Re: Bond, a and Ex parte: Hongkong Bank of Australia Ltd

[1992] FCA 1055

1055 1942

JUDGMENT NQ. ... ........ ..... ..	.....
) No. P 917 of 1992	1
1
1

RE: liusAm2 Debtor

EX PARTE t 8

Creditor

Morling 3. 14 April 1992

When this petition was called on for hearing this morning Mr Robinson of counsel appeared for the judgment debtor and eought to raise a number of matters in opposition to the making of a sequestration order. The notice required by rule 20 was not given not less than three days before the date fixed for the hearing of the petition. Notwithstanding this, I allowed Mr Robinson to address me on a number of matters upon which he wished to rely.

petition, contains inadmissible material

In his submission, the evidence filed in support
of the petition does not justify the making of a

sequestration order. In particular, he submits that the

affidavit of Maria Anne Visintin , filed

rejected. MS Visintin is a Senior Manager, Corporate Banking, employed by the petitioning creditor.	Paragraphs
2, 3 and 4 of her affidavit read as follows:

"2.	I am a poreon authorized by t h e HongkongBank of
Aus t ra l i a Limited t o make t h i s a f f i d a v i t on i ts behalf .
3.	The s ta tements contained i n paragraphs 1, 2 and 3 of
t h e p e t i t i o n are wi th in my own knowledge t r u e .
4.	Mr Richard O r g i l l is duly author ised by t h e
HongkongBank of Aus t ra l i a Limited t o s i g n t h e
p e t it ion.
Paragraphs 1, 2 and 3 of the petition are in the

following terms :

"l. The debtor w a s a t t h e d a t e of t h e commielaion of t h e

act of bankruptcy spec i f i ed i n paragraph 4 o r d i n a r i l y

remident i n Aust ra l ia .

2. The debtor is j u s t l y and t r u l y indebted t o t h e

creditor i n t h e sum of United State. Dol lare

-

194,644,443.97 under a guarantee and indemnity da ted 20 February 1990 f o r which sum judgment warn obtained

i n t h e Supreme Court of N e w South Wales on t h e 23rd

day of September 1991 i n proceedingm 50431 of 1991.

3. The c r e d i t o r does not , nor does any person on i ts

behal f , hold any s e c u r i t y over t h e proper ty of t h e

debtor o r any p a r t of	it	f o r t h e payment of t h e amount
spec i f i ed	i n paragraph	2."

The petition was signed by Mr Richard Orgill as "duly authorised officer of the HongkongBank of Australia Limited".

I am satisfied that there is no merit in any of the matters raised on behalf of the judgment debtor and as no sufficient explanation has been given for his failure to comply with rule 20, I do not think I should excuse his non- compliance with its requirements.

Nevertheless, since I have heard argument on those matters I should indicate that even if rule 20 had been complied with, I would nevertheless have been satisfied that there ie no substance in the matters upon which the debtor wishes to rely.

As to para 2 of Ms Visintin's affidavit, it is in the form commonly used in applications of this kind. I

accepg that in the ordinary case the relationship of

principal and agent cannot be proved merely by showing that the alleged agent said he was the principal's agent - see v m (1925) SASR 347. There is other authority

to the same effect. However, in these proceedings the petitioning creditor itself has, in effect, appointed Ms Visintin as its agent to make the affidavit on its behalf.

MS Visintin holds a senior position with the judgment creditor which has put her forward as the appropriate person to make the affidavit on its behalf. In these circumstances, I do not think that I should reject para 2 of Ms Visintin's affidavit, and I decline to do so. In any event, Ms Visintin's authority to make the affidavit is established by the affidavit of Mr John Spencer Dickinson, who is the Joint Managing Director of the petitioning creditor.

In para 3 of her affidavit, Ms Visintin states that the statements contained in paras 1, 2 and 3 of the petition are within her own knowledge true. As to para l of the petition, I see no reason why I should reject her statement that she knows that the debtor was ordinarily resident in Australia at the time of the alleged act of bankruptcy. No application has been made to cross-examine her and her statement remains unchallenged. Moreover,

reference to many documents in the Court file, including -

evidence given by the judgment debtor in other proceedings,

statement made in para 1 of the petition is indeed correct.

is sufficient to give rise to an inference that the

Paragraphs 2 and 3 of the petition contain statements which would ordinarily be within the knowledge of a person holding MS Visintin's senior position with the petitioning creditor. Again, in the absence of any challenge to her evidence, I see no reason to reject it. Moreover, there is evidence from Mr Stuart Arthur Davis, who is the Assistant General Manager, Credit Control, of the petitioning creditor that the statement made in para 2 of the petition is correct. There is also evidence from Mr Davis proving the statements made in para 3 of the petition.

In para 4 of her affidavit MS Visintin states that

Mr Orgill is authorised by the petitioning creditor to sign

the petition. M8 McClintok, who is the secretary of the petitioning debtor, has sworn an affidavit which establishes that Mr Orgill is the chief executive officer of the petitioning creditor and that he had due authority to sign

the petition. Even in the absence of Me McClintok's

evidence, I would have thought that the unchallenged statement made in Me Visintin's affidavit should be accepted for the purposes of the present proceedings.

For the above reasons I do not think there is any substance in the matters raised in opposition to the

..

petition.

I make a sequestration order against the estate of

the debtor and order that the costs of the petitioning
creditor, including any reserved costs, be taxed and paid in
accordance with the m u ~ t c v A c t 1966. I appoint Mr
Robert Eastaugh Ramsay trustee of the bankrupt's estate.

I c e r t i f y t h a t t h e preceding f i v e (5) pages a r e a t r u e copy of t h e Roasons f o r Judgment he re in of Hie Honour

Mr J u e t i c e T.R.	Morling.
Asrwi ate:	D, S . N , L
Date :	14 Apri l 1992

Couneel f o r t h e debtor: D. P. Robineon

ins t ruc tad by N e i l Laweon C Co.

Counmel f o r thm ored i to r : S.M.P. Reeve.

inmtructod by Malleaons, Stephen, Jaquee

Date of haaring:	14 Apri l 1992
Date J u d p n t del ivaredr	14 Apri l 1992