Morbanc Securities Ltd v McTaggart
[2001] FMCA 40
•13 February 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORBANC SECURITIES LTD v McTAGGART | [2001] FMCA 40 |
| BANKRUPTCY – Appeal from registrar, creditors petition – petition based on judgment – judgment based on terms of settlement – whether court can ‘go behind’ judgment – genuine commercial dispute – solvency – Bankruptcy Act 1966, s 52. |
| Applicant: | MORBANC SECURITIES LTD |
| Respondent: | TREVOR SHANE McTAGGART |
| File No: | MZ 205 of 2000 |
| Delivered on: | 13 February 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 February 2001 |
| Judgment of: | McInnisFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Ellis |
| Solicitors for the Applicant: | Anderson Rice |
| Respondent in person. |
ORDERS
The notice of motion dated 2 January 2001 be dismissed.
The costs of and incidental to the notice of motion including the costs reserved on 12th February 2001 be taxed and when taxed paid out of the bankrupt estate of the respondent, Vic No 4162 of 2000 with the same priority under s.109 of the Bankruptcy Act 1966 as if a sequestration order had been made.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 205 of 2000
| MORBANC SECURITIES LTD |
Applicant
And
| TREVOR SHANE McTAGGART |
Respondent
REASONS FOR JUDGMENT
Introduction
At the outset I indicate that this matter was heard yesterday until fairly late in the day. I indicated I was prepared to deliver judgment, but having regard to the time, decided to delay that until today and for the convenience of counsel, this afternoon. Essentially, however, what I am about to deliver are ex tempore reasons for decision.
This is an application by TREVOR SHANE MCTAGGART, the debtor, by notice of motion filed on 2 January 2001 arising from orders made by Registrar Efthim on 12 December 2000. The orders made by the registrar on that day were as follows:
(1)“A sequestration order be made against the estate of Trevor Shane McTaggart.
(2)The applicants costs of an incidental to the petition be taxed and paid in accordance with the statute.”
The notice of motion which has been filed seeks the following orders:
“The finding of the court in relation to the bankruptcy of the respondent be set aside on the basis of a genuine dispute between the applicant and the respondent; the respondent can pay but chooses not to on the basis that there is a genuine dispute.”
The application, as I have indicated, was listed in this matter on
12 February 2001 and the notice of hearing indicated the matter would be listed for directions. Yesterday I invited the parties to consider whether they wished to proceed with the matter by way of hearing or adjourn to another date. By consent the matter proceeded, the debtor in person and Mr Ellis of counsel representing Morbanc Securities Ltd, the petitioning creditor.
Background
The sequestration order was made in this matter and based upon a debt alleged in the petition, being an amount due for moneys owing pursuant to a judgment obtained in the Magistrates Court at Melbourne on 29 January 1999. The debtor essentially seeks to assert that he is solvent and/or there is no debt. He impliedly seeks to persuade the court to go behind the judgment and further asserts that there is a genuine dispute which he describes as a `genuine commercial dispute’. In the course of his submissions he referred me to authorities which are clear in the sense of referring to a genuine dispute being a matter which I should properly consider.
The evidence
The evidence in this case was provided by the debtor who gave evidence and was cross-examined by Mr Ellis for the petitioning creditor. In support of his notice of motion, the debtor also relied upon an affidavit sworn by him on 2 January 2001. That affidavit provides in part the following relevant paragraphs:
“3. This bankruptcy is the subject of a genuine dispute between the applicant and the respondent pursuant to an agreement (attachment A) signed on (no day, date) February 1997 by both the applicant and the respondent.
4. The applicant did not perform according to the agreement and the respondent repudiated the contract.
5. The sum claimed by the applicant was guaranteed by the respondent.
6. The contract and therefore this bankruptcy is a commercial dispute.
7. The respondent is not in a position where he is insolvent and cannot pay this debt. This is a genuine dispute and he chooses not to pay.
8. There are other outstanding issues relating to the relationship between the applicant and the respondent. The respondent alleges and formally swears that the applicant owes him money in relation to loans submitted to the applicant over time and not paid.”
The debtor made submissions to the court but did not adduce further evidence.
The petitioning creditor relied upon the following affidavits: Paul Carter sworn 31 October 2000; Michael Ryall sworn 31 October 2000; Robert Felix Preac sworn 20 November 2000; Lynette Margaret Baker sworn 12 December 2000; Paul Carter sworn 12 December 2000; Robert Felix Preac sworn 30 January 2001; Terrence Paul Carter sworn 9 February 2001; William Simon Heath sworn 9 February 2001.
By way of background, it is appropriate to indicate that the judgment was entered pursuant to terms of settlement dated 18 June 1997 (the terms of settlement). The terms of settlement form part of annexure D to the affidavit of Terrence Paul Carter sworn 9 February 2001. The terms of settlement were executed after two mediation sessions over two separate days. The total duration of the mediation was approximately nine and a half hours. The first session was held on 4 June 1997 and lasted five hours. The session recommenced on what I take to be 18 June 1997 although I note in the document there seems to be an error as reference is made to the year 1998.
In any event there were two mediation sessions which occurred and as I indicated, the total duration was approximately nine and a half hours. After the second mediation session terms of settlement were drafted, and with amendments made by the debtor, duly executed. The terms of settlement had been entered into following the mediation and were entered into pursuant to clause 8 of a heads of agreement dated February 1997 between the parties. I will refer to that clause. Clause 8, which is attachment A to the affidavit of Trevor Shane McTaggart sworn 2 January 2001, provides as follows:
“8.1:The parties must attempt to resolve any dispute by the mediation procedure. The procedure is:-
8.1.1either party must start mediation by serving a mediation notice on the other.
8.1.2the notice must state that a dispute has arisen and identify what is in dispute.
8.1.3the parties must jointly appoint a mediator. If the parties fail to agree on the appointment within 14 days of service of the notice, a mediator will be appointed by the president of the Law Institute of Victoria by application by either party.
8.1.4the parties must observe the instructions of the mediator about the conduct of the mediation.
8.1.5if the dispute is not resolved in 20 days after the mediator is appointed or any other time that the parties agree to in writing, the mediation ceases.”
Clause 8.2 of the agreement refers to payment of the costs of the mediation and clause 8.3 provides:
“ If the dispute is resolved, each party must sign the terms of the agreement and the terms are binding on the parties and override the terms of this contract if there is any conflict.”
The agreement goes on to refer to the mediation process being confidential.
I refer to the terms of settlement and in particular refer to clause 5 of those terms which provide:
“If the amount equal to $17,500 due under clause 3 less the sum of the credits and debits under clause 4 is not paid on 1st March 1998 then MSL will be at liberty to enter Judgment against Direct, AMD and McTaggart for the amount of the component referred to in clause 3(b).
To better secure MSL's rights under this clause 5, Direct, AMD and McTaggart:-
(a) irrevocably undertake not to defend any legal proceeding contemplated by this clause;
irrevocably consent to the production of these Terms of Settlement as evidence of their consent to the entry of Judgment.
If, despite subclause (a) above AMD and/or McTaggart defend such a legal proceeding, upon the application of MSL whenever made they irrevocably consent to their defence being struck out and to the granting of an injunction restraining them from further defending the legal proceeding.”
During the course of submissions, Mr Ellis on behalf of the petitioning creditor, sought to persuade me that the clause that I have just read, that is Part (a), which refers to McTaggart, ‘Irrevocably undertaking not to defend any legal proceedings contemplated by this clause’ and this includes the present proceedings. For reasons which I will provide later, I do not accept that the condition does extent that far in this case and do not accept that it has application to the extent that it would preclude Mr McTaggart from pursuing the arguments he has advanced before this court.
In brief, it is my view that that clause is specifically designed to deal with those legal proceedings which might arise out of the agreement and which might be the subject, as indeed they were, of other proceedings in terms of what may be owing in relation to the agreement between the parties and not in relation to recovery of judgment debts or bankruptcy proceedings which are presently being undertaken.
It is relevant, however, in this case, to look at the chronology and the history which I have been referred to by Mr Ellis and it is convenient to look at the affidavit material and in particular I refer to the affidavit of Terrence Paul Carter sworn 9 February 2001. That affidavit provides some details about the Magistrates Court proceedings and also a history of the negotiations both in the body of the affidavit and the annexures thereto. The affidavit sworn 9 February 2001 contains, as I have indicated, a number of annexures. Just briefly, it is appropriate to note that there was a notice of defence in the Magistrates Court proceedings dated 1 April 1998 which raises a range of defences advanced for and on behalf of the defendants and it is noted that Mr McTaggart was the first of those defendants and Bluff Square Pty Ltd the second-named defendant.
16. Annexure B in the affidavit of Carter refers to the counterclaim which was then filed on 1 April 1998 for and on behalf of both defendants. Annexure C is an affidavit in support of an application to set aside a default judgment which was entered in this matter against Bluff Square Pty Ltd on 27 March 1998. That affidavit by Trevor Shane McTaggart is sworn 14 April 1998. I refer to that affidavit and in particular refer to paragraphs to which reference was made by Mr Ellis, namely paragraph 20, which provides as follows:
“I believe that mediation was not adequate in providing a suitable solution to the problem which existed. However, due to the fact that my business was collapsing due to worsening economic conditions and a decrease in the market share of home loan applications, I was forced to accept a settlement of the dispute according to the terms and conditions which have been drafted so that I could facilitate the process of the sale of my business.”
Paragraph 21 of the same affidavit states:
“I was not legally represented at the mediation or at the time when the terms of settlement were prepared and executed. Additionally, the terms of settlement were prepared by the plaintiff's solicitors to obviously favour their client's position.”
Annexure D to the Carter affidavit to which I have referred is an earlier affidavit by Terrence Paul Carter sworn 20 April 1998. That earlier affidavit contains the following relevant paragraphs which I refer to.
“10. Pursuant to a request of the mediator, Mr McTaggart wrote to the mediator on 3 June 1997 setting out the defendant's issues and concerns. His letters included the statement, 'We thank you for your clear and concise explanation of the mediation.' The relevant extract from this letter, the balance of which may be confidential, is now produced and shown to me, marked TPC5.
12. The plaintiff had agreed to lend moneys to Bluff Square Pty Ltd pursuant to the heads of agreement and Bluff Square Pty Ltd's liability to repay the sum was guaranteed by Mr McTaggart (see paragraphs 2.2.5 to 2.2.7, 3.3.1 and 3.3.6 of the heads of agreement). National Australia Bank Ltd was a secured creditor of Bluff Square Pty Ltd and Bluff Square Pty Ltd was obliged to discharge that debenture (see paragraphs 2.2.5 to 2.2.7 of the heads of agreement). Bluff Square Pty Ltd did not do so. By the time it became apparent that Bluff Square Pty Ltd could not discharge the debenture the plaintiff had lent it $35,000.
13. In the event, at the mediation the plaintiff settled all of the disputes with the defendants and Australian Mortgages Pty Ltd on terms which significantly discounted the amount payable by the defendants. In lieu of the $35,000 which the defendants owed the plaintiff, the plaintiff agreed to accept $7500 spread over seven instalments, the last to be paid, unless there was a default, in March 1998 and a further $17,500 which was to be paid on 1 march 1998 unless that amount could be reduced by certain identified loans settling before that date, that is, the plaintiff gave the defendants over nine months to pay the reduced amount to the plaintiff.
14. From my observations, I say that Mr McTaggart well understood what was happening at the mediation and the terms of the settlement that was reached. The mediation began on 4 June 1997 and lasted for about five hours. A settlement was reached but it could not be documented in the time available. A letter from the mediator dated 5 June 1997 to the plaintiff's solicitors is now produced and shown to me marked TPC6.”
It is appropriate to also note that in the affidavit sworn by Terrence Paul Carter on 9 February 2001 there was also annexure E which is the plaintiff's defence and counterclaim dated May 1998; annexure F, certified extracts; and annexure G, again certified extracts.
In the court documents to which I have referred which were annexed to that affidavit it is important to note in my view that all at all material times it would appear that court documents, including the affidavit which was filed and relied upon in order to set aside the judgment against the company, Bluff Square Pty Ltd, appear to be documents which were prepared by solicitors then acting for and on behalf of Trevor Shane McTaggart, the debtor.
In addition, I note that in those pleadings the defence at appears to have been prepared by Mr William Lye of counsel so that at least up to that point it would appear that the debtor had the advantage of legal representation in the course of raising disputes which were then before the Magistrates Court and disputes which then resulted in ultimately a judgment being entered based upon the terms of settlement, an application to set aside judgment, and I should note for the sake of completeness, the application to set aside that judgment was not upheld and orders were made as I have indicated earlier in relation to the judgment on 29 January 1999 and the counterclaim was struck out on that date.
I have set out that detail in relation to the Magistrates Court proceedings because in my view it is particularly relevant to note that various issues, evident from those documents to which I have referred, were agitated between the parties. As I have indicated, this is a case however where ultimately the judgment as entered was based upon the terms of settlement, extracts from which I read, and following what can only be described as a compromise of a dispute between the parties after lengthy mediation.
I turn now to the evidence of the debtor. It is to be noted in his evidence that Mr McTaggart confirmed that he was an accountant although not practising in the sense of preparing income tax returns and the like. I accept and find as a matter of fact, however, that he is a qualified professional who has had extensive experience both as a director and secretary of various corporate entities over a number of years. I observed him to give evidence in a manner which indicated he had a fairly clear understanding of commercial transactions, a fairly clear understanding of the matters relating to the responsibility of directors and secretaries, and an understanding of corporate `jargon’, if I can use that term, in dealings which corporations which may undertake commercial ventures.
I was not particularly satisfied with the manner in which he gave evidence when confronted however with the statement of affairs which has been annexed by way of exhibit to an affidavit sworn by William Simon Heath on 9 February 2001. The statement of affairs, which appears to be attached as exhibit WSH5 to that affidavit, contains a number of questions which Mr McTaggart was required to answer. I found the evidence of Mr McTaggart in answering the questions under cross‑examination by Mr Ellis to be less than satisfactory, at times evasive and in any event incomplete. For example, in the statement of affairs, I note that in relation to current employment in answer to question 16 Mr McTaggart refers to Anderson Practising Accountants Pty Ltd and Five Star Finance Australia Pty Ltd in relation to his income. Further in that statement of affairs it would appear that he has only referred to Anderson Practising Accountants as being a source of income. I am satisfied on the answers to the questions he gave, in all probability other income would have been received from Five Star Finance Australia Pty Ltd.
Further examples of the inadequacy of the answers in that statement of affairs and the attempt to explain the inadequacy by Mr McTaggart are found in the list of companies in which Mr McTaggart had an interest. In particular I refer to the question number 10 where he is asked:
“Have you been a director or had a management role in a company at any time in the last five years?”
He only lists two companies, namely Anderson Public Accountants Pty Ltd and Anderson Practising Accountants Pty Ltd. I note and accept that there are numerous other companies in which the debtor has been involved. In fairness to him, I also note that he indicated that at the time when he was being interviewed by the trustee he produced financial statements in relation to some if not all of those companies and asserted they did not produce a document he describes as a `corporate tree’ or a `family tree’ of the corporations in which he has been involved.
Nevertheless, those answers, together with the other matters to which I have referred, cause me some concern and to have some reservations in relation to the reliability of Mr McTaggart. However, I should add for the sake of completeness, I do not really need to draw any significant adverse findings as to his credit for reasons which will become evident further in this judgment.
I do note in the affidavit of William Simon Heath to which I have referred, that a list has been provided of judgments which have been obtained against Mr McTaggart and in his evidence Mr McTaggart conceded most of those judgments. Significantly I refer to a judgment which appears to be dated 20 September 2000 in County Court proceedings where Mr McTaggart was the defendant and where the amount of the judgment appears to be $147,763. I have not attempted to add up the total of the judgments referred to in the document which is exhibit WSH2, but Mr McTaggart was frank in my view in conceding those judgments.
What he sought to assert to this court was that although the judgments on the face of it appeared to be accurate, he challenged their genuineness and indicated they were not genuine debts. He further gave evidence, however, that he has not taken any action in relation to any of those judgments to either set them aside or to take proceedings against those who claimed the judgments or the benefits of those judgments. Significantly for the present case, the evidence of Mr McTaggart included a statement to the effect and he conceded readily to Mr Ellis in cross-examination that he was unable to pay those debts; that is, if they are genuine debts he is not able to pay or satisfy any of those debts at present.
Further in his evidence Mr McTaggart, the debtor, agreed that the terms of settlement were in fact duly executed and he appeared to me to demonstrate an understanding of what those terms involved and certainly did not appear to me to be a person who would be overwhelmed by a mediation process and to some extent I am strengthened in that view by the amendments which it is agreed were made to those terms of settlement by the debtor after the resumed mediation.
The law
I will briefly refer to what may be regarded as the relevant law in this matter. I have been referred by both Mr Ellis and Mr McTaggart on his own behalf to a number of authorities. I should say those authorities to which I have been referred by Mr McTaggart certainly assist in establishing that where there is a genuine commercial dispute I must have regard to that and I accept the authorities to which he has referred as being authorities advancing and assisting in that proposition and indeed the others to which he referred.
As I indicated at the outset, essentially this is a case where Mr McTaggart seeks to go behind the judgment to which I have referred or alternatively seeks to assert that he is solvent. In relation to the issue of going behind a judgment, it is clear in my view that the leading authority in this matter is found in the High Court decision of Wren v Mahony (1971) 126 CLR 212. In that case Barwick, CJ, in delivering his decision, made reference to the general principles to be applied. In doing so he referred to the decision of Re Flatau Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 and in particular Barwick, CJ referred to the judgment in that case at pages 85 to 86.
In Wren v Mahony his Honour Barwick CJ, at pages 224 and 225, referred to the principles to be applied and I quote just part of that passage as follows:
“The court's discretion in my opinion is a discretion to accept the judgment as satisfactory proof of that debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt to the petitioner.”
It is clear in my view, from the authorities to which I referred, that a court in bankruptcy will not as a matter of course inquire into the validity of a judgment debt but only where there is evidence where a judgment has been obtained by fraud, collusion or there has been some miscarriage of justice. In the present matter there is no suggestion that there has been any fraud or collusion. What is suggested is there is a genuine dispute and that I should have regard to that genuine dispute in going behind the judgment.
I was also referred to and assisted by the decision of his Honour Finkelstein J in the case of Harrison v Charalambous (1999) FCA 902, delivered 28 June 1999, unreported decision. It is relevant in the present case to refer to that short judgment and in particular to note that in that case the petitioning creditor had sought an order sequestrating the estate of the debtor and the debt was a debt which arose pursuant to a final judgment obtained in the Magistrates Court. Significantly, as his Honour notes, the judgment was obtained in consequence of the settlement of a claim brought by the petitioning creditor for faulty workmanship to a boat owned by him. Just paraphrasing that judgment, it would appear that the petitioning creditor commenced proceedings, the matter came on for hearing and in fact the matter was resolved and indeed it would appear that there was an agreement to pay.
In his unreported judgment, his Honour Finkelstein J made the following appropriate references to the law to which I refer as follows:
“6: It is accepted that a court does have jurisdiction to go behind a judgment to determine whether there is a debt owed to the petitioner, (Wren v Mahony (1972) 126 CLR 212; Corney v Brian (1951) 84 CLR 343) that is to say, in bankruptcy proceedings the existence of a judgment is only prima facie evidence of a debt. It is not conclusive evidence.”
“7: However, before a court will exercise its discretion to go behind a judgment debt it must be established that there are substantial reasons for questioning whether there is in truth and reality a debt owed to the creditor (Ex Parte Longo (1995) 57 FCR 523).”
“8: It is well established that if judgment is obtained by fraud or collusion or there has been some miscarriage of justice a court can inquire whether the judgment debt is a good debt. If judgment has been obtained without any adjudication on the merits, for example, in the case of a default judgment a court will more readily go behind that judgment to inquire whether there is a good debt.”
“ 9: However, where a judgment has been entered a compromise the position is not so straightforward. In Corney v Brien, Fullagar J said at page 357 that, 'It must be shown that there exists grounds for challenging the compromise before the judgment will be reopened.' This is no doubt because it is the compromise and not the claim that is compromised that is the foundation of the judgment. Moreover, as his Honour pointed out, where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not generally be reopened. The presumption is that in such circumstances it is difficult, although not impossible, to impugn the compromise”.
It is also relevant to refer to paragraphs 10 and 11 of that judgment but I do not propose to read those paragraphs into this judgment. I do propose to refer to paragraph 12 and part thereof which states as follows:
“12. The reality is that the debtor, perhaps through no fault of his own, was placed in a position where his commercial interests necessitated a compromise and he agreed to it in accordance with those interests. In one sense the position the debtor found himself in is not very different to the circumstances which other litigants have often had to confront. I do not doubt that litigants regularly compromise actions otherwise than in accordance with the true merits of the claims made but that is not a sufficient reason to deny efficacy to the agreements to compromise that these litigants reach. It is certainly not a sufficient reason in this case.”
Reasoning
In the present case, as I have indicated, there are references in the material to which I have been taken where it would appear that a compromise indeed was entered into by the debtor with the petitioning creditor. I accept that there may have been financial circumstances which were brought to bear against the debtor which caused him to compromise in the circumstances which I have described.
I find, however, as a matter of fact, that in the present case there is no evidence upon which I can rely which when applying the principles of law to which I have referred would permit me to go behind the judgment. I should add that the debtor, as I have indicated earlier, is a professional person experienced in negotiations, experienced in corporate affairs and I can see no reason to suggest that after nine and a half hours of negotiations that the terms of settlement, which in this case were the foundation stone of the judgment, were not terms of settlement properly entered into and nor can I find they are terms of settlement or indeed that it was a compromise which I should upset and likewise upset what was in fact the foundation stone of the judgment.
I turn now to the issue of the solvency and I briefly refer to the evidence in relation to that issue and perhaps before I do so I should mention in passing the proper principles to be applied. In a case of this kind, it is important to recognise, in my view, the significance of the act of bankruptcy. I have regard, however, to the evidence concerning solvency and it seems to me that I need go very little further than have regard to the number of companies in which the debtor was involved; his own evidence that it would appear the sheriff, not surprisingly, having regard to the judgments to which I have referred, is a somewhat regular visitor to the debtor's home, but also significantly to the evidence which he gave, that at present, assuming those judgments to which I have referred are correct, he does not have the capacity to satisfy those judgments. In my view, that clearly provides sufficient material upon which I could be satisfied that the ground, to the extent that it was argued of solvency, will not be upheld and I so find.
Conclusion
For the sake of completeness I refer to a case of Adamopoulos and Anor v Olympic Airways SA and Anor (1990) 95 ALR 525. In that case the court followed principles which were set out in Ahern v DCT Queensland (1987) 76 ALR 137 where the court there stated the following:
“It is well established that in general a court exercising jurisdiction in bankruptcy should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceeding, provided that the appeal is based on genuine and arguable grounds. In Rhodes Ex Parte Hayworth (1884) 14 QBD 49, Baillieu (1907) 5 CLR 64 and Re Vermer Ex Parte DCT (1985) 4 FCR 181, these cases rest on the broad principle that before a person can be made bankrupt the court must be satisfied that the debt on which the petitioning creditor relies is due by the debtor and that if any genuine dispute exists as to the liability of the debtor to the petitioning creditor he ought to be investigated before he is made bankrupt. Bankruptcy is not merely inter parte litigation. It involves change of status and has quasi penal consequences. It will of course be observed that the principle is stated in terms which acknowledge the existence of exceptions. It operates in general.”
Applying the principles of law it is clear in my view that the court must be satisfied that the debt upon which the creditor relies is due by the debtor and as indicated, if there is any genuine dispute as to the liability then the matter should be investigated before the debtor is made bankrupt. It is also appropriate, as I have indicated, that I consider the question of solvency.
Having regard to the matters that I have raised, it is my clear view that in the present case it is inappropriate go behind the judgment. I am satisfied that there is no genuine dispute. I am strengthened in finding that conclusion by the fact that there is in fact no outstanding pending litigation either in relation to that judgment or indeed any other judgments which have been entered against the debtor and I am satisfied, having regard to the evidence to which I have referred, that there is no basis upon which this court could find that the debtor is solvent. In those circumstances it is appropriate that I make the following orders:
(1)The notice of motion dated 2 January 2001 be dismissed.
(2)The costs of and incidental to the notice of motion including the costs reserved on 12 February 2001 be taxed and when taxed paid out of the bankrupt estate of the respondent, Vic number 4162 of 2000 with the same priority under s.109 of the Bankruptcy Act 1966 as if a sequestration order had been made.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 February 2001
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