Li v Ren
[2018] FCCA 806
•5 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LI v REN | [2018] FCCA 806 |
| Catchwords: BANKRUPTCY – Bankruptcy Act 1966 (Cth) – application by creditor for a sequestration order – debtor asserted the Court did not have jurisdiction under s.43 to make a sequestration order because at the date of the act of bankruptcy the debtor did not have a dwelling-house in Australia for the purposes of s.43(1)(b)(ii) – a body of evidence cumulatively found to establish that the debtor did in fact have a dwelling-house in Australia at the relevant time – further and in any event by issue estoppel and Anshun estoppel arising from an earlier application to set aside the bankruptcy notice which had been dismissed by consent the debtor was precluded from arguing that he did not have a dwelling-house in Australia at the date of the act of bankruptcy – sequestration order made. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.30, 43, 40, 41, 52 Family Law Act 1975 (Cth), s.90C Federal Circuit Court Rules 2001(Cth) Uniform Civil Procedure Rules 2005 (NSW) |
| Cases cited: Access Finance Corporation Pty Ltd v Golubovic (1991) ASC 56-089 In re Brauch (A Debtor) [1978] 1 Ch. 316 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jones v Dunkel (1959) 101 CLR 298 Makhoul v Barnes (1994) 53 FCR 169 Mathai v Kwee [2005] FCA 932 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Boles [2000] FCA 1782 Re South American and Mexican Co; Ex part Bank of England [1895] 1 Ch. 37 Sheahan v Ren [2017] FCA 1163 Somanader v Minister (2000) 178 ALR 677 Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507 |
| Applicant: | WEIFENG LI |
| Respondent: | JERRY (XIAO FENG) REN |
| File Number: | SYG 1901 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 31 January 2018 & 1 February 2018 |
| Date Reserved: | 22 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bolster of Counsel |
| Solicitors for the Applicant: | CS Lawyers |
| Counsel for the Respondent: | Mr V. Bedrossian of Counsel |
| Solicitors for the Respondent: | De Silva Hebron |
| Solicitor for CPPB Credit Investments Inc. as a Supporting Creditor: | Mr D. Greenberg |
| Solicitor for Complete Credit Acquisitions Pty Ltd as a Supporting Creditor: | Mr R. J. Roser |
| Solicitor for Deputy Commissioner of Taxation as a Supporting Creditor: | Ms K. Minerds |
THE COURT NOTES AND ORDERS AS FOLLOWS:
NOTE the final Affidavit of Debt sworn by Mr Shun Cheng on 31 January 2018 as required by Rule 4.06(4) of the Federal Circuit Court (Bankruptcy) Rules 2016 and dispense with the necessity for the Applicant Creditor to file any further or better Affidavit of Debt.
A sequestration order be made against the Estate of Jerry (Xiao Feng) Ren.
The Applicant Creditor’s costs of and incidental to this proceeding, including any costs earlier ordered to be paid, be taxed and paid from the bankrupt Estate of Jerry (Xiao Feng) Ren according to the Bankruptcy Act 1966 (Cth).
A copy of the sequestration order be given to the Official Receiver in Sydney within two days.
AND THE COURT NOTES that the date of the act of bankruptcy is 28 December 2016.
AND THE COURT FURTHER NOTES that Mr Bruce Gleeson did execute on 11 July 2017 a Consent to Act as Trustee of the bankrupt Estate of Jerry (Xiao Feng) Ren.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1901 of 2017
| WEIFENG LI |
Applicant
And
| JERRY (XIAO FENG) REN |
Respondent
REASONS FOR JUDGMENT
Introduction
By a Creditor’s Petition presented on 19 June 2017 Mr Weifeng Li as a judgment creditor (the creditor) seeks a sequestration order against the estate of the Respondent (Mr Ren) pursuant to a judgment of the District Court of New South Wales dated 4 November 2016 in the amount of $543,191.41 in proceeding no. 262954 of 2015 (District Court proceeding).
An Amended Creditor’s Petition was filed on 27 July 2017 (Petition) with the act of bankruptcy relied upon being Mr Ren’s non-compliance with the requirements on or before 28 December 2016 of a bankruptcy notice issued on 11 November 2016 (Bankruptcy Notice), such notice having been served on him on 7 December 2016 at the property known as “Pantagruel” situate at 27-29 Chilton Parade, Warrawee, Sydney (the Warrawee property), at which date he was outside Australia.
The creditor relied upon a body of formal affidavit evidence which is, in my opinion, prima facie sufficient to entitle him to a sequestration order against the Estate of Mr Ren, subject to the consideration and determination of the Notice of Opposition to Creditor’s Petition filed by Mr Ren on 19 September 2017 (Notice of Opposition). Further, Mr Bedrossian of Counsel who appeared for Mr Ren accepted that the creditor had established all the formal requirements necessary in support of the Petition.
It was further accepted by the parties that the only factual and legal issue for determination in the case was whether the Court had jurisdiction to make a sequestration order based on s.43(1)(b)(ii) of the Bankruptcy Act 1966 (Cth) (the Act) on the ground that on 28 December 2016 (when the act of bankruptcy was committed) Mr Ren had a dwelling-house in Australia, being the Warrawee property. This issue arose because [3] of the Petition alleged that Mr Ren had a dwelling-house in Australia as at 28 December 2016 and the Notice of Opposition had relevantly denied this assertion (after other grounds in the Notice of Opposition had fallen away) in the following terms:
2. … There is no jurisdiction in the Court to make a sequestration order against the respondent, because:
…
b. As a matter of fact, as the date of the purported act of bankruptcy (28 December 2016) and contrary to the assertion in paragraph 3 of the Creditor’s Petition, the Respondent had neither a dwelling house nor a place of business in Australia, nor did the Respondent have, at that time, any other relevant connection to the geographical jurisdiction of the Court;
and, consequently:
…
d. there is no jurisdiction in the Court, pursuant to section 43 of the Bankruptcy Act 1966 (Cth), to make a sequestration order against the estate of the Respondent;
It is now necessary for me to set out the relevant factual background.
Background
I find on the evidence or it is common ground as follows.
Mr Ren is an international businessman who was involved in mining activities in the Northern Territory and is aged 54 years, having been born on 8 September 1963 in China and he has been a citizen of Australia since 11 November 2011.
On 12 December 2006 Mr Ren married Ms Xia Kong (Ms Kong) in China and there were two children of the marriage, one son born on 4 May 2007 and the other son born on 13 May 2009.
On 3 February 2011 Mr Ren purchased the Warrawee property for $11,500,000. The Warrawee property is a luxurious one, comprising nine bedrooms and bathrooms and 20 car spaces and a swimming pool, tennis court and large surrounding private grounds.
On 24 June 2014 Mr Ren transferred the Warrawee property to Ms Kong and himself as joint tenants for a consideration of one dollar.
Mr Ren claimed that since December 2014 his marriage with Ms Kong had broken down (in an affidavit affirmed on 21 December 2016 in a proceeding to which I will further refer below).
During 2015 the creditor and Mr Rong Ou commenced the District Court proceeding against Mr Ren and on 1 October 2015 he instructed Ms Luana Torres to represent him as his solicitor in the District Court proceeding and she filed his defence in that proceeding on 20 November 2015.
Mr Ren was in Australia from his arrival on 28 February 2016 until his departure on 11 June 2016 and thereafter moved in and out of Australia for periods that I will deal with below.
In or about April or May 2016 Mr Ren and Ms Kong commenced negotiations regarding a financial settlement involving an application for approval of consent orders by a Registrar of the Family Court of Australia, in which Ms Torres again represented Mr Ren.
Mr Bedrossian stated that for the purpose of this proceeding Mr Ren was under all sorts of pressures, including financial and litigation pressures from mid-2016 onwards.
On or about 8 August 2016 Mr Ren and Ms Kong made an application for approval of financial and property consent orders agreed between them by a Registrar of the Family Court, in which Mr Ren asserted that he finally separated from Ms Kong on 8 April 2016. A Registrar of the Family Court refused to make the consent orders on 29 August 2016.
On 18 September 2016 Mr Ren and Ms Kong were divorced in China.
On 26 September 2016 Mr Ren and Ms Kong made an Amended Application for Approval of Consent Orders by a Registrar of the Family Court but the Registrar again refused to make them on 17 October 2016.
On 3 November 2016 Mr Ren was compulsorily publicly examined by liquidators in Adelaide relating to financial affairs. Subsequently the liquidators obtained judgment against him on or about 29 September 2017 in the amounts of $46,278 and $274,753: see Sheahan v Ren [2017] FCA 1163.
On 4 November 2016 Mr Ren and Ms Kong executed a Binding Financial Agreement (BFA) under s.90C of the Family Law Act 1975 (Cth). Also on 4 November 2016 the creditor obtained judgment against Mr Ren in the District Court proceeding.
On 24 November 2016 the solicitors for CPPIB Credit Investments Inc. (CPPIB) served a letter on Mr Ren advising that it would be seeking to enforce a claim against him of at least $50,000,000 in his role as a guarantor.
On 7 December 2016 Mr Ren was validly served with the Bankruptcy Notice by it being placed in an envelope in the letterbox at the Warrawee property.
By application filed in this Court on 22 December 2016 Mr Ren sought declarations or orders pursuant to s.30(1) of the Act to the effect that service of the Bankruptcy Notice upon him at the Warrawee property on 7 December 2016 had not been validly affected because, amongst other things, he was not in Australia or a resident in Australia and did not maintain an address in Australia at the Warrawee property at the time of service of the Bankruptcy Notice. On 18 April 2017 this Application was dismissed by consent (bankruptcy notice proceeding).
On 11 April 2017 CPPIB filed a Commercial List Statement in the Equity Division of the Supreme Court of NSW seeking judgment against Mr Ren as a guarantor in the amount of USD $50,519,814.58. Mr Ren filed an Appearance in that case on 13 June 2017 which gave his address as the Warrawee property. Judgment has since been entered in this case against Mr Ren in the sum of approximately $50,000,000.
On 20 April 2017 the creditor and Mr Rong Ou filed an Application in this Court in which they seek, as against Mr Ren and Ms Kong as respondents, to have the BFA found invalid and set aside. That case remains undetermined.
On 27 September 2017 Mr Ren filed in this Court an affidavit affirmed by him on 20 September 2017. By an Application in a Case filed in this Court on 17 November 2017 he sought, amongst other relief, an order pursuant to r.15.29A of the Federal Circuit Court Rules 2001(Cth) that he be entitled to read and rely upon his affidavit without being cross- examined and for an order dispensing with his attendance for cross-examination at the final hearing, which had already then been set down to commence on 31 January 2018. On 7 December 2017 I dismissed Mr Ren’s Application in a Case to be absolved from cross-examination on his affidavit.
At the commencement of the hearing on 31 January 2018 I was informed that Mr Ren would not be present and not be available for cross-examination and that his affidavit of 20 September 2017 would not be read.
Consideration / Findings
The jurisdiction of this Court to make a sequestration order is predicated on a creditor satisfying certain conditions. Section 43(1) of the Act provides:
(1) Subject to this Act, where:
(a) a debtor has committed an act of bankruptcy; and
(b)at the time when the act of bankruptcy was committed, the debtor:
(i) was personally present or ordinarily resident in Australia;
(ii) had a dwelling‑house or place of business in Australia;
(iii) was carrying on business in Australia, either personally or by means of an agent or manager; or
(iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;
the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.
(emphasis added)
In this case the creditor bears the onus of establishing that as at 28 December 2016 Mr Ren “had a dwelling house… in Australia” for the purposes of s.43(1)(b)(ii) of the Act. In an attempt to discharge that onus Mr Bolster of Counsel, who appeared for the creditor, relied on a body of evidence which he submits means that it ought to be inferred and accepted that Mr Ren had the Warrawee property as his dwelling-house as at 28 December 2016.
In this connection there are a number of authorities in both England and Australia which have considered the meaning and interpretation of the pre-condition to the making of a sequestration order that a debtor “had a dwelling-house”. The authorities commence with In re Nordenfelt [1895] 1 Q.B. 151 and include In re Brauch (A Debtor) [1978] 1 Ch. 316; Re Boles [2000] FCA 1782; Mathai v Kwee [2005] FCA 932 (Kwee) and most recently Re Fuller [2017] FCA 782 (Fuller) per Perry J.
In my view it is sufficient for present purposes to state that the effect of those authorities, in particular Fuller at [45] – [48], is that for the purposes of s.43(1)(b)(ii) of the Act a debtor “had a dwelling-house” if there is a house in Australia which he or she uses or has used and may use as his or her residence and to which he or she may repair at whim at any time: see Fuller at [46] quoting Graham J in Kwee at [116]. Such being the applicable test, in the circumstances of this case I consider that the body of evidence relied upon by Mr Bolster establishes, when considered as a totality and cumulatively, that on the balance of probability as at the date of the act of bankruptcy on 28 December 2016 Mr Ren was able to repair to, use and dwell in the Warrawee property at his wish and whim. Perhaps no single factor would lead to this conclusion but when the evidence to which I will refer below is considered as a totality it establishes in my view a strong case for finding that Mr Ren did have the Warrawee property as a dwelling-house within the meaning of s.43 of the Act. To that evidence I now turn.
Factual Findings on Dwelling-House Issue
Mr Ren is an Australian Citizen and is still enrolled to vote on the electoral roll with his residential address continuing to be shown as the Warrawee property.
Notwithstanding that under the BFA Mr Ren had agreed to transfer his right, title and interest in the Warrawee property to Ms Kong, he remained as at 28 December 2016 a half legal owner as joint tenant thereof with a prima facie right to non-exclusive possession with Ms Kong to all of the physical property and dwelling-house comprising the Warrawee property. He was still stating his joint interest in the Warrawee property as an asset in an affidavit affirmed on 11 April 2017 in the District Court proceeding, notwithstanding that he also noted that his half interest was subject to the BFA.
From the time of the purchase of the Warrawee property Ms Kong and the two children of her marriage to Mr Ren resided at the Warrawee property up to and past 28 December 2016, the two children being respectively, as at 28 December 2016, aged 9 years and 7 years.
Documents
Over the course of 2015 and 2016 documents were sent to Mr Ren addressed to the Warrawee property and he signed documents which represented that his address was the Warrawee property. In paragraphs [36] – [49] and [53] – [57] below I identify that documentation.
District Court Proceeding Documents
In his affidavit affirmed in Lyon, France on 10 November 2015 verifying his defence in the District Court proceeding Mr Ren gave his address as the Warrawee property. In his Costs Agreement dated 1 October 2015 with Ms Torres in connection with the District Court proceeding Mr Ren gave his address as the Warrawee property. Subsequently, on each of 7 October, 9 and 20 November 2015, 19 January, 13 and 29 April, 27 May, 30 June, 15 September and 18 October 2016 Ms Torres issued a tax invoice to Mr Ren in relation to the District Court Proceeding, on which his address was stated to be the Warrawee property.
By email of 14 April 2016 Ms Torres forwarded to Mr Ren a letter of the same date addressed to him at the Warrawee property reporting on a conference with Counsel.
On 24 June 2016 in Sheffield, England Mr Ren affirmed a substantive affidavit in the District Court proceeding which gave his address as the Warrawee property.
Further, on 7 October, 10 and 20 November 2015, 30 January and 14 September 2016 Ms Torres issued office account costs receipts to Mr Ren addressed to him at the Warrawee property.
On 18 October 2016 Ms Torres filed in the District Court proceeding a Form 79 - Notice of Intention to file Notice of Ceasing to Act under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in which she advised that any document to be served on Mr Ren would be taken to have been served if left or posted to the Warrawee property.
Immigration Department Documents
From his arrival in Australia on 26 January 2015 until his arrival in Australia on 22 March 2017 Mr Ren completed incoming and outgoing passenger cards for his various arrivals in and departures from Australia during that period. On each of those passenger cards he referred to himself as a resident of Australia, either returning or leaving, and on no such passenger card during that period did he assert that he was a visitor and not a resident of Australia.
Documents from the Department of Immigration establish that Mr Ren was in Australia during 2016 for the following periods:
Arrived in Australia
Departed Australia
1.
31 January 2016
15 February 2016
2.
28 February 2016
11 June 2016
3.
12 August 2016
15 August 2016
4.
6 September 2016
7 September 2016
5.
1 November 2016
4 November 2016
On his incoming passenger card dated 26 January 2015 Mr Ren stated that he was a resident returning to Australia and his intended address was the Warrawee property. On his next outgoing passenger card dated 30 January 2015 he stated that he was an Australian resident departing temporarily and that he intended to be overseas for one month in France.
Mr Ren arrived in Australia on 4 September 2015 but no incoming passenger card was in evidence for that arrival. On his outgoing passenger card dated 20 September 2015 he stated that he was an Australian resident departing temporarily for one month.
On his incoming passenger card for his arrival in Australia on 31 January 2016 he stated that his intended address in Australia was the Warrawee property and that he was a resident returning to Australia. On his outgoing passenger card dated 15 February 2016 he stated that he was an Australian resident departing temporarily to France for one year and had lived in NSW. However, he then arrived back in Australia on 28 February 2016 and his incoming passenger card stated that his intended address was the Warrawee property and that he was a resident returning to Australia. On his outgoing passenger card dated 11 June 2016 he stated he was an Australian resident departing permanently and that he had lived in NSW before that.
However, Mr Ren returned to Australia on 12 August 2016 and on his incoming passenger card he stated that his intended address was the Warrawee property and was a resident returning to Australia. On his outgoing passenger card dated 15 August 2016 he represented that he was an Australian resident departing permanently and that he had lived in NSW before that.
Mr Ren returned to Australia on 6 September 2016 and on his incoming passenger card he stated that his intended address was the Warrawee property and that he was a resident returning to Australia and that his emergency contact was Ms Kong.
Mr Ren departed Australia on 7 September 2016 and on his outgoing passenger card represented that he was an Australian resident departing temporarily for six months and that he had lived in NSW.
Mr Ren again returned to Australia, arriving in Adelaide on 1 November 2016 and on his incoming passenger card represented that his intended address was the Hilton Hotel in Adelaide and that he was a resident returning to Australia. On 4 November 2016 he departed Australia and on his outgoing passenger card he represented that he was an Australian resident departing permanently. He was out of Australia until 22 March 2017 when on his incoming passenger card he represented that his intended address was the Holiday Inn in Sydney and that he was a resident returning to Australia.
In other words, on all of the above incoming and outgoing passenger cards Mr Ren represented that he was an Australian resident.
Telstra Mobile Phone Records
Mr Ren’s Australian mobile telephone number was 0400 039 206. Mr Bolster tendered evidence from Telstra showing outgoing calls within Australia from Mr Ren’s mobile phone and incoming calls to that mobile phone, relevantly between 31 January 2016, see [45] above; and 7 September 2016, see [48] above.
The overwhelming number of recorded outgoing calls from the mobile phone during the periods stated in [42] above until 7 September 2016 were from Telstra based stations (used to connect the mobile phone to Telstra’s network) in and about the physical vicinity of the Warrawee property.
Application for Consent Orders in Family Court of Australia and BFA: see [16], [18] and [20] above
In the Application for Consent Orders dated 8 August 2016 Mr Ren gave the Warrawee property as his contact address for service. By letter dated 29 August 2016 a Registrar of the Family Court of Australia declined to make the consent orders and required Mr Ren to file another address for service in Australia, perhaps because the Warrawee property had also been given as the address of Ms Kong.
Mr Ren then in the Amended Application for Consent Orders dated 26 September 2016 gave his contact address for service as “PO Box 1032, Wahroonga”, which Post Office is in close physical proximity to the Warrawee property. It is appropriate to note here that neither Mr Ren nor Mr Bedrossian on his behalf have suggested that Mr Ren ever resided in or had access to any other dwelling-house or abode in Australia during 2016 other than for the Warrawee property and when he stayed at the Hilton Hotel in Adelaide; see [49] above.
The BFA dated 4 November 2016 gave the Warrawee property as the address of each of Mr Ren and Ms Kong.
The Application filed in this Court on 22 December 2016 for Declarations and Orders: see [23] above
In an affidavit affirmed in China on 21 December 2016 in his proceeding for declarations and orders concerning service at the Warrawee property of the Bankruptcy Notice, Mr Ren stated as follows:
How I was made aware of the Bankruptcy Notice
2.On or about 8 December 2016, I was made aware via webchat by my ex-wife, XIA KONG, that certain documents had been left with her at the address of 27-29 Chilton Parade, Warrawee, in the State of New South Wales, Australia.
3.At approximately 7 pm, 9 December 2016, I received copies of the documents via an instant social media application known as wechat. Annexed hereto and marked “A” is a copy of those documents.
CPPIB Equity Proceeding: see [24] above
Mr Ren filed an Appearance (apparently on or about 15 June 2017) dated 13 June 2017 in the Equity Division proceeding brought by CPPIB, some six months after service of the Bankruptcy Notice, which gave his address as the Warrawee property. Mr Ren’s solicitors who signed and filed the Appearance in this Equity Division proceeding were the same solicitors who appeared for Mr Ren and instructed Mr Bedrossian in the present proceeding in this Court.
Conclusion on the Facts
I repeat that on the basis of the evidence referred to above I conclude that as at the date of the act of bankruptcy on 28 December 2016 Mr Ren had a dwelling-house in Australia being the Warrawee property. He remained a co-owner of the Warrawee property. Notwithstanding his claims that his marriage to her had broken down in December 2014 and that he had finally separated from Ms Kong on 8 April 2016, it is clear that Mr Ren remained on good terms with her. She was the mother of their two children who resided together at the Warrawee property. Mr Ren had every reason to repair to and dwell in the Warrawee property when he was in Sydney. On or about the very day that the Bankruptcy Notice was served at the Warrawee property Ms Kong advised Mr Ren that it had been left with her and on the next day the relevant documents were forwarded to him by Ms Kong. His ability to repair to and use the Warrawee property at his whim remained undiminished at least up to and inclusive of 28 December 2016, some 21 days after service of the Bankruptcy Notice at the Warrawee property.
The Telstra mobile phone records establish that whenever Mr Ren was in Sydney during 2016 he was overwhelmingly making outgoing calls from or in close physical proximity to the Warrawee property, including as late as 7 September 2016, and I find that this is because during those periods he was residing at the Warrawee property.
The Department of Immigration records establish that on his incoming passenger cards for 31 January 2016, 28 February 2016, 12 August 2016 and 6 September 2016 Mr Ren stated that he intended to live at the Warrawee property. On his last incoming passenger card during 2016, being that of 6 September 2016 (apart from his incoming passenger card for Adelaide on 1 November 2016), he represented that he lived at the Warrawee property and that his emergency contact was Ms Kong.
During the course of the District Court proceeding Ms Torres forwarded correspondence to Mr Ren giving his address as the Warrawee property, with the last piece of such correspondence being dated 18 October 2016, on which date she also filed the Notice of Intention to file Notice of Ceasing to Act, which again referred to his address as the Warrawee property. I would have expected that if Mr Ren had changed his address or had ceased to dwell in the Warrawee property during the course of the District Court proceeding up to 18 October 2016 he would have advised Ms Torres of that fact.
Next, throughout 2016 Mr Ren signed documents in which he gave his address as the Warrawee property. The last of such documents was the BFA signed by him on or about 4 November 2016. Whenever he gave the Warrawee property as his address in these documents I consider that he was giving particulars of the place where he lived when in Sydney: see "address, n. 6.a.", OED Online, January 2018, Oxford University Press.
Finally, and significantly, some six months after the act of bankruptcy an Appearance was filed on his behalf, I infer on his instructions, still to the effect that his address was the Warrawee property: see [57] above.
My conclusion that Mr Ren had the Warrawee property as his dwelling-house as at 28 December 2016 is more confidently drawn because of the unexplained failure by Mr Ren as a party to this proceeding to give evidence. Mr Ren had filed on 27 September 2017 an affidavit which he had affirmed on 20 September 2017. There has been no explanation given by or on behalf of Mr Ren as to why that affidavit has not been read and relied upon. In these circumstances I am faced with a party to the proceeding who has failed to give evidence, which failure is unexplained. Mr Bedrossian quite properly accepted in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) at 308, 312 and 320 – 321 that adverse inferences could be drawn by the Court with respect to Mr Ren not giving evidence, to the effect that such evidence as he could have given would not have been of assistance to him in this case.
The simple fact of the matter is that Mr Ren is the one person in the world who could have given evidence relevant to whether or not he had a dwelling-house in Australia as at 28 December 2016. He could have given direct evidence of when and in what circumstances he ceased to reside and dwell in the Warrawee property. He could have given evidence of his own subjective intention in that regard. He could have given objective evidence of his abandonment of the Warrawee property as a dwelling-house by the handing over and surrender of his keys to Ms Kong or of Ms Kong informing him that he was no longer welcome to reside in the Warrawee property. Further, he could have given direct evidence which sought to explain the body of evidence relied upon by Mr Bolster tending to establish that the Warrawee property remained his dwelling-house up to and past 28 December 2016. He could have explained why Ms Torres sent correspondence to him in relation to the District Court proceeding addressed to the Warrawee property and why as late as June 2017 an Appearance was filed in the Equity Division proceeding giving his address as the Warrawee property. He could have explained why he had a Post Office box at Wahroonga Post Office in and around September 2016 if he did not reside at or near the Warrawee property and when and why he obtained that Post Office box. He could have given evidence of matters, facts and circumstances between on or about 4 November 2016, when he signed the BFA, which gave the Warrawee property as his address, and 28 December 2016, which meant that the Court should infer that the Warrawee property had ceased to be his dwelling-house.
For present purposes it suffices for me to have regard to the statement of the rule in Jones v Dunkel by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384 [63] in the following terms:
[63]The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
(citations omitted)
Mr Ren stands in the role of a party to this case and not just a witness. Thus I am entitled to apply the words of Rich J in Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49:
…But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold.
I note that in any event I would have found Mr Ren had the Warrawee property as his dwelling-house on 28 December 2016, even without application of the emboldening inference authorized by Jones v Dunkel.
Finally, I note in connection with Jones v Dunkel that Mr Greenberg, who appeared for CPPIB as a supporting creditor, submitted that Mr Ren’s unexplained failure to have Ms Kong give evidence in the proceeding meant that it ought to be inferred that her evidence would not have supported Mr Ren’s case. In my view that is a submission which has considerable weight. It is difficult to discern any good reason why Ms Kong would not be prepared to assist Mr Ren in this proceeding. They are both defendants to the separate proceeding to set aside their BFA brought in this Court by the creditor and Mr Ou which remains undetermined before Judge Harper. There seem to be good financial reasons why Ms Kong would support Mr Ren and as late as April 2017 Mr Ren seems to have been confident of being on sufficiently good terms with Ms Kong that he was prepared to have an Appearance filed in the Equity Division proceeding which gave the Warrawee property as his address. However, Mr Bolster was not prepared to make the same submission as Mr Greenberg in relation to Ms Kong, accepting that Mr Ren and Ms Kong were no longer married and Mr Ren had remarried and they were not necessarily in the same camp. In the circumstances, I have not applied any Jones v Dunkel inference against Mr Ren as a result of Ms Kong not giving evidence in the proceeding.
I finally note that Mr Bedrossian responsibly put every submission available to him in the circumstances in support of his argument that the Court ought to find that it was unable to be satisfied that the Warrrawee property was Mr Ren’s dwelling-house as at 28 December 2016. However, Mr Bedrossian’s hand was limited by his client’s failure to give evidence. Mr Bedrossian did not tender any different body of evidence competing with that relied upon by Mr Bolster but rather submitted that the creditor’s case was “entirely circumstantial and inferential” and that the creditor had not discharged the onus of establishing that as at 28 December 2016 Mr Ren had a dwelling-house in Australia. However, for the reasons given above I am of the view that the creditor has discharged the onus that he bore in that regard.
Accordingly, I am of the view that the creditor has established his entitlement to a sequestration order being made against the Estate of Mr Ren.
Anshun Estoppel, Issue Estoppel and Res Judicata
Mr Bolster had in reserve a fallback argument in the event that I found that his client had not factually discharged the onus of establishing that Mr Ren had a dwelling-house in Australia on 28 December 2016, based on the principles and doctrines of Anshun estoppel, issue estoppel and res judicata, arising out of Mr Ren’s consent to dismissal of the bankruptcy notice proceeding. Lest I am wrong in finding that the creditor has discharged the onus of establishing that this Court has jurisdiction on the basis of the facts examined above, I consider that I ought to deal with Mr Bolster’s argument.
Nature and Scope of Bankruptcy Notice Proceeding and Applicable Legal Principles
The bankruptcy notice proceeding was concluded on 18 April 2017 by the making of the following orders:
1. By consent, proceedings dismissed.
2. The applicant [i.e. Mr Ren] is to pay the defendant’s [i.e. the creditor] costs on the ordinary basis, as agreed or assessed.
This dismissal of the bankruptcy notice proceeding involved in the first instance a finding that the Bankruptcy Notice was valid. As was said by the Full Court of the Federal Court of Australia in Makhoul v Barnes (1995) 60 FCR 572 (Makhoul) at 579 and 582:
Where an application is made to set aside a bankruptcy notice the dismissal of that application clearly involves a finding that the bankruptcy notice is valid. If the attack goes to the form of the notice, as on any view of the matter it did in the present case, the dismissal of the application will thus involve the finding that in form the bankruptcy notice was valid.
(at 579)
In the present case, an issue estoppel would have arisen at the conclusion of the proceedings to set aside the bankruptcy notice as to the validity of that notice. A court would not, at the petition stage, entertain a submission that no act of bankruptcy had been committed on the grounds that the bankruptcy notice was invalid for Cooper J had ruled on its validity.
(at 582)
Otherwise, the consent orders for dismissal of the bankruptcy notice proceeding were in a bare and naked form. Accordingly, it is necessary for the purposes of considering Mr Bolster’s argument to ascertain what, if any, other matters were actually adjudicated upon and determined by reference to the terms of the application and any affidavits of the parties in the bankruptcy notice proceeding. This is made clear by the judgment of Street CJ and Roper CJ in Eq in Isaacs v Ocean Accident & Guarantee Corp Ltd (1957) 58 SR (NSW) 69 at 75 in a passage cited with evident approval by Merkel J in Somanader v Minister (2000) 178 ALR 677 (Somanader) at 687 [39]:
[39]In Isaacs v Ocean Accident and Guarantee Corp Ltd (1957) 58 SR (NSW) 69 at 75 (footnotes omitted), Street CJ and Roper CJ in Eq stated:
It is clear that the mere fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it: Re South American and Mexican Co; Ex parte Bank of England. But a judgment operates by way of estoppel only as to those matters which are necessarily decided by it. (Cf Blair v Curran; Jackson v Goldsmith.) “Though consent judgments and orders are undoubtedly in every case decisions in the sense that the actual mandatory or prohibitive parts of the judgment or order are conclusively binding upon … the parties … it may often be a matter of legitimate doubt and debate as to what, if any, particular questions or issues of right, title, or liability were, expressly or impliedly, the subject of the consent, and of the decision. For this purpose, as for all other purposes connected with the ascertainment of the subject-matter of a decision, the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to” (Spencer Bower on Res Judicata, p 24, para 34). Again, at p 114, para 174, the learned author says: “In the case of judgments and orders by consent … it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent … judgment or order was made”.
(emphasis added)
I note that I am of the view that the materials which a Court can consider for the purpose of ascertaining the matters adjudicated upon in a proceeding include not only the pleadings, applications and affidavits but also the written submissions of the parties.
I take the law relevant to the determination of Mr Bolster’s argument to be as follows:
a)Res judicata and issue estoppel were described by Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun) at 597 in the following terms:
The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532 in these terms: “In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order”.
b)The following was said of Anshun estoppel, issue estoppel and res judicata in Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507 by French CJ, Bell, Gageler and Keane JJ at 517-518 [22]:
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies” . The third form of estoppel is now most often referred to as “Anshun estoppel”, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a “true estoppel” and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
c)A judgment or order by consent operates by way of estoppel in the same way as a judgment after a contested hearing: see the authorities referred to by Merkel J in Somanader at 687 [38] – [40]; a unanimous English Court of Appeal in S. C. F. Finance Co. Ltd v Masri (No. 3) [1987] 1 Q. B. 1028 (Masri) at 1047 – 1048 and Makhoul at 582.
d)A consent judgment or order operates by way of estoppel only as to those matters which are necessarily determined by it and the groundwork of those matters. As Dixon J said in Blair v Curran [1939] 62 CLR 464 at 532:
…But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
This statement of Dixon J is in similar vein to that of the Court of Appeal in Masri at 1048:
If a party puts forward a positive case, as the basis of asking the court to make the order which that party seeks, and then at trial declines to proceed and accepts that the claim must be dismissed, then that party must, in our view, save in exceptional circumstances, lose the right to raise again that case against the other party to those proceedings.
In Re South American and Mexican Co; Ex part Bank of England [1895] 1 Ch. 37 at 50 Lord Herschell L.C said specifically in relation to consent orders as follows:
The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action.
In the bankruptcy notice proceeding Mr Ren filed and relied on three documents, being the application itself, his affidavit of 21 December 2016, and his solicitor’s Outline of Facts dated 7 February 2017.
First, the relief sought in the application filed in the bankruptcy notice proceeding was as follows:
Details of claim
On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:
1. Pursuant to section 30(1) of the Bankruptcy Act 1966 and by reference to regulation 16.01 of the Bankruptcy Regulations 1996 and section 40(1)(g) of the Bankruptcy Act 1966, a declaration or order that service of the bankruptcy notice BN 210226 issued 11 November 2016 by the respondent against the applicant (the “Bankruptcy Notice”) was not and has not been effected upon the applicant whether on 8 December 2016 by leaving a photocopy of the Bankruptcy Notice with Xia Kong at 27-29 Chilton Parade, Warrawee, in the state of New South Wales (“the Property”),or otherwise, by reason that:
a. purported service of the Bankruptcy Notice was and has not been effected personally upon the applicant;
b. the applicant was not and still has not been provided with the original copy of the Bankruptcy Notice;
c. the applicant was not and is not in Australia, or resident in Australia, and did not maintain an address in Australia at the Property at the time of purported service;
d. in all the circumstances, the Property was not the last known address of the Applicant;
e. the respondent has not, to the knowledge of the applicant, obtained an order from the court permitting service by another method; and
f. in all the circumstances, any other reason, whether at law or in fact, found to be appropriate to the Court.
2. As a result of paragraph 1 above, pursuant to section 30(1) of the Bankruptcy Act 1966, a declaration or order that no act of bankruptcy within the meaning of section 40(1)(g) of the Act on the part of the applicant shall arise or shall have arisen as a result of the purported service of the Bankruptcy Notice.
3. Costs.
4. Any further or other order as the Court sees fit.
Claim for interim relief
The Applicant does not claim interim relief.
(emphasis added)
Second, [6] – [11] of Mr Ren’s affidavit affirmed on 21 December 2016 (see also [56] above) stated as follows:
My Movements over the Past Two Years
6. At the time I received those documents, I was not present in New South Wales or in Australia at all, I was in Shanghai, in the People's Republic of China.
7. Further to the above, throughout the majority of 2015 and 2016, I have been spending the vast majority of my time in the United Kingdom, and in France, and also spent a significant amount of time in China. Below is a table specifying my movements over the past two years:
Dates
Country
(including my address in that Country)Number of Days
Dec 2014 to Dec 2015
38660 St Vincent de Mercuze, France
290
Dec 2015 to Dec 2016
Walkmill Lane, Stratfordshire, United Kingdom, WS110XA
200
July 2016 to present
27-2-7 Mingzeyuan, Zhongshang District, Dalian, Liaoning Province, People’s Republic of China
130
8. Even my current address in Liaoning Province, China, is not permanent. I move around the world a lot.
More Information about the Property
9. The Property was my former matrimonial home; but since December 2014 my marriage with Xia Kong has broken down and I have not been living at the Property since that date. The only person who lives there is my ex-wife, Xia Kong.
10. I do not generally give my address as the Property's address. I usually request that post addressed to me be sent to the company I am consulting which is an address in the United Kingdom, being:
Bawtry Carbon International Ltd, High Street, Austerfield, Doncaster, United Kingdom, DN106QT.
11.When I contacted or conducted business, I would give my address as the above address in Doncaster, in the United Kingdom.
(emphasis added)
Third, the Outline of Facts of 7 February 2017 asserted that:
a)in December 2014 Mr Ren ceased to reside at the Warrawee property;
b)Mr Ren was resident in France and the United Kingdom from December 2014 to July 2016;
c)from July 2016 Mr Ren has been a resident of China;
d)Mr Ren had told three identified persons and the Australian Border Force, implicitly in December 2014, that he was leaving Australia on a permanent basis; and
e)it was futile to allow service of the Bankruptcy Notice upon Mr Ren where s.43(1)(b) of the Act would preclude reliance on the Bankruptcy Notice in the making of a subsequent sequestration order.
Consideration
In my view the issue of whether or not Mr Ren had a dwelling-house in Australia as at 28 December 2016 was squarely raised in the bankruptcy notice proceeding. The proceeding was for final declarations and orders and the application disavowed any claim for interim relief. The service of the Bankruptcy Notice upon him on 7 December 2016 at the Warrawee property was impugned by [1(c)] of the application on the basis that he was not in Australia or a resident of Australia and did not maintain an address in Australia at the Warrawee property on 7 December 2016. The grounds for the relief claimed were said to be as stated in the accompanying affidavit of Mr Ren affirmed on 21 December 2016.
Paragraph [9] of his affidavit widened the issues by asserting (albeit in my view incorrectly) that he had not lived at the Warrawee property since December 2014 and [10] asserted (again incorrectly in my view) that he did not generally give the Warrawee property as his address, impliedly since December 2014.
The Outline of Facts, speaking as at its date of 7 February 2017, further extended and widened the claims and issues in the bankruptcy notice proceeding by asserting that Mr Ren was presently a resident of China and had not been a resident of Australia since 2014 and that as of December 2014 he had left Australia permanently, whereby a bankruptcy Court would not have jurisdiction to make a sequestration order under s.43(1)(b) of the Act, which statutory reference necessarily included a reference to the jurisdictional pre-condition under s.43(1)(b)(ii) of having a dwelling-house in Australia
In other words, in the bankruptcy notice proceeding Mr Ren sought to distance himself from the Warrawee property in the widest and most general way. The documents which he filed and relied upon in that proceeding cumulatively amounted to an assertion that he had not been in Australia since December 2014, but rather overseas, and that he had not resided at or had any connection with the Warrawee property since December 2014, such that there was no basis for a bankruptcy Court in Australia under s.43(1)(b) of the Act to have jurisdiction to make a sequestration order against him. The width and scope of his claims in the bankruptcy notice proceeding comprehended and encompassed at a higher level of generality a denial that the Warrawee property was his dwelling-house on 28 December 2016. It is not to the point that there was no actual positive finding to the effect that Mr Ren did in fact have the Warrawee property as a dwelling-house on 28 December 2016. Mr Ren had put this issue into play and the consent order for dismissal of 18 May 2017 had the effect of determining that issue against him for the purposes of issue estoppel: see Gobbo J in Access Finance Corporation Pty Ltd v Golubovic (1991) ASC 56-089 (Access Finance) at 56-934 – 56-935; Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 608 per Clarke JA approved by McKerracher J in Dale v Western Australia (2009) 261 ALR 21 at 34 [72]; and Jackson v Goldsmith (1950) 81 CLR 446 at 460 – 461 per Williams J.
Accordingly, in my view Mr Ren is estopped and precluded by issue estoppel from asserting in this proceeding that the Court does not have jurisdiction under s.43 of the Act to make a sequestration order against him because he did not have a dwelling-house in Australia on 28 December 2016. Alternatively I would find that he is so estopped by Anshun estoppel because the issue of whether or not he had a dwelling-house in Australia on 28 December 2016 was so closely connected with and relevant to the subject matter of the bankruptcy notice proceeding that it would have been unreasonable for him not to raise it in that proceeding for determination: see Anshun. It is therefore not necessary for me to consider the applicability of the doctrine of res judicata to this proceeding.
I further record that I do not consider that I am illegitimately setting up an estoppel in the face of a statute, for which principle see Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] A.C.993 at 1015 – 1016.
The question of whether an estoppel can arise in the face of a statutory provision, such as s.43 of the Act, depends upon whether the operation of the relevant statutory provision creates public rights and duties going to the general welfare of the community or the interests of some particular class of persons whom it is the object of the law to protect.
I consider that my conclusion that Mr Ren is bound by either issue estoppel or Anshun estoppel does not undermine any public right or interest, nor does it override the jurisdictional requirements of s.43 of the Act. Rather, it accepts the jurisdictional requirements of s.43 and resolves them in the creditor’s favour by application of one or the other of these estoppels, the effect of which is to establish that under s.43(1)(b) the Court has jurisdiction to make a sequestration order because Mr Ren had a dwelling-house in Australia on 28 December 2016: See Access Finance at 56-937 – 56-938.
Finally, I note that Mr Bedrossian relied on Makhoul in support of his submission that a creditor could not rely on any estoppel or res judiciata at the time of applying for a sequestration order arising from the dismissal by consent of the bankruptcy notice proceeding. However, in my view Makhoul is clearly distinguishable from the present case.
Makhoul at first instance (reported at (1994) 53 FCR 169) concerned an application to set aside the relevant bankruptcy notice under s.41 of the Act based on an objection as to its form and that the debtor had a counter-claim, set-off or cross demand of the kind referred to in s.40(1)(g) of the Act. The primary judge dismissed the debtor’s objections to the form of the bankruptcy notice and adjourned the substantive application based on s.40(1)(g) over to 1 November 1994 for hearing. However on that occasion the debtor agreed to dismissal of her application to set aside the bankruptcy notice, with her Counsel advising the Court that the debtor would pursue at the hearing of the application for a sequestration order the question whether the judgment underlying the bankruptcy notice was a real debt: see Makhoul at 574.
Then at the hearing of the application for a sequestration order the primary judge considered that there were good reasons for doubting that the debtor was truly indebted to the petitioning creditor and dismissed the petition: Re Barnes aka Makhoul [1995] FCA 1268.
In these circumstances the Full Court of the Federal Court in Makhoul established that whereas on an application to set aside a bankruptcy notice it is the validity of that notice which is in issue, at the hearing of the creditors petition the issue is whether the Court should, in the exercise of its discretion, make a sequestration order. In Winn v Blueprint Instant Printing Pty Ltd(No 2) [2011] FCA 723 at [106] – [107] Dodds-Streeton J said of Makhoul as follows:
[106]The Full Court noted that even where the validity of the bankruptcy notice were already determined and an act of bankruptcy established, issue estoppel would not prevent the Court from going behind the debt relied on in the bankruptcy notice, and, if not satisfied, exercising its discretion to dismiss the petition. It would rarely, if ever do so, however, where that question had already been investigated in an application to set aside the bankruptcy notice; it would ordinarily accept the judgment as evidence of the debt.
[107]The Full Court stated (at 582):
In other words, because the Court at the petition stage does not actually decide as between the parties that no debt existed but rather only whether the circumstances are such that in the exercise of discretion a sequestration order should not be made, the decision not to set aside the bankruptcy notice does not involve the same issue as arises on the petition so as to found an issue estoppel.
The present case is quite different and distinguishable from Makhoul in at least the following respects:
a)first, Makhoul involved the existence or quantum of a debt and not actual jurisdiction;
b)second, the application to set aside the bankruptcy notice in Makhoul was of an interlocutory nature. The Full Court in Makhoul at 583 found that to be the case. In my view an application to set aside a bankruptcy notice based on the assertion of a counter-claim, set-off or cross claim must be interlocutory in nature because all the debtor must show is that he or she has a prima facie case: see Ebert v Union Trustee Co of Australia Limited (1960) 104 CLR 346 at 350. In other words, a bankruptcy Court hearing an application to set aside a bankruptcy notice based on s.40(1)(g) makes no final determination as to the ultimate validity of the asserted counter-claim, set-off or cross claim. However, in this proceeding Mr Ren seeks to raise the very same jurisdictional argument that he had made in the bankruptcy notice proceeding, which was determined adversely to him on a final basis, whereas in Makhoul the debtor was seeking to invoke the Court’s exercise of discretion not to accept the judgment as proof of the debt and the discretion whether or not to make a sequestration order. In the present case, in my view, the bankruptcy notice proceeding was of a final nature and finally determined, for the reasons I have given, that Mr Ren had a dwelling-house in Australia as at 28 November 2016 and therefore established the jurisdiction of this Court to make a sequestration order.
Further, Mr Ren in the present proceeding did not seek to invoke the discretion of the Court granted by s.52(2)(b) of the Act, but even assuming for present purposes in his favour that he would wish to invoke that discretion, I would exercise any discretion against him on the basis that he seeks to agitate in this case the very same issue which was determined against him in the bankruptcy notice proceeding and it would sanction an abuse of process to allow him to do so.
Accordingly, I will make a sequestration order against the Estate of Mr Ren.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 5 April 2018
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