Juratowitch v Cantonomi - [2010] FMCA 663

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JURATOWITCH v CANTONOMI

[2010] FMCA 663

BANKRUPTCY – Application by trustee for vacant possession of land occupied by bankrupt – respondent seeking to annul bankruptcy – respondent asserting terms of settlement on which creditor’s petition based never validly made – consideration of evidence about the settlement.

Bankruptcy Act 1966, s.153B(1)

Applicant:

DANIEL PETER JURATOWITCH
(AS TRUSTEE)

Respondent:

MARGARET OLANREWAJU CANTONOMI (AKA MARGARET OLANREWAJU BOTTOMLEY)

File Number:

MLG 1180 of 2009

Judgment of:

Burchardt FM

Hearing date:

23 July 2010

Date of Last Submission:

6 August 2010

Delivered at:

Melbourne

Delivered on:

10 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Cogley

Solicitors for the Applicant:

Forbes Dowling Lawyers

The Respondent:

In person

Counsel for the Petitioning Creditor:

Mr Woods

Solicitors for the Petitioning Creditor:

Forbes Dowling Lawyers

ORDERS

The Applicant have vacant possession of the premises situated at 7/54 Harding Street, Coburg Victoria being the land more particularly described in Certificates of Title Volume 08737 Folio 754 and Volume 08737 Folio 764.
The Applicant’s costs of and incidental to this application be paid by the Respondent.
Insofar as Ms Cantonomi applies to set aside or annul her bankruptcy, the said applications be dismissed.
The costs of the Applicant Trustee and the Petitioning Creditor be paid out of the bankrupt estate of Ms Cantonomi.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1180 of 2009

DANIEL PETER JURATOWITCH (AS TRUSTEE)

Applicant

And

MARGARET OLANREWAJU CANTONOMI
(AKA MARGARET OLANREWAJU BOTTOMLEY)

Respondent

REASONS FOR JUDGMENT

The applicant filed an application on 16 September 2009 in his capacity as trustee of the estate of the bankrupt respondent. He sought orders for vacant possession in his favour of premises situated at

7/54 Harding Street, Coburg, together with costs.
Although Ms Cantonomi, the respondent, has filed no formal application, it has become apparent during the currency of the proceeding that she opposes the application on the primary footing that she ought not be bankrupt. Although she has never articulated the matter in terms, bearing in mind she has essentially not been legally represented throughout, she seeks that the bankruptcy be set aside or annulled.
For the reasons that follow, I do not think it is appropriate to set aside or annul Ms Cantonomi’s bankruptcy and that the application brought by the trustee should succeed.

Background

It is not possible to understand the matters in issue before the Court in this proceeding without reference to the relevant antecedent history, most particularly commencing with the controversies that have bedevilled, and continue to do so, the relationship between the respondent and a company known as ‘A’ 4 MATHS Learning Centres Pty Ltd. It was that company that sought and obtained a sequestration order made by Registrar Hannigan in respect of the respondent’s estate on 14 August 2008.
It is clear from exhibit JEM-01 to the affidavit of James Edward Moreley sworn 9 June 2010 that on 1 September 2003 Ms Cantonomi entered into a franchise agreement with ‘A’ 4 MATHS.
It is clear that almost from the start the interrelationship between the franchisor, ‘A’ 4 MATHS, and the franchisee, Ms Cantonomi, was unsatisfactory. Both of them say so although for different reasons. It is clear that by 20 April 2006 Mr Moreley on behalf of ‘A’ 4 MATHS executed and served a notice of termination of the franchise agreement on Ms Cantonomi (see paragraph 36 Mr Moreley’s affidavit sworn 9 June 2010 and exhibit JEM-10).
Thereafter ‘A’ 4 MATHS issued proceedings in the District Court of New South Wales against Ms Cantonomi. Those proceedings came to Court on 15 November 2007 before DCJ Rolfe. The transcript of that proceeding is before the Court and despite some initial uncertainty,

Ms Cantonomi has confirmed that the transcript is an accurate record of what took place (P-41).
At a time not indicated by the transcript but which seems to have been late in the afternoon of 15 November 2007 the Court was informed by counsel for ‘A’ 4 MATHS, in the presence of Ms Cantonomi, that terms of settlement had been reached and a copy of the same was handed to the Court and in due course put on the Court file. The terms of that agreement of themselves are not in issue.
The terms of the purported settlement provided for a series of payments by Ms Cantonomi to ‘A’ 4 MATHS over time, which payments

Ms Cantonomi readily concedes she never made. She did not do so because she did not regard the agreement as ever having been validly made. I will return to her criticisms in this regard later on.
Thereafter, because of the alleged default by Ms Cantonomi,

‘A’ 4 MATHS entered judgment against her on 6 February 2008 in the sum of $60,000 (see exhibit JEM-15).
On 28 April 2008 Ms Cantonomi filed a notice of motion seeking that that default judgment be set aside, that application being made after a bankruptcy notice based on the default judgment had been served on her.
On 28 April 2008 (see paragraph 51 to Moreley’s affidavit 9 June 2010) Ms Cantonomi’s notice of motion was heard by Geraghty DCJ in the District Court of New South Wales. The judge dismissed the notice of motion and ordered that Ms Cantonomi pay the costs of ‘A’ 4 MATHS.
In May 2008 Ms Cantonomi sought to set the bankruptcy notice aside, but that application was unsuccessful (see paragraph 56 – affidavit Moreley 9 June 2010).
Thereafter a creditor’s petition was served and the matter came before Registrar Hannigan on 14 August 2008 at which time the Registrar made a sequestration order. The order was made despite

Ms Cantonomi’s opposition. From the file SYG 1510 of 2008 it is clear that Ms Cantonomi filed material in opposition on 30 July 2008.
Although Ms Cantonomi has adopted the position that she has never heard of him, it is clear that Mr Juratowitch was appointed trustee of the bankrupt estate by order of the Federal Magistrates Court at Sydney on 14 August 2008 and that a certificate of appointment of the trustee was issued by Insolvency and Trustee Service Australia on 18 August 2008 (see DPJ-2 to the affidavit of Mr Juratowitch filed 21 December 2009).
Ms Cantonomi did not comply with her obligation to file a statement of affairs and was the subject of Court proceedings in the Magistrates Court of Victoria as a result. The outcome of those proceedings was the subject of controversy before me, but I note that it was not until I made an order requiring her to do so that the respondent ultimately completed and filed her statement of affairs.

The orders sought by the applicant

The orders sought by the applicant seek vacant possession of the home where Ms Cantonomi actually lives. It is clear from the affidavit of Roger Douglas Misso filed on 16 September 2009 that the bankrupt was on 29 February 2000 the registered proprietor in fee simple of the whole of that property. It is also clear that following the sequestration order the trustee had title to that property transferred to himself (see paragraphs 6 and 7 to the affidavit of Mr Misso and exhibits RDM5 and 6 respectively).
Ms Cantonomi has challenged various aspects of the conduct of the trustee and more particularly that of the original petitioning creditor, but she has never put in issue any of the matters as to the ownership and/or occupation of the property. It is therefore clear that absent success on the part of Ms Cantonomi’s, in effect, cross-application, the trustee is entitled to the orders that he seeks.

The case put by the respondent

Ms Cantonomi’s criticisms of the case put against her fall in broad terms into two parts. First she says that the original agreement (if it was an agreement) that she entered into with ‘A’ 4 MATHS by way of a franchise was the subject of deceptive and misleading conduct, fraud and breach of contract on the part of ‘A’ 4 MATHS. Her affidavit material, set out unfortunately in ways that were at times difficult to follow, says much as to the detail of matters whereby it was put that she was induced to spend very substantial amounts of money paid to ‘A’ 4 MATHS in return for woefully inadequate services. As she would put it, the conduct of ‘A’ 4 MATHS was wholly reprehensible.
In this regard, Ms Cantonomi sought to call two other former franchisees of ‘A’ 4 MATHS. I initially required these witnesses out of Court under the Witnesses Out Rule, but it rapidly became apparent to me during the conduct of the trial that they should not be permitted to be called. I indicated at the time that I would give more full reasons for this exclusion in my judgment.
The reason why I did not allow these witnesses to be called is that

Ms Cantonomi entered into what at least on its face purported to be the terms of settlement tendered to Rolfe DCJ. It was quite plain that unless Ms Cantonomi succeeded in persuading me that that agreement was not enforceable for some reason, the antecedent and obviously very significant disputes between Ms Cantonomi (and by extension the other two former franchisees) and ‘A’ 4 MATHS would be of no moment. After all, whatever the force of the criticisms of ‘A’ 4 MATHS or otherwise, if these matters were the subject of a concluded and binding agreement entered into at Court and tendered to the Court, then the antecedent controversies would plainly have to be taken to have been resolved.
On this footing, and in an endeavour to keep the proceeding within reasonable bounds as to time and scope, I effectively insisted upon the resolution of the issues relating to the agreement rather than expanding to a wholesale examination of the rights and wrongs of the antecedent dispute between ‘A’ 4 MATHS and Ms Cantonomi. Accordingly, the evidence of the other two franchisees was not permitted.
The second aspect of Ms Cantonomi’s case was to the effect that there never was any agreement entered into at Court before Rolfe DCJ.

Ms Cantonomi had a number of reasons for this which she had articulated both in her materials, in her evidence in submissions, and in a supplementary submission filed on 6 August 2010.
It should be noted that that submission was supposed to be restricted to a response to a report of the trustee admitted as exhibit A1. It was not intended to give Ms Cantonomi an opportunity to make further submissions at large, but that is what she in fact did. In a sense, those submissions are a helpful encapsulation of what Ms Cantonomi says. Objection to the submissions was taken by the petitioning creditor, but in my view the submissions should be admitted. They do not affect the ultimate outcome.
Paraphrasing her summary into components that are susceptible of analysis, I would describe her relevant complaints as being essentially:
a)there was no agreement because it was produced by duress, coercion and unequal bargaining power, such duress in part arising from the observations of Rolfe DCJ;
b)Ms Cantonomi denied owing ‘A’ 4 MATHS $60,000 (or by inference anything at all) and there was no basis for any such alleged debt other than fraud;
c)Ms Cantonomi did, in fact, agree to return and did return books and tapes at “the persistent suggestion of Judge Rolfe”; and
d)the original case upon which this agreement was based involved allegations which had never been brought to trial.
I note that in the further submissions, and for the first time,

Ms Cantonomi seeks that the transfer of title to the trustee be set aside and what she describes as the original case be returned to Court for a trial and that all payments owing to the trustee be paid by the petitioning creditor.

The trial in the District Court of New South Wales

On the circumstances which obtained and the events which occurred at the November 2007 trial, it is apparent from the transcript of the trial that at the request of the Judge, counsel for ‘A’ 4 MATHS sought to make an initial introduction of the plaintiff’s case. Although the transcript is not wholly easy to follow, it seems that there were three components in the plaintiff’s case:
a)liquidated damages in the sum of $200 per day (which his Honour observed on a preliminary basis might be a penalty);
b)demands for return of various materials in the form of books and cassettes allegedly, and indeed at least in part admitted, to be retained by Ms Cantonomi;
c)claims for invoices, royalties, product rental fees and costs which in total was said to amount to $58,000.
Rolfe DCJ made a number of relevant observations. At page 7 his Honour said:
“Okay, well, one of the problems we have here is the defendants are not legally represented and a defence has been cobbled together which suggests on the face of it there was some sort of fraudulent misrepresentation. I’m simply saying that from my reading of it. I don’t want anyone here to assume for one minute that I’m accepting that that was the case. Ms Cantonomi it’s very difficult to come here on your own and try and present a case to the court if you’re not qualified as a solicitor or a barrister.”
Following various exchanges with Ms Cantonomi, his Honour went on to say at page 11 of the transcript:
“What I’m saying to you is you need a lawyer to run the case. Now, one possibility is that if you wanted to go and employ a lawyer to present the case you’d have to apply for an adjournment. The other possibility is to have, because we’re going to take the luncheon adjournment in a minute, the other possibility is to have some further discussions with

Mr Milanovic outside, because it may be that you can reach some sort of accommodation with the plaintiff which is to everybody’s satisfaction. I think you should talk to

Mr Milanovic. I’m not judging the case, I’m just saying that because you don’t have legal representation it’s in your interest to try and resolve this and just as a practical matter, leaving the legal disputes to one side, if they want things that are associated with the franchise back, the sort of books and manuals and software and so forth that they have then you may consider that offering to return those things to them and they may consider, goes some way towards resolving the dispute in this case that you have with them.
So what I’m going to do now is, although it is not quite 1 o’clock, I’m going to adjourn the case until two so that you and

Mr Milanovic can have some further discussions to see that the case can’t be resolved.”
Following the adjournment, counsel informed his Honour that the matter had not been fruitful as to discussions and his Honour indicated that the case would proceed. At that point, Ms Cantonomi sought to apply for an adjournment, following which the Court obtained the estimate for $58,000 to which I have referred.
Following discussion, counsel quantified the costs that would be thrown away would be at about $4,000 for the day.
Counsel obtained instructions that in the event that the adjournment was granted, his client would accept a sum of $4,000 for the adjournment.
At page 14 of the transcript, his Honour said to Ms Cantonomi:
“Okay, now, before we go any further down this path,

Ms Cantonomi where we’re up to and I’m still considering whether or not I should grant your application for an adjournment to get legal advice. Now what I want you to understand is that if I do grant that application, as I said earlier are going to pay, you and your husband, to pay the costs thrown away as a consequence of today’s hearing being vacated and I would assess those costs in the amount of $4000 and order that you are to pay them within a certain period of time. So you need to understand that, right.”
Ms Cantonomi indicated she would not be able to pay. His Honour continued:
“Hearing what you’ve just said then I think it’s important that you try and have some further discussions with Mr Milanovic about settling the case. What I was hearing before lunch was that the plaintiff wants certain things handed back to it, right?”
Defendant:
“Yeah.”
His Honour:
“The plaintiff would probably also want certain undertakings from you not to do certain things for a certain period of time. Giving things back on the face of it won’t cost you money. If you’ve got books in your possession. If you’ve got some software in your possession that they want back again that’s not something that costs money. I am just saying these things so that you understand that they give you a bit of bargaining power. The other bargaining power you can give yourself by settling the case today is you won’t be up for the $4,000 which you’ll have to pay as a condition of the case being vacated and you are getting someone to represent you. You’re between a rock and a hard place, but it’s pretty important you try and do something today to resolve this case. I’m not pre-judging it but what I am saying to you is you come here and you are wanting to promote difficult legal arguments and you can’t do that. You can’t do yourself justice in that respect. So the choices are in a sense, you have got three choices. You can continue to run the case faced with that difficulty. You can negotiate with the other side in good faith in order to try and give to them something that will be acceptable to them and acceptable to you, or if we go down the adjournment path you would be looking at an order to pay $4000 within a certain period of time and I haven’t made up my mind about that at the moment.
What I think is important is because we have still got a bit of time left this afternoon for you to talk to Mr Milanovic again to see if you can’t try and resolve this while you are here today. Are you prepared to do that?”
Defendant:
“Yeah but I already agreed that I will return all they’re asking for.”
His Honour:
“Well you don’t need to tell me about it because I’m not a mediator. The dialogue I’m having with you I wouldn’t normally have if it was a barrister there. I’m doing it because you are a self-represented person and it’s in the interests of both parties that this matter be finalised today because the plaintiff is keen to bring it to an end, it wants some satisfaction. It doesn’t want to be spending any more money on its legal costs I’m sure, no-one does. So some sort of an outcome from the plaintiff’s point of view has to be contemplated. Now I’m not suggesting you comment about this but what I will throw out there to you is sometimes people make arrangements with others to make instalment payments. All sorts of settlements can be put before the court and I don’t have to approve them, if the parties agree to settlement then I just make the order in accordance with what they’ve agreed, but instalment negotiations can be agreed between parties and so on. There are all sorts of ways in which you can settle a case. You need to be open to what

Mr Milanovic will tell you because he’s an experienced practitioner who knows how these things go through the courts. So I’ll take an adjournment so you and Mr Milanovic can have a further discussion about the matter.”
The transcript then is annotated with the words:
“Short adjournment.”
I think that is misleading because it seems clear from the evidence given both by Ms Cantonomi and Mr Moreley that discussions that afternoon went on for some considerable time.
It is what took place during those discussions that was the kernel of

Ms Cantonomi’s case before this Court. It is clear from Mr Moreley’s evidence in cross-examination that during the negotiations that took place in the morning, Ms Cantonomi was on her own, as she remained throughout the day. On the part of the plaintiffs there were present

Mr Milanovic, the barrister, Therese McMahon, Jennifer Nerunski (who appears to have been proposed to be called as a witness to show that Ms Cantonomi was continuing to be active in the ‘A’ 4 MATHS area of influence, so to speak) and Mr Moreley. At a later point in the afternoon the solicitor for the plaintiff also joined the throng.

It is clear that Ms Cantonomi was at all times out-numbered.
Nonetheless, in cross-examination Mr Moreley said three things that strike me as being of particular significance:
a)he said that Therese McMahon was trying to be extremely helpful to Ms Cantonomi,
b)that he had not been bullying in his behaviour. He said that there was no point in being so and that indeed he was happy to run his case (P-25);
c)that Ms Cantonomi had proved, as far as he could see, a tough negotiator who may have wiped tears from her face on one occasion but was not crying throughout the afternoon.
So far as the creditor’s witness is concerned, I would say that

Mr Moreley was an impressive witness who answered questions to him directly, although his demeanour in doing so could not conceal an ongoing irritation with Ms Cantonomi. Nonetheless his answers had about them the ring of truth and his observations about being prepared to run his case make eminent sense. He was at Court with an experienced barrister with witnesses on hand to endeavour to prove his case.
It should be noted that at P-19 in cross-examination Ms Cantonomi took issue with Mr Moreley’s assertion that the judge suggested “a time payment arrangement for you” (ie, Ms Cantonomi). Ms Cantonomi put it that the judge never mentioned anything to that effect. It should be noted from the passage I have earlier quoted that it is clear his Honour did indeed make that suggestion.
When she gave her evidence, Ms Cantonomi was adamant that her will had been wholly overborne by the bullying behaviour of ‘A’ 4 MATHS and its various representatives, taken in conjunction with the remarks of the judge, which she felt were inappropriate.
Ms Cantonomi laid particular stress upon what she described as the judge’s rejection of her assertion of fraudulent conduct. It is clear, however, from the transcript that his Honour’s remarks, which I have set out earlier, were no more than an indication that he had not formed any view one way or the other as to whether or not fraudulent conduct had been made out.
If I may respectfully say so, his Honour’s remarks throughout the proceeding in my view constituted no more than an eminently sensible and appropriate endeavour to guide an unrepresented litigant who clearly faced considerable forensic difficulties in presenting her case.
I do not accept that Ms Cantonomi was in tears and obviously distressed throughout the entirety of the negotiations which plainly took place. Had she been so, Mr Moreley would have noticed at some point and he did not. I repeat that I found Mr Moreley a credible, albeit formidable, witness.
Furthermore, everything that Ms Cantonomi said and did before this Court only goes to suggest that she is a highly intelligent (she has tertiary qualifications up to a doctorate) and strong-willed woman well capable of looking after her own interests as she sees them. Furthermore, had she been in floods of tears before Rolfe DCJ, I have no doubt that his Honour would have noticed and enquired. To the contrary, however, when the settlement was announced, and the terms of settlement were handed up, his Honour congratulated the parties on the settlement and addressed Ms Cantonomi directly. He would surely have noticed if there was anything wrong with her at that time.
There is one further matter that needs to be said about the events of November 2007. It is in many respects the most critical point, although I have left it till last. The plaintiff’s case in the proceeding was for the return of materials, together with approximately $60,000 inclusive of costs plus a very substantial amount of liquidated damages. The terms of settlement ultimately entered provided for payment of $25,000 at amounts of $500 per week. That was plainly a major concession. As has been correctly pointed out by counsel for the petitioning creditor, ‘A’ 4 MATHS, somebody had to negotiate the $60,000 figure down. There was no earthly reason for ‘A’ 4 MATHS to do so but every reason for Ms Cantonomi. I have no doubt that the figure that emerged which represents a substantial compromise was one which, as Mr Moreley said, he was not eager to enter into and only did so because of the particular reference to settlement over time by DCJ Rolfe.
It follows that I accept that the agreement was not effected by coercion, undue influence or duress to the extent that those terms imply anything different in the context of this case.
Given this finding, it is not necessary to enter into detailed analysis of what those phrases have been held to mean by the Courts because on any view none of them would apply in this instance.
Although it must have been a difficult situation for Ms Cantonomi, the mere fact that there were up to four people present, so to speak, from the other side does not in my view take the matter outside the bounds of proper and conscionable behaviour in such a fashion as to vitiate the agreement that was plainly reached.
I should only say finally in this regard that while on one view the agreement reached did indeed reflect an inequality of bargaining power, or may have done so, there is nothing that makes that of itself sufficient to set the agreement aside.
Indeed, one might observe that given that a party asserting damages well in excess of $60,000 accepted $25,000 in $500 per week tranches, if there was an inequality of bargaining power it certainly produced an unusually qualified result.
Accordingly, I see no reason to do other than accept that the agreement entered into in November 2007 was validly entered into between the parties. It constituted a full compromise of all the matters then in dispute between the parties. As a result it is not necessary to consider further whether or not the ultimate criticisms made by Ms Cantonomi of ‘A’ 4 MATHS are correct. I would only observe in passing that to the extent that questions were put by Ms Cantonomi to Mr Moreley about this aspect of the matter, his answers seemed to me to be cogent. It would seem to me that it is in the nature of things that a franchise business running for 16 years will have a number of successful franchisees and a number of unsuccessful ones. The fact that

Ms Cantonomi and two others were unsuccessful and very dissatisfied with ‘A’ 4 MATHS does not mean that the criticisms made by those persons are necessarily made out.

The Terms of Settlement themselves

The terms of settlement provide by clause 1 that relevantly

Ms Cantonomi admits being indebted to ‘A’ 4 MATHS in the sum of $60,000. By clause 2, however, it is provided, notwithstanding clause 1, ‘A’ 4 MATHS agrees to accept $25,000 from Ms Cantonomi in full and final settlement of all claims provided that the settlement sum is paid via amounts of $500 per week. It was then provided that in the event of non-payment pursuant to the settlement terms (clause 4) that verdict and judgment could be entered in the sum of $60,000.
It is plain that the course envisaged by clause 4 is what took place.
No-one has argued before me that those terms of settlement in substance themselves constitute an impermissible penalty. I am not myself sure that it is not.
Nonetheless, judgment appears to have been regularly entered pursuant to those terms of settlement in February 2008 and Ms Cantonomi’s endeavour to set that judgment has on any view been unsuccessful. There was some dispute before me as to what actually took place before DCJ Geraghty when the application by Ms Cantonomi to set aside took place, but I think it is sufficient for these purposes to note that the application was plainly unsuccessful.
In these circumstances, I accept the judgment debt of $60,000 was owing and remains so.

Ms Cantonomi’s application for annulment

As earlier indicated, Ms Cantonomi has never in terms formally sought the setting aside of the sequestration order made against her. She has always couched her applications in terms of annulment. I would assume in her favour, however, that she would seek whichever outcome, by setting aside or annulment, is most favourable. One might infer from paragraph 6(iv) of her submissions filed on 6 August 2010 that what she seeks is annulment and the petitioning creditor to pay the trustee’s costs of the administration.
I would note that despite being offered the opportunity to do so,

Ms Cantonomi has forwarded no materials in response to the trustee’s report. Her submissions on 6 August 2010 were wholly concerned with other matters. I accept the trustee’s activities and expenses are all entirely appropriate.
This brings us then to the question as to whether the sequestration order ought not have been made and whether the Court should exercise its discretion to annul the bankruptcy (s.153B(1) of the Bankruptcy Act 1966).
It should be noted that Ms Cantonomi has never sought actively to assert that she was solvent at the time that the sequestration order was made. She did not do so before me and her submissions filed in

SYG 1510 of 2008 did not do so either.
The entire force of her case before this Court and before the Registrar was to the effect that the agreement upon which the creditor’s petition was ultimately founded was not in fact an agreement.
I have decided that issue entirely in favour of the petitioning creditor.
It therefore follows that I cannot be satisfied that the sequestration order ought not to have been made.
Even if I was wrong in that conclusion, I would not be minded to annul the bankruptcy or to set it aside. The reality is that Ms Cantonomi’s conduct leaves much to be desired. It was necessary for an order for substituted service to be made. Furthermore, Ms Cantonomi roundly denied knowing anything of the trustee in bankruptcy even though she is a highly educated person with at least some understanding of the ways of the world and who must have been aware of the likelihood that orders would have been made that she was bankrupt.
Ms Cantonomi resolutely refused to cooperate with the trustee in any way (see affidavit of Mr Juratowitch filed 21 December 2009). She failed to file her statement of affairs despite curial proceedings against her and did not do so until I finally made an order to that effect.
Furthermore, while I do not know what was in the applicant’s mind when she gave her evidence before this Court, it should be noted that I roundly disbelieved the applicant and accepted the evidence of

Mr Moreley and indeed the evidence of the other deponents relied upon by the applicant and the petitioning creditor.

Conclusion

Thus for the reasons I have described I think that the trustee should have the relief he seeks and that the applications made by

Ms Cantonomi should be dismissed. I will make orders to this effect.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 10 September 2010