Re Coulton, Mark Ex Parte Hong Kong Bank of Australia Ltd

[1995] FCA 1157

IN THE FEDERAL COURT OF AUSTRALIA      )
BANKRUPTCY DISTRICT OF THE STATE        )       No. NP 961 of 1995
OF NEW SOUTH WALES  )                 

Re:MARK COULTON

Applicant

Ex parte:HONG KONG BANK of AUSTRALIA LTD

Respondent

REASONS FOR JUDGMENT

EINFELD J   SYDNEY   7 DECEMBER 1995

A petition dated 9 May 1995 was presented on 17 May 1995 by Hong Kong Bank of Australia Limited for the sequestration of the estate of Mark Coulton.  Although extensive opposition was foreshadowed to this petition, the matter finally came down to a single issue as to whether the bankruptcy notice was served personally, that being an essential prerequisite to the sequestration of an estate based upon the failure to comply with a bankruptcy notice, as this one is.

The assertion on behalf of the creditor is that at a little after midday on 4 April 1995, David Broughton, a licensed commercial sub-agent, served the debtor with a bankruptcy notice while he was seated in the front seat of a motor vehicle, coloured white, parked in Stafford Road, Willoughby near the corner of Sydney Street.  It is common ground that in the period leading up to this time the debtor was attending the funeral service of his fiance Robin Galwey being held at St Stephen's Anglican Church at the corner of Mowbray Road and Sydney Street, Willoughby.

The process server said two major things in this connection:  one was that the firm for whom he worked had been attempting to serve the debtor with the bankruptcy notice for several months, he said six months.  The bankruptcy notice was actually issued on 19 January.  If it was served at all, it occurred on 4 April.  Thus the period of attempted service must be mistaken.  The second thing he said was that he was supplied with a photograph or photocopy of a photograph of Mr Coulton, the debtor, which appeared in an issue of Cleo magazine.

I have seen the photograph concerned and I have seen Mr Mark Coulton in the witness box.  It is perfectly clear that the photograph in the magazine is that of Mr Mark Coulton.  Even the photocopy of the photograph is clear.  Although obviously his demeanour in the photograph, having in mind the subject matter being dealt with in the article to which the photograph was attached, is somewhat happier and more relaxed than he presents today, no one could be under any misapprehension as to the identity of the person in the photograph and the person Mark Coulton, the debtor.

The evidence of the process server was that he waited outside the church from around 11 am;  that after the funeral service had concluded and the persons attending began to leave the church, he inspected a condolence book near the entrance to the church and saw a signature and the handwritten words "Mark Coulton" beside it.  The condolence book was not presented in evidence, so I assume that that evidence is correct.  He also said that he spoke to a male person outside the church who had apparently attended the funeral and asked him, "Do you know Mark Coulton?" to which he replied, "Yes.  That's him over there."  The person identified by this unknown individual was seen by Mr Broughton to be walking towards a stationary motor vehicle, presumably the vehicle in which it was said Mark Coulton was seated when the bankruptcy notice was allegedly served.  Mr Broughton said that he recognised that person as the person in the photograph and he identified him again in Court today when Mark Coulton and his brother, David, were both in Court together. 

I pause to observe that if Mr Broughton or his firm had been attempting to serve Mr Coulton for several months before this particular day, and if he was in possession of the photograph from Cleo to which I have referred, it is not a little surprising that he would have to have the person identified to him by some passing individual who happened to be at the funeral.

In the ordinary way in which people behave in circumstances such as existed on the day in question, Mr David Coulton, who ordinarily wears glasses, says that he had removed his glasses as a consequence of his being upset at the funeral.  With or without his glasses David Coulton is quite a different looking person to his brother, even though there are obviously some family similarities.  It seems to me unlikely that a person who actually saw David Coulton and compared him to the photograph could mistake him for Mark Coulton.

The evidence of the process server was that the person identified by the unknown mourner at the funeral entered the motor vehicle and sat in the driver's seat but left the driver's door open because apparently some people were speaking to him.  The process server approached the person in the driver's seat and said to him: "Mr Coulton?"  The person, he said, made no reply but looked straight at Mr Broughton, whereupon Mr Broughton dropped the bankruptcy notice on his lap with words to the effect, "Here is a bankruptcy notice for you.  I'm sorry it had to be this way."  He said that the person in the driver's seat responded with an expletive. 

It seems to me strange that if the company for whom Mr Broughton worked had been attempting to serve Mark Coulton for some considerable time, he would not have known that Mark Coulton had a brother David, and that when attempting to serve Mark Coulton he would have identified him by both his given name and his surname.  In my experience it is quite uncommon for process servers to serve people by identifying them only by reference to their family name. 

The evidence brought on behalf of the debtor consisted of evidence from him, his brother David, a man named Friar and from the late Robin Galwey's father, George.  I can easily set to one side the evidence of Mr Friar who, whilst entertaining, I thought was really quite unable to add anything useful to the facts of this case.  But the basic assertion being made on behalf of the debtor is that it was David Coulton who was sitting in the driver's seat of the vehicle concerned;  it was David Coulton upon whose lap this bankruptcy notice was left or dropped;  and that Mark Coulton was not in the immediate vicinity of the vehicle at that time.

Mark Coulton was cross-examined with some effective force to suggest that he had been deliberately evading the service of this bankruptcy notice for a considerable time.  He denied all the assertions concerned.  Some of them were rather particular.  They related to telephone conversations and other matters in which it was put to him that he had conversations from which it could be gleaned that not only had he evaded service in fact but that he had done so intentionally.  The sort of material put to Mark Coulton in cross-examination would often base an application for substituted service yet apparently there was no such application in this case.  In fact, in the light of Mark Coulton's denials and the absence of any positive evidence that he had been trying to evade service of this or another bankruptcy notice, I am left with my assessment of Mark Coulton himself in determining whether he should be believed in his particular denial that outside the funeral he was sitting in the front seat of the vehicle concerned and had the bankruptcy notice dropped on his lap.

Counsel for the creditor expressly asked that Mr Coulton be disbelieved in relation to his answers on the question of his prior efforts to evade service.  Coupled with that disbelief, he called upon two factors as supporting the conclusion that there should be a rejection of the debtor's denial that he was served on the day of the funeral.  The two factors were:

(a)the identification of Mark Coulton in Court whilst seated alongside his brother;  and,

(b)that the process server used a photograph for identification purposes which obviously was a photograph of Mark Coulton and that a mistake in the circumstances was essentially impossible or unlikely.

I found the evidence of George Galwey persuasive.  There is no reason to believe that his relationship with Mark Coulton was other than as the father of Mark Coulton's fiance.  It was a capacity which regrettably ceased, at any rate in any formal domestic sense, some eight months ago with her death.  George Galwey said, without any effective doubt about the matter despite the sadness of the occasion, that Mark Coulton came out of the church with or following him, and that he stood with Mr Galwey's wife and himself and other chief mourners to receive the condolences of those attending.  George Galwey was struck by the presence at the funeral of representatives of the media who, as is not uncommon, were being somewhat more intrusive than might have been hoped.

Mr Galwey drove a white Mitsubishi Magna, his own car, to the crematorium after the funeral service and Mark Coulton travelled with him.  It is obviously possible that, at some time after the persons concerned left the church but before going to the crematorium, Mark Coulton could have gone over to the other car and sat in it but George Galwey was as sure as might reasonably be expected in the circumstances that that did not happen because Mark Coulton was with or around him at all relevant times.

At a very superficial level David Coulton might be thought to have an interest in supporting his brother's denial of service but I did not get the impression that that was what he was doing.  David Coulton in effect confessed to being the person upon whose lap the document was put, dropped or left.  My impression was that he was attempting to give truthful evidence about what happened on the day in question.  It was not put to him that he was conspiring with his brother to give false evidence about the service of the document on the day in question, for that is what the rejection of his evidence would amount to.  In any event I got no impression that David Coulton was a conspirator of that kind.  I accept his evidence. 

It is of course possible that Mark Coulton could have been lying when he said in evidence that he did not receive the document concerned and was not in the car in which it was said to have been served, but my impression was that he was not lying about that matter at all.  As I commented earlier, it seems to me odd that a process server who or whose firm had been trying to serve a debtor for several months -- if it was not Mr Broughton who had failed in his attempts of service, he would have undoubtedly been informed about the attempts -- who was suspected of attempting to evade service deliberately and intentionally, would have had to ask someone to identify the debtor when in fact he said that a photograph of the debtor was the basis upon which he proceeded.

Moreover, if he had to use a funeral service to serve a person, especially the funeral service of someone to whom the person concerned was closely attached, it could only have been done because there had been a background of which the process server was informed of a difficulty of serving the person in a somewhat less confrontational and inappropriate way.  In the circumstances, it is hard to imagine that upon confronting the person with the documentation, he would not have asked whether the person was Mark Coulton not just Mr Coulton.

These are some of the many factors which have led me to disbelieve the evidence of Mr Broughton and prefer the evidence of the Coulton brothers and Mr Galwey.  I was not impressed by Mr Broughton's presentation of his evidence.  It seemed to me to be supercilious and somewhat conceited.  When questions were asked in cross-examination which were perfectly legitimate and, for that matter, perfectly normal and regular for a matter such as this, he took some sort of offence or was trying to give answers more reminiscent of a smart alec than somebody attempting to relate the facts as they were.

In my opinion it has not been proved that this bankruptcy notice was served on Mark Coulton.  The parties being in agreement that if that decision was made the petition would have to be dismissed, I dismiss the petition.  I order that the petitioning creditor pay the debtor's costs of the petition.