Jimenez v Welcome Homes Real Estate Pty Ltd
[2002] FMCA 92
•17 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JIMENEZ V WELCOME HOMES REAL ESTATE PTY LTD | [2002] FMCA 92 |
| BANKRUPTCY – Application to set aside a bankruptcy notice – prior payment of debt – prior payment established. |
Bankruptcy Act 1966 (Cth) ss. 30, 41(6A)
Horman v Distribution Group Limited t/as Repco Auto Parts [2002] FCA 219
Cachia v Hanes (1994) 179 CLR 403
| Applicant: | YAEL ABRAHAM JIMENEZ |
| Respondent: | WELCOME HOMES REAL ESTATE PTY LIMITED |
| File No: | SZ 103 of 2002 |
| Delivered on: | 17 May 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 8 May 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Ms Jimenez in person |
| Counsel for the Respondent: | Mr SMP Reeves SC |
| Solicitors for the Respondent: | Steven Lewis of Denes Ebner |
ORDERS
Bankruptcy Notice dated 14 December 2001 dismissed.
Respondent to pay Applicant her filing fees and any witness expenses properly incurred.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 103 of 2002
| YAEL ABRAHAM JIMENEZ |
Applicant
And
| WELCOME HOMES REAL ESTATE PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
This is an application made by the debtor Ms Jimenez to set aside a bankruptcy notice dated 14 December 2001. The application is made under ss. 30, 41(6A) of the Bankruptcy Act 1966 (Cth). The applicant made the application within time and time for compliance of the bankruptcy notice has been extended.
The bankruptcy notice claims a debt of some $27,458.69 constituted by a judgment debt of $14,543.27 and some $12,915.42 interest. It will be immediately apparent that the judgment debt is old and in fact was secured on the 5 August 1993. The judgment debt arose out of a disputed claim for agent’s commission from the sale of a property.
The proprietor of the creditor company is a Mr Jack Ziade. He is the former brother-in-law of the respondent debtor, the applicant in these proceedings. Ms Jimenez was married to Adam Ziade. There is also another brother, a solicitor, Mr Anthony Ziade.
It is not disputed that relations between the Ziade family and Ms Jimenez were poor, particularly during the period between the break up of the marriage in 1992 and the completion of certain family law proceedings some years later.
It is the evidence of Ms Jimenez that for a period of approximately six months after the judgment was obtained Mr Jack Ziade made efforts to recover the moneys owed. This is accepted by Mr Ziade in his evidence. Ms Jimenez says that eventually she negotiated with Mr Ziade a compromise amount of $11,000.00 and that in March 1994 she travelled to Mr Anthony Ziade’s office in the company of two witnesses and there paid Mr Jack Ziade the $11,000.00 by way of a bank cheque for $6,000.00 and $5,000.00 in cash. It is her evidence that Mr Ziade accepted this money in full settlement of the claims being brought by Welcome Homes, the creditor, and provided her with a receipt.
It is agreed by Mr Jack Ziade that between 1994 and 1998 no steps were taken to enforce the judgment. He says this was done because Ms Jimenez was proving difficult to find. Ms Jimenez says it was because the money had been paid. In 1998 a firm of solicitors instructed by Mr Ziade to recover this debt made some effort to have Ms Jimenez examined and later discovered that a bankruptcy petition had been taken out against her. They informed Mr Jack Ziade of this and he then sought to be substituted as petitioning creditor.
I understand that that occurred but that the petition was later dismissed. Following the dismissal of the petition the bankruptcy notice which is the subject matter of these proceedings was issued.
The case is one within a short compass. Either I accept that on the balance of probabilities the debt was repaid and set aside the bankruptcy notice or I find that Ms Jimenez has not proved that the debt was repaid and decline to set aside the notice.
Ms Jimenez, who was until 1999 the holder of a practising certificate as a solicitor of the Supreme Court of New South Wales, acted on her own behalf. She gave evidence that she spoke with Mr Jack Ziade on several occasions about the judgment debt. She first offered him $8,000.00 to settle it, then raised that offer to $10,000.00 and finally agreed with him a figure of $11,000.00. She says that Mr Ziade asked for the money in cash and she told him that she would be able to provide some cash. She agreed with Mr Ziade that the money would be paid to him at his brother’s solicitor’s office in Ashfield. She says that she made this arrangement because she knew that Anthony Ziade was acting for Jack and she felt it was appropriate that she went out and paid the money at his office. She then begged and borrowed as much of the money as she did not already have and put together a bank cheque for $6,000.00 and found $5,000.00 in cash.
Ms Jimenez says that at the time she was in fear of the Ziades and she did not trust them. She therefore arranged for the transaction to be witnessed by two persons. One was a Ms Nisbett, a lady she had known for some time and with whom she was staying at her apartment in the Astor in Macquarie Street. The other person was a Mr Yosef Sanchez. She had hoped to have a third witness, a Mr Munoz. At the last moment Mr Munoz was unable to come but offered up his son in his place. Ms Jimenez’s evidence is that because the son was so young she did not particularly want him to witness the transaction but she happily accepted an offer to allow him to drive her and Ms Nisbett to the premises in Ms Jimenez’s BMW motor car.
Ms Nisbett said in her evidence that the cash component of the money was counted in the Astor. Ms Jimenez says that she and Ms Nisbett were collected in the early evening by young Mr Munoz and driven to Ashfield. Upon arrival they saw Mr Sanchez in the street next to the solicitor’s office. They got out of the car, which Mr Munoz then drove around as he could not park. The three of them went into the premises. Ms Jimenez said they went into the premises themselves and there was no one around. She called out and eventually someone heard them and said something. Soon Mr Jack Ziade came out. Ms Jimenez told him that she was here to pay the money and the cash component was counted. Ms Jimenez asked for a receipt and Mr Ziade began to write one out. At this stage Ms Nisbett told her that she did not believe that that was appropriate and that a receipt should be prepared on headed notepaper. Ms Jimenez told Mr Ziade this and he went around the back. Sounds of typing were heard and Mr Ziade returned with a receipt on the letterhead of Anthony Ziade and & Associates. The receipt is in the following form:
“I, Jack Ziade, acknowlege receipt of the sum of $11,000.00 in full satisfaction of the debt owed to mne (sic), by Yael Jimenez in respect of my cliam (sic) for commission against her at the Local Court Waverley. There will be no further claims against Yael for the balance of the debt which totalled in excess of $14,000.00.
Signature
……………
March 1994”
It is Ms Jimenez’s evidence that she cannot remember whether or not she ever received the original of this document. She recalls that Mr Ziade brought back two documents and gave her one and kept one. She may have received the original or she may have received just the copy. She has looked for the original but cannot find it. She says that neither party could remember the exact amount of the judgment debt which is why they put in the phrase “in excess of $14,000.00.” She says that when the receipt was handed over Mr Ziade counted the money again. When he was satisfied it was the full amount of $5,000.00 the meeting broke up and she, Mr Sanchez and Ms Nesbitt left the premises. Mr Sanchez went to his own home and Ms Nesbitt and Ms Jimenez were driven back to the Astor by Mr Munoz in her car.
Ms Jimenez and all her witnesses were put under severe cross-examination by Mr Reeves. It was his client’s case that none of this happened. There was no agreement, there was no meeting in Ashfield, there was no payment and there was no receipt. Understandably the cross examination was aimed at showing that the witnesses had only a vague recollection of these events, pointing to discrepancies between their various affidavits and testimony and suggesting that the affidavits were not true recollections of events but creations of Ms Jimenez.
Mr Sanchez gave evidence. He explained that Ms Jimenez had approached him and that he did recall going to Ashfield with her and Ms Nisbett. He recalled that she was going there to repay a debt. He recalled meeting her outside the offices of Anthony Ziade & Associates and going in there and that he watched the business being transacted. He didn’t have a very accurate recall of the conversations inside the building because he was mostly concerned with Ms Jimenez’s safety and when he could see that the parties were conversing without apparent rancour he did not pay too much attention. In response to questions he gave evidence that Ms Jimenez had prepared an initial affidavit for him but that he had spoken to her about it because he didn’t recall all the things which had been inserted in it. He told her what he did recall and she then prepared an affidavit on that basis, which was the affidavit tendered to the court. He was happy to swear that affidavit and happy to support it.
Mr Sanchez deposed to the fact that he did have a recollection of the day in question although some things were more vivid than others. Under intense cross-examination he was firm in his recollection of the fact of the call for help from Ms Jimenez, the fact that he drove to the office and the fact that there was no incident or aggression. He also remembered the handing over of the money and Ms Jimenez’s relief thereafter. His evidence corroborated that of Ms Jimenez particularly in the issue about a receipt. He recalls a discussion about a receipt, he recalls that the issue was of a problem with the handwritten receipt although he wasn’t sure whether it was Ms Nisbett or Ms Jimenez who said that the receipt wasn’t adequate and who wanted what he described as a “tight official receipt”.
The witness gave his evidence carefully. He accepted the fact that he did not remember everything about the incident. He was not flustered or disturbed by the cross-examination. His demeanour indicated an openess in his answers.
Ms Nisbett’s evidence was that she agreed to accompany Ms Jimenez to Ashfield. She said that the money was collected in her flat at the Astor before they left and was counted by her son. She recalls being taken in a car to Ashfield and going into the office. She recalls that they left Sydney in the early evening and arrived at Ashfield as it was getting dark. She thought Mr Ziade had opened the front door and that Mr Jack Ziade was the only person she saw in the building. She described the office in a manner similar to that of Ms Jimenez and Mr Sanchez. She saw a cheque and cash being handed over and she gave evidence that it was her who suggested that an official receipt ought to be obtained. This was after Mr Ziade had already written out a receipt. Mr Ziade then went into the back and brought back a typed written document which he read out. She saw that it was on letterhead. It seemed to satisfy her although she was not asked her opinion at the time. She said that after the money was counted again she and Ms Jimenez and Mr Sanchez left the premises. She thought the whole thing took only about 20 minutes to about one half hour.
Ms Nisbett was strongly cross-examined. In her affidavit she had spelt her name with an “e” rather than an “i”. She said this was because she wished to protect herself against the Ziades. She readily admitted to this deceit. She also accepted that her memory was vague on some matters but she was adamant that the transaction took place and that she was a witness to it. Although Ms Nisbett’s method of giving evidence veered to the garrulous and argumentative I think this was more a product of nervousness and a bewilderment that she should not be believed rather than an attempt to deceive the court. Ms Nisbett has recently suffered a tragic bereavement and it is to be expected that she might not have a total recall of every event that occurred in 1994.
I saw no reason whatsoever from the manner in which she gave her evidence or from her answers in cross-examination as to why I should not believe her.
Mr Munoz also prepared an affidavit and apparently attended court to give evidence. However he later left the building and did not return. His affidavit was not read.
The evidence given for the respondents came from Mr Anthony Ziade and Mr Jack Ziade. Mr Anthony Ziade swore an affidavit dated
22 February 2002. This was a very carefully drafted affidavit as can be expected from a solicitor of the Supreme Court. Most importantly the affidavit sets out to prove, and I accept, that as at 1994 the letterhead of Anthony Ziade & Associates was not in the form of the letterhead upon which the receipt had been printed. Mr Ziade deposed to the fact that David Glinatsis was employed by him as a solicitor from 1986 to 1996 and that his name appeared on the letterhead from at least 1991 and an original letter of that date was annexed to the affidavit. He also deposed to the fact that the post office box number which appeared in the letterhead upon which the receipt had been typed had changed between 1990 and 1991.
Mr Ziade’s affidavit states in paragraph 8:
“It has always been my practice to ensure that only I or a solicitor employee only sign any correspondence on my letterhead. I have never allowed any other person to utilise my letterhead or sign any letters emanating from my firm.
9. It has never been my practice to issue receipts by any person other than an employee of my firm. It has similarly been my practice that any receipt issued by a member of my firm be fully dated including the day, month and year.”
And at 11:
“I have never allowed Mr Jack Ziade access to my offices unaccompanied nor have I ever given Mr Ziade a key to my premises.”
The one thing Mr Anthony Ziade’s affidavit does not do is deny Ms Jimenez’s allegations.
Ms Jimenez attempted to cross-examine Mr Ziade on the efforts made to enforce the judgment against her and his knowledge of her whereabouts. I took the view that this was only tangentially relevant to the real issue in the case, which was whether or not the alleged meetings ever took place and the cross-examination was halted. Mr Ziade did say that he referred to the judgment debt in an affidavit in family law proceedings in 1995. I took this to be a reference to an incident which corroborated Mr Jack Ziade’s allegation that the meeting had never taken place.
Mr Jack Ziade deposed to the efforts which he had made to recover the judgment against Ms Jimenez. In cross-examination he agreed that nothing had been done between 1994 and 1998 when he retained the firm of Colin Biggers & Paisley. He emphatically denied that he had ever agreed to accept the sum of $11,000.00 or any other amount in full satisfaction of the judgment debt. He denied accepting any cash or that he asked for $5,000.00 in cash and the balance of $6,000.00 to be made payable to a company. He denied signing the document or giving it to Ms Jimenez. He denied ever having met with Ms Jimenez or anyone else on her behalf at his brother’s office. He says that he has never met Ms Nisbett. He denied providing Ms Jimenez with a receipt or amending any receipt and says that he never had a key to the offices of Anthony Ziade & Associates nor has he ever gained access to those premises without Mr Anthony Ziade also being present. Mr Jack Ziade was cross-examined. He admitted being in Australia in March 1994 but maintained the position that the incident had never taken place.
In Horman v Distribution Group Limited t/as Repco Auto Parts [2002] FCA 219 Emmett J approved of the following propositions as those which should guide a Tribunal in findings of fact:
“Tribunals and courts of law are frequently asked to decide which of two varying versions of a series of facts they accept. It is often a very difficult task, particularly where both witnesses are credible. The decisions are made with the benefit of a number of factors. Perhaps the most important is each witness’ demeanour in the witness box, his or her method of giving the evidence, the way questions are answered in cross-examination, the willingness to acknowledge the possibility of error and changes in recollection due to the passage of time. Other matters that would be looked at would be the interests that the witness might have in the outcome of the proceedings and the inherent likeliness or unlikeliness of the evidence when considered with the background of the known facts.
Finally most tribunals or courts seek to find some form or corroboration from other evidence of whatever nature. The decision which is made is not always one between believing on witness and not believing another or holding that one witness is telling the truth and the other is lying. More often than not the decision comes down to the preference of one recollection over another. Recollection is notoriously unreliable.”
These principles do not cease to apply just because the facts of a case require a firm decision as to whose evidence is to be preferred. In relation to Ms Jimenez, Mr Reeves urged me not to accept evidence because of admitted attempts by her to deceive the court. These related to the way in which Ms Jimenez had approached the provision of affidavits by her witnesses. There were complaints about the provision of incorrect names and of other indications of the identity of persons who were to give evidence. Ms Jimenez accepted these criticisms and apologised to the court for her actions. It would appear that they were based, at least in part, in her concern not to bring these people into the proceedings and a fear of the actions of Mr Ziade. I did not believe that this case was the appropriate place to investigate whether or not those fears were well founded. I felt that when faced with a witness who has admitted misleading the court, for whatever reason, one should be circumspect about that person’s evidence.
I did not need to be so circumspect about the evidence of Ms Nisbett or Mr Sanchez. If Mr Jack Ziade is right, then both of those persons were prepared to come to this court and commit a blatant act of perjury. I do not accept that this has happened. I found the evidence of both those witnesses credible after taking into account the matters I have referred to in the quoted paragraph above. I was particularly impressed by the fact that both of them had changed their affidavits originally prepared for them by Ms Jimenez to what accurately accorded with their own recollection where that was vaguer than Ms Jimenez might have wished. Notwithstanding this, they both recollected the essentials of the meeting, the handing over of money and the production of a receipt.
I also accept the evidence of Mr Anthony Ziade. I do not know where that piece of letterhead came from. Some attempt was made in cross-examination of Ms Jimenez to suggest that it may have been an old piece of letterhead she had received whilst a solicitor. However that was denied and was not followed up. A more likely hypothesis would be that it was an old piece of note paper found lying around by Mr Jack Ziade when he went into the back of the office to type out the receipt. Although no one saw Mr Anthony Ziade in the office during the transaction, Ms Jimenez deposed to the fact that she thought she had heard his voice and that he may well have been there. Mr Anthony Ziade did not give his brother that piece of letterhead. The receipt was not a receipt given by his firm, but was actually given by Mr Jack Ziade on behalf of Welcome Homes. I do not find there is any inherent unlikeliness in the fact that a solicitor would allow his brother to meet a debtor in the solicitor’s office for the purpose of receiving payment of a debt. Nor do I find it inherently unlikely that in the course of that transaction Mr Jack Ziade might have gone into the back of the office to find a piece of paper upon which to write the receipt. Mr Anthony Ziade does not say that there was none of that letterhead lying around his office at that time. It may have been made into jotting pads, or used for the same purposes in a loose form. I would not disbelieve the evidence of two credible witnesses on the basis of Mr Anthony Ziade’s affidavit although I find no untruth in it.
I heard the evidence of Mr Jack Ziade. He was firm in the manner in which he gave it, although he was easily brought into argument with Ms Jimenez. It is clear there is little good blood between them. In all the circumstances I prefer the evidence of Ms Jimenez and her witnesses to that of Mr Jack Ziade.
I find that on the balance of probabilities the events described by Ms Jimenez, Ms Nisbett and Mr Sanchez took place and that the debt owed by Ms Jimenez to Welcome Homes Pty Ltd has been repaid. I find that the receipt, although only referring to Mr Jack Ziade was intended to cover the debt that was actually owed to his real estate agency. I would therefore set aside the bankruptcy notice.
Ms Jimenez is not entitled to her costs as she is a litigant in person (Cachia v Hanes (1994) 179 CLR 403). I order that the respondents pay Ms Jimenez filing fees of the application and any expenses incurred by her for obtaining the assistance of the witnesses.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
2
2
0