Re Cirillo; Ex parte Commissioner of Taxation
[1992] FCA 408
•04 JUNE 1992
Re: VINCENZO GIOVANNI CIRILLO
Ex parte DEPUTY COMMISSIONER OF TAXATION
No. S P366 of 1991
FED No. 408
Bankruptcy
(1992) 36 FCR 279
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Von Doussa J.(1)
CATCHWORDS
Bankruptcy - creditor's petition - notice of opposition - whether bankruptcy notice validly issued - whether judgment or order for taxed costs stayed - whether creditor's petition duly verified by affidavit of a person who has knowledge of the facts - meaning of "knowledge of the facts" - whether defect in the petition because verifying affidavit sworn by one servant of the petitioner before another.
Bankruptcy Act 1966 (Cwth), ss.40(1)g, 41(3), 41(5), 44(1)(b), 47, 52(1), 262, 263A, 306
Local and District Criminal Courts Act 1926 (SA), ss.153, 174, 293, 294, 295
HEARING
ADELAIDE
#DATE 4:6:1992
Counsel for the debtor: Mr W.H. Hall
Solicitor for the debtor: W.H. Hall and Associates
Counsel for the creditor: Ms S. Singh
Solicitor for the creditor: Australian Government
Solicitor
ORDER
The Court orders that:
1. The notice of opposition filed by the debtor be dismissed.
2. A Sequestration Order be made against the estate of the debtor.
3. The petitioning creditor's costs, including reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966. Date of Commission of act of bankruptcy: 15 November 1991
Note: Settlement and entry of order is dealt with in Bankruptcy Rule 124.
JUDGE1
By a creditor's petition presented on 10 December 1991 the Deputy Commissioner of Taxation petitions the Court for a sequestration order against the estate of Vincenzo Giovanni Cirillo ("the debtor"). The petition alleges that the debtor is indebted to the petitioning creditor in the sum of $70,780.68 made up of amounts due under a judgment of the District Court of Adelaide for unpaid sales tax, of amounts due under several assessments of income tax, and of amounts of tax instalment deductions underpaid, together with additional tax for late payment, and interest and costs on the District Court judgment. Paragraph 1 of the petition alleges that "the debtor was at the date of the commission of the act of bankruptcy specified in paragraph 4 of this petition personally present in Australia". Paragraph 4 of the petition specifies the act of bankruptcy as failure to comply with a bankruptcy notice served on 25 October 1991.
The debtor filed a notice of intention to appear on the hearing of the petition and to oppose the making of a sequestration order. Eleven grounds of opposition are stated in the notice and all but two of them are still pressed.
By sub-s.52(1) of the Bankruptcy Act 1966 ("the Act") the court shall require at the hearing of a creditor's petition proof of (a) the matters stated in the petition (for which purpose the court may accept as sufficient the affidavit verifying the petition); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing. As to the matters stated in the petition the debtor disputes several of them. There is no dispute as to service of the petition. The debtor also disputes that the debt or debts on which the petitioning creditor relies are still owing. On the last matter I accept the evidence of Mr George Petroff, the Manager of the Debt Management section of the petitioning creditor's Adelaide office, and I find that the debts on which the petitioning creditor relies are still owing.
I shall deal with the grounds of opposition argued by the debtor in the order in which they appear in his notice:
"1. The debt alleged to be due in bankruptcy notice No. 307 of 1991 had not fallen due and at all material times was not due because of the failure of the petitioner to comply with s.153 of the Local and District Criminal Courts Act 1926 as amended (SA) and accordingly the debtor has not committed the act of bankruptcy alleged in the said petition."
Under para.40(1)(g) of the Act, an act of bankruptcy is committed by the failure to comply with the requirements of a bankruptcy notice based on a final judgment or final order "being a judgment or order the execution of which has not been stayed". See also sub-s.41(3) which provides that a bankruptcy notice shall not be issued in relation to a debtor if, at the time of the application for its issue, execution of the judgment or order to which it relates has been stayed.
Section 153 of the Local and District Criminal Courts Act 1926 (SA) relevantly provides, in sub-s.(2):
"A judgment or order of a local court, Judge or special magistrate, in so far as it provides for the payment of costs, shall not be enforced -
(a) unless a letter setting forth the amount of the taxed costs has been served personally on the party against whom the costs were awarded; or
(b) unless a letter setting forth the amount of the taxed costs has been sent by post to the party against whom the costs were awarded, and the letter would, in the ordinary course of the post, have been delivered."
The expression "taxed costs" is defined in sub-s.(4) to mean costs taxed by the clerk of a local court, a special magistrate, or a Judge. The "local court" referred to in s.153, and in other sections of the Local and District Criminal Courts Act to which reference will be made, includes the District Court of Adelaide.
In Re Williams; Ex parte Alberton Electrical Service Pty Ltd (1982) 43 ALR 552 it was held that execution on a judgment or order for taxed costs was stayed within the meaning of para.40(1)(g) of the Act until the judgment creditor gave notice to the debtor in accordance with sub-s.153(2), and accordingly, where notice had not been given, a bankruptcy notice issued for a sum which included taxed costs was invalid in that the stated sum exceeded the amount for which execution might lawfully be levied.
In the instant case the amount stated in the bankruptcy notice issued against Mr Cirillo was $33,181.75 which was said to include $31,506.79 "for the claim and costs" less an adjustment due to the debtor plus interest, the calculation for which was specified. The amount of the "costs" was not stated. It is common ground that no letter of the kind referred to in sub-s.153(2) of the Local and District Criminal Courts Act had been served on, or posted to, the debtor.
It is also common ground that the ordinary summons issued by the petitioning creditor against the debtor in the District Court, by the attached statement of claim, both in its original form and as amended, stated that the amount claimed against the debtor included "$83 for the cost of this summons". The amount of $83 represented the fees paid by the petitioning creditor to the Court on the issue of the ordinary summons. No solicitors' fees were claimed as the ordinary summons was issued by the Deputy Commissioner of Taxation, not by solicitors acting on his behalf. Sub-section 294(1) of the Local and District Criminal Courts Act provides that the Governor may, by regulation, fix fees to be paid in respect of matters specified in the regulations, and sub-s.(3) provides that every fee shall be paid in the first instance and in advance by the party for whose benefit the act or service in respect of which the fee is to be paid is to be done. Regulations made under sub-s.294(1) on 24 November 1988 prescribed $83 as the fee payable to the clerk of court upon the commencement of an action in the District Court.
The petitioning creditor obtained judgment against the debtor in default of a defence. A certificate of judgment was obtained from the clerk of court pursuant to s.174 of the Local and District Criminal Courts Act which stated:
"Amount ordered to be paid...amount claimed $27,988.49 costs 83.00 additional tax 3,435.30 $31,506.79
It is the debtor's contention that the sum of $83 included in the certificate of judgment as "costs", constitutes "taxed costs" within the meaning of s.153 of the Local and District Criminal Courts Act, and as a letter of the kind required by sub-s.153(2) has not been served on, or posted to, him it follows from the decision in Re Williams; Ex parte Alberton Electrical Service Pty Ltd, that execution on the sum of $83 was stayed, and that the bankruptcy notice therefore overstated the amount due and is invalid.
The first submission made in answer to the debtor's contention by the judgment creditor is that the sum of $83 does not constitute "taxed costs". It is submitted that the sum of $83 represents fees fixed by regulation and is not "costs"; and moreover that the amount of the fees so included have not been "taxed".
I have already referred to the provisions of sub-s.294(3) of the Local and District Criminal Courts Act which provides that fees paid to the clerk of court shall be paid "in the first instance" by the party for whose benefit the act or service is to be done. The immediately preceding section reads:
"293. The costs in every action or proceeding in a local court not herein otherwise provided for shall be paid by or apportioned between the parties in such manner as the court thinks just and in default of any special direction shall abide the event."
There is no provision of the Act which otherwise provides for the payment of costs on a default judgment. In the usual case, as in this case, where judgment is entered by default there will be no order of the Court apportioning costs between the parties, and costs will therefore "abide the event" in accordance with the provisions of s.293. It was held by the Full Court of South Australia in Ex parte Jaffrey. In re The Local Court of Adelaide (1932) SASR 453 at 455 that the expression "costs in every action" in s.293 includes court, bailiff, and other fees, paid to the local court. The sum of $83 is therefore "costs", but the question remains whether that sum is "taxed costs" within the meaning of s.153.
In Ex parte Jaffrey. In re The Local Court at 455 the Full Court referred to the absence of express power in the clerk of court to fix costs. The absence of express power in the clerk of court to do so in certain cases remains a feature of the legislation. Sections 295 and 296 make provision for the taxation of costs as between party and party, and as between solicitor and client, where costs and charges are payable in respect of the services of practitioners of the Supreme Court. A scale of fees payable to legal practitioners appears in the Second Schedule to the Act. There is no express provision for the fixing of the amount of court fees under s.293 recoverable by a successful party who has not engaged the services of a legal practitioner. However it has long been the practice of the clerk of court in such cases to include fees paid to the clerk of court on the issue of the proceedings as part of the amount ordered to be paid under a default judgment. Form No. 116 of the Rules of Court assumes that such fees will be included as part of the amount ordered to be paid by the clerk of court when preparing a certificate of judgment pursuant to s.174. Although s.293 imposes the substantive liability on the unsuccessful party to pay costs including court fees in such a case, it does not make express provision for the ascertainment of the amount of those fees.
In my opinion it is implicit in the scheme of the Act that those fees will be ascertained by an officer of the court, and that the officer of the court will be the clerk of court. In Re Williams; Ex parte Alberton Electrical Service Pty Ltd Fisher J. at 556 cited from, and applied, an unreported decision of Judge Rogerson handed down on 12 August 1981 in Re L. Williams; Ex parte Claude Neon Ltd. In part, Judge Rogerson said:
"First, costs under s.295 of the last mentioned Act (the Local and District Criminal Courts Act), are taxed by the clerk of the court. The process, in a default judgment, is a purely mechanical one done by reference to schedules made under the rules, but the process is nevertheless, in my view, one of taxing costs. To 'tax', according to the Shorter Oxford English Dictionary, is 'to determine the amount of; to assess'".
Although these remarks were made in respect of a default judgment where the costs included costs and charges payable to a legal practitioner, in my view, the act of ascertaining the amount of court fees to be included in a default judgment entered at the request of a party who is not represented by a legal practitioner, involves the taxing of those fees so as to render the amount ascertained "taxed costs" within the meaning of sub-s.153(2).
In my opinion even where a judgment is obtained by default and the "costs" included as part of the sum ordered to be paid is confined to court fees and other disbursements, the provisions of sub-s.153(2) apply. The judgment or order of the court insofar as it provides for the payment of those costs shall not be enforced until a letter has been served on, or posted to, the judgment debtor in accordance with the sub-section.
The next submission made on behalf of the petitioning creditor in answer to the debtor's contention is that the inclusion in the amount stated in the bankruptcy notice of an amount of taxed costs where sub-s.153(2) has not been complied with does not necessarily render the bankruptcy notice invalid. It is submitted that it may do so only in a case where notice to the creditor has been given by the debtor in accordance with the provisions of sub-s.41(5) of the Act, and even then, will not do so in every such case. Sub-section 41(5) reads:
"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 disputes the validity of the notice on the ground of the mis-statement."
It will be noted that in Re Williams; Ex parte Alberton Electrical Service Pty Ltd (supra) the debtor had given notice to the creditor pursuant to sub-s.41(5). A notice under sub-s.41(5) had also been given by the debtor to the creditor in Re L. Williams; Ex parte Claude Neon Ltd. It was in that way that the matters came before the Court. There is no suggestion in the present case that such a notice was given, nor has any application for an extension of time within which to file such a notice been made. In the absence of notice by the debtor to the creditor, an overstatement by $83 of the amount claimed in the bankruptcy notice by the judgment creditor would not render the bankruptcy notice invalid. The first ground of opposition filed by the debtor has not been established. It is unnecessary to consider the further point raised by the submission of the petitioning creditor, namely whether the bankruptcy notice would be rendered invalid in the circumstances of this case, had the debtor given notice, by an overstatement of $83 in the amount claimed. Although the overstatement would amount to a defect, questions would arise whether the defect was a formal or a substantive one, and if formal whether it was likely to mislead the debtor or was one which could be validated under sub-s.306(1) of the Act. See Re Walsh (1982) 65 FLR 87, and in the High Court of Australia Walsh v Deputy Commissioner of Taxation (1984) 58 ALJR 368; Olivieri v Stafford and Others (1989) 91 ALR 91; and Kleinwort Benson Australia Limited v Crowl and Another (1988) CLR 71 at 77.
"2. The debtor disputes the allegation that the said GEORGE PETROFF referred to in the said petition was the duly authorised agent of the petitioner at the time of the issue of the petition, or at all."
The creditor's petition has been signed by Mr Petroff as "the duly authorised agent" of the petitioner, the Deputy Commissioner of Taxation. For the purposes of the Act, "any person may act by his agent duly authorised in that behalf": para.308(d). In his evidence Mr Petroff produced a copy of a written authorisation given to him under the hand of Brian Francis Power, the Deputy Commissioner of Taxation, dated 11 April 1991. The authorisation expressly authorises Mr Petroff in the name of Mr Power to issue proceedings in the Bankruptcy Division of the Federal Court of Australia. Mr Petroff was duly authorised as the petition asserts, and the second ground of opposition advanced by the debtor also fails.
"3. The debtor disputes the allegation in paragraph 1 of the said petition."
The allegation in para.1 of the petition is that the debtor was personally present in Australia at the date of the commission of the act of bankruptcy. The debtor in his evidence concedes that he was in Australia on the date of the alleged bankruptcy. This ground of opposition fails.
"4. The debtor disputes the allegation in paragraph 2 of the said petition."
Paragraph 2 of the petition alleges that the amount due to the petitioning creditor is $70,780.68. I have already indicated my acceptance of the evidence of Mr Petroff which establishes that this sum is still owing. I add that the debtor in his evidence did not dispute the debts. Even though this sum includes the amount of $83 costs, the failure of the petitioning creditor to comply with sub-s.153(2) of the Local and District Criminal Courts Act does not lead to the conclusion that the amount for costs is not owing. The provisions of para.40(1)(g) are to be contrasted with the provisions of sub-para.44(1)(b)(ii) and para.52(1)(c) of the Act: see Re Pollack; Ex parte Deputy Commissioner of Taxation (1991) 103 ALR 133 at 143-144 per Pincus J. and at 147 per Gummow J.
"5. The debtor disputes the allegation that the said GEORGE PETROFF referred to in the said petition has any or any sufficient knowledge to make the allegation in paragraph 1 of the petition, or at all."
Paragraph 1 of the petition alleges that the debtor was personally present in Australia at the date of the commission of the act of bankruptcy, and in the affidavit verifying the petition sworn by Mr Petroff he deposes that "the statements contained in paragraphs 1, 2 and 3 of the petition are within my own knowledge and true", and, that "I know the facts deposed to herein of my own knowledge and from perusal of the records maintained by the Australian Taxation Office...".
The cross-examination of Mr Petroff establishes that he had no direct knowledge that the debtor was in Australia on the date of the commission of the act of bankruptcy alleged, although he held the belief that this was so on information contained in various documents on the files of the Australian Taxation Office, including reports on several unsuccessful attempts to serve the bankruptcy notice personally.
Under sub-s.43(1) one of the requirements upon which the power of the court to make a sequestration order is conditioned is that at the time when the act of bankruptcy was committed the debtor was personally present or ordinarily resident in Australia: sub-para.43(1)(b)(i). This requirement is jurisdictional in nature, and para.1 of the petition contains an averment of a fact necessary to establish jurisdiction.
The requirements as to a creditor's petition are set out in s.47 of the Act. Paragraph 47(1)(b) requires that a creditor's petition shall be verified by the affidavit of a person who has "knowledge of the facts". In ordinary language, a person may have knowledge of facts even if that knowledge has been gained on information which is believed to be true, supplied by others and not by direct experience. In many instances it is probable that a petitioning creditor would not of his own knowledge know directly whether a debtor was within Australia, or even ordinarily resident in Australia, at the date of the act of the act of bankruptcy alleged. Enquiry by or on behalf of the petitioning creditor may give rise to a state of knowledge on the part of the petitioning creditor but such knowledge would be based on information and belief. In my opinion para.47(1)(b) should be construed so as to permit an affidavit by a person who has knowledge based on information and belief. The affidavit would then follow the form prescribed by r132 of the Bankruptcy Rules, and in particular "shall...state the source of the information of any facts or circumstances set out in the affidavit that are not within the deponent's own knowledge."
In my opinion the requirements of the Act and Rules would have been sufficiently fulfilled had Mr Petroff sworn an affidavit verifying the truth of para.1 of the petition based on knowledge gained from information and belief. However he deposed that the statement contained in para.1 of the petition was within his "own knowledge". Strictly speaking, this was not so. However the defect arising in the petition in consequence of this misstatement is, in my opinion, a formal defect or an irregularity validated by sub-s.306(1) of the Act. The defect, such as it was, could not possibly have misled the debtor as the fact sworn to was in reality true and correct to the knowledge of the debtor. The fifth ground of opposition therefore fails.
Grounds 6, 7, 8, and 9 of the notice of opposition are lengthy. In substance they allege that the affidavit verifying the petition was sworn by Mr Petroff before one Peter O'Donohue "being a person who had (or would appear to have) a financial or other interest in the matter in dispute". It is alleged, for this reason, that the use of the affidavit would be contrary to natural justice, would be likely to raise in the minds of reasonable persons a question of bias, and would contravene the maxim that "justice must not only be done, but appear to be done"; and accordingly that there is a defect in the petition of a kind which is not validated by s.306 of the Act. These grounds arise from the fact that Mr O'Donohue is identified by his description shown in the petition as a taxation officer. Mr Petroff is the Manager of the Debt Management section of the Australian Taxation Office in South Australia. That section is housed in 60 Waymouth Street, Adelaide. Mr O'Donohue is employed in a different section of the Taxation Office which happens to be housed on a different floor at 60 Waymouth Street, Adelaide. As a matter of convenience to Mr Petroff, the affidavit verifying the petition was sworn before Mr O'Donohue. Mr O'Donohue, in the course of his employment with the Australian Taxation Office has nothing whatsoever to do with either the assessment of, or recovery of, any of the taxes owing by the debtor. Mr O'Donohue is a justice of the peace in and for the State of South Australia. Sub-section 262(1) of the Act provides that an affidavit to be used for the purposes of the Act may be sworn within the Commonwealth before a justice of the peace. No provision in the Act, nor in Division 2 of Part XI of the Bankruptcy Rules renders an affidavit insufficient or defective because the person before whom it is sworn and the deponent are in the employment of the same employer: cf. Makower, McBeath and Co. Pty Ltd v The Registrar of Titles (1927) Argus LR 167.
The debtor relies upon the decision of the Court of Appeal in New South Wales in Ex parte Qantas Airways Limited; Re Horsington and Anor (1969) 71 SR (NSW) 291. In that case the secretary of a union laid a complaint against an employer, alleging a breach of an award, before a justice of the peace who was also an officer of the union. It was held that the justice was disqualified from receiving the complaint and issuing a summons thereon as he had an interest in the subject matter of the complaint sufficient to attract the principle of disqualification for bias. Fundamental to that decision was the duty of a justice receiving a complaint to bring to bear a judicial mind to determine whether to issue a summons on the complaint. The justice had a discretion to be exercised and did not act ministerially in the sense that the justice was bound to issue the summons upon the mere receipt of the complaint. In my opinion that decision is clearly distinguishable from the functions of the justice of the peace before whom Mr Petroff appeared to swear his affidavit. The administration of an oath to Mr Petroff did not involve the exercise of any judicial function. The administration of the oath was a procedural requirement which imposed upon Mr Petroff certain consequences if he wilfully made a false statement in the affidavit: see s.263A.
In the performance of the duty of a justice of the peace taking an affidavit, the justice should not permit the affidavit to be sworn if there is reason to believe that the deponent is not properly acquainted with its contents or has insufficient mental capacity to understand its contents or to understand the nature of an oath or affidavit: Bourke v Davis (1889) 44 Ch D 110 at 126 and r.139 of the Bankruptcy Rules. The performance of this duty does not involve the exercise of a judicial function or discretion of the kind under consideration in Ex parte Qantas Airways Ltd; Re Horsington and Another (1970) 71 SR (NSW) 291. It is not necessary for the justice of the peace to bring to bear a judicial mind to determine what is fair and just in respect of the subject matter of the affidavit.
It was a well-established rule of the Court of Chancery that an affidavit was insufficient if it were sworn before the solicitor on the record or before his clerk. The rationale of this rule was explained by Lord Romilly M.R. in In re Gregg. In re Prance (1869) LR 9 Eq 137. The Master of the Rolls said at 144-145:
"The rule is, that an affidavit must not be sworn before, or an oath administered by, a solicitor who is acquainted with all the facts of the case, and who is employed to conduct it to a successful termination; but if this be not the case, then the agent of the solicitor employed, who is ignorant of the facts of the case, may administer the oath.
This is, in my opinion, quite settled by the case of Foster v. Harvey 2 NR 443. The facts of the case were these: The Plaintiff was a partner in the firm of Foster, Burrow, and Co., solicitors at Norwich. His solicitors upon the record were the town agents of that firm, appearing, however, as independent solicitors, and not as agents. The Plaintiff made an affidavit in the cause which was sworn before one of his own clerks. That was held perfectly good, and the present Lord Chancellor there said, 'Lord Hardwicke had said' in Re Hogan (1753) Atk 813 (which is always referred to in these cases) 'there were other reasons for the rule, and one of these might be that it was necessary for the protection of the witness. It naturally fell to the solicitor in the cause to prepare the affidavits; it was the duty of the person who administered the oath to explain the meaning of the affidavit to the witness; and this duty was not likely to be very effectually discharged by the person who prepared the affidavit, who would, of course, explain it in the sense which he himself attached to it.' Then he cited the cases of Read v. Cooper (1813) 5 Taunt 89 and Williams v. Hockin (1818) 8 Ibid 435, to shew that at law the rule only prevented the attorney in the cause or his clerk from administering the oath, adding that 'it had not been extended in equity, and he would not be the first to do so. The plain rule was that the solicitor in the cause, or his clerk, by whom the affidavits had to be prepared, ought not also to administer the oaths; but a person dehors the cause was not prevented from administering them because he was the salaried servant of the Plaintiff.'
When the same came on appeal, the decision was to the same effect, and Lord Justice Turner is reported to have observed as follows 3 NR 98: 'It would appear that the principle on which a solicitor on the record or his clerk could not take an affidavit was that he and his clerk must be assumed to have an intimate knowledge as to the evidence which would prove material or immaterial to the success of the cause, but that principle did not apply in the case of a person merely in the employment of the Plaintiff. There was no ground for assuming that such a person was acquainted with the circumstances connected with the suit in consequence of such relationship. Were such a supposition to be maintained it would be impossible to predicate to what extent the principle might not be extended. He considered that the rule in question ought to be confined to the case of solicitors on the record and their clerks.'"
Lord Romilly M.R. held that the agent of a solicitor for the person swearing an affidavit was not within the rule.
The rationale for this old rule would not extend to cover one officer of a large government agency swearing an affidavit before another officer in the employ of that agency who had no personal knowledge of the facts deposed to by the deponent, or involvement in the matter to which the affidavit related. The mere fact that both the deponent and the justice are employed by the same agency provides no ground for assuming that the justice is acquainted with the circumstances to which the affidavit relates. Moreover, it is to be noted that the old rule was developed during times when many deponents were disadvantaged by limited education and literacy. It was commonly necessary for affidavits to be read over and explained to the deponents (see Bourke v Davis at 126).
Modern developments in rules of court have led to amendment to the old Court of Chancery practice. Rules of court once commonly provided that an affidavit was not sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit was to be used, or an agent or correspondent clerk or partner of that solicitor (e.g. RSC O.XXXVIII rr.16 and 17 (UK); High Court Rules O.39, rr.19 and 20). These provisions were deleted from the High Court Rules in 1982, No. 164 of 1982. They do not appear in the Federal Court Rules, and appear only in modified form in the Supreme Court Rules of several States, e.g. Victoria r.43.10 and South Australia r.83.07 where it is now expressly provided that in proceedings to which the Crown is a party no affidavit shall be insufficient merely because it is sworn before an employee of the Crown.
In my opinion Mr O'Donohue was not disqualified by financial or other interest in the matter to which the affidavit of Mr Petroff related, and the grounds of opposition based on this assertion fail.
Ground 10 of the notice of opposition has not been pressed. Ground 11 asserts that the debtor is solvent, but part way through the trial on this issue this ground was abandoned. It was then becoming clear that the debtor's statement of assets and liabilities presented an inaccurate and misleading picture, and that he is hopelessly insolvent.
The grounds of opposition have failed. The notice of opposition should be dismissed. A sequestration order will be made.
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