Re Bussell, C.J. v Ex parte Custom Credit Corporation Ltd

[1985] FCA 593

593

NOT INTENDED FOR DISTRIBUTION

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
GENERAL DIVISION	) No. P358 of 1985

~~~ ~~~ ~

BANKRUPTCY DISTRICT	1
OF THE STATE OF	)

WESTERN	AUSTRALIA	1
RE: CHARLES JOHN BUSSELL

Debtor

EX PARTE: CUSTOM CREDIT CORPORATION

LIMITED

Creditor

C m : TOOHEY J.

13 November 1985

EX TEMPORE REASONS FOR JUDGMENT

I propose to deal with this matter now since it has been

before the Court on a number of occasions. This is a petition for

the sequestration of the estate of Mr. Charles John Bussell. The

act of bankruptcy relied upon is a balance of $3185.23 said to be

due by Mr. Bussell to the petitioning creditor, Custom Credit

Corporation Limited, under a judgment obtained by the creditor

against Mr. Bussell in the District Court of Western Auskralia on

19 July 1982.

That judgment was obtained in defaulr; of appearance.

The petition has been before the Registrar on several occasions,

and was before the Court recently when the hearing was adjourned,

because Mr. Bussell was 111. At the hearing on 11 November I was

satisfied that the petitioning creditor had met all the formal

.

2.

requirements of Lhe Bankruptcy Act 1966. and there was evidence

from the petitioning creditor's collections manager, Colin Burnell

Hewitt.	that	Custom	Credit	had	not	received	the	amount	of	,. .
I ,.

$3185.23, and that the amount was still owing.

However, Mr. Bussell lodged a notice of intention to

oppose the petltion on the ground that:

"My Banker, the National Australia Bank Limited. 1

Progress Street, Morley Branch, acting on my behalf and pursuant to my instructions, paid in full all monies

owing by me to the said Custom Credit Corporation

Limited in or about August, 1983. I'

Making all the allowances I can for the fact that Mr. Bussell was

not represented by counsel and had to present his own case, I have

had great difficulty in identifying precisely the basis of

opposition to the petition.

At one point it seemed that Mr. Bussell's complaint was

that the National Australia Bank had failed to comply with his

instructions to pay moneys to Custom Credit. If that were the

case it would not be an answer to the petjtion, whatever rights

such a failure may have given Mr. Bussell against the bank. But

in the end that was not the argument that was pressed.

I ,

' 7-

There was tendered in evidence an authority dated

8 March 1981 from Mr. Bussell to the bank to make monthly payments

of $250 to Custom Credit beginning on 20 April 1981. However the

authority is indorsed "cancelled", with a signature which

Mr. Bussell acknowledged to be his. Mr. Bussell gave evidence,

..

I

3 .

orally and by affldavit. that on 30 June 1983. lust before he was

to leave for England, he had a meeting with Allen Shaw Ferguson,

the manager of the Morley branch of the bank. It was at this bank

and branch that Mr. Bussell had his account. According to

Mr. Bussell. he instructed Mr. Ferguson to remit certain moneys to his account in London, and to ensure that all moneys otherwise

owing by him were paid so that Mrs. Bussell would have no worries

on that score while he was away. Mr. Bussell did not claim that

at the time there was money in his account to meet these

instructions, but he was in the process of borrowing a substantial

sum from Alliance Acceptance Co. Ltd., from which these

liabilities, including the amount due to Custom Credit, would be

met. Although it was not entirely clear, I understood Mr. Bussell

to be saying that he executed a written authority to this effect.

Mr. Ferguson acknowledged that there was a meeting on 30 June

1983, a meeting which he had documented in some detail in a

diarized note. He had no recollection of the instructions

Mr. Bussell claimed to have given and pointed out that in any

event the bank could not pay out any moneys from Mr. Bussell's

account until funds had been provided by Alliance Acceptance.

At first Mr. Bussell's evldence of this conversation

went no further than to allege an undertaking by Mr. Ferguson to

pay out certain moneys. However, he then said that in the course

of a telephone conversation, just before his departure, he was

told by Mr. Ferguson that all his debts had been cleared,

including that of Custom Credit. Mr. Ferguson denied that he had

told Mr. Bussell that Custom Credit had been paid. Since the bank

was not then in possession of funds with which to pay Custom

t I r:

I	% .
I
l

I 4 .

!	L'redlt. it	seems unllkelp that Mr. Fercuson would have sald this
l

to Mr. Bussell. However. thls is not a matter that I need resolve

I

since the questlon is not what the National Bank undertook to do, nor indeed what it said it had done, but whether in fact Custom Credlt was paid. In that regard I do not accept that the National

Australia Bank was the agent of Custom Credit. As to the matter

I

of payment there was clear evidence in the affidavits filed on behalf of the petitioning creditor, and in the oral evidence of

Mr. Hewitt, that the company had not been paid.

Mr. Bussell then seemed to be contending that his debt

to Custom Credit had been paid by Alliance Acceptance directly

rather than through the bank. I pointed out to Mr. Bussell that

if this were the case one would expect him to have a statement

from Alliance Acceptance showing a disposition of the moneys he

had borrowed from that company. Although Mr. Bussell had a file

of papers with him he said he could not locate any such statement.

I then adjourned the hearing until this morning, saying that I

proposed to give my decision today, but hat I would

first give Mr. Bussell the opportunity to call evidence from

Alliance Acceptance. Custom Credit says that it did not receive

the money due to it: the bank says that it did not remit money to

Custom Credit. If the money were paid it could only have been by

Alliance Acceptance.

This morning Mr. Bussell tendered a letter dated

7 January 1985 from Alliance Acceptance which not only lends no

support to the proposition that that company dispersed moneys in

repayment of the debt to Custom Credit but states positively that

I

i	!
I
l

5 .

I	I
I

It had nothlnq to do wlth Custom Credit ln reaard to the

I

transaction with Mr. Bussell. The evidence therefore points

I	I
l

i	overwhelmingly to the fact that Alliance Acceptance did not pay
l
the debt to Custom Credit. Mr. Bussell has alleged somet&g in

A

the nature of a malicious prosecution by Custom Credit, designed,

he says, to thwart any right of action he might have against the

I

bank. As to that I would simply say there is no evidence.

I

I

I In the circumstances I am satisfied that the amount

specified in the bankruptcy notice has not been paid to the

I

petitioning creditor. I am therefore satisfied that Mr. Bussell

committed the act of bankruptcy relied upon by Custom Credit. I

am satisfied that the requirements of s.52 of the Act have been

met. I note that Kevin Gustav Carlson. a registered trustee, has

I I

consented to act as trustee of the estate of Mr. Bussell in the

I

1

event that he becomes bankrupt. There will therefore be a

sequestration order against the estate of Mr. Bussell and an c-der

that he pay the costs of the petitioning creditor, including

reserved costs.

I certify that this and the preceding

four pages are a true copy of the

Ex Tempore Reasons for Judgment

herein of his Honour Mr. Justice

Toohey. .,

I

i

i

I

l

I

I