Michael Stewart v Francoise Grauby
[2012] FMCA 370
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MICHAEL STEWART v FRANCOISE GRAUBY & ANOR | [2012] FMCA 370 |
| BANKRUPTCY – Annulment – application to review decision not to annul bankruptcy – whether to grant an adjournment – where applicant claimed to be solvent – where solvency depends on mortgage advance on property and separate family law proceedings – where applicant unwilling to sell asset to permit payment of creditors – whether solvent. |
| Bankruptcy Act 1966 (Cth), ss. 52, 153A, 153B Family Law Act 1975 (Cth), s.79 |
| Van der Munnik v Stewart [2010] FMCA 116 Michael Stewart v Francoise Grauby [2012] FMCA 369 Sandell v Porter (1966) 115 CLR 666 Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 Re Capel: ex parte Caram Finance Australia Limited FCA (unreported) 9 April 1998 |
| Applicant: | MICHAEL STEWART |
| First Respondent: | FRANCOISE GRAUBY |
| Second Respondent: | SCOTT DARREN PASCOE |
| File Number: | SYG 395 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 April 2012 |
| Date of Last Submission: | 26 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A G Martin |
| Solicitors for the Applicant: | The Law Society of New South Wales |
| Counsel for the Second Respondent: | Mr B Skinner |
| Solicitors for the Second Respondent: | J S Mueller & Co |
ORDERS
Application dismissed.
The Respondent’s costs to be paid from the estate of the bankrupt.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 395 of 2012
| MICHAEL STEWART |
Applicant
And
| FRANCOISE GRAUBY |
First Respondent
| SCOTT DARREN PASCOE |
Second Respondent
REASONS FOR JUDGMENT
On 22 February 2012 Mr Stewart filed an application for annulment of his bankruptcy which had been effected by a sequestration order on 24 February 2010 after a three-day-hearing before Barnes FM; Van der Munnik v Stewart [2010] FMCA 116, s.153B of the Bankruptcy Act 1966 (Cth)[1] relevantly reads:
(1) If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.
(2) In the case of a debtor's petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.
The amount claimed in the petition to have been owed by Mr Stewart to his creditor was $2,315.00.00 which was, at the time, a sum sufficient to support a petition. Clearly, by the time the sequestration order was made with its concomitant order for costs to be taxed and paid from the estate of the respondent, the amount owing was considerably in excess of that figure. The proof of debt of the creditor filed on 2 June 2010 in respect of the costs was for a figure of $34,000.00, and that was amended on 23 October 2010 to a figure of $47,124.00.
[1] “Act”
In her judgment at [75], Her Honour noted:
“Mr Stewart did not satisfy the court of his ability to pay his debts within s.52(2) of the Act. The debtor bears the onus of proving that his assets are sufficient to pay his debts within s.52(2)(a) (see Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders (2003) 1 ABC(NS) 408; [2003] FCA 1079). Mr Stewart did not put evidence of his assets and liabilities before the court. Nor has he satisfied the court, whether for any of the reasons raised in the notice of opposition or otherwise, that for other sufficient cause a sequestration order ought not to be made (see Cain v Whyte (1933) 48 CLR 639; [1932] HCA 6). As set out above, the suggestion that the creditor was engaged in an elaborate hoax or prank is not made out on the evidence before the court. Neither improper motive on the part of the creditor nor abuse of process has been established and, as discussed above, the grounds relied on by the debtor are not such as to establish that for other sufficient cause a sequestration order ought not to be made.” [Emphasis added]
In fact, the debtor has a half interest in a property known as 9/13-15 Clyde Street, Cronulla, being lot 9 in Strata Plan 8531. That interest has since vested in his trustee pursuant to the provisions of s.58(1)(a) of the Act.
On 16 March 2010 Mr Stewart made an application in this court for a review of the decision of Federal Magistrate Barnes. That application was dismissed with costs on 13 April 2010, it having been explained to Mr Stewart that there is no power in one federal magistrate to review the decisions of another; if he was not satisfied with the judgment of Barnes FM he should have appealed it. In the meantime the debtor had not filed a statement of affairs with his trustee, Mr Pascoe. He was reminded of his obligation to do this on 19 May 2010 and requested to provide vacant possession of the unit so that it could be sold. Mr Stewart’s former wife, the first respondent in these proceedings, agreed to join the trustee in the sale of the property. The debtor did not voluntarily leave the premises, so the trustee was required to take possession proceedings in the Supreme Court of New South Wales. Judgment for possession was entered by Hidden J on 19 October 2011 and a writ for possession was issued on 28 November 2011. On 7 February 2012 the debtor filed an initiating application in the Federal Magistrates Court pursuant to s.79 of the Family Law Act 1975 (Cth) seeking a property settlement with his wife, from whom he had been divorced on 7 February 2011. On 21 February 2012 he filed a motion for the stay of the possession order which was granted by Davies J on 23 February 2012 until 26 March 2012. On 22 February 2012 this application was filed, the applicant tendered a bank cheque for $2,315.00 – being the amount of the judgment debt upon which the petition was founded – in favour of the petitioning creditor, and he completed his statement of affairs, which was accepted for filing on 27 February 2012. On 26 March 2012 Davies J refused a further stay of the writ of possession but ordered that it not be executed until 20 April 2012. The bank cheque was not accepted by the petitioning creditor.
Mr Stewart filed two affidavits in support of his application: one sworn on 22 February 2012, and one sworn on 23 March 2012. In the first affidavit he notes that he appeared on his own behalf before Barnes FM. He refers to the purchase of the property by him and his wife in 1987, and says that a unit in the same building one story lower was sold in July 2011 for $475,000.00. He states that the property is unencumbered and produces a statement alleged to come from St George Bank about which he says:
“I have today obtained a print out of the mortgage records from St George which indicates [sic] that there is nothing owing on the mortgage and it was in fact discharged on 2 December 2009. A copy of that printout is annexed and marked “C”.
I have looked at the document marked “C” in the affidavit, and it does say, next to the word “status” the word “discharged”. It also has next to the words “status date” the date “05/12/2009”. But in a property search annexed as “D” to Mr Stewart’s affidavit St George Bank is still registered as the mortgagee of the property. In his report to creditors dated 27 April 2010 Mr Pascoe, the trustee, advised there was a current balance owing to the St George Bank of $21,173.74. In an affidavit filed on 30 March 2012, Mr Pascoe deposed that by letter dated 23 March 2012 St George Bank confirmed that the current amount of the mortgage secured against the property was $20,147.43, and that the account was in arrears in the amount of $214.36.
In the affidavit Mr Stewart apologises for not having provided a statement of affairs to his trustee and states that his only debts are his personal credit card with a balance of approximately $4,252.04 and a portfolio loan account with St George, for which he claims to be a joint borrower with his former wife, that has a balance of $20,215.00 as at 21 January 2012. That indicates an available credit of $3,785.00. Mr Stewart deposed that he was currently on a New Start sickness benefit, and had been unable to work since November 2011. He received benefits of approximately $20,000 per annum. He described the cause of his inability to work. He noted that he required surgery and that after surgery a recuperation period of approximately three months was necessary. There was no indication of the date upon which any surgery might be performed. He stated that prior to his disability, he was a contractor to the Australian and New South Wales Electoral Commissions from whom he earned an estimated $50,000.00 per annum. He states at [22]:
“I am prepared to use my equity in the property to borrow monies sufficient to meet any liability which I may have as a result of the sequestration order being made. I have not been able to do a refinance of the property with St George as my former wife and I remain joint borrowers on the existing mortgage and line of credit.”
At [24] and [25] he states:
“On or around 13 December 2011 I was informed by my trustees in bankruptcy that there [sic] fees are alleged to be approximately $34,000. An exchange of emails and correspondence between my solicitor and my trustees is annexed hereto and marked “I”.
My equity in the property at Cronulla well exceeds the total amount owing to my creditors as at the time of swearing this affidavit and also at the time of making the sequestration order.”
In the affidavit of 23 March 2012 he states that the bank cheque which was forwarded to the petitioning creditor’s solicitors was funded by a release from his superannuation fund. At [8] and [9] of his affidavit he states:
“Since 22 February 2012 I have met a number of times with my current bank, St George, both at its Caringbah and Kogarah branches, to attempt to determine upon what terms if any St George would be prepared to lend me funds against the security of the Cronulla property in the event my bankruptcy is annulled. I am meeting with Bishwas (Bish) Bhattarai, a lending manager of St George in its Kogarah branch, on Monday 26 March 2012 at 12.30pm to attempt to obtain a conditional letter of offer in relation to any funds which St George is prepared to advance to me.
In the event of such loan being approved, I intend to:
a. repay my personal credit card and then close that account; and
b. payout the existing line of credit to St George; and
c. keep a sum set aside for payment of the trustee’s remuneration, subject to what I say below.
Copies of the most recent statements I have available for both of those are contained at annexure “G” to my affidavit of 22 February 2012.”
In [10] he notes that the trustee has made a claim of approximately $34,000.00 in respect of his fees. No further evidence was produced by Mr Stewart to the effect that he had been made an offer of funds by St George.
Mr Pascoe produced two affidavits sworn on 30 March 2012. The first annexed a number of documents which the trustee believes relevant, and which included a letter from him to a Ms Harvey of the Law Society of New South Wales Pro Bono. That letter stated:
“BANKRUPT ESTATE OF MICHEL STEWART – NSW 1411/10/3
I refer to your letter dated 22 February 2012 enclosing an application to annul the bankrupt estate under section 153B of the Bankruptcy Act (“The Act”).
Requirement
Please confirm whether you would be willing ro attend my office next week to discuss the applications and the bankruptcy matter with a view to resolve the issues without incurring further costs.
Please confirm whether your client would be prepared to annul his bankruptcy under section 153A of the Act to save costs and confirm how he will fund the annulment.
Please have your client explain with evidence the basis of his initiating application (Family Law) for the transfer of Ms Grauby interest to him.
I require the above prior to 9 March 2012.
153B Annulment
As you may be aware the Court will need to be satisfied that the bankruptcy order ought not to be made and solvency is one of the factors considered. Futher, as part of considering the annulment application the Court is likely to request me to prepare a report as to the bankrupt’s conduct, examinable affairs and the administration of the bankrupt’s estate. Given you client’s lack of co-operation throughout the bankruptcy the report would not be favourable to your client. The Court will also consider whether all unsecured creditors and my remuneration and disbursements have been paid in making a decision.
An annulment under 153A of the Act (by payment of debts and costs in full) would be more cost effective avenue for your client as the Court costs are saved.
Please confirm how your client will obtain sufficient funds to annul his bankruptcy. The bankrupt would be unable to refinance the property as an undischarged bankrupt and would require consent by myself and Ms Francoise Grauby as the registered proprietors of the property at Cronulla.
Costs
Unsecured creditors who have filed a Proof of Debt with my office are as follows:
$
Yvonne Van der Munnik* 47,124
Owners Strata Plan 8531 5,107
Total 52,231
*An amount of $44,446 relates to the Taxed costs of the bankruptcy proceedings (SYG 1772/2009) and also the Taxed costs of the Review Application which was dismissed in April 2010 (SYG 556/2010). These amounts will be paid in priority.
Your client also disclosed an amount of $4,252 owing to Westpac.
I understand that your client paid an amount of $2,315 to Ms Munnik care of Watkins Tapsell. This does not annul the estate as other creditors including my costs remain unpaid.
My costs to date are $37,886 plus GST. This amount does not include my solicitor’s costs in relation to the possession proceedings or my agent’s costs for attending the premises in preparation of the eviction schedule on 21 February 2011.
Family Court application
In relation to the initiating application (Family Law) filed in the Federal Magistrates Court on 7 February 2012, as trustee I will become a party to the application. I will be appointing my own solicitor to represent me in the proceedings.
If you have any queries please contact Richard Moretti of my office.”
His affidavit concluded at [18]-[19]:
“At the time of swearing this affidavit, I have received no notification of the ability of the applicant to pay out his creditors and my costs of administration.
I am unaware of the basis upon which the applicant asserts that a sequestration order ought not to have been made on 24 February 2010. I have not received a written proposal from the applicant setting out the terms of any proposed composition or a scheme of arrangement.”
In a second affidavit, Mr Pascoe gave details of the examinable affairs of the bankrupt in which he noted that the bankrupt had cash in hand of $300.00 and tools of trade worth $100.00, according to the statement of affairs. It noted the bankrupt’s application to the Family Court to have the whole of his wife’s interests in the property transferred to him, together with parts of her interests in other assets. The trustee has applied to be joined in those proceedings. He noted that Ms Grauby had agreed to the joint sale of the property at Cronulla and indicated that she would accept a 60 per cent interest in the property. She agreed to pay 60 per cent of the trustee’s remuneration and disbursements involved in selling the property. The trustee makes reference to certain shareholdings owned by the applicant, including a joint ownership of 250 Commonwealth Bank shares which were not disclosed in the statement of affairs, but which are subject to the family law proceedings. The value of the shares that were disclosed in the statement of affairs is $692.00 and $648.00 respectively. He noted that in the statement of affairs Mr Stewart had indicated that he received a New Start sickness allowance in the sum of $16,000.00, superannuation in the sum of $3,824.00 and investments in the sum of $100.00 in the 12 months prior to the date of bankruptcy. He noted that as at that date he was aware of $12,037.00 owed to unsecured creditors, but that he had not yet formally called for proofs of debt or adjudicated on the proofs that he had already received. At [57] the trustee said:
“Ms Grauby has advised my office that the bankrupt may have a debt to the Australian Taxation Office due to fraudulent claims made using her name. I am currently determining the amount of the debt (SDP1 at pages 81-82).”
At [58] the trustee noted liabilities of the administration:
“The liabilities of the administration, unpaid plus future estimated, are as follows
Description $
Petitioning Creditors Taxed Costs in the Sequestration proceedings 37,205
Petitioning Creditors Taxed Costs in the Review Proceedings 7,241
Legal Fees* 32,500
Trustee’s Remuneration* 73,340
Trustee Disbursements* 6,600
Totals 156,886
*Includes future estimated to date of hearing of these proceedings”
At [65] of the affidavit’s annexure Mr Pascoe provides a balance sheet of the bankrupt’s assets and liabilities, which reveal the net surplus before priority payments of $184,230.00 based upon a sale price of the property of $410,000 split equally between the bankrupt and Ms Grauby. But this did not take into account the figure of $156,886.00 fees and costs previously referred to. In regard to the bankrupt’s cash flow at the time of the sequestration order, Mr Pascoe deposes at [70]:
“As noted in paragraph 46, as at the date of bankruptcy the bankrupt owed $4,252 per his SOA and $23,037 based on creditor claims received to date. As noted in paragraph 48 there may be further debt owing to the Australian Tax Office. The bankrupt’s affidavit sworn on 22 February 2012 at page 13 provides copies of deposit butts identifying two payments totaling [sic] $80 made towards the debt to Westpac on 11 and 19 January 2012. No other payments were made during the periods below:
Creditor Owed $ Period No. of Days Unpaid
Westpac 4,252 Unknown Unknown
Owners Strata Plan 8531 1,677 23/08/2007 to 24/02/2010* 916
Owners Strata Plan 8531 3,430 09/02/07 to 24/02/2010* 1,110
Yvonne Van der Munnik 2,678 26/06/08 to 24/02/2010 973
*A portion of these debts were paid by Ms Grauby reducing the amount claimed in the proofs of debt.”
At [73] Mr Pascoe states:
“The bankrupt’s only source of income appears to be from sickness benefits in the sum of $16,000 or $20,000 per annum. The bankrupt may have received income prior to November 2011 in the sum of $50,000 per annum. No evidence of this income has been provided. Taking into account likely living expenses, income tax and interest, in my opinion, it is unlikely the bankrupt’s income was sufficient to pay his overdue debts (including the Petitioning Creditors costs).”
At [79] of his report Mr Pascoe concludes:
“On a balance sheet test the bankrupt has a surplus of assets over liabilities at the date of bankruptcy and date of this report however, as noted at paragraphs 67 and 69 the bankrupt is unlikely to be able to access the equity in the property in a relative short period to meet his debts. On a cash flow test the bankrupt does not have sufficient income or property that could be pledged or realised within a relatively short period of time to pay his overdue debts. As noted in paragraph 63, a cash flow test best matches the definition of solvency in Section 5 of the Act. Accordingly, in my opinion the bankrupt was insolvent as at the date of bankruptcy and remains insolvent.”
Mr Stewart was represented at the hearing by Mr Martin of counsel on a pro bono basis. Mr Stewart was indeed lucky to have Mr Martin’s assistance, and the court is grateful to him for his presentation of Mr Stewart’s case and for the written submissions provided thereafter. Mr Martin had asked for an adjournment of the proceedings which was resisted by the trustee, who had also filed written submissions. The attitude of the trustee to the application and to the adjournment is best summed up by [5] and [6] of those submissions:
“There are insurmountable obstacles to the application. The equitable and legal interest of the applicant in the property is vested in the second respondent as trustee of the bankrupt estate. Neither the first or [sic] second respondent is prepared to charge their respective interests in the property for the purpose of raising money for the benefit of the applicant.
Assuming that on a sale of the property, there remains a surplus of funds after all creditors have been paid and the costs of administration have been met, the applicant will, in any event, be discharged from bankruptcy in accordance with s. 153A of the Act.”
I did not grant the adjournment for the reasons given; Michael Stewart v Francoise Grauby [2012] FMCA 369. In his oral submissions Mr Martin told the court that his client did not wish for the property to be sold. My understanding of his position was that he wished to fund the payment of his creditors and the trustee by obtaining a mortgage advance on his property or from some redistribution of his wife’s assets in his own favour, consequent upon the conclusion of the family law proceedings. Those proceedings have only just begun and are unlikely to be brought to a speedy conclusions, given what is known about the attitudes of both the husband and the wife to the division of their property.
In his written submissions Mr Martin starts setting out what he calls “The facts”. He states:
“The applicant’s unchallenged evidence on the application discloses hat at the time of the hearing of the creditors’ petition the applicant had net assets available to him of $209,808.47 even when allowance is made for the creditors who did not appear to support ” [underline in original]
However, that includes $50,000.00 of income from the Australian and New South Wales Electoral Commissions, as a contractor, which was not available to the applicant at the time as a lump sum, and was only available as and when he worked. It included $5,000.00 of superannuation which is not available to persons under 55 years of age at all except in very exceptional circumstances. It includes $1,900.00 undrawn credit card and $4,500.00 of an undrawn credit facility. Mr Stewart had made no effort to utilise either of these facilities for the purpose of paying out the creditor. And the amount available to him from the sale of the property is based upon a valuation of $380,000.00 that does not take into account the cost of sale. Thus the amount notionally available to him, on a balance sheet basis, was more like $125,000.00 than $209,000.00. Mr Martin helpfully provides a paraphrase of the law in relation to these applications:
“3. The law with respect to applications of this type is well settled:
a. the applicant carries a heavy burden, and in discharging that burden it is incumbent upon the applicant to place before the Court all relevant material with respect to his financial affairs so that the Court may be properly informed and may make a judgment that is based on the actual circumstances of the applicant:
i. Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531;
b. The Court must take account of facts, known at the time at which the sequestration order was made and at which it determines an annulment application, even if those facts were not before the Court at the time at which the sequestration order is made:
i. Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243; Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426;
c. A sequestration order ought not to have been made if, on the facts known at the time of the annulment application, the Court would have been bound not to make the sequestration order:
i. Re Frank; ex parte Piliszky (1987) 16 FCR 396.
d. If the Court is so satisfied, it is not precluded from annulling the bankruptcy because the bankrupt had not sought to have the default judgment set aside or failed to oppose the creditor’s petition or failed to seek a review of the sequestration order:
i. Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426.
e. The power conferred on the Court by s 153B(1) is discretionary in nature. Even if persuaded that the sequestration order ought not to have been made, the Court can, in appropriate circumstances, decline to annul the bankruptcy: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243.
f. Considerations which may have a bearing on the exercise of discretion include unexplained delay in the making of the application, whether or not the applicant is solvent:
i. Re Williams (1968) 13 FLR 10 at 24-5; Boles at 247;
g. If the debtor is able, however unwilling, to pay the debt, then a sequestration order made on this basis is not a proper exercise of the discretion:
i. Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372 at 377.”
He submits that the facts known at the time of the annulment application established beyond doubt that:
“a. the applicant was solvent at the time of the hearing of the creditors’ petition; and
b. this Court was not bound, at that hearing, to make the sequestration order.”
I do not accept either of these contentions for the following reasons.
Barwick CJ authoritatively opined that funds treated as being available to a debtor to pay his or her debts for solvency purposes:
“are not limited to his cash resources immediately available. They extend to moneys which he can procure by realization by sale or by mortgage or pledge of his assets within a relatively short time—relative to the nature and amount of the debts and to the circumstances, including the nature of the business, of the debtor..” Sandell v Porter (1966) 115 CLR 666 at 670.[2]
[2] “Sandell”.
The debts in question were at the relevant time, according to Mr Martin’s submissions, $31,091.53. It is clear from the evidence of Mr Pascoe that some of this money had been outstanding for a very long time. It is also clear that utilising his line of credit facility or his credit card in order to pay the line of credit or the credit card debts would just be substituting one debt he could not pay for another: Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 at [47]. The reality is that the only asset available from which payment could be made was Mr Stewart’s share of the property. The onus is upon Mr Stewart to show that he could have raised this money and met the interest without going into further debt. He has not done so. He posits only the existence of the property and its value. He has provided no evidence of his remuneration from the Electoral Commissions of $50,000.00 a year, and it would seem that his relationship with his wife must have broken down prior to May 2008 as the valuation of the Cronulla property was done for the purposes of divorce proceedings. It would be mere speculation on the part of the court to assume that Ms Grauby would have consented to an increase in her obligations under the mortgage for the purposes of repaying debts owed by Mr Stewart.
The only possible way that the money could have been raised was for the property to be sold, but Mr Stewart says that is not what he wishes and presumably that is not what he wished at the hearing of the bankruptcy petition. I cannot see, in these circumstances, how Mr Stewart can allege that he was solvent, other than in the strictest balance sheet sense. He was certainly not solvent under the Barwick CJ formula in Sandell. Furthermore, as Mr Skinner points out, in Re Capel: ex parte Caram Finance Australia Limited FCA (unreported) 9 April 1998 Finn J. opined that any assets proposed to be utilised for the payment of debts must be assets that are capable of being reached by execution or garnishment. At the time of the sequestration order, the applicant’s interest in the property was not an asset capable of execution. No other grounds than solvency are put forward as showing that the sequestration order ought not to have been made. Thus, it cannot be said that the court was not bound at the hearing to make the sequestration order, having dismissed those grounds contained in Mr Stewart’s notice of objection and been satisfied of the other matters required by s.52.
In case it should be found that I am wrong in the views I have expressed in regards to Mr Stewart’s solvency at the time of the sequestration order, I would add that I would have exercised my discretion not to annul the sequestration order because, on the evidence before me, the only way in which the very large expenses of both the petitioning creditor and the trustee could be repaid was from the sale of a property that Mr Stewart has made it clear he has no intention of selling. There is currently a valid possession order on the property and an agreement between the joint owners (the trustee and Ms Grauby) to sell it. That would seem to me to be the best solution all around. If Mr Stewart is right about the value of the property, there may well be a surplus after payment of all his debts, including those costs and expenses. The effect of that will be to annul his bankruptcy pursuant to s.153A of the Act. If I allowed the annulment under s.153B upon the current evidence, there is no possibility of Mr Stewart raising the required funds because his only source of income is sickness benefits, and he would need the consent of Ms Grauby to raise the amount of the loan on the property; he has not established that he has the ability to do this.
It follows from the above that the application must be dismissed and the respondent’s costs shall be paid from the estate of the bankrupt.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 8 May 2012
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