Miller v Ghosh (No.7)
[2020] FCCA 2125
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLER v GHOSH (No.7) | [2020] FCCA 2125 |
| Catchwords: BANKRUPTCY – Application by bankrupt for various orders based on alleged misconduct of the trustee in bankruptcy and the asserted solvency of the bankrupt – whether there is evidence capable of supporting facts asserted in support of application – no such evidence – application dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.77A, 139ZQ |
| Cases cited: Ghosh v Miller (No 2) [2017] FCA 890 McIntosh v Shashoua Petitioner [1931] HCA 56; (1931) 46 CLR 494 Miller v Ghosh (No.4) [2018] FCCA 1738 Miller v Ghosh (No.5) [2018] FCCA 3760 Miller v Ghosh(No.6) [2019] FCCA 3682 |
| Applicant: | RODNEY MILLER |
| Respondent: | RATNA GHOSH |
| File Number: | SYG 235 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 31 July 2020 |
| Date of Last Submission: | 31 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| No appearance by, or on behalf of, the Applicant |
| Respondent in person, by telephone |
| Mr C Davis appeared on behalf of Scott Newton (as trustee of the estate of the respondent), by telephone |
ORDERS
The application in a case filed by the respondent on 6 July 2020 is dismissed.
The costs of the application in a case of the trustee in bankruptcy of the respondent be paid out of the estate of the respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 235 of 2015
| RODNEY MILLER |
Applicant
And
| RATNA GHOSH |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent, Dr Ghosh, by an application in a case filed on 7 July 2020, applies for a number of orders. The application came before me on 31 July 2020. Mr Davis appeared for the trustee in bankruptcy of the estate of Dr Ghosh (Trustee).
At the hearing I heard submissions from Dr Ghosh, who is not legally represented, and from Mr Davis. Mr Davis submitted that the application should be summarily dismissed.
Background
The necessary background includes the background I set out in a judgment I delivered on 10 December 2019 (Sixth Ghosh Judgment):[1]
On 3 April 2018, I made a number of orders in proceeding no SYG 235 of 2015. That file number relates to a bankruptcy proceeding that was brought against the respondent, Dr Ratna Ghosh. By 3 April 2018 a sequestration order had been made against the estate of Dr Ghosh, and an appeal to the Federal Court against the making of that sequestration order had been heard and determined adversely to Dr Ghosh.
The orders I made on 3 April 2018 related to an application in the case that Dr Ghosh wished to pursue. The orders that I made on that day consisted of my granting Dr Ghosh leave to file the application in the case in court, make it returnable instanter, and dismiss it. I gave reasons for judgment in support of those orders and these are to be found in Miller v Ghosh (No.4) [2018] FCCA 1738. In addition to those orders, I also ordered that Dr Ghosh is not to file any further application in this proceeding without first obtaining leave of the Court. My reasons for so ordering are set out in my reasons for judgment, which I published on 3 April 2018, and it is not necessary for me to repeat what I there said. What I there said should be incorporated into these reasons.
Dr Ghosh did seek leave to file an application. That application was heard by me on 15 November 2018, and I made orders in relation to that application on 17 December 2018. By those orders I dismissed an application in the case that Dr Ghosh had filed and I published reasons for judgment in support of that order. And these are to be found in Miller v Ghosh (No.5) [2018] FCCA 3760.
[1] Miller v Ghosh (No.6) [2019] FCCA 3682, [1]-[3]
As I noted in the Sixth Ghosh Judgment, by email sent to my associate on 20 November 2019 Dr Ghosh indicated she intended to apply for leave to file an application in a case. That led to the matter being listed before me on 10 December 2019. As set out in the Sixth Ghosh Judgment, Dr Ghosh did not provide any application in a case and she did not appear at the hearing on 10 December 2019.
The current application
At the hearing Dr Ghosh, who is not legally represented, said that she seeks orders in terms of paragraphs 3, 4, and 6 of the orders sought in the application in a case. These are:
3.In the alternative to 1 and 2, Stay the sequestration order of 30 September 2016 pursuant to the BANKRUPTCY ACT 1966 – SECT 60 Stay of legal proceedings, or rule 13.09 of Federal Circuit Court Rules 2001, pending final determination of this application, and pending proof of debt as in (4), and pending final determination of Supreme Court 2013/238215against Rodney Miller
4.Order the trustee provides a list of all provable debt pursuant to the BANKRUPTCY ACT 1966 – SECT 82 Debts provable in bankruptcy, as of 30/9/16, 21/10/16 and 25/6/20 to the applicant within 7 days
. . . .
6.Order that Mr Tony Maher provides proof of payment of costs by Rodney Miller and Mrs Miller, with copies of bank statements, credit card receipts and ATO receipts, and full disclosure of Mr Miller’s source of funding including all legal aid grants obtained for or on behalf of Mr Miller and Mrs Miller
Dr Ghosh also said that she seeks orders in terms paragraphs 2, 3, 4, and 5 of a document headed “Short Minutes of Order SYG 235 / 2015”. (I will refer to this document as “SMO”.) These orders are:
2.Order a referral to the pro bono barrister panel for Dr Ghosh
3. Order that Mr Scott Newton and Mr Rodney Miller are NOT to bill Dr Ghosh’s estate for their legal costs in these proceedings
4. Order that Mr Anthony Maher is refused leave to withdraw from the proceedings until he complies fully with order 6 of the application of 25 June 2020 and Dr Ghosh gives consent, and until he files and serves a notice of appearance in Rodney Miller’s own name including a registered address where Rodney Miller and Mrs Miller can be served personally, a phone number and email address for Mr and Mrs Miller
5. Order that Mr Rodney Miller and Mr Scott Newton have both been served, with no further need for service
Orders 3, 4, and 6 sought in the application in a case are the same orders Dr Ghosh previously sought and which I considered in a judgment I delivered on 17 December 2018 (Fifth Ghosh Judgment).[2] I there held Dr Ghosh had no reasonable prospects of obtaining orders to that effect. In any event, the affidavit on which Dr Ghosh relies is incapable of supporting the making of those orders, or the orders set out in the SMO; and that is because the affidavit on which Dr Ghosh relies, being an affidavit she made on 25 June 2020, contains assertions without any supporting evidence, or assertions which, even if true, are incapable of supporting the making of any of the orders Dr Ghosh seeks. In that affidavit, Dr Ghosh asserts the following:
[2] Miller v Ghosh (No.5) [2018] FCCA 3760
a)Dr Ghosh was solvent on the day the sequestration order was made.[3] That question, however, has been considered and determined adversely to Dr Ghosh by Farrell J:[4]
[3] Affidavit of R Ghosh 25.06.2020, [3], [4]
[4] Ghosh v Miller (No 2) [2017] FCA 890, at [131]
[Dr Ghosh] has not discharged her onus of proof that she was solvent as at 20 July or 30 September 2016. It may well be that she has access to assets and income through trust arrangements or otherwise. However, she has provided insufficient and inconsistent evidence of her true financial position. The evidence she has provided does not support a finding that she could meet (in a timely way) the crystallised debts identified by the trustee in bankruptcy as they fell due either from her own assets or with borrowed funds. I do not accept that the sequestration order should be set aside.
b)Dr Ghosh tendered to the substituted creditor payment of the debt owed, but the substituted creditor refused to accept the tender.[5] Assuming that is what occurred, that by itself is incapable of supporting the granting of any of the orders Dr Ghosh seeks. A creditor is not obliged to accept tender of the payment of a debt after the presentation of a creditor’s petition.[6]
[5] Affidavit of R Ghosh 25.06.2020, [5]
[6] McIntosh v ShashouaPetitioner [1931] HCA 56; (1931) 46 CLR 494
c)The Trustee gave a false sworn affidavit to the Federal Court.[7] That is a scandalous assertion unsupported by particulars or evidence.
[7] Affidavit of R Ghosh 25.06.2020, [6], [7], [9]
d)The Trustee refused “to accept subsequent annulment and s173 debt proposal offers from” Dr Ghosh.[8] These assertions are not supported by documents or other evidence and for that reason I give them no weight.
e)The Trustee seized two of Dr Ghosh’s properties and sold them at half the market value to related parties.[9] This is not supported by any evidence and, for that reason, I can give the assertion no weight.
f)The Trustee extended the period of her bankruptcy by making “deliberately false complaints to AFSA”.[10] This is not supported by any evidence and, for that reason, I can give the assertion no weight.
g)The Trustee issued a notice to Dr Ghosh’s ex-husband “to force sale of an exempt superannuation fund property”.[11] In support of that assertion Dr Ghosh annexes a letter from the Trustee’s solicitor to “Ghoband Pty Ltd C/-Hunter Accounting Services Pty Ltd” attaching a notice under s.77A of the Bankruptcy Act 1966 (Cth) (Act) to allow access to documents identified in the schedule to the notice. The document does not support the assertion and, for that reason, I can give the assertion no weight.
h)The Trustee seized Dr Ghosh’s unencumbered superannuation fund properties by constant harassment of Dr Ghosh’s former husband and making false complaints.[12] These assertions are not supported by any evidence and, for that reason, I can give them no weight.
i)The Trustee seized and sold a “new two-bedroom granny flat with contents and attachments including rainwater tank and pump from my Rydalmere property that was exempt property belonging to my superannuation fund”.[13] Dr Ghosh relies on an email sent from “GraysOnline Admin” to a person on 15 June 2016 attaching an invoice for the sale of an “Expandable Building” for $21,258.13. The document does not support the assertion. It is dated before a sequestration order was made against the estate of Dr Ghosh (30 September 2016). In any event, the document does not support the assertion that the item referred to in the invoice was “exempt property” or, if it was, any seizure or sale of the item was a matter that could support any of the orders Dr Ghosh seeks.
j)The Trustee is engaging in fraud to keep a solvent person bankrupt “to commit legalised theft”.[14] This is an unparticularised assertion to which I can give no weight.
k)The Trustee has deprived Dr Ghosh of all her rental income since 30 September 2016 and has left Dr Ghosh with no money on which to live after she was suspended from practice as a doctor.[15] It may be accepted that if Dr Ghosh owned rental producing property the property and the rent would have vested in the Trustee on the making of a sequestration order. That by itself does not disclose any ground for the making of any of the orders Dr Ghosh seeks.
l)The Trustee has seized rental income but has paid no expenses or interest on any mortgage.[16] This assertion is not supported by any evidence and, for that reason, I can give it no weight. Even if true, however, it could not reasonably support the granting of any of the orders Dr Ghosh seeks.
m)The Trustee has failed to provide to Dr Ghosh and lawyers who had acted for her certain information.[17] That is an assertion that is not supported by any evidence, such as email communications, or conversations where a request for and refusal to provide information were made or given.
[8] Affidavit of R Ghosh 25.06.2020, [8]
[9] Affidavit of R Ghosh 25.06.2020, [10]
[10] Affidavit of R Ghosh 25.06.2020, [11]
[11] Affidavit of R Ghosh 25.06.2020, [12]
[12] Affidavit of R Ghosh 25.06.2020, [13]
[13] Affidavit of R Ghosh 25.06.2020, [14]
[14] Affidavit of R Ghosh 25.06.2020, [15]
[15] Affidavit of R Ghosh 25.06.2020, [16]
[16] Affidavit of R Ghosh 25.06.2020, [17]
[17] Affidavit of R Ghosh 25.06.2020, [18]
In addition to her affidavit of 25 June 2020, Dr Ghosh relies on a document headed “Applicant’s Submissions SYG 235 / 2015”. In that document, Dr Ghosh states as follows:
a)Dr Ghosh was made bankrupt on the basis of a $12,000 debt owed to Mr Miller (the substituting creditor). That statement, assuming it to be true, does not support any of the orders Dr Ghosh seeks.
b)Dr Ghosh’s former husband informed her that the Trustee had recently obtained a “139ZQ Notice from AFSA” in relation to a property owned by Ghoband Pty Ltd Superannuation Fund. Dr Ghosh says the Trustee obtained that notice without any communication or service to any of the registered proprietors. Dr Ghosh has not provided a copy of that notice. That the Trustee may have applied for the issue of a notice under s.139ZQ of the Act does not support the granting of any of the orders Dr Ghosh seeks.
c)The Trustee has forced the sale of two properties at less than half the market price to related parties. That is an assertion without any evidential support and, for that reason, I cannot give it any weight.
d)Dr Ghosh makes two submissions in response to what she describes as submissions by “Ms Kell”. Dr Ghosh denies her application is an abuse of process, and states Ms Kell did not understand that the “decision on the papers of December 2019” was made without any affidavit evidence from any party, when all parties had agreed to adjourn. That appears to be a reference to the Sixth Ghosh Judgment. These assertions also do not support any of the orders Dr Ghosh seeks.
At the hearing before me Dr Ghosh asserted the Trustee had asserted that a “section 139ZQ notice” had been issued to her former husband, that she had requested the Trustee provide her with a copy of that notice, but the Trustee has refused to provide a copy. Dr Ghosh told me that the request and refusal had occurred through email exchanges, but Dr Ghosh did not provide such communications. In the absence of such communications, I am not prepared to accept Dr Ghosh’s assertion in relation to any “section 139ZQ notice”.
In her affidavit of 25 June 2020 Dr Ghosh said she relies on all previous affidavits “in these proceedings, including those of 3 April 2018 and 29 August 2018”.[18] Dr Ghosh, however, did not identify which part or parts of those affidavits she relies, and how she relies on those affidavits. In those circumstances, I have not attempted to identify all of the affidavits on which Dr Ghosh filed. If Dr Ghosh wanted to rely on any particular affidavit other than the one she made on 25 June 2020, it was her responsibility to identify the material on which she intended to rely, and to make submissions based on that material.
[18] Affidavit of R Ghosh 25.06.2020, [2]
Although Dr Ghosh says she did not seek the orders she claims in paragraphs 1, 2, 5, and 7 of the application in a case, these orders are the same as orders 1, 2, 5, and 7 Dr Ghosh previously claimed and which I considered in the Fifth Ghosh Judgment and where I held Dr Ghosh had no reasonable prospects of obtaining orders to that effect. Nothing in the affidavit Dr Ghosh made on 25 June 2020 would lead me to hold differently.
I should specifically refer to the orders identified in the SMO.
a)Order 1 identifies the orders in the application in a case Dr Ghosh says she will be seeking.
b)Order 2 requests that Dr Ghosh be referred “to the pro bono barrister panel”. I propose to make no such order.
c)Order 3 is to the effect that neither the Trustee nor Mr Miller is to bill Dr Ghosh’s estate. There is no evidence that the Trustee has or proposes to seek his remuneration other than in accordance with the provisions that regulate a trustee in bankruptcy’s right to be paid remuneration; and there is no evidence that Mr Miller proposes to bill Dr Ghosh’s estate.
d)Order 4 is to the effect that Mr Maher, Mr Miller’s lawyer, should be refused leave to withdraw until after Mr Miller files a notice of appearance. Mr Maher has filed a “Notice of Withdrawal as Lawyer”, which means that Mr Maher has done all that it is in his power to do to remove himself from the record as Mr Miller’s lawyer in this proceeding.
e)Order 5 is to the effect that the Trustee and Mr Miller have been served. There is no need for any such order. The Trustee appeared at the hearing of the application in a case by his solicitor, and opposed Dr Ghosh’s application. Mr Miller’s lawyer, Mr Maher, appeared for the purpose of being excused from attending the hearing on the ground that he had given Mr Miller notice of his intention to cease acting for him. Given that Mr Maher appeared, it is apparent Mr Miller had been served.
After the hearing Dr Ghosh sent an email to the Registry in which she provided a link to the website of “Stacks” stating (errors in original):
Higgins and Dix Laurieton is now stacks law firm, representing Scott Newton as a conflict of interest as the same law firm that represented and is still on the record as representing Rodney Miller, petitioning creditor, and should be barred from representing Scott Newton as a conflict of interest.
Mr Maher has withdrawn as lawyer on the record for Mr Miller. There is no evidence that Mr Miller has retained a lawyer from Stacks.
Disposition
I propose to order that that the application in a case filed on 6 July 2020 be dismissed. I also propose to order that the Trustee’s costs of the application in a case be paid out of the estate of Dr Ghosh.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 August 2020
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