Re Collins, M. Ex Parte Beneficial Finance Corporation Ltd

[1992] FCA 419

4-19, Q2

JUDGMENT No. ........ ..,,.. ,, ,..,,,,..,,.

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1
\ NO. NP 1277 of 1991
BANKRUPTCY DISTRICT OF THE STATE j	OF NEW SOUTH WALES 1

RE:	MICHAEL COLLINS
Debtor

18 JUN 1992 EX PARTE: BENEFICIAL FINANCE
CORPORATION LIMITED

PRINCIPAL REGISTRY

Petitioning Creditor

CORAEI:	WILCOX J
PLACE :	SYDNEY
DATE :	2 JUNE 1992
EXTEMPORE SUPPLEMENTARY REASONS FOR JUDGMENT

WILCOX J: On 19 May last, I dealt with a number of grounds of opposition advanced by the debtor in response to a creditor's petition filed by Beneficial Finance Corporation Limited. The

major issue then left outstanding was whether the bankruptcy
petition was served on him on Friday 29 November 1991 as
asserted by a process server, Andrew Wise, in an affidavit

that the latter situation had occurred. I formed a favourable

sworn on 13 February 1992. When it became known that there
was an issue about service the solicitors for the petitioning
creditor arranged for Mr Wise to be available at the court.
He was cross-examined and gave a considerable amount of detail
regarding the circumstances of service. The degree of detail
was consistent only with his having effected service as he

claimed or, alternatively, being prepared to invent a

considerable amount of evidence.	I felt that it was unlikely
impression of Mr Wise.	It seemed to me that he was an honest
witness.

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However, Mr Collins, who appears for himself' 'in the ;' '!:

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matter, had obtained and filed an affidavit by Janet wiili'ams sworn on 29 April 1992. In that affidavit MS ~iil'i.am's said.-:

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that on Friday, 29 November 1991, between' the hours	, .,	-g£ 4.0'0pm
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and 10.00pm1 Mr Collins was at her address at unit 2, .1i '

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Chifley Street, Wodonga. She said that Chifley street is some

four kilometres from Church Street, the place where Mr Wise
claims to have effected service. As Mr Collins was not aware
of the need to have MS Williams available for cross-
examination on the last occasion, I granted an adjournment of

the further hearing of the matter until today in order that

she might be present.	She did attend court today and was
cross-examined.

I formed a generally favourable opinion of MS

Williams.	Although she is both a friend and a creditor of M r
Collins, I did not feel that she would consciously mislead the

Court. The problem about her evidence arises out of her Lack
of specific recollection of the critical date. When MS

Williams was asked about 29 November 1991, she freely conceded

that she had no particular remembrance of that day. She said

that, on each Friday night since the commencement of a
business called "Aware Search", Mr Collins has attended her
unit, which is also the office of that business, for a period
of some six hours; the purpose being to report on his
activities in arranging for accreditation of book dealers and
to discuss the progress of the business. MS Williams could
not recall a Friday night when this had not occurred. It was
clear from MS Williams' oral evidence that the statement made
in her affidavit was based entirely upon her belief that this
regular routine had occurred on 29 November.

However, when MS Williams was asked about the

commencement of the routine, that is to say when the first
meeting occurred, she first said it was "late last year".
Pressed a little more, she said "November or December"; that
she did not really remember the date. In response to further
questions, she repeated, "around about November or December".
When it was put to MS Williams that, on this basis, she could

not say that there was a meeting on 29 November, she said that

she knew that the meetings started in November. After MS

Williams cross-examination was completed, I asked her how it

was that she knew that the meetings started in November. She

replied that the meetings had occurred ever since the business

started. When asked when this was, she said "October". She

was unable to explain how it was that she had originally

answered "November or December".

I do not wish to be critical of MS Williams; but I

think that, understandably enough, there is some confusion in
her mind as to when these meetings started. I do not doubt

her statement that, since the regular meetings started, Mr

Collins has regularly attended her unit. But the vagueness as

to dates which characterises MS Williams' evidence is such
that I do not see that her evidence should be allowed to stand
in the way of my acceptance of Mr Wise's evidence; which, as I
say, I found persuasive when given. Accordingly, I find that

the petition was served as alleged.

The other outstanding matter is one which would not

have entitled the debtor to an adjournment until today. Mr

Collins claims that he does not owe the money upon which the

judgment debt and the petition are based. Because the matter

was to stand over until today in any event, and for no other
reason, I directed that the solicitors for the petitioning
creditor supply an account of these moneys to Mr Collins
within seven days of the last hearing date, that is to say by
26 May. In fact they went a little further than this. They
procured an affidavit from Ray Zoch, the employee of their
client who has had the carriage of the matter. This affidavit
is dated 25 May 1992 and it contains, as annexures, statements

of three accounts. These were apparently all hire purchase

transactions. There has been tendered today a copy of the

statement of liquidated claim which gave rise to the default
judgment upon which the present petition is based. The
statement of liquidated claim tallies precisely with the
annexures to Mr Zoch's affidavit. There is absolutely no
reason for me to distrust the figures which I have been given.
Mr Collins does not, indeed, contend that I should distrust
these figures. But he says that, upon the sale of a property
in Albury, a sum of money was paid to Beneficial Finance
greater than a sum referred to in Mr Zoch's affidavit as the
payout on a mortgage over that property, namely $163,139.96.
There is no evidence to support this contention. The matter
was raised previously when M r Collins said that the solicitors
who acted in the sale were a firm of Albury solicitors, Messrs

Tietyens. As the matter was being adjourned until today in

any event, 1 gave leave to M r Collins to issue any summons he
might wish in respect of this matter, in order to have
produced to the Court any documents which might support the
suggestion that the debt owed by him to the petitioning
creditor was otherwise than as claimed. He did not issue any
summons against Tietyens or against the creditor, Beneficial
Finance Corporation, itself; and this notwithstanding that I

mentioned both of these parties in granting leave to issue

summonses. M r Collins did issue a summons against the

solicitor acting for the petitioning creditor in connection
with the current proceeding, M r KJ Rook. M r Rook produced to
the court certain documents, being a guarantee and the various

hire purchase agreements. He has told the Court that he has

no other documents required by the summons, that he had

nothing to do with the conveyancing transaction and that he

has not seen a settlement sheet in relation to that

transaction.	There is no reason for me to disbelieve those
statements.	In the result, although Mr Collins has had an

opportunity of exploring this matter going beyond what
normally would have been available to him, and solely because
the matter had to stand over until today in any event, there
is nothing before me to cause any disquiet as to the
correctness of the default judgment or the claim of debt which
is made in the petition, and which has been verified in a
number of affidavits sworn on behalf of the petitioning
creditor.

Each of the grounds of opposition fails. The

appropriate course is for me to make a sequestration order.

I am satisfied that the petitioning creditor committed the act

of bankruptcy alleged in the petition, namely that he failed
on or before 2 January 1991 either to comply with the
requirements of a bankruptcy notice served on him on 9
December 1990, or to satisfy the Court that he had a counter

claim, set off or cross demand equal to or exceeding the sum

specified in paragraph (a) of the bankruptcy notice. I am

satisfied of the other matters to which s .52 of the Bankru~tcy

Act requires proof.	I note the consent of Joe Cascone to
act as trustee in this matter.	I make a sequestration order
against the estate of Michael Patrick Collins.	I order that

the costs of the petitioning creditor, including reserved

costs, be paid out of the bankrupt's estate.

I certify that this and the preceding five (5) pages
are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate: /+ Dated: 2 June 1992

APPEAR&NCES

Counsel for the Applicant:	Appeared for self
Solicitors for the Applicant:	Appeared for self
Counsel for the Respondent:	K Pryde
Solicitors for the Respondent:	Mills Oakley McKay
Date(s) of hearing:	19 May, 2 June 1992