Re David Robinson Ex Parte Stanley Lionel Walter

[1984] FCA 432

c r e d i t o r f o r t h e making of a sequestration order.

The matter came before m e on 15 October 1984. On

- t h a t day the pe t i t l on ing c r ed i to r pu t be fo re t he

court a l l of t h e usua l evidence necessary t o

satisfy the requirements of sectlon 52 of t h e

Bankruptcy A c t .

.

However, t h e Judgment debtor appeared In

person and contended that he dld n o t l n fact owe

the money, t h e sub3 ect of the Judgment deb;. I n

support of that statement he tendered a document

exhlb l t A, whlch is p a r t of a let ter from DML

Engmeering Pty Llnuted t o a company ca l l ed D and

C Robinson Nominees Pty Llmlted, m r e l a t l o n t o

the account of that l a t te r company wlth DML f o r

work done by t h a t lat ter company on behalf of DML.

M r Robinson lnformed m e t h a t D and C Roblnson

Nominees Pty Limited had a subcontract with DML

Engineer lng Pty Llmited in re la t ion to works

requi red for the Drayton coal-mine and he pointed

o u t t h a t t h e goods suppl ied, the account for whlch

was the foundation of the Judgment debt, were goods

supphed i n respect of that subcontract .

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I It seemed t o m e tha t the ev idence which

had been tendered warranted further inqulry

by the cour t and tha t It was appropr ia te to

make d i r e c t i o n t o e n s u r e t h a t t h e f a c t u a l LSSUS

as t o whether there was a debt owed by the debtor

t o the p e t l t i o n l n g c r e d i t o r i n a sum exceedlng

$1000, should be determined In t h i s cou r t .

Accordlngly on t h a t day I d i r ec t ed t he

debtor on or before 18 October 1981 t o f l l e and

serve notice of opposlt lon i n accordance wlth

the ru les . Such a notlce vas f l led acd served,

t h e grounds taken i n t h e n o t i c e b e m g as follows:

(1)	The judgment recovered	in
t h e Dlstrict Court a t

Musvellbrook r e f e r r e d t o i n

paragraph 2 of t h e p e t i t i o n

was obtained by de fau l t i n

respect of concrete supplled

and d e l i v e r e d t o and a t the

request of D and C Robinson

Nominees	Pty Limlted,	not	the
debtcr.

(2) The debt upon which t h e s a l d

judgment is based i s not a

debt of the debtor but 2 debt

of D and C Roblnson Nomlnees

Pty Llmited.

I fu r the r d i r ec t ed t ha t on or before 26 October 1984

the debtor	f l l e and	serve coples	of	a l l a f f i d a v i t s	on
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which he proposed t o r e l y i n opposing the making

of the sequestrat ion order and I made consequential

d i r e c t i o n s f o r a f f i d a v l t s t o be f i l e d by t h e

pet i t ioning credl tor and, i f necessary, i n

reply by the debtor.

I n f a c t , no a f f idav i t s have been f i l e d by

- t he deb to r a t a l l . There appears t o have been

some problem i n his obtaining the funds necessary

t o f u r t h e r r e t a i n t h e s o l i c i t o r s who had previously

advised him and I am t o l d by Mr Robinson t h a t t h i s

was the reason why no a f f l d a v i t s have been f i l e d .

!

The pe t i t i on ing c r ed l to r has f i l ed two

a f f idev i t s s ince the las t hear lng da te . One of

those aff idavi ts i s t h a t of Mr PWA Gilderdale who

is a s o l i c i t o r a t Muswellbrook and who has been

t h e so l l c i to r hav ing ca rnage of t h e claim on behalf

of the pe t i t ion ing c red i tors .

I t appears that the judgment was slgned on

22 November 1983; t he rea f t e r an examination summons

was issued re turnable a t Albury where the 'debtor now

l ives ; the debtor fa i led to appear and a warrant

was lssued b u t t ha t sho r t ly t he rea f t e r on 30 August

1983 M r Robinson f l l e d a not ice of motion w l t h an

a f f l d a v l t i n support seeking that the judgment be

set aslde.

This motion came before Judge Goran a t t h e

Muswellbrook D i s t r i c t Court on 16 November 1983

when M r Robinson appeared and gave oral evidence

i n r e l a t ion to the mat ter , but the appl icat ion was

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refused and the motion dismissed.

Subsequently the judgment debtcrrwas

examined and on 18 June 1984 he made an appl icat ion

t o pay t h e judgment debt by instalments of $100 a

week. Order t o t h a t e f f e c t was made by t h e r e g i s t r a r

bu t a f t e r ob jec t ion by the c r ed i to r Judge S t e i n i n

-	t h e Muswellbrook District Court on 20 August 1984
dismissed the appl icat ion to pay by instalments.
mere is therefore no subs is t ing o rder i n respect
of instalments.

I t - a p p e a r s t h a t a company ca l led D and C

Robinson Nominees Pty Llmited w a s incorporated on

20 August 1975. M r Robmson and h i s w i fe were

i n i t i a l l y d i r e c t o r s o f t h e company. Although the,

matter i s not formally proved, M r Robinson has

informed me that he ceased to be a d i r ec to r of t he

company on 2 Ju ly 1980 apparently as a resu l t of

a prevlous sequestration being made against him a t

about that time. Thereaf te r the company has been

managed by other persons but M r Robinson has

remalned a guiding s p i r l t i n its activities. H e is

himself an engineer and t h e company is engaged i n

engineermg contracts . It would appear for pract ical

purposes he has been a pr inc ipa l o f the company even

though no longer a d i r ec to r .

It w a s he who ordered from the petitioning c red l to r

the supplies of concrete which have given rise t o t h l s

claim. The c l am relates to del ivery of concrete In

t h e months of June, Ju ly and August 1982. Apparently

the job a t t he Drayton coal-mine w a s proceeding during

that per iod but as a t 17 Ju ly 1982 D and C Robinson

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- - PUy Limited; i n whose name the concrete

had been purchased, was i n de fau l t i n payments

due t o t h e c r e d i t o r .

Mr GE Donnelly i n h i s a f f i d a v i t o f 26 October

1984 says t ha t on that day h i s f i rm agreed t o

supply fur ther concrete i f the debtor agreed to

- s ign a document which is annexed t o h i s a f f i d a v i t .

Tha t document, after correction of the mis-stated

-.. . . -,_ . . name i n ' t h e first l ine, reads:

I, David Robinson, hereby assume

responsibil i ty of purchases mdde

by m e i n t h e name of D and C

Robinson Nominees and I hereby

guarantee t h a t payment w i l l be

made for those purchases before

30 August 1982 and i f payment i s

paid by cheque then I w i l l ensure

tha t su f f i c l en t funds w i l l be

ava i l ab le t o meet the f u l l payment

of t h e amount of t he cheque.

Thereafter it appears that f u r t h e r supplies of

concrete were delivered and the pe t i t i on ing c r ed i to r

subsequently sued M r Robinson f o r t h e whole of

concrete delivered	whether	before	or	a f t e r t he da t e
of the document.

Although M r Robinson has not f i led an a f f i d a v i t

s e t t i ng ou t h i s side of the mat ter , he has from the

bar t ab le indicated what happened. H e acknowledges

t h a t he signed the document. H e says tha t it was

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t

signed a t a time of g r e a t d i f f i c u l t y i n t h a t he

was r equ i r ed t o sign the document i n order to ensure

further supplies of concrete and, as he has graphically

Indicated, he was wais t h igh in mud a t t h e t i m e t h a t

the matter was posed f o r h i s consideration. I can

understand that under those circumstances he may

have assumed the respons ib i l i ty which he now regre ts

- and which indeed may have been unwise.

However, it seems t o m e that he c lear ly did

assume respons ib i l l ty and from t h e c red i to r ' s po in t

s bf view it is understandable that the credi tor would

have wished t o have had M r Robinson's personal

guarantee i f it was t o supply further concrete.

whatever the exigencies of the making of t he

agreement, an agreement was made under which the

r e spons ib l l l t y fo r payment of d e h v e r i e s , whether

b e f o r e o r a f t e r t h a t d a t e , was assumed by M r Robinson.

It seems t o me that under those circumstances

the judgment c red i tor was ac t ing cor rec t ly from the

l ega l po in t of view i n taking the p o s i t i o n t h a t

the proper debtor to whom it should look f o r payment

was M r Robinson personally rather than the company. The judgment was therefore properly obtained. I do

not know the reason why Judge Goran r e j ec t ed t he motion

t o set as lde the judgment. It may have been delay

rather than hls Honour having reached a pos i t ive

conclusion along t h e lines I have set out.

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I Cer ta in ly t he view tha t he took a f te r hear ing

- ._ -evidence is not inconsis tent wlth the vlew I have

reached.	Under those circumstances it seems t o m e	- l:	l’
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t ha t t he cou r t shou ld f i nd t ha t t he money clalmed

-{ :

by the pe t i t i on ing c r ed i to r and evidenced by t h e ” ,

judgment debtor is properly payable by the debtor

personally and should determlne the issues ra i sed

. -	,. 1 .	by. t h e n o t i c e	of	opposit ion	adversely	‘ to	the	debtir .	- j
i *

N o other reasons being suggested for holding the

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maklng of a sequestrat ion order , I therefore th ink

it appropriate to proceed t o do s o .

I .am s a t i s f l e d t h a t t h e d e b t o r committed the

act of bankruptcy alleged in the peti t ion, namely,

t h a t h e f a i l e d on or before the f i f teen th day of

June 1984 e i t h e r t o comply wlth the requirements of

the bankruptcy notice served on hlm on 25 May 1984

or t o s a t i s f y t h e c o u r t t h a t h e had a counter-clalm,

set-off or cross-demand equal to exceeding the sum

spec i f led i n paragraph (a) of the bankruptcy notlce.

I am s a t i s f i e d w i t h t h e proof of t he o the r matters

of whlch sect ion 52 (1) requlres proof. I n o t e t h a t

Stanley Lionel Walter, a regls tered t rustee, has

consented	t o act as	the t ru s t ee o f t he	estate of
the debtor.

I make a sequestrat ion order agalnst the estate of .

the debtor. I order the costs , including reserved

costs , be taxed and paid accordlng t o t h e act. I

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direct that a draft copy of order be delivered to

the reglstrar within seven days i n accordance

..

with rule 124(2).

I certify that this and the seven.. (-7)

preceding pages are a true copy of the

Reasons for Judgement herein of h i s

Honour Mr Justice Nilcox.