form of the Judgment.[17] The Form of Judgment has printed on it the name “ROBILLIARD” which is crossed out by hand and replaced with the hand written word “Robillard”.
[17] Harris affidavit, [63]; exhibit CDH 1, pages 140 -141
Proof of matters prescribed by s.52(1) of the Act
I am satisfied of the following:
a)The creditor’s petition filed on 9 March 2017 that was made returnable before this Court on 13 April 2017, and the amended creditor’s petition filed on 15 May 2017 that was made returnable before this Court on 29 June 2017, were each in accordance with Form B6 as prescribed by r.4.02(1) of the Bankruptcy Rules.[18]
b)The matters stated in paragraphs 1, 2, 3, and 4 of the amended creditor’s petition are verified in the affidavit sworn 9 March 2017 by Mr Thomas Bray, the solicitor for the Creditors, that forms part of the amended creditor’s petition and, assuming the Judgment reflects a final judgment, those matters, therefore, are proved.[19]
c)Paragraph 4 of the affidavit verifying the matters specified in the amended creditor’s petition annexes the results of a search conducted of the records of this Court and of the Federal Court of Australia in relation to Mr de Robillard, and the search does not disclose any application has been made in relation to a bankruptcy notice issued to Mr de Robillard.[20]
d)The amended creditor’s petition was served on Mr de Robillard in the manner authorised by the orders for substituted service made on 11 May 2017 together with affidavits of service of the bankruptcy notice.
[18] Bankruptcy Rules, r.4.02(1)
[19] Bankruptcy Rules, r.4.02(2)
[20] Bankruptcy Rules, r.4.04(1)(a)
At the hearing before me I granted leave to the Creditors to file in Court an affidavit of debt made by Mr Harris on 18 September 2017 and an affidavit of search made by Mr Bray on 18 September 2017 deposing to his having caused a search of the National Personal Insolvency Index in relation to Mr de Robillard. A copy of that index was annexed to Mr Bray’s affidavit of search.
I should note here two objections Mr de Robillard made to my reading the last two-mentioned affidavits. One relates to my having adjourned the hearing for one hour to permit the Creditors to prepare the affidavits for filing in Court. I granted that adjournment, over objection from Mr de Robillard, when it became apparent the Creditors, through oversight, had not filed any affidavits as required by r.4.06(3) and r.4.06(4) of the Bankruptcy Rules. I formed the view that it would be appropriate that I exercise my discretion in favour of granting the one hour adjournment. Mr de Robillard did not claim he would suffer any prejudice if I were to grant the short adjournment; and in any event, there is no dispute that the amount demanded by the Creditors in the bankruptcy notice has not been paid in whole or in part by or on behalf of Mr de Robillard.
Mr de Robillard objected to my reading paragraph 5 of Mr Bray’s affidavit of search on the ground it was hearsay. In that paragraph Mr Bray deposes to a conversation with a clerk from the Local Court registry in which the clerk informed Mr Bray that no amount or part of the amount of the Judgment had been paid into court. There is no doubt paragraph 5 is hearsay. Paragraph 5, however, is irrelevant. Subrule 4.06(5) of the Bankruptcy Rules requires the filing of an affidavit in relation to money being paid into court; but that applies only where the debt stated in a creditor’s petition is an amount payable under a judgment of a court that has ordered the amount to be paid into court. There is no suggestion the Local Court ordered that the amount payable under the Judgment be paid into it. I do not, therefore, read paragraph 5 of Mr Bray’s affidavit, not because it is hearsay, but because it is irrelevant.
Subject to my considering the matters on which Mr de Robillard relies, I am satisfied that the Creditors have established the matters they are required to satisfy under s.52(1) of the Act and the Bankruptcy Rules.
Is the Judgment “a final judgment or final order” made against Mr de Robillard?
Mr de Robillard in effect submits that the Judgment is not a “final order or final judgment” entered against “Christian Roger de Robillard”.[21] Mr de Robillard relies on two matters. First, he submits the Creditors used an incorrect form to obtain the registration of the Judgment. He submits the Creditors used Form 43 of the forms prescribed under the CP Act and the UCPR when they should have used Form 45. Second, the computers of the Local Court recorded the judgment debtor as “Christian Roger de ROBILLIARD”, and there is no evidence the computerised records were amended by the time the Form of Judgment was issued on 2 June 2016 to record that a person by the name of “Christian Roger de Robillard” was the judgment debtor.
[21] Applicant’s Outline of Submissions, 1 September 2017, [3]
Before I consider these submissions it will be necessary that I identify the context in which the submissions are made and the issues to which those submissions give rise.
Context in which the submissions are made and issues arising
The context in which I must consider Mr de Robillard’s submissions is the claim the Creditors make that Mr de Robillard committed an act of bankruptcy by failing to comply with the requirements of a bankruptcy notice. That is the act of bankruptcy defined by s.40(1)(g) of the Act which applies to “a creditor who has obtained against the debtor a final judgment or final order” who has served on the debtor a bankruptcy notice “under this Act”. Under s.41 of the Act an Official Receiver may issue a bankruptcy notice on the application of a creditor who, among other things, has obtained against a debtor “a final judgment or final order”. Thus, the relevance of Mr de Robillard’s submissions is whether, if correct, they operate to deny the Judgment the character of “a final judgment or final order” as those expressions are used in s.40(1)(g) and s.41 of the Act.
This requires that I consider the following issues:
a)What is a “judgment” or “order” for the purposes of s.40(1)(g) and s.41 of the Act?
b)Did the Creditors use the incorrect form when filing the Costs Certificates?
c)Was the Judgment a judgment the Creditors obtained against Mr de Robillard, even though the Judgment named “Christian Roger de ROBILLIARD” as the judgment debtor?
d)Was the Judgment amended before the bankruptcy notice was issued?
e)Assuming the Judgment was not amended, is the Judgment against the person described “Christian Roger de ROBILLIARD” nevertheless “a final judgment or final order” the Creditors “obtained against” Mr de Robillard for the purposes of s.40(1)(g) and s.41 of the Act?
What is a “judgment” or “order” for the purpose of s.40(1)(g) and s.41 of Act?
The words “judgment” and “order” are not defined in the Act.[22] “Judgment”, in its historical sense, refers to the formal decision of a common law court by which it finally determined the issues tendered by the parties to the court. It has been defined as:[23]
the determination or sentence of the law, pronounced by a competent judge or court, as the result of an action or proceeding instituted in such court, affirming that, upon the matters submitted for its decision, a legal duty or liability does or does not exist.
[22] In what follows I have drawn on what I discussed in Heywood v Sharpe [2014] FCCA 2999 at [14]-[16]
[23] H C Black A Treatise on the Law of Judgments, Second Edition, Volume 1, Bancroft-Whitney Co, 1902, page 2
Statutes and rules that regulate the procedures of courts do not limit the use of “judgment” to its technical common law meaning; and they employ the word “order” together with “judgment”, just like s.40(1)(g) and s.41 of the Act do. “Order” is wide enough to include any form of words by which a court pronounces its decisions in response to applications made to it.
The word “judgment”, however, may extend even further than this use. That is the case with s. 368(5) and s.369(7) of the Legal Profession Act 2004 (NSW) (LP Act) (now repealed), being the statutory provisions pursuant to which the Costs Certificates were issued and registered with the Local Court. Subsection 368(1) of the LP Act provided that, on the making of a determination of costs, a costs assessor is to issue a certificate that sets out the determination. Subsection 368(5) of the LP Act provided:
In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.
Subsection 369(5) of the LP Act provides that on making a determination, a costs assessor may issue and forward to each party and the Manager, Costs Assessment a certificate that sets out the costs of the costs assessment. Subsection 369(7) then provides:
The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.
The nature of a judgment that is entered on the basis of a costs assessor’s certificate issued under the equivalent provision to s.368 of the LP Act[24] was considered in Doyle v Hall Chadwick.[25] Hodgson JA (with whose reasons on this aspect of his Honour’s judgment Mason P and Campbell JA agreed) said:
[49] It is well recognised that there are judgments that are not based on any decision of the Court of which they are taken to be judgments, but have some other basis; and such judgments may be set aside or varied if that basis is defeated or varied. . . .
[52] A judgment arising from a certificate pursuant to s.208J(3) of the 1987 Act is this kind of judgment; and is liable to be set aside or varied if the certificate on which it is based is set aside or varied . . . .
[24] Legal Profession Act 1987 (NSW), s.208J(3)
[25] [2007] NSWCA 159
Sections 368 and 369 of the LP Act suggest that, in the case of a certificate of costs issued under the LP Act, the document that constitutes the judgment when the certificate of costs is filed with a court is the certificate of costs. If that is correct, a judgment creditor who applies for the issue of a bankruptcy notice under reg. 4.01 of the Bankruptcy Regulations 1996 (Cth) must lodge the certificate of costs, and it is the certificate of costs that must be attached to the bankruptcy notice that may be issued. Sections 368 and 369 of the LP Act, however, must be read with s.133 of the CP Act which relevantly provides as follows:
(1)A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.
(2)This section extends to:
(a)any judgment, order, determination or decree of a court, and
(b)any adjudication or award of a person having authority to make an adjudication or award,
that may be filed or registered in the court, or of which a certificate may be filed or registered in the court, under any other Act or law.
The word “judgment” is defined in s.3 of the CP Act to include “any order for the payment of money, including any order for the payment of costs”. Thus, s.133 of the CP Act contemplates that a certificate of costs must be entered before it can be enforced as a judgment of the court. That directs attention to the entry of judgment under r.36.11 of the UCPR, which relevantly provides:
(1)Any judgment or order of the court is to be entered.
(2)Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system.
. . . .
(3)In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005. . . .
Also relevant is r.36.12(1) and r.36.12(1A) of the UCPR:
(1)Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005 , the registrar must:
(a)furnish a sealed copy of any judgment or order that has been entered in the proceedings to any person who applies for such a copy, or
(b)seal a document provided by the person that, in the opinion of the registrar, accurately sets out the terms of the judgment or order.
(1A)A document sealed by a registrar in accordance with subrule (1)(b) is taken to be a sealed copy of the relevant judgment or order.
The words “judgment” and “order”, as they appear in s.40(1)(g) and s.41 of the Act, also have a formal dimension because the form of words that constitutes a judgment or order must be evidenced in some way. Subregulation 4.01(1) of the Bankruptcy Regulations 1996 (Cth) prescribes the form in which judgments and orders must appear before a bankruptcy notice can be issued on the basis of them. It provides:
Subject to subregulation (2) [which is not relevant], to apply for the issue of a bankruptcy notice, a person must lodge with the Official Receiver:
(a)an application in the approved form; and
(b)1 of the following documents in relation to the final judgment or final order specified by the person on the approved form:
(i)a copy of the sealed or certified judgment or order;
(ii)a certificate of the judgment or order sealed by the court or signed by an officer of the court;
(iii)a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the court or signed by an officer of the court.
In the context of s.40(1)(g) and s.41 of the Act, therefore, the expressions “judgment” and “order” denote the words by which courts pronounce decisions they make that finally determine the controversy between the parties or otherwise determine finally the rights of the parties. The word “judgment” also denotes any judgment that has as its basis something other than a decision of a court. Whether or not a particular form of words is a “judgment” or an “order” of a court is to be determined by reference to the statutory provisions that define the powers of the court that has pronounced the judgment or order and regulate its procedures, or to some other statutory provision, such as the LP Act. In my opinion, “judgment” includes a judgment in relation to a certificate of costs that was issued and filed under the LP Act and which has been entered under s.133 of the CP Act and r.36.11 of the UCPR.
Did the Creditors use the incorrect form to register the Costs Certificates?
I now turn to the first of Mr De Robillard’s grounds of opposition, namely, that the Creditors used an incorrect form to register the Costs Certificates.
The Creditors signed a Form 45, and Mr Harris lodged with the Local Court the Form 45 the Creditors signed. The document was lodged under r.36.10 of the UCPR which, as at 28 April 2014, provided as follows:[26]
(1)A cost assessor’s certificate:
(a)may be filed in the proceedings to which it relates, or
(b)may be filed in fresh proceedings, whether in the same court or another court.
[26] This is the version that appears in the Historical version for 7 March 2014 to 5 June 2014 - (accessed 20 September 2017)
(2)A number of certificates may be filed together under subrule (1) if each of the certificates:
(a)relates to the same costs assessment, and
(b)requires the same person or persons to pay costs.
(3)If some of the costs specified in the certificate or certificates have been paid, the certificate or certificates must be accompanied by an affidavit, sworn not earlier than 14 days before the certificate or certificates are filed, stating the amount of the costs that have been paid.
Section 133 of the CP Act provides that the Costs Certificates had to be entered before they could be enforced as a judgment. The entry of judgments is governed by r.36.11 of the UCPR, and the relevant form for a judgment is Form 43, which is the form of the judgment that was issued on 2 June 2016 and which was attached to the bankruptcy notice. The Creditors, therefore, did not use any incorrect form in registering the Costs Certificate and the Form of Judgment has been issued in the correct form.
Was judgment entered against Mr de Robillard?
The next question is whether the Judgment was entered against Mr de Robillard, even though the Judgment named “Christian Roger de ROBILLIARD” as the judgment debtor.
There are two items that evince the Judgment. The first is the Form of Judgment. It states that the Judgment was entered on 29 April 2014. It has printed on it “ROBILLIARD”, but this has been crossed out by hand and replaced by hand with “Robillard”. The Form of Judgment contains the following information:
Judgment:
CHRISTIAN ROGER de
ROBILLIARDROBILLARD, First Defendant
is to pay
CHRIS HARRIS, First Plaintiff
NEWTON DE BRIERLEY, Second Plaintiff
CHRIS HOLLEY, Third Plaintiff
M DRAKE-BROCKMAN, Fourth Plaintiff
the sum of
Claim amount: $45531.00
Interest claimed: $0.00
Filing fees: $84.00
Service fees: $0.00
Solicitors fees: $0.00
Other costs: $0.00TOTAL: $45615.00
The second item of evidence is a print-out from the website of “NSW Online Registry” in relation to proceeding number 2014/00127390.[27] The print out records that a “judgment/order” was made on 29 April 2014 and noted “CHRISTIAN ROGER de ROBILLIARD” as the “First Defendant”. It is as follows:[28]
[27] Exhibit CDH 1, pages 117-121
[28] Exhibit CDH 1, page 121
Judgment:
CHRISTIAN ROGER de ROBILLIARD, First Defendant
is to pay
CHRIS HARRIS, First Plaintiff
NEWTON DE BRIERLEY, Second Plaintiff
CHRIS HOLLEY, Third Plaintiff
M DRAKE-BROCKMAN, Fourth Plaintiff
the sum of
Claim amount: $45531.00
Interest claimed: $0.00
Filing fees: $84.00
Service fees: $0.00
Solicitors fees: $0.00
Other costs: $0.00TOTAL: $45615.00
The print-out also records a number of entries that refer to Mr de Robillard. One of those entries is for 2 June 2016, and it records “Request for copy of Judgment or Order”. In the column headed “Filed by” there is included “Christian Roger de Robillard”.[29] That appears to be an error, because it has not been suggested that Mr de Robillard requested a copy of the Judgment on that day.
[29] Exhibit CDH 1, page 119
I infer from the Form of Judgment that, at the time it was issued on 2 June 2016, the computer records recorded “de ROBILLIARD” as the person against whom the Judgment had been entered. Had the Local Court’s computer recorded the judgment debtor as “Christian Roger de Robillard”, that is the name that would have been printed on the Form of Judgment that was issued on 2 June 2016.
That Mr de Robillard’s name was recorded on the Local Court’s computer as “Christian Roger de ROBILLIARD” does not mean, however, that a judgment was not obtained against Mr de Robillard. Whether or not it was entered against Mr de Robillard depends on whether the misspelling of a party’s name in the form of a judgment necessarily denies the judgment from being characterised as a judgment against the party.
In my opinion, a judgment against a person whose name is incorrectly spelled does not by itself deny there being a judgment against that person, provided there can be no reasonable doubt that it was intended that the judgment be entered against the person. A person’s name is nothing more than a linguistic sign that, when used, is intended to refer to a particular referent, namely, the person who bears the name. If, therefore, when entering judgment against a person, a misspelled name is used with the intention of referring to the same person as the correctly spelled name, had it been used, would have been intended to refer, the judgment, when entered, will be a judgment against that person.
Support for what I say in the preceding paragraph may be gained from cases under rules of court that permit amendments to court documents where a mistake has occurred in the name of a party. Such rules have been interpreted to apply only to misnomers, and not to amendments that “change the constitution of the action, to make it an action between different parties from those that were the parties to it before the amendment”.[30] This implies that merely misspelling the name of a party does not alter the person’s having been a party to the proceedings from the outset.
[30] Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 at page 1441 quoted by Dawson J in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at page 239
In my opinion, therefore, even though Mr de Robillard’s name was incorrectly recorded as “Christian Roger de ROBILLIARD” in the Local Court’s computer system, the Judgment was entered against Mr de Robillard. The Costs Certificates were issued in response to an application the Creditors made against Mr de Robillard under the LP Act to assess costs they incurred in the Supreme Court Proceedings and which Mr de Robillard was ordered to pay. Although Mr de Robillard did not participate in the costs assessment, he acknowledged to me that he was aware the Creditors had applied to have their legal costs assessed. Mr de Robillard was aware that those costs had been assessed and that a judgment had been entered on the basis of that assessment because he completed a record of examination the Creditors had initiated in an attempt to recover the judgment debt.[31] In those circumstances, there is no doubt that the name “Christian Roger de ROBILLIARD” was intended to refer to Mr de Robillard.
[31] Exhibit CDH 1, pages 127-131
Was the Judgment amended before the bankruptcy notice was issued?
Mr de Robillard submits there is no evidence the Judgment was amended before the bankruptcy notice was issued because the Judgment could only have been amended by the computer records of the Local Court being amended, and there is no evidence that this occurred before the bankruptcy notice was issued. Mr de Robillard relies on the judgment of Allsop P (as his Honour then was) in Mills v Futhem Pty Ltd.[32]
[32] [2011] NSWCA 252
In that case a document titled “Terms of Settlement” had been signed by the parties and was lodged with the court, purportedly pursuant to r.36.1A(1) of the UCPR.[33] A Registrar dated and stamped the document, but did not sign it. The terms of the document were not recorded on the court’s computerised record system. What was recorded was “[P-D1] Terms of Settlement Filed BG743”.[34] The defendant submitted the terms of settlement had not been entered as required by r.36.11(2) of the UCPR and, therefore, could not be enforced until they had been entered. Allsop P (with whom Beazley and Handley JJA agreed) held that the terms of settlement had not been entered. His Honour said:[35]
Whatever the document's meaning, was it entered into the computerised court record system? The answer to this question is, no. The entry in the computerised court record system did not amount to what is contemplated by Pt 36, r 36.11(2) of the UCPR. What needs to be recorded in the court's computerised record system is the judgment or order. Given that the only document that had been filed and that the parties had sought the Court to deal with was the document entitled “terms of settlement”, for that agreement to be the basis of the Court's judgment for the purposes of r 36.1A, there must have been a recording of the judgment or order, in its terms.
[33] Which provided that the court “may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them”.
[34] [2011] NSWCA 252 at [8]
[35] [2011] NSWCA 252 at [26]
His Honour further held that, in the absence of proof that the terms of settlement had been recorded in the court’s computerised record system as required by r.36.11(2) of the UCPR, r.36.12(1A) of the UCPR did not apply to render the document the Registrar had dated and stamped a sealed copy of the relevant judgment or order:[36]
[36] Rule 36.12(1A) says that a document sealed by a Registrar in accordance with sub-rule (1)(b) is taken to be a copy of the relevant judgment or order. This cannot be conclusive if, in all the circumstances, it has been demonstrated that there is no judgment or order that has been entered. . . . .
[38] Rule 36.12(1) provides that the Registrar must (a) furnish a sealed “copy” of any judgment or order that has been entered or (b) must seal a document provided by a person that in the opinion of the Registrar accurately sets out the terms of the judgment or order. It is not clear whether (a) or (b) was undertaken here. In either case, the document does not reflect the terms of settlement. Nor has any judgment or order been entered. Thus the document is not a “copy” of the orders that have been entered. If anything was purported to be entered on 16 December 2008, it was the existence of terms of settlement. If the Registrar acted under r 36.12(1)(b), the document does not accurately set out the terms of the judgment or order. The judgment or order in r 36.12(1)(b) is the same judgment or order referred to in r 36.12(1)(a), that is one “that has been entered”. This has not occurred.
[36] [2011] NSWCA 252 at [36], [38]
As I have already found, the computer records of the Local Court as at 2 June 2016, being the date the Form of Judgment was issued, recorded “Christian Roger de ROBILLIARD” as the judgment debtor, not “Christian Roger de Robillard”. That means that the Form of Judgment that was printed, amended by hand, and sealed, does not represent any amendment of the computer record of the Judgment. That, in turn, means that the Form of Judgment that is annexed to the bankruptcy notice was a judgment that recorded “Christian Roger de ROBILLIARD” as the judgment debtor, not “Christian Roger de Robillard”.
Is the Judgment nevertheless a “final judgment or final order” obtained against Mr de Robillard?
The final question I must address is that, given I have found the Judgment identified the judgment debtor as “Christian Roger de ROBILLIARD”, and that that entry had not been amended before the bankruptcy notice was issued, does that mean that the Judgment is not “a final judgment or final order” the Creditors “obtained against” Mr de Robillard within the meaning of s.40(1)(g) and s.41 of the Act?
I have earlier found that the Judgment is a judgment that was entered against Mr de Robillard, even though it stated the judgment debtor to be “Christian Roger de ROBILLIARD”. From this finding it follows that the Judgment is “a final judgment or final order” the Creditors “obtained against” Mr de Robillard within the meaning of s.40(1)(g) and s.41 of the Act. There is nothing in the Act that would lead me to conclude that a misspelling of a debtor’s name in the form of judgment on the basis of which a bankruptcy notice has been issued, in circumstances where (as I have found occurred in this case) there can be no doubt that the judgment was intended by the creditor to be entered against the debtor, would deny the judgment from being characterised as “a final judgment or final order” the creditor “obtained against” the debtor.
If I am incorrect in this conclusion, I am of the opinion there would be strong grounds for concluding that the error in the Judgment of naming Mr de Robillard as “Christian Roger de ROBILLIARD” would fall within s.306(1) of the Act, which provides:
Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.
In Re Trevor Peter McSwiney Ex Parte: Mark Sidney Davies,[37] the debtor was incorrectly identified in the bankruptcy notice as “Trevor John McSwiney” instead of “Trevor Peter McSwiney”. Beaumont J held that this error was a formal defect for the purposes of s.306(1) of the Act because the error could not reasonably have misled the debtor. There would be a strong argument for concluding that Mr de Robillard’s being described in the Judgment as “Christian Roger de ROBILLIARD” would amount to a formal defect that would be incapable of causing Mr de Robillard to be misled about the person against whom the Judgment was entered or the person against whom the bankruptcy notice was issued. I make no findings about these matters, however, because the Creditors did not raise the application of s.306 of the Act to the circumstances of this case.
[37] [1986] FCA 405
Conclusion
In my opinion, the Judgment is a final judgment against Mr de Robillard, even though in the Form of Judgment Mr de Robillard’s name is misspelled as “Christian Roger de ROBILLIARD”. Thus, the bankruptcy notice was based on a judgment debt the Creditors obtained against Mr de Robillard, being the judgment debt recorded in the Judgment.
Abuse of process?
In his written submissions Mr de Robillard submits the Creditors initiated bankruptcy proceedings for “a collateral purpose”.[38] Mr de Robillard does not articulate the purpose for which he claims the Creditors initiated the bankruptcy proceedings; Mr de Robillard’s written submissions only refer to the affidavit he filed on 1 September 2017. I take it that this is intended to refer to the matters Mr de Robillard deposes to in paragraphs 12-23 of his affidavit made on 1 September 2017 under the heading “Abuse of Process”. Mr de Robillard there refers to attempts Mr Harris had made to serve him with court documents, rather than Mr Harris making arrangements for the process server to serve Mr de Robillard at an agreed time and place. Mr de Robillard deposes as follows:
Notwithstanding my offer to meet a licensed process server nominated by Mr Harris, I have never received from Mr Harris any detail about a process server to be contacted, nor has any process server contacted me. Nor have I ever received such details from the Respondents’ solicitor.
[38] Applicant’s Outline of Submissions, 1 September 2017, [2(c)]
Mr de Robillard also deposed to Mr Harris having “assaulted” him. From Mr de Robillard’s cross-examination of Mr Harris, Mr de Robillard appears to rely on the technical definition of “assault”, namely, acts that give rise to the apprehension of an imminent threat of physical contact. The details of the alleged assault are set out in Mr de Robillard’s affidavit made on 8 September 2017. Mr de Robillard alleges that, on 29 June 2014, Mr Harris attempted to grab the windscreen wiper of Mr de Robillard’s car as Mr de Robillard was driving his car out of his apartment security car park. Mr de Robillard further deposes that, at about one kilometre from the car park exit, Mr de Robillard “became aware of a car that had almost touched the back of [Mr de Robillard’s] car”. Mr de Robillard noticed Mr Harris was driving the car behind him. Mr de Robillard also noticed Mr Harris “jump out of his car and walk quickly towards” Mr de Robillard’s car. Mr de Robillard drove the wrong way down a laneway, then reported the incident to police at the Rocks Police Station and sought an apprehended violence order against Mr Harris. Mr Harris does not dispute this part of Mr de Robillard’s evidence. In evidence given under cross-examination, Mr Harris said he was attempting to serve documents on Mr de Robillard.
Mr de Robillard also refers to what he alleges to have been his unlawful expulsion from the “Inner Sydney Greens Local Group”, and to having been told that the Creditors’ solicitor had been overheard at an inner city hotel or pub highlighting Mr de Robillard’s shortcomings as an advocate.[39]
[39] de Robillard affidavit, 01.09.2017, page 4
A useful statement of what constitutes an abuse of process in the context of the presentation of a creditor’s petition is the following passage from the judgment of Isaacs J in Dowling v Colonial Mutual Life Assurance Society Ltd (emphasis in original):[40]
Where it can be shown in a case of insolvency that the creditor is making his application not intending to pursue it to a recognized lawful end—whatever his motive may be for attaining that lawful end—but for the real purpose of attaining some other and improper end, such as extorting money as in Davies’ Case, where the petition was hung up while in existence and used as a means of extortion, there is an abuse of process. So in Ex parte Griffin the debt was bought up as a means of intimidation, and to compel the debtor to stifle a certain claim. The key to that case is really found . . . in the judgment of Brett L.J., where it is said the purchase of a debt was “not for the purpose of making the debtor a bankrupt, but for the purpose of threatening to make him a bankrupt, in order to force him by that oppression to give up a just debt which was due to him.” So in Re Shaw, in which King v. Henderson was cited, Rigby L.J. says: - “Now, it was admitted, and could not be denied, that if a creditor goes to his debtor and says: You owe me so much, I can proceed in bankruptcy against you; you will not like that; pay me something extortionate, something altogether beyond what you owe me at law, or I will file a petition; that petition cannot be made the basis of a receiving order; and very properly, for though the petition itself will only be that which is within the right, so far as there is a right, of a creditor, and will only have the effect of distributing the property according to the rules of bankruptcy, yet the previous conduct of the creditor would make it plain that he was using, or attempting to use, the bankruptcy proceedings as the means of unduly extorting what was not due to him.” What the learned Lord Justice was pointing to is the abuse of the proceeding as I have explained it, because he concedes that its true and legitimate use will only have the normal consequences.
[40] [1915] HCA 56; (1915) 20 CLR 509 at pages 522-523 (emphasis in original)
I am not satisfied the Creditors initiated the bankruptcy proceeding for a purpose foreign to its lawful end of seeking a sequestration order based on Mr de Robillard’s failure to comply with the requirements of a bankruptcy notice. On the contrary, the evidence satisfies me that the purpose for which the Creditors have initiated bankruptcy proceedings is to recover the Judgment debt. Mr de Robillard has not suggested the Judgment debt could be recovered through the ordinary forms of execution of judgments. Further, the Judgment was entered more than three years ago. Mr de Robillard has not challenged the costs assessments, and he has not manifested any willingness to satisfy the Judgment.
Mr de Robillard’s ground based on abuse of process, therefore, fails.
Costs indemnity principle
It is possible for a bankruptcy court to go behind a judgment based on a costs assessment where there are substantial grounds for questioning whether the party in whose favour the costs assessment has been made did not pay or otherwise did not become liable to pay the costs of the lawyers who were on the record for the party.[41]
[41] I discussed the relevant principles in Lowbeer v De Varda and Lowbeer v Tov-Lev [2017] FCCA 1658 at [21], [22], and [30] – [46], which I need not repeat in these reasons for judgment.
As I have already noted, the Costs Agreement is in evidence. Taylor & Scott Lawyers are named as the solicitors for the Creditors and the Creditors are described as the clients. It is true the Costs Agreement states that for it to be binding it must be signed and returned to Taylor & Scott Lawyers; and there is no direct evidence that any of the Creditors, other than Mr Harris, signed and returned the Costs Agreement to Taylor & Scott Lawyers. I infer, however, that all Creditors signed the Costs Agreement or, if they did not, that the Creditors impliedly assented to the terms of the Costs Agreement. The basis of my inference is that Taylor & Scott Lawyers did act in the Supreme Court Proceedings as solicitors on the record for the Creditors, and Taylor & Scott Lawyers issued invoices to the Creditors.[42] In my opinion, therefore, there are no substantial grounds for questioning that the Creditors were liable to pay Taylor & Scott Lawyers costs for their acting for the Creditors in the Supreme Court Proceedings.
[42] Exhibit CDH 1, pages 152-162
In paragraphs 16, 17 and 18 of the affidavit of Mr Harris made on 13 September 2017 (which, when objected to, the Creditors did not press), Mr Harris deposed to his having arranged loans to cover legal costs he and the other Creditors incurred or were to incur to Taylor & Scott Lawyers. Mr Harris also deposed that the loans are to be repayable by the Creditors only if the Creditors recover costs from Mr de Robillard. Given paragraphs 16, 17 and 18 of the affidavit of Mr Harris were not admitted, I do not propose to make any findings about these matters. I only wish to note that if it is the case that the Creditors borrowed money to pay their legal costs to Taylor & Scott Lawyers, that fact would not have raised any serious questions about whether the Creditors were not entitled to an order for costs. That the Creditors may have paid Taylor & Scott Lawyers’ fees from loans they are obliged to repay only if and to the extent they recover costs from Mr de Robillard, does not overcome the fact that the Creditors came under a liability to pay Taylor & Scott Lawyers.
Mr de Robillard also submitted that Taylor & Scott Lawyers were not retained by the Creditors, but they were retained by the “Inner City Greens”. The basis of that submission is that Taylor & Scott Lawyers, in correspondence with Mr de Robillard, described the subject of their correspondence “INNER SYDNEY GREENS ATS ROGER DE ROBILLARD”.[43] There is no substance to this submission. The Costs Agreement named the Creditors as the clients, and Taylor & Scott Lawyers issued its invoices to the Creditors.
[43] de Robillard affidavit, 01.09.2017, pages 36 and 41
Mr de Robillard’s ground based on the Creditors not having retained Taylor & Scott Lawyers or not having incurred any liability to pay the costs of Taylor & Scott Lawyers, therefore, fails.
Counter claim against Creditors?
In his written submissions Mr de Robillard asserts he has “substantial counter-claims against the [Creditors] jointly and severally (such claim may be based upon the matters, facts and circumstances already pleaded in Supreme Court proceedings No 2011/264405 which were dismissed in March 2012 on procedural grounds only”. Mr de Robillard also asserted “there have been other events since 2012 which also give rise to other claims”.[44]
[44] Applicant’s Outline Submissions, 1 September 2017, [2(d)]
The existence of a claim by a debtor against a petitioning creditor is capable of constituting a “sufficient cause”, within the meaning of s.52(2)(b), and may lead a bankruptcy court not to make a sequestration order, even though the matters specified in s.52(1) of the Act have been proved. Sundberg J summarised some of the more important authorities in St George Bank Ltd v Helfenbaum:[45]
The existence of a cross-claim may be a “sufficient cause” within s 52(2)(b) for declining to make a sequestration order: Ling v Enrobook Pty Ltd [1997] FCA 226; (1997) 74 FCR 19 at 25. It is for the debtor to establish the existence of “sufficient cause”: Cain v Whyte [1932] HCA 6; (1933) 48 CLR 639 at 645-646; Ling at 24. He must establish that he has a real claim against the creditor that is likely to succeed. If the Court is satisfied that there is such a claim, and that its quantum is likely to equal or exceed the creditor’s claim, it will not make a sequestration order. If the claim is likely to be less than the creditor´s claim, the Court will require the debtor, if he is to avoid a sequestration order, to pay the difference between the judgment debt and the amount he is likely to recover on his claim. See Re Player (1962) 19 ABC 277 at 282; Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111 at 115-116; Ling at 25-26; Commonwealth Bank v McDonald [1999] FCA 984. A debtor does not establish a real claim that is likely to succeed merely by producing a statement of claim in an action against the creditor: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182; Player at 282, or by pointing to the existence of current litigation against the creditor: cf Re Douglas Griggs Engineering Ltd [1963] 1 Ch 19 at 23. While the Court does not try the cross-claim in advance, the debtor must adduce sufficient evidence to show that it is a real claim which is likely to succeed: cf Vogwell v Vogwell (1939) 11 ABC 83 at 88; Player at 282.
[45] [1999] FCA 1337 at [13]
Mr de Robillard has not articulated the claim or claims he says he has against the Creditors. He has gone no further than to refer to the claims he made in the Supreme Court Proceedings, and to assert that those proceedings were dismissed on “procedural grounds only”. That is an incomplete description of the grounds on which Bergin CJ in Eq dismissed the Supreme Court Proceedings. Her Honour dismissed the proceedings pursuant to r.12.7 of the UCPR on the ground Mr de Robillard failed to prosecute the proceedings with due despatch.[46] A significant factor on which Bergin CJ in Eq relied was what her Honour considered to be the defective draft statement of claim Mr de Robillard had indicated he proposed to apply for leave to file. Her Honour concluded the draft statement of claim was “one that could not be the subject of any leave, even if the plaintiff had sought to comply with the Court orders to bring the application for leave to file it and serve it”.[47]
[46] A copy of the judgment of Bergin CJ in Eq is at Exhibit CDH 1, pages 15-31
[47] Exhibit CDH 1, page 29
There is nothing to suggest Mr de Robillard has any claim against the Creditors, or any claim against the Creditors that has any sufficiently arguable basis of succeeding. Mr de Robillard’s ground based on having a claim against the Creditors, therefore, fails.
Conclusion and disposition
I am satisfied that the Creditors have established the matters prescribed by s.52(1) of the Act and by the Bankruptcy Rules. I am not satisfied there is any sufficient cause for not making a sequestration order against the estate of Mr de Robillard.
I propose, therefore, to dismiss Mr de Robillard’s application for review. I also propose to order that the Creditors’ costs be paid out of Mr de Robillard’s estate, and that such costs have the same priority as the costs of the petition.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 October 2017
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