Re Di Moia, Robert E Ex Parte Thompson, G E

[1996] FCA 42

IN THE FEDERAL COURT OF AUSTRALIA   )     No. QN 1811 of 1995
GENERAL DIVISION                   )
BANKRUPTCY DISTRICT OF             )
THE STATE OF QUEENSLAND            )

RE:ROBERT ERIC DI MOIA

EX PARTE:GEORGE EDWARD THOMPSON and MARGARET ANNE THOMPSON

MINUTES OF ORDER

JUDGE MAKING ORDER:                Drummond J
DATE OF ORDER:  5 February, 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1. The application for a warrant for the arrest of the judgment debtor is dismissed.

NOTE:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA   )    No. QN 1811 of 1995
GENERAL DIVISION                   )
BANKRUPTCY DISTRICT OF             )
THE STATE OF QUEENSLAND            )

RE:ROBERT ERIC DI MOIA

EX PARTE:GEORGE EDWARD THOMPSON and MARGARET ANNE THOMPSON

CORAM:    Drummond J
PLACE:    Brisbane
DATE:     5 February, 1996

REASONS FOR JUDGMENT

This is an application under s. 78 the Bankruptcy Act 1966 (Cth) for the issue of a warrant for the arrest of a judgment debtor.  The application is brought on behalf of the judgment creditors who, on 17 November last, obtained a District Court judgment against the debtor for $143,182.  The application, I am told, is based upon s. 78(1)(a) the Bankruptcy Act 1966 (Cth) and thus requires the Court to be satisfied before issuing any warrant that the debtor, who was, on 18 January last, served with a bankruptcy notice in respect of the judgment I have referred to, is about to abscond with a view to avoiding payment of his debts, or to preventing or delaying proceedings against him under this Act.

There is evidence that, with the aid of his parents, the debtor, in late 1995, concealed for a limited time from the judgment creditors his whereabouts in Australia by having his parents falsely inform the creditors' process server that he was overseas for a short period of time and would return in early January 1996.  The evidence also shows that he was keen to avoid service of the bankruptcy notice that he has now been served with until title deeds issued to certain townhouses.  The evidence as to the significance of this desire is limited, but it appears that the debtor is associated with a development company which developed a number of townhouses at Everton Park in Brisbane.  There is no satisfactory basis upon which I can draw any conclusions as to why the debtor was keen, until the title deeds to these townhouses issued, to avoid the bankruptcy notice being served on him personally. 

On 18 January, 1996 there is evidence that he told the judgment creditors' process server, who he did not then know to be such, that he planned on going overseas in three weeks' time.  But this conversation that he had with the process server, at a time when he had no reason, it might be thought, to think that he was dealing with anyone other than a casual bystander, also shows that the debtor indicated that going overseas was something that he had done in the past from time to time, so that his statement of intention to travel overseas in the near future was accompanied by a statement no less worthy of belief that this is not something unusual for
the debtor, but something, as I say, he has done from time to time in the past.

There is evidence that at oral examinations of the debtor, conducted at the behest of the judgment creditors on 23 and 30 January, 1996, he made statements contradictory of what he had to say to the process server a few days before on 18 January, 1996, in the context of protesting that his travel plans were something he thought was his own business and no business of the persons involved in his oral examination.  I regard the fact that he has been orally examined twice, in connection with attempting to enforce the judgment that I have referred to on 23 and 30 January, 1996, as having present significance in that there has been no attempt to show that, despite this opportunity to acquire information from the debtor, there is any evidence to indicate that the debtor is dealing with his assets in a way to frustrate his creditors.  If there were such evidence, that, of course, would be highly significant in the context of evidence indicating that his true plans are to travel overseas at some time in the near future.

The evidence, limited though it is, indicates that he has one unit at Everton Park which he owns, but to which the liquidators of the company with which he was associated have made a claim.  The evidence also indicates that he has a second unit, which he also owns, in the Meriton Apartments on the Gold Coast, in which he is presently living.  There is no suggestion that the liquidators have made any claim to this particular property; nor is there any evidence suggesting that he is dealing in any way with this particular unit which would provide some evidence supporting an intention on his part to abscond, as distinct from merely travel overseas.

While I am satisfied that in all probability the debtor does intend to travel overseas, I am not prepared to find that this is for the purpose of remaining out of Australia for any significant length of time.  I am unable to make any finding at all on the likely duration of the debtor's planned absence from Australia, although I do find that travelling overseas is something which this debtor has engaged in from time to time in the past, and that his intention to travel overseas in the near future is not something unusual for him.

There is no evidence to indicate that the debtor has only temporary ties with Australia, which would again be a factor which would have some relevance in deciding whether or not the intention to travel overseas was an intention to abscond for the purpose referred to in s. 78 the Bankruptcy Act 1966 (Cth).  While I am satisfied that the debtor intends to travel overseas in the near future, I am not prepared to find that he intends to abscond from Australia with a view to avoiding payment of his debts or to preventing or delaying proceedings against him under the Bankruptcy Act 1966 (Cth). 
I will therefore dismiss the application for a warrant for his arrest.

I certify that this and the preceding
four pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:             5 February, 1996