Moss v Gorrie
[2013] FCCA 1393
•19 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOSS v GORRIE | [2013] FCCA 1393 |
| Catchwords: WORDS AND PHRASES – “carrying on business in Australia”. |
| Legislation:
|
| Ample Source International Ltd (BVICN 1575638) v Bonython Metals Group Pty Ltd (ACN 141 257 294) & Ors (No. 6) (2011) 285 ALR 488; [2011] FCA 1484 Commonwealth Bank of Australia v Oswal [2012] FMCA 1082
|
| Applicant: | GEOFFREY JOEL MOSS |
| Respondent: | GEOFFREY GORRIE |
| File Number: | PEG 235 of 2012 |
| Judgment of: | Judge Lucev |
| Hearing date: | 18 September 2013 |
| Date of Last Submission: | 18 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 19 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Grubb |
| Solicitors for the Applicant: | Metaxas & Hager |
| For the Respondent: | No appearance |
ORDERS
That the applicant’s interim application filed 29 August 2013 be dismissed.
There be no order as to costs.
That the Further Affidavit of Bruce Graeme Grubb sworn 18 September 2013 be removed from the Court record and returned to the applicant’s solicitors.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 235 of 2012
| GEOFFREY JOEL MOSS |
Applicant
And
| GEOFFREY GORRIE |
Respondent
REASONS FOR JUDGMENT
Introduction – the application and background circumstances
This is an application which seeks substituted service on the respondent, Mr Gorrie, by the applicant, Mr Moss, of a creditors petition.
At hearing four affidavits were relied upon by Mr Moss, namely:
a)the affidavit of Christina Trpcevski, sworn 4 October 2012;[1]
b)the affidavit of Christina Trpcevski, sworn 26 October 2012;[2]
c)the affidavit of Bruce Graeme Grubb, sworn 29 August 2013;[3] and
d)the further affidavit of Bruce Graeme Grubb, sworn 30 August 2013.[4]
[1] “First Trpcevski Affidavit”.
[2] “Second Trpcevski Affidavit”.
[3] “Grubb Affidavit”.
[4] “Further Grubb Affidavit”.
The background to this matter is as follows:
a)on 8 May 2012 a Minute of Consent Orders was sealed by Deputy Registrar Hewitt in the District Court of Western Australia in relation to a judgment debt of $110,000 owed by Mr Gorrie to Mr Moss;[5]
b)on 20 July 2012 a bankruptcy notice addressed to Mr Gorrie was issued by the Official Receiver, being Bankruptcy Notice No. 4505 in relation to the Judgment Debt;[6]
c)the Bankruptcy Notice was served by email on Mr Gorrie on 23 July 2012, and served again by email on Mr Gorrie on 6 August 2012, and, at least on the latter occasion, confirmation of service by email was acknowledged by Mr Gorrie;[7]
d)the Bankruptcy Notice was served by registered post on Mr Gorrie to an address at a post office box in Adelaide Terrace, Perth on 11 September 2012;[8]
e)on 4 October 2012 the creditors petition was filed; and
f)on 12 October 2012 the creditors petition was served by registered post to a post office box in Adelaide Terrace, Perth.[9]
An arguable case
[5] “Consent Orders” and “Judgment Debt” respectively.
[6] “Bankruptcy Notice”.
[7] Second Trpcevski Affidavit, annexure CT3.
[8] First Trpcevski Affidavit, annexure CT3.
[9] Second Trpcevski Affidavit, annexure CT2.
Principles
Prior to granting leave to serve a creditors petition outside the jurisdiction the Court must reach a provisional conclusion that the applicant for leave to serve a creditors petition outside the jurisdiction has an arguable case.[10]
[10] Deputy Commissioner of Taxation v Cranswick (2010) 80 ATR 88 at 91 per McKerracher J; [2010] FCA 891 at para.7 per McKerracher J; Commonwealth Bank of Australia v Oswal [2012] FMCA 1082 at para.4 per Lucev FM.
Having regard to the background circumstances set out above it is apparent that there is an act of bankruptcy in respect of a debt in excess of $5,000 payable immediately, committed within six months before the presentation of the Creditors Petition.[11]
[11] Bankruptcy Act, ss.44(1) and 40(1)(g).
In order to satisfy the requirement of an arguable case for the issuance of a sequestration order Mr Moss must show that Mr Gorrie was “carrying on business in Australia” at the time of the act of bankruptcy.[12]
[12] Bankruptcy Act, s.43(1)(b)(iii).
Carrying on business in Australia
With respect to whether Mr Gorrie was carrying on business in Australia for the purposes of s.43(1)(b)(iii) of the Bankruptcy Act at the date of the act of bankruptcy Mr Moss submits that:
a)the law provides that a party who has carried on business in Australia continues to do so until their affairs are concluded, by amongst other things, the payment of their debts;
b)on or about 13 January 2012, Mr Gorrie signed the Consent Orders that caused him to be indebted to Mr Moss by reason of the Judgment Debt, and he also gave to Mr Grubb (the lawyer acting for Mr Moss) his Australian business card as “GPI Australia – Geoffrey J Gorrie Managing Director”;[13] and
c)the Court is, therefore, able to conclude that it is at least arguable that Mr Gorrie was “carrying on business” for the purposes of s.43(1)(b)(iii) of the Bankruptcy Act, when, on 2 October 2012, he committed an act of bankruptcy by not paying his outstanding debt to Mr Moss because:
i)when he executed the Consent Orders that caused him to be indebted to Mr Moss by reason of the Judgment Debt he was, self-evidently, carrying on business in Australia; and
ii)the Judgment Debt was still outstanding as a debt to Mr Moss in Australia, as at 2 October 2012, when the act of bankruptcy was committed.
[13] First Trpcevski Affidavit, annexure CT4 (“GPI Australia Business Card”).
The matter was argued by Mr Moss on the basis that the date of the act of bankruptcy was 2 October 2012, being 21 days after service of the Bankruptcy Notice to the Adelaide Terrace post office box, and being the failure to pay the outstanding debt to Mr Moss as at that date. If, however, service of the Bankruptcy Notice was effected by email on either of the two earlier dates then the date of the act of bankruptcy would have been either 13 August 2012 or 27 August 2012. A bankruptcy notice is not required to be served personally, and may be served by means of electronic transmission.[14] In the circumstances, the Bankruptcy Notice was effectively served by email on 23 July 2012, and again on 6 August 2012. For reasons which will become apparent, it does not matter which of the above dates is adopted as the date of the act of bankruptcy.
[14] Bankruptcy Regulations 1996 (Cth), reg.16.01(e)(ii) and (2)(b), Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107 at 117 and 120 per Sundberg, Finkelstein and Hely JJ; [2004] FCAFC 321 at paras.30 and 38 per Sundberg, Finkelstein and Hely JJ.
In Re Mendonca; Ex parte Commissioner of Taxation[15] the Federal Court of Bankruptcy found that “the debtor was carrying on business in Australia, within the somewhat wide understanding of those words that has come to be established in bankruptcy law”.[16] The Federal Court of Bankruptcy did not indicate what business the debtor was carrying on in Australia, but in support of its findings referred to Theophile v The Solicitor-General[17] and Re Bird; Ex parte the Debtor v Inland Revenue Commissioners & Ors.[18] Theophile and Re Bird are authority for the proposition that the business must have been the debtor’s own, carried on by the debtor on the debtor’s own account. In Theophile it was said that:
a)a business’ trading does not cease when it physically closes down, but continues until sums due are collected and all debts paid;
b)liability for debts to be paid extends to taxes and liabilities incurred in incidental matters in the course of carrying on the trade, including, for example, liability for careless driving of a servant resulting in an accident; and
c)trading is not completed until all of the obligations that the fact of trading imposed are completed.[19]
[15] (1969) 15 FLR 256 (“Re Mendonca”).
[16] Re Mendonca at 260-261 per Gibbs J.
[17] [1950] 1 All ER 405 (“Theophile”).
[18] [1962] 2 All ER 406 (“Re Bird”).
[19] Theophile at 411 per Lord Porter. A series of earlier English cases supporting these propositions were cited by Lord Porter, namely, Re Dagnall; Ex parte Soan & Morley [1896] 2 QB 407; Re Allen; Ex parte Shaw [1915] 1 KB 285 and Re Reynolds, Ex parte White Bros Ltd [1915] 2 KB 186.
Re Bird concerned a person who had carried on business as a bookmaker and who had left England in 1957, but a judgment was obtained against him in respect of unpaid income tax in 1960, with respect to income tax liabilities for the years 1935 to 1954. Theophile was followed in Re Bird by a powerful Court of Appeal comprising Lord Justices Harman, Upjohn and Diplock.[20]
[20] Re Bird at 412 per Harman LJ, 414 per Upjohn LJ and 416 per Diplock LJ.
In both Theophile and Re Bird it was found that a bankruptcy petition had been validly presented because the debtor was still carrying on business as a consequence of unpaid liabilities arising in the course of the business’ trading: in Theophile the liabilities were unpaid excess profits tax, and in Re Bird unpaid income tax.
In Turner v Trevorrow & Anor[21] the Full Court of the Federal Court considered the issue of whether or not a debtor was carrying on business in Australia. The debtor, Mr Turner, was a director and secretary of a company, AA Turner Pty Ltd, and the controlling presence behind the company which carried on business as a builder. Mr Turner departed for Germany when the company found it difficult to attract work, and obtained a five year work visa in Germany where he was able to find work and intended to stay. Meanwhile a bankruptcy notice was issued demanding payment of a judgment debt obtained against Mr Turner. A creditors petition was ultimately opposed on the basis that at the time the act of bankruptcy was committed Mr Turner was not carrying on business in Australia. The Full Court of the Federal Court held that:
a)for Mr Turner, as debtor, to come within the terms of s.43(1)(b)(iii) of the Bankruptcy Act, it needed to be shown that he was carrying on his own business, and it was not sufficient that he was engaged as an employee in the business of someone else;[22]
b)a person did not come within the terms of s.43(1)(b)(iii) of the Bankruptcy Act merely because they controlled the company business, and in Trevorrow although Mr Turner controlled the company, that did not make the company’s business his business;[23] and
c)Mr Turner was not engaged in a business which was carrying on the business of managing and controlling the affairs of a company.[24]
[21] (1994) 49 FCR 566 (“Trevorrow”).
[22] Trevorrow at 572 per Sweeney, French and Heerey JJ.
[23] Trevorrow at 573 per Sweeney, French and Heerey JJ.
[24] Trevorrow at 573-574 per Sweeney, French and Heerey JJ.
In Napiat Pty Ltd v Salfinger (No. 7)[25] the Federal Court citing Re Mendonca said that:
The Courts have taken a broad view of what constitutes " carrying on a business” but the business must be the debtor's own business. He or she must be carrying on the relevant business on his or her own account (Re Mendonca ...).[26]
[25] (2011) 9 ABC(NS) 485; [2011] FCA 1322 (“Salfinger (No. 7)”).
[26] Salfinger (No. 7) ABC(NS) at 502 per Foster J; FCA at para.77 per Foster J.
In Salfinger (No. 7) the Federal Court found that because the requirements under s.43(1)(a) and (b) of the Bankruptcy Act had been met it had jurisdiction to make a sequestration order,[27] in circumstances where, in relation to the business being carried on, there was evidence that:
a)the respondent conducted business on his own account as a consultant;
b)he was working personally as a consultant working for an Australian company being paid in Australia; and
c)he had an Australian Business Number in his own name (in effect), and the income that he earned was subject to GST, and he was an Australian taxpayer.[28]
[27] Salfinger (No. 7) ABC(NS) at 503 per Foster J; FCA at para.80 per Foster J.
[28] Salfinger (No. 7) ABC(NS) at 503 per Foster J; FCA at para.78(c) per Foster J.
The evidence relied upon to show that there is an arguable case for the issuance of a sequestration order against Mr Gorrie on the basis that he was carrying on business in Australia at the time of the act of bankruptcy was said to be:
a)the existence of the Judgment Debt itself, which, because it had not been paid, was said to constitute the carrying on, or evidence of the carrying on, of a business in Australia, by Mr Gorrie; and
b)the carrying on of a business in Australia at the time of the act of bankruptcy, based upon the handing to Mr Grubb of the GPI Australia Business Card on 13 January 2012.
Mr Moss submitted that the Judgment Debt was a personal debt and not a business debt, but argued that it was nevertheless a debt arising from the carrying on of business in Australia. It was submitted that because there was a debt unpaid at the date of the act of bankruptcy there was a debt incurred in the carrying on of business. This was said to be so notwithstanding that the debt was a personal one, and notwithstanding, as was properly conceded by Mr Moss, that there was not evidence of Mr Gorrie carrying on a business personally arising from the terms of the Defence, or otherwise, except for what was submitted by Mr Moss as set out hereunder in relation to the business of GPI Australia.[29]
[29] See paras.18-22 below.
The submission that a business was being carried on because a personal debt was incurred and has not been repaid must be rejected. The submission put for Mr Moss, in response to questioning from the Court during submissions, that a wholly personal debt between two persons gave rise to carrying on business in Australia cannot be correct. If it were so, every debt incurred in Australia would fit within the rubric of s.43(1)(b)(iii) of the Bankruptcy Act as “carrying on business in Australia”. One need only state the proposition in such terms to see its absurdity. Furthermore, in the context of the proper construction of the Bankruptcy Act it cannot be correct, for if it were, the other provisions of paragraph (b) of s.43(1) of the Bankruptcy Act relating to the debtor being personally present or ordinarily resident in Australia, having a dwelling house or place of business in Australia, or being a member of a firm or partnership carrying on business in Australia, would be otiose.[30] Further, the history of the “carrying on business” provision, which has its origins in United Kingdom legislation, demonstrates clearly that in order for the provision to be operative the debtor must have been actually carrying on his or her own business.[31] In Trevorrow the Full Court of the Federal Court, in reference to s.43(1)(b)(iii) of the Bankruptcy Act, said that it was concerned with “debtors carrying on business as … sole traders”.[32] In the circumstances, the submission that “carrying on business in Australia” can arise solely from the existence of a personal debt, which is conceded not to be a business debt, cannot be sustained.
[30] Bankruptcy Act, s.43(1)(b)(i), (ii) and (iv) respectively.
[31] See the recitation of the history of a similar provision in United Kingdom legislation, particularly in the context of trading by married women, set out in Re Bird at 409-412 (including the relevant extracts from the speeches in the House of Lords in Theophile).
[32] Trevorrow at 572 per Sweeney, French and Heerey JJ.
The GPI Australia Business Card was, as indicated above,[33] given to Mr Grubb by Mr Gorrie on 13 January 2012.
[33] See para.7(b) above.
As to the GPI Australia Business Card, on its front it nominates “geoffrey j gorrie” as “managing director” of “gpi australia”, and gives an email and two mobile phone contacts (one in Australia and one in Madagascar) for Mr Gorrie. The back of the card refers to “green petrol investments limited” and discloses:
a)a street address in Outram Street, West Perth;
b)a post office box in Adelaide Terrace, Perth;
c)a post office box in Madagascar;
d)a company email address; and
e)a company website address.
On 21 June 2012 at 2.40pm Mr Gorrie sent Mr Grubb an email the terms of which are as follows:
Firstly please regard the email address used to send this message as my new email address. I have to use at this time as I no longer
Am involved with GPI Australia. (Green Petrol Investments Limited) all emails that were sent to GPI address have been forwarded to
This new address … [email address]
The attachments above are copies of correspondence from the District court prior to the hearing date that I was informed of whilst overseas.
As I’m a permanent resident of Madagascar I returned to both Zambia & Madagascar in a effort to rectify my current financial situation.
My return will depend on my progress in those countries.
I do not see me returning as a non resident for at least 12mths.[34]
[34] Further Grubb Affidavit, Annexure BGG1. The formatting of this email has been transcribed without amendment, save for the reference to the email address.
There was no other evidence of the precise nature of Mr Gorrie’s involvement in the business of GPI Australia (or Green Petrol Investments Limited). No ASIC searches revealing shareholdings and corporate office holdings are in evidence. It was indicated from the bar table that ASIC searches on Mr Gorrie had revealed involvement in deregistered companies only. Nor are there are there any annual reports from GPI Australia indicating the nature of Mr Gorrie’s involvement with GPI Australia. There is no evidence from any person associated with GPI Australia indicating how the:
a)business structure;
b)business organisation; and
c)day-to-day management,
of GPI Australia was organised at any relevant time.
For the purposes of this case there is, therefore, no evidence arising from the GPI Australia Business Card that Mr Gorrie was at any stage carrying on his own business. The mere fact that he was managing director of GPI Australia goes no further than showing that he might have been a director or employee of that company, but that is not sufficient to show, or without more, to draw an inference, that he was arguably carrying on his own business, even if the evidence arguably established, which it does not, that he controlled the business of GPI Australia.[35]
[35] Trevorrow at 572-574 per Sweeney, French and Heerey JJ.
Reference was made by Mr Moss to Re Vassis; Ex parte Leung[36] and Westpac Banking Corporation v Faress[37] as supporting the proposition that a personal debt was sufficient to amount to a carrying on of business in Australia for the purposes of s.43(1)(b)(iii) of the Bankruptcy Act. That submission, however, ignores the facts. In Re Vassis, Mr Vassis was admitted as a barrister and solicitor of the Supreme Court of Victoria, practised the profession of a solicitor under his own name in the Melbourne CBD, and in the course of his practice received substantial amounts of money from clients for investment, or to be applied to specific purposes, or to be paid to clients. He received and held title deeds on behalf of clients, and invested substantial sums in a company of which he was a director which subsequently became insolvent as a consequence of certain activities by Mr Vassis.[38] In Faress there were specific findings in relation to Mr Faress having been a director or secretary of 33 companies over approximately two decades, and that the petitioning creditor had provided financial accommodation to five of those companies, four of which had all of their shares owned beneficially by the fifth company, and in respect of the fifth company Mr Faress was its sole director and shareholder, and that fifth company had received financial accommodation from the petitioning creditor and had been offered a limited guarantee by Mr Faress to secure an overdraft. The Court found that Mr Faress was in business on his own account as a property developer and had utilised the various companies for the various properties in which he was interested.[39] In each case, the debts arose from the carrying on in Australia of the businesses concerned, being a solicitor and a property developer respectively.
[36] (1986) 9 FCR 518 (“Re Vassis”).
[37] [2011] FMCA 26 (“Faress”).
[38] Re Vassis at 520 per Burchett J.
[39] Faress at paras.18 and 19 per Jarrett FM.
The Statement of Claim giving rise to the Judgment Debt is not in evidence. The Defence is in evidence and was referred to during the hearing.[40] The Defence is signed by Mr Gorrie who appears to have been self-represented in the proceedings in the District Court of Western Australia giving rise to the Judgment Debt. The Defence is not, however, particularly revealing. It is vague and embarrassing as a pleaded document. What can be discerned from it is that there appear to have been allegations made in the Statement of Claim concerning a loan agreement. Mr Gorrie pleads that there was no loan agreement in place at the time payments were apparently made for the purchase of certain shares in a rare earth mining company, MRE Inc, listed on the informal board of the Frankfurt Stock Exchange. No loan agreement is in evidence. Mr Gorrie pleads that the shares which had been purchased and paid for were held by him under a declaration of trust until trading commenced in those shares. No trust deed is in evidence. It is then pleaded that trading in the shares was delayed by certain external events and economic conditions in Europe, and shareholders took certain action to bring an asset held by MRE Inc back under direct shareholder control in November 2011. There is then pleaded, but in reality merely mentioned, firstly, various discussions in relation to the shares between Mr Moss and Mr Gorrie, and, secondly, the provision of a proof of debt letter to Mr Moss by Mr Gorrie whilst other methods of helping Mr Moss to cash out his shares were tried. From the pleading it would then appear that some form of further security was subsequently provided to Mr Moss by Mr Gorrie.
[40] Second Trpcevski Affidavit, annexure CT5.
The above matters are put in very general terms in a Defence which runs, substantively, to no more than a page and a half, and in which the above matters are referred to in the first two paragraphs of the Defence, and occupy no more than three quarters of a page in what, generously described, might be said to be a general narrative style pleading. There is nothing in the pleading as to the precise nature, or even a proper general description, of the relevant transactions, and it is impossible on the evidence to conclude whether, or infer that, the Judgment Debt was incurred in the carrying on of a business in Australia by Mr Gorrie. Significantly, the Defence does not mention the amount of the Judgment Debt ($110,000), or the nature of any business which might have been engaged in the share purchases. It is impossible to discern from the Defence how it was that the Judgment Debt actually arose, and whether in fact it arose as a consequence of Mr Gorrie carrying on a business in Australia. Significantly, there is no evidence from Mr Moss as to the matters, including whether Mr Gorrie was carrying on a business in Australia, the subject of the Defence, or otherwise.
It is also a requirement of s.43(1)(b) of the Bankruptcy Act that Mr Gorrie had been carrying on a business in Australia “at the time when the act of bankruptcy was committed”. The evidence relied upon by Mr Moss indicates that as early as 21 June 2012 Mr Gorrie no longer had any involvement with GPI Australia.[41] That date precedes the earliest possible date for the act of bankruptcy.[42] Otherwise, there is no evidence which indicates the nature of Mr Gorrie’s involvement with GPI Australia, and no evidence which establishes, or from which it might properly be inferred, that he was carrying on business in Australia through GPI Australia, or any other business, at the time when the act of bankruptcy was committed. The Judgment Debt is, on the evidence, not a debt related to the carrying on of the business of GPI Australia, or the carrying on of any business, whether in Australia or otherwise.
[41] Further Grubb Affidavit, annexure BGG1. The email is set out above at para.20.
[42] See para.8 above.
Ultimately, the evidence simply does not establish that Mr Gorrie was, or was arguably:
a)carrying on a business in Australia at any time; or
b)carrying on a business in Australia at the time of the act of bankruptcy.
Conclusions and orders
The Court has concluded that there is no evidence that, alternatively not sufficient evidence to establish that, it is arguable that Mr Gorrie was carrying on business in Australia at the time when the act of bankruptcy was committed, and therefore there is not an arguable case for a sequestration order to issue. This conclusion renders it unnecessary to deal with other issues raised in Mr Moss’ submissions in support of the application for substituted service. It follows that the interim application filed on 29 August 2013 must be dismissed.
In the circumstances, including Mr Gorrie making no appearance, there will be no order as to costs.
Postscript – affidavit filed after judgment reserved.
After judgment was reserved yesterday morning the Registry accepted for filing a further affidavit sworn by Mr Grubb, who had appeared at hearing as Counsel for Mr Moss. At hearing, only the four affidavits referred to above,[43] were relied upon by Mr Moss, and at the time of the hearing, save for formal affidavits of debt, search and service, there were no other substantive affidavits on the Court file. The further affidavit from Mr Grubb which has been accepted for filing by the Registry was one in respect of which:
a)no leave to file it was granted by the Court during the hearing, or at all; and
b)no application has been made to re-open the case to accept further evidence. Such an application would need to set out the grounds for re-opening, and those grounds would need to satisfy the relevant test for the grant of leave to re-open.[44] In the absence of an application setting out grounds for leave to re-open the affidavit cannot be read by the Court. The gratuitous (because it was not the subject of any grant of leave) addition of an affidavit after the Court hearing is also unsatisfactory.[45] The affidavit ought not, therefore, be read by the Court.
[43] See para.2 above.
[44] Londish & Ors v Gulf Pacific Pty Limited (1993) 45 FCR 128 at 139 per Neaves, Burchett and Ryan JJ; Ample Source International Ltd (BVICN 1575638) v Bonython Metals Group Pty Ltd (ACN 141 257 294) & Ors (No. 6) (2011) 285 ALR 488 at 529-530 per Robertson J; [2011] FCA 1484 at para.355 per Robertson J.
[45] Albeit that the cases related to the filing of submissions, the relevant principles are set out in NT Power Generation Pty Ltd v Power and Water Authority & Anor (2004) 219 CLR 90 at 159 per McHugh ACJ, Gummow, Callinan and Heydon JJ; [2004] HCA 48 at para.192 per McHugh ACJ, Gummow, Callinan and Heydon JJ, and Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population and Communities [2013] FCA 782 at paras.2-4 per Logan J.
In circumstances where no leave was granted to file further affidavit evidence, and no application to re-open the case to accept further evidence has been filed subsequent to judgment being reserved, and taking into account that there was no appearance for Mr Gorrie, the Court does not consider it appropriate to read the further affidavit accepted for filing by the Registry after judgment was reserved. The Court has, therefore, not read the affidavit. The proper course in the circumstances is for the affidavit to be removed from the file by the Registry and returned to the solicitors for Mr Moss. There will be an order accordingly.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 19 September 2013
11
3