MOSKIOS v Bishay

[2013] FCCA 3

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOSKIOS v BISHAY [2013] FCCA 3

Catchwords:
BANKRUPTCY – Review of Registrar’s decision – whether applicant solvent – contentions about validity of bankruptcy notice.

Legislation:
Bankruptcy Act 1966, ss.41(5), 52(2), 153B(1)
Federal Magistrates Act 1999, s.104

Federal Magistrates Court (Bankruptcy) Rules 2006, rr.7.06, 20.03

Cases cited:
Bank of Australasia v Hall (1907) 4 CLR 1514
The Bell Group Ltd (in liq.) v Westpac (No. 9) (2008) 225 FLR 1
Bulic v Commonwealth Bank of Australia [2007] FCA 307
Delph Singh v Wood (1918) 25 CLR 497
Emerson v Wrechaer Pty Limited (1992) 33 FCR 581
Eykamp v Deputy Commissioner of Taxation [2010] FCA 797
National Australia Bank v Oberg [2012] FMCA 233
Pattison v Hadjimouratis (2006) 155 FCR 226
Re Tweed Garages Ltd [1962] CH 406
Rees Bank of NSW (1964) 111 CLR 210
Seovic Civil Engineering Pty Ltd v Groenevold (1999) FCR 120

United Medical Protection Ltd (2003) 47 ACST 705

Applicant: TERRY MOSKIOS

Respondent: REDA BISHAY

File Number: SYG 3013 of 2012

Judgment of: Judge Altobelli

Hearing date: 31 March 2013

Date of Last Submission: 31 March 2013

Delivered at: Sydney

Delivered on: 18 April 2013

REPRESENTATION

The Applicant in person

Counsel for the Respondent:	Mr Rose
Solicitors for the Respondent:	Saarvas Chiappara Lawyers

ORDERS

1. That the sequestration order made against the estate of REDA BISHAY on 26 February 2013 be set aside.

2. That the Creditors Petition filed 18 December 2012 be dismissed.

3. Any application for costs arising out of these orders be dealt with by written submissions not exceeding 500 words with the applicant for such costs to file and serve same within 14 days and the respondent against costs to file and serve within a further 14 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3013 of 2012

TERRY MOSKIOS

Applicant

And

REDA BISHAY

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 26 February 2013 District Registrar Wall made a sequestration order against the estate of the respondent in the substantive proceedings, Reda Bishay.  The learned Registrar noted that the date of the act of bankruptcy was 27 November 2012.

2. On 4 March 2013 Mr Bishay filed an Application for Review of the learned Registrar’s order in which he sought the following orders:

   1. Sequestration Order SYG 2013/2012 be Stayed until this Application for review be finalized.

   2. The time to review Bankruptcy Notice BN 5283 of SYG 2411/2012 with orders dated 27 November be extended.

   3. Bankruptcy Notice BN 5283 of SYG2411/2012 be set aside.

   4. Sequestration Order SYG 3013/2012 dated 26 February 2013, made against the estate of Reda Bishay be set aside.

   5. Costs as the Court Directs.

3. In these reasons Reda Bishay will be described as the applicant.  The respondent in these proceedings, the judgment creditor before the learned Registrar, asks that the Application for Review be dismissed.

4. There is no dispute between the parties that the judgment debt in question is $54,490.

5. There is no dispute between the parties that the applicant holds as against the respondent various judgments totalling $36,489.

6. The net amount between the three judgments is therefore $18,000.  It is common ground that the creditors petition issued by the Official Receiver was based on the applicant’s failure to respond to or comply with the requirements of a bankruptcy notice issued 27 August 2012, served 2 October 2012, and based on a judgment debt of the District Court of NSW entered on 2 August 2012.

7. On 23 October the applicant sought to set aside the bankruptcy notice.  By orders made in those proceedings the time for compliance with the notice was extended to 27 November 2012, but the application was dismissed on that date.  The act of bankruptcy was therefore committed on that date.

Contentions

1. The applicant, who represented himself in these proceedings, contended in effect that:

   a)He was at the relevant time, and continues to be, solvent ie. “he was able to pay his debts” for the purposes of s.52(2)(a) Bankruptcy Act (“the Act”); and

   b)By reason of deficiencies in the bankruptcy notice there is “other sufficient cause” for the purposes of s.52(2)(b) of the Act.

2. The respondent, who was represented by Mr Rose of counsel, opposed those contentions and sought that the application be dismissed.

Evidence

1. The applicant relied on his affidavits sworn 4 March 2013 and 16 March 2013, and an affidavit of his accountant Magd Genday sworn 20 March 2013.

2. Both parties relied on all documents that were before the learned Registrar at the time of making the sequestration order.

3. No one sought to cross-examine any of the deponents of affidavits.  The court was greatly assisted by the written submissions produced by Mr Rose on behalf of the respondent.

Applicable law

1. The power of this court to review a decision of a Registrar is set out in s.104 of the Federal Magistrates Act 1999.

   Review of the exercise of Registrars' powers

   (2)  A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1) may:

   (a)  within the time prescribed by the Rules of Court; or

   (b)  within any further time allowed in accordance with the Rules of Court;

   apply to the Federal Magistrates Court for review of that exercise of power.

   (3)  The Federal Magistrates Court may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.

2. Rule 20.03 Federal Magistrates Court (Bankruptcy) Rules provide that such an application must proceed by way of a hearing de novo, may receive as evidence any affidavit or exhibit tendered before the Registrar, and may receive further evidence with leave.

3. To the extent that the application involves an argument by the applicant that, if the application to review the decision of the learned Registrar is unsuccessful, the sequestration order might nonetheless not have been made, the court’s power is found in s.153B(1) of the Act which states:

   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.

4. The power to annul the bankruptcy of the applicant is a discretionary one as the word “may” clearly indicates: see also Delph Singh v Wood (1918) 25 CLR 497. This discretion is a wide one: Pattison v Hadjimouratis (2006) 155 FCR 226. The onus of proof is on the applicant who “carries a hearing burden”: Bulic v Commonwealth Bank of Australia [2007] FCA 307 at [12], including an obligation to place before the court all relevant material with respect to his financial affairs.

Applicant’s contention of solvency

1. The applicant does not dispute that when the learned Registrar made the sequestration order, the evidence that he had adduced about his solvency did not satisfy the Registrar.  Moreover when the matter first came before this court on 18 March 2013, the applicant was reminded about the need to adduce clear evidence as to his alleged solvency.

2. In the applicant’s affidavit of 4 March 2013 he deposes at para.15 that he is “…solvent and able to pay my debts”.  In para.16 he deposes that he is “able to pay the amount of $18,000.36”.  In his affidavit of 16 March 2013 he annexes a financial statement of his assets and liabilities, income and expenditure as at 1 October 2012.  In this financial statement the applicant deposes to having assets totalling $55,040 as follows:

   BUSINESS FINANCIAL STATEMENT
   Reda Bishay
   As of 1^st October 2012

   Assets  Amount in Dollars

Cash – Cheque accounts. CBA 06 2223 10623311	$         11,600
Cash – savings accounts. CBA 06 2223 10561210	1,840
Certificate of deposit	-
Securities – stocks, NRMA Shares	1,600
Securities – bonds, Rental Bond	2,400
Notes & contracts receivable	6,000
Personal property	-
Real estate (market value)	-
Other assets Cash on Hand	3,100
Loans available from Credit Cards, CBA and NAB	28,500
Total Assets	$         55,040

Liabilities  Amount in Dollars

Current Debt (Credit cards, Accounts)	$               -
Notes payable (describe below)	-
Taxes payable	-
Real estate mortgages (describe)	-
Other liabilities (specify)	-
Total Liabilities	$               -
Net Worth/Funds Available	$         55,040

The above assets does not include personal assets, tools, car and furniture.

1. There are a number of issues with this statement.  It does not show as a liability the borrowings totalling $28,500 that must be a consequence of the equivalent loans available that he lists as an asset.  Moreover the judgment debt of $18,000.36 is not shown as a liability.  The court acknowledges that, to be precise, the judgment debt should be listed as $54,490, but the corollary of this is that the applicant’s judgment debts against the respondent would also have to be included as assets totalling $36,489.  In the present context, therefore, the net debt of $18,000 will suffice.  All of this means that, on the applicant’s own evidence as to solvency, his assets total $55,040, and liabilities $46,500, resulting in assets of $8540.

2. Another financial statement is attached to the affidavit of Mr Genday, the applicant’s accountant.  It adopts a slightly different approach and is (according to the applicant, and notwithstanding what it expressly states) based at 20 March 2013:

   BUSINESS FINANCIAL STATEMENT
   Reda Bishay

   As of 1^st October 2012

   Assets  Amount in Dollars

Cash – Cheque accounts. CBA 06 2223 10623311	$         20,636
Cash – savings accounts. CBA 06 2223 10561210	240
Certificates of deposit	-
Securities – stocks, IAG Shares	1,978
Securities – bonds, Rental Bond	2,120
Notes & contracts receivable	5,000
Personal property	-
Real estate (market value)	-
Other assets Cash on Hand	-
Loans available from Credit Cards, CBA and NAB	-
Total Assets	$         29,974

Liabilities  Amount in Dollars

Current Debt (Credit cards, Accounts)	$               -
Notes payable (describe below)	-
Taxes payable	-
Real estate mortgages (describe)	-
Other liabilities (specify)	-
Total Liabilities	$               -
Net Worth/Funds Available	$         29,974

The above assets does not include personal assets, tools, car and furniture.

1. It shows net assets of $29,974 but oddly does not include the applicant’s Commonwealth Bank loan of $15,150 apparently secured against the applicant’s Subaru motor vehicle, deposed to at para.8 of the said affidavit.  There is no evidence about the value of the motor vehicle other than the applicant’s assertion in submissions that it is worth more than the debt.

2. Exhibit A1 is a printout entitled “My portfolio” of the applicant’s Commonwealth Bank accounts which confirms that the applicant has available cash funds to him on 19 March 2013 of $25,451, has $5,004 available on his Commonwealth Bank MasterCard, and owes $15,170 on a Personal Loan, presumably in relation to his car.

3. In relation to the above evidence the respondent asserts that the applicant has failed to establish that he can pay all of his debts, and not just the respondent’s debt.  The respondent further asserts that the financial information as to solvency is incomplete, is not supported by evidence, and is inconsistent.  The applicant needs to establish not just that he has more assets than liabilities, but that he has a cash flow that enables him to pay his debts as and when they fall due.  Moreover there was no evidence before the court of the applicant notifying his other creditor, the Commonwealth Bank of Australia, of the present application, pursuant to Federal Magistrates Court (Bankruptcy) r.7.06.  This rule states:

   (1)   This rule applies in relation to an application for review of a decision by a Registrar to make a sequestration order against the estate of a debtor (the bankrupt ).

   (2)   The application must be served on the trustee at least 28 days before the hearing date fixed for the application.

   (3)   The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt.

   (4)   The notice must be in accordance with Form 12.

   (5)   The applicant must serve the notice on each creditor at least 14 days before the hearing date fixed for the application.

   (6)   If directed by the Court, the trustee must prepare a report in relation to the bankrupt in accordance with rule 7.04.

4. Counsel for the respondent referred the court to the decision of Federal Magistrate Barnes in National Australia Bank v Oberg [2012] FMCA 233 (27 March 2012). This case sets out a useful summary of the relevant law at paragraphs 6 to 9 inclusive:

   6. The respondent debtor bears the burden of establishing that he is able to pay his debts within the meaning of s.52(2)(a) of the Act (see Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders (2003) 1 ABC(NS) 408; [2003] FCA 1079 at [22]) and it is not sufficient for the debtor simply to establish that he has assets which exceed his liabilities in value. As Bennett J stated in Re Sanders at [22]:

   It must also be established that the assets are available to be realised and capable of ready realisation.

   (Also see Australia & New Zealand Banking Group Pty Ltd v Foyster [2000] FCA 400 at [17]).

   7. It is relevant to have regard to the debtor’s financial position “in its entirety” (Sandell v Porter and Another [1966] HCA 28; (1966) 115 CLR 666 at 671; [1966] HCA 28) and “generally speaking a conclusion of insolvency ought not to be drawn simply from evidence of a temporary lack of liquidity” (Ibid).

   8. As Buchanan J stated in Eykamp v Deputy Commissioner of Taxation (2010) 8 ABC(NS) 105; [2010] FCA 797 at [7]:

   Under an earlier definition in the [Bankruptcy] Act considered in the Sandell v Porter (1966) 155 CLR 666 it was necessary for a debtor to be able to pay debts as they fell due out of the debtor’s own money. Such moneys extended to those capable of being procured by sale, by mortgage or pledge of assets of the debtors within a relatively short time. A more flexible position now obtains. I note that in International Alpaca Management Pty Ltd v Ensor (1999) FCA 72, Katz J favoured the view that the necessity to pay a debt from a person’s own money continued to be an important element in the scheme established under the Act (see, eg, S1 to 4(3)(a) of the Act). However, with respect, so far as it concerns consideration of whether a person is, or is not, solvent, I prefer the view taken by Palmer J in Lewis v Doran [2004] NSWSC 608; (2004) 184 FLR 454 at [116] (see on appeal Lewis v Doran [2005] NSWCA 243; (2005) 219 ALR 555 at 109-112) to which I subscribed, with the agreement of Marshall and Tracey JJ in Whitton at 34 to 38. Accordingly it would not be impermissible to pay regard to the fact that Mrs Eykamp could raise sufficient money to pay the debt, whether or not that was the direct result of sale, mortgage or pledge of her assets. However, whatever mechanism is employed to secure the necessary funds, and satisfy the court that it provides adequate evidence of solvency, it remains necessary that it produce results within a realistic timeframe (Sandell v Porter at 670, Hall v Poolman (2007) NSWSC 1330; 65 ACSR 123 at [187]). (Emphasis added).

   9. Whether the debtor can establish that he has assets that could be realised in a relatively short time or that he is otherwise able to pay his debts is a question of fact for the court to determine on the material before it.

5. It is necessary to closely examine the applicant’s evidence as to his alleged solvency.  There is substance to the submission that both the statements submitted are incomplete.  Neither refers to the applicant’s motor vehicle or the personal loan which he asserts was used to purchase it.  Neither refers to the debt to the respondent.  The first statement shows as an assets “loans available from credit cards CBA and NAB 28500” but does not show them as the liabilities they must be if they are to be an asset available to the applicant.

6. There is substance to the submission that the evidence is uncorroborated.  Apart from the bank account balances in the Commonwealth Bank there is no corroborative evidence at all.  There is nothing to show that the applicant owns NRMA shares, let alone that they have the value asserted.  There is nothing to establish that the applicant owns a vehicle, let alone its value, or the terms of any loan that was used to acquire it.  There is no evidence corroborating the assertion that the applicant has the capacity to draw down as much as $28,500 from credit cards.  There is no evidence to explain what “notes and contracts receivable” means, or its value.  All of this is somewhat surprising on the facts of this case.  The applicant was twice reminded of the importance of providing evidence to establish his solvency.  The affidavit of Charles Ciappara sworn 20 March 2013 deposes in para.6 to what he heard District Registrar Wall say to the applicant on 19 February 2013:

   During the hearing on 19 February 2013, District Registrar Wall indicated to the respondent having read his affidavit affirmed on 18 February 2013 in words to the following effect:

   “Mr Bishay, the evidence as to solvency that you have included in your affidavit would not be sufficient for you to establish according to the principles of law that you are solvent.  You would need further evidence to show that you are able to pay your debts as and when they fell due.”

7. When the matter came before the present court on 18 March 2013 the court again reminded the applicant about the importance of adducing evidence as to his solvency.  Whilst the applicant is self-representing, he is also clearly an intelligent, articulate man.  Many of the matters of corroboration raised above could have been dealt with satisfactorily by producing copies of documents such as share certificates, motor vehicle registration, building contracts and records and credit card statements.  In the circumstances the only reasonable inference that can be drawn is that the production of these documents was either not possible, or would not have assisted the applicant.

8. There is also substance to the submission that the statements are inconsistent.  Whilst the two statements purport to be at different dates: 1 October 2012 and 21 March 2013 (according to the applicant) there is scant evidence to explain the differences in the values attributed to securities and notes and contracts receivable.

9. A real issue in this case is the applicant’s ability to secure the funds necessary to pay his debts “within a realistic framework”, to pick up the words of Buchannan J in Eykamp above.  To establish his solvency he must demonstrate not only that he can pay the debt owed to the respondent, but to his other creditor as well.  By not giving notice to his other creditor, that creditor is deprived of the opportunity to participate in these proceedings if, for example, the applicant was in default or the creditor was concerned about its security position (if any).  There is neither evidence of the value of the car, nor of its disposability.  The “notes & contracts receivable”, whatever they are, have clearly declined in value between October and March thus raising issues about the recoverability and value of the same.  It should also be noted that in order for the applicant to liquidate his rental bond, he would either have to make alternate arrangements for another bond, or leave his accommodation.

1. The evidence the applicant gives about his income and expenditure is equally problematic.  Between statements his income has declined by $92 weekly, but yet he maintains his weekly surplus has increased by $66 weekly.  The expenses he describes as “home” and “daily living” have likewise reduced from $900 to $785 weekly.

2. The car loan is not mentioned in the first statement, but appears as $82 per week in the second.  The applicant maintains that he had a weekly surplus as at 1 October 2012 of $105 per week, which was in reality $23 per week due to the car loan, and $171 per week including the car loan in March 2013.  Whilst there was, by choice of the parties, no cross-examination, there is nonetheless an air of artificiality in these statements largely resulting from lack of explanation.  There are many unresolved issues about the applicant’s expenses eg. does he really live on $90 per week for groceries in March 2013, when in October 2012 it was $150 per week?; why would child support go down by $20 per week in that period?; why would rental go down by $20 per week when his residential address remained at all times 1 Libera Avenue Padstow?; why did his business income decreased by $100 per week in the period October 2012 – March 2013?

3. As against this of course is the fact that the applicant has available to him savings in excess of $18,000 as at today’s date which could be used to pay the respondent’s net debt, and there is no suggestion that he is in arrears with his car loan.

4. The cash flow test is generally viewed as the most appropriate test for assessing solvency in Australia for individuals: Bank of Australasia v Hall (1907) 4 CLR 1514. In effect it looks at the overall financial health of an individual which means looking at all liabilities present, and future to the extent that solvency is said to depend on borrowing money in order to meet debt. The cash flow test calls for a consideration of one’s ability to convert assets into cash in a relatively short period of time, in order to meet debts as and when they fall due: Re Tweed Garages Ltd [1962] Ch 406 at 410; Rees Bank of NSW (1964) 111 CLR 210. It must be remembered though that raising funds by sale (eg. of a motor vehicle) or borrowing (on credit cards) might well provide the applicant with sufficient funds to meet current liabilities, but deprive the person of the ability to meet liabilities due in the foreseeable future, thus leading to a conclusion of insolvency: The Bell Group Ltd (in liq.) v Westpac (No. 9) (2008) 225 FLR 1. The court must be satisfied that there are reasonable grounds for predicting that a person presently solvent will remain so: Re United Medical Protection Ltd (2003) 47 ACST 705 at [57].

5. Whilst there are issues with the evidence adduced by the applicant the fact is that he represents himself.  The most cogent evidence of his solvency is Exhibit A1 that demonstrates available cash funds of $25,451 as at 28 February 2013 with minimal drawing on a credit card.  An Application for Review proceeds as if the petition were heard afresh.  On the facts of this case, and whilst it is a close thing, the applicant has demonstrated his solvency and thus the petition must be dismissed.

The Bankruptcy Notice

1. The applicant also attacked the validity of the bankruptcy notice.  His earlier application to set the notice aside was dismissed by the learned Registrar on 27 November 2012.  Putting aside the issue of whether the applicant should be entitled to seek to review the Registrar’s decision out of time, his substantive claims are without merit.

2. The applicant firstly contended that the judgments he had obtained against the respondent should have been included in item 5 of the bankruptcy notice entitled “Less payments made and/or credit allowed since judgments or orders”.  This is clearly incorrect.  The judgments obtained by the applicant against the respondent were neither “allowed” by the court which entered the judgment, and in any event arose before the judgment debt not after, and thus could not be “since” judgment.

3. The applicant’s second contention was that he issued a notice under s.41(5) of the Act. Section 41(5) provides:

   A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

4. He contended that the amount owing was not the $87,437.75 but rather the lower figure of $54,490 arising from the applicant’s appeal and the consent orders made in the Court of Appeal to reflect retention monies and other agreed variations.

5. This issue may be dealt with in short order.  The judgment against eh applicant was for $87,437.75 and is dated 8 August 2012.  The bankruptcy notice was issued 27 August 2012 in the sum of $87,437.75.  It was unquestionably correct at the time.  The relevant date is the date of the issue of the bankruptcy notice.  The fact that it was reduced at a later date is irrelevant: Emerson v Wrechaer Pty Limited (1992) 33 FCR 581. There was, therefore, no “misstatement” for the purposes of s.41(5). In any event the purported notice under s.41(5) does not provide sufficient information to enable the alleged misstatement to be identified by the creditor: Seovic Civil Engineering Pty Ltd v Groenevold (1999) 87 FCR 120.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  18 April 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT

Error! Bookmark not defined.

Applicant

And

Respondent

REASONS FOR JUDGMENT

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