Re Farrell, R.W. Ex parte Kimela P/L

[1993] FCA 463

LI-bS I lq43

JUDGb!Ei\lT No. .... .IqqoOe..O..OD .l..llll ....

LI~\~I--IEQ - D ~ ~ I R I ~ ~ I - \ G ~

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
1 No. Q P 73 of 1992
BANKRUPTCY DISTRICT OF THE	)
STATE OF QUEENSLAND

Re:  ROBYN WILBUR FARRELL

Judgment debtor

Ex parte:  KIMELA PTY LIMITED

Judgment creditor

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J	.
DATE OF ORDER	16 July 1993	1 6 1UL1993
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.    The petition in so far as it seeks the making of a sequestration order against the estate of Robyn Wilbur Farrell be dismissed.

Note:	Settlement and entry of orders is dealt with
in rule 124 of the Bankruptcy Rules.

2.    There be no order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
GENERAL DlVISION	1
) No. Q P 73 of 1992
BANKRUPTCY DISTRICT OF THE	j
)
STATE OF OUEENSLAND	)

Re:  ROBYN WILBUR FARRELL

Judgment debtor

EX parte:  KIMELA PTY LIMITED

Judgment creditor

CORAM: Neaves J.

W: 16 July 1993

REASONS FOR JUDGMENT

Kimela Pty Lim~ted ("the cred~tor") seeks the making

of a sequestration order against the estate of Robyn Wilbur Farrell ("the debtor"). The creditor alleges that the debtor is justly and truly indebted to it in the sum of $16,950.70, be~ng the amount of a judgment obtained by the cred~tor

aga~nst the debtor in the Magistrates Court of Queensland on 23 May 1991. It is further alleged that the debtor committed

an act of bankruptcy on 31 October 1991 by failing to comply on or before that date with the requirements of a bankruptcy notice served on him on 3 October 1991.

The judgment on whlch the bankruptcy notice was based was obtained by the cred~tor against both the debtor and one John Manley. A sequestration order has since been made against the estate of Mr Manley. The cert~fied copy of the

judgment which accompan~ed the appl~cat~on for the issue of

the bankruptcy notice shows that the amount of $16,950.70
comprises two amounts - an amount of $15,975.45, being the
amount claimed in the proceedings by the creditor, and an
amount of $975 .25 for costs.

The debtor opposes the making of a sequestration order. He denies that he is indebted to the creditor and seeks the exercise of the Court's discretion to go behind the judgment of the Magistrates Court in order to determine whether there is, in truth, a debt due by him to the creditor.

In the light of the material placed before the Court, to which it will be necessary to refer, the creditor did not oppose this Court going behind the judgment of the Magistrates Court and I am sat~sfied that, in all the circumstances, this is an appropriate case in whlch to do so.

Before proceeding further, it is convenient to bankruptcy notice and in the petition, the debtor is	notlce that, in the judgment of the Magistrates Court, in the
incorrectly named as Robert W. Farrell. Upon the debtor acknowledging that he is the person intended to be named in the proceedings in the Magistrates Court and in those documents, I directed, by consent, that the proceedings in
this Court be amended to substitute his correct name.

It should also be rnent~oned at the outset that, when it became apparent that judgment would not be delivered in this matter prior to the exp~ration of the period of 1 2 months commencing on the date of presentation of the petition, I took the step of my own motion, prior to the expiration of that period, to order, pursuant to s . 5 2 ( 5 ) of the Bankruptcy Act

1 9 6 6 (Cth), that the period at the expiration of which the

petition will lapse be the period of 2 4 months commencing on

the date of presentation of the petition.

In support of the notice of opposition to the

pet~tion, the debtor relied on the several affidavits sworn by and 3 1 August 1 9 9 2 respectlvely. He also gave oral evidence and was cross-examined. In support of its contention that the debtor became indebted to it in the sum of $15,975.45, the creditor relied on the several affidavits of Gary Frederick him on 1 0 March 1992 , 6 May 1 9 9 2 , 2 2 May 1992, 3 0 July 1 9 9 2

Wilkinson sworn respectlvely on 1 4 May 1 9 9 2 and 7 August 1 9 9 2

and the affidavit of Kim Louise Tenkate sworn on 1 4 May 1 9 9 2 .

Mr Wilkinson and MS Tenkate also gave oral evidence and were	cross-examined. Mr Wilkinson deposed that he was employed as
a Transport Manager by Hunters Sand & Gravel, a business owned by the cred~tor. MS Tenkate described herself as the Office Manager employed by the creditor trading as Hunters Sand & Gravel. No evidence was adduced by either party from Mr Manley nor was any evldence given as to his whereabouts.
The proceedings (numbered 257 of 1990) in the Magistrates Court were commenced on 31 July 1990. According to the debtor, on 8 October 1990, after the servlce upon him of the plaint filed in that Court on behalf of the creditor, he accompanied Mr Manley when he attended upon his solicitor in relatlon to the matter. He sald that Mr Manley told hlm
that he (Manley) would take care of the matter and that he (the debtor) would be kept informed. As a result, so the debtor said, he took no further action in relation to the plaint and was not informed by Mr Manley of the progress of the proceedings.
It is common ground that an appearance and a defence to the plaint were lodged and that subsequently a judgment summons was rssued on behalf of the creditor, presumably pursuant to r.145 of the Magistrates Courts Rules, callrng upon the debtors to show cause why the creditor should not be at liberty to enter judgment for the amount clalmed and costs. Neither party has seen fit to place before the Court copies of
the documents filed in the Magistrates Court. In particular, the material on which the creditor relled in support of the
judgment summons is not before this Court. Nor does it appear whether the judgment summons and any supportrng material was brought to the notice of the debtor before an order was made, presumably pursuant to r.145(2) of the Magistrates Courts Rules, authorising the creditor to enter judgment against the debtors in the sum of $15,975.45 and costs. According to the debtor, he was not aware, until the service upon him of the bankruptcy notice issued by the creditor, that judgment had been entered against Mr Manley and h~mself in the proceedings In the Magistrates Court and that he then instructed a firm of solicitors to act on his behalf. Correspondence, copies of which are in evidence, then passed between that firm and the solicitors acting for the creditor. As the first letter in the correspondence before the Court is dated 21 August 1991 and the debtor was not served with the bankruptcy notice until 3 October 1991, the debtor is mistaken as to the circumstances in which he became aware that judgment had been entered against him'. I can only assume that he became aware of that fact through M r Manley on whom the bankruptcy notice had been served on 15 August 1991.
No steps were taken by the debtor at that stage to seek to have the judgment of the Magistrates Court set aside. Nor did the debtor take any steps after the servlce upon him of the bankruptcy notice to have that notice set aside. The Court was informed, however, that an application was made to
that Court set aside but that the application wes dismissed on the Magistrates Court on 20 July 1992 to have the judgment of
the ground that the Court had no jurisdiction to entertain it.
The petition describes the amount clalmed (other than the amount included in respect of costs) as being for "goods supplled and work and labour done between the 8th day of February 1990 and the 31st day of May 1990". It is apparent from other material before the Court that the amount claimed ($15,975.45) represents the balance owing to the creditor under an agreement whereby the credltor contracted, at a rate per cubic metre, to transport material, referred to as "fill", from a site variously referred to in the documents as Chevallum, Chevallum Road or Chevallum Road, Palmwoods to the site of a development project at Maroochydore (which has been referred to as the Tallow Wood Drlve Estate or the Tallow Wood Park Estate) and certaln other amounts, calculated at an hourly rate, in respect of the transport of other "fill". An analysis of the cartage dockets in evidence shows that the transport of the "fill" pursuant to the contract under which the amount payable was to be calculated at a rate per cublc metre of material transported commenced on 8 February 1990 and concluded on 9 March 1990. The additional amounts, calculated at an hourly rate, relate, so far as they can be Identified in the cartage dockets, to the transport of material on 23 and 24 March 1990.
The system under which the creditor operated its business required the driver of each truck to complete a cartage docket recording a number identifying the truck, the
name of the driver, the date and the name of the customer. There was provision on the docket for the insertion of the place from which the carriage began and the place where it terminated. Where the charge was at an hourly rate, the commencing and finishing times, including the perlod of any lunch or other break, were to be recorded. Where the charge was to be calculated by reference to the quantity of material transported, the quantlty transported in each load was to be recorded. In every case the drlver was to have the cartage docket signed by a representative of the customer acknowledging the correctness of the times or the quantities recorded. From the cartage dockets, invoices were prepared. At the end of each month a statement was prepared and forwarded to the customer wlth the original invoices to which the statement related. Payment was required within 30 days.
It is not in dispute that the amount of $15,975.45 is properly payable to the creditor and that M r Manley is liable for that amount. What is in dispute is whether the debtor is also under a liability to pay that amount to the creditor.
Although the amount claimed relates to work done or services provided on or after 8 February 1990, it is necessary to refer to events occurring a little earlier than that date. This arises because Mr Manley, the debtor and the creditor
been referred to as the Maroochy Lakes Estate at North were also involved in an earlier development project which has Buderim .
The debtor, who gave his address as 98 Hardwood Road, Landsborough, gave evidence that from 29 August 1989 to approximately 29 September 1989 he was employed at Buderim by a Mr Paul Clay. He said that, shortly after that employment ceased, he was approached by Mr Manley whom he had not

U.

previously met. Mr Manley engaged him to operate a bulldozer and to teach another person to operate that type of machine. He became lnvolved in the clearing and excavation work which

Mr Manley, or more accurately, it would seem, the partnership

between Mr Manley and his wife trading as J.R. & R.J. Manley, had contracted to perform as part of stage 1 of a project known as the Maroochy Lakes Estate being developed by a company known as Van Hoff Pty Lim~ted. He said he was employed as construction foreman, his duties including pricing and the estimating of volumes.

The debtor sard that he flrst met Mr Wilkinson on site at the Maroochy Lakes Estate ln October 1989. In his affidavit sworn on 6 May 1992, the debtor stated that he asked

Mr Wilkinson "to prepare a quote for truck cartage for the

site I was working on, namely the 'Maroochy Lakes' site". In his oral evidence, however, he said he could not recollect whether he or Mr Manley had requested Mr Wilkinson to prepare the quote but that the request was made at a meetlng at which

request, he did so as an employee of Mr Manley and not on his

the three of them were present. He said that, if he made the

own behalf.

According to certain documents before the Court and the debtor's evidence, 20,096 cubic metres of material were excavated from the Maroochy Lakes Estate. The debtor said that the material was transported "a few kilometres up a road to back-fill a low area". The low area was identified as being in Maroochy Road, Maroochydore, "past the Maroochy school and behind the tyre service". It also appears that, in addition to the 20,096 cublc metres, 1,246 cubic metres were excavated from the estate and sold, on behalf of the developer, to a D. Levy who, as the evidence shows, was one of the developers of the Tallow Wood Drlve Estate. The debtor sald that no separate quote had been requested or glven in respect of the cartage of that material. It was regarded as being within the quote for the Maroochy Lakes Estate job.

The creditor was one of a number of sub-contractors involved In the transportation of the excavated material. According to the cartage dockets in evidence, the transport of material by the credltor commenced on 2 5 November 1 9 8 9 and continued until 3 0 December 1 9 8 9 . That work was carried out by the creditor at the quoted rate of $ 4 5 . 0 0 per hour.

On 8 February 1990 , the creditor commenced the
transportation of "fill" from Chevallum to the Tallow Wood

the transport of the "fill" by the creditor continued until 9	Drive Estate. Accordrng to the cartage dockets in evidence,
March	1 9 9 0 .

The debtor's evidence was that in mid to late January 1 9 9 0 he obtained from the creditor - probably from Mr Wilkinson - a quotation in respect of work relating to the Tallow Wood Drive Estate. He said he received a quotation from the creditor and that he recelved it "acting as Manager of Mr Manley's business". As appears from the invoices in ev~dence, a rate of $ 3 . 2 0 per cublc metre was quoted. After receiving the quotatlon, he submitted, in late January 1990, to Rod Tate & Partners Pty Limlted, the consulting engineers retained by the developer, D. & M.E. Levy, a quotation in respect of clearing and fillrng work on the Tallow Wood Drive Estate. That quotatlon was in the name of Farman Excavations and Earthmoving. The debtor asserted that he was employed as a foreman by that business. He denied he was a partner.

In the course of his oral ev~dence, however, he said

that he was at all relevant times an employee of J.R. & R.J. Manley. Asked how he was remunerated for h ~ s labour, he said that Mr Manley gave him money either by cheque or in cash. He said he had had no discussion with Mr Manley as to the amount he was to be paid. He also gave the following evidence:

"Q. And how did you work out how much you were to be

paid?

A.	Well, if things were going all right, he used to you	know he used to pay me $600 or $ 7 0 0 for the week.	If things weren't going all right - depending on how
the job really turned out in the end - whether I got
basically p a ~ d or not in the sense.
Q.	So it depended on the profit arising from the job, did it. How much you got paid?
A.	Well, I was the one that gave the quote and everything like that. And if it failed, it fell back on me regarding my quote and that.
Q.	What do you mean by your quote?
A.	Well, my pricing of the job. That was my - I had to price the job.

Q. For whom - for Mr Manley?

A. Yes.

Q. And were income tax deductions taken out of these moneys that you received from Mr Manley?

A. No, he just paid me by cheque or cash."

Later in his evidence the debtor said:

"If things were going well in the job, I got paid. If they weren't going so well, if things looked to be going down, I didn't get as much money."

Asked why he was prepared to do the job potentially for nothing if things went bad, he answered:

"If things went bad it was my fault because I quoted or

worked things out wrong."

He added that Mr Manley had no part in the quoting process.

There is in evidence a letter dated 7 February 1990 from Rod Tate & Partners Pty Limited addressed to the Manager, Farman Excavations & Earthmoving, 98 Hardwood Road, Landsborough confirming the acceptance of a quotation of the addressee in an amount of $71,700.00 to clear and fill certain allotments in the Tallow Wood Park Estate development. The evidence also includes later correspondence from Rod Tate & Partners Pty Limited to the Manager, Farman Excavation & Earthmoving at the address at Landsborough enclosing copies of progress payment certificates the originals of which were said to have been "forwarded to the Principal for payment". The evidence does not show to whom the progress payments were made. The debtor denled that he had received them. He said the payments had been made to J.R. & R.J. Manley.

The debtor said that Farman Excavation & Earthmoving was identical with Farman Earth Moving & Excavations. He produced an extract of a search of the business names register which discloses that an appl~cation to register that business name was made on 5 March 1990 and that registration was effected on 12 March 1990. The extract also shows that the person carrying on business under that name was John Richard Manley of 36 Kerenjon Avenue, Buderim with a start date of 2 January 1990. That address was also shown as the registered address of the business. It was at the tlme the home address of Mr Manley. It must be accepted that John Richard Manley is identical with the John Manley referred to in the judgment of the Magistrates Court and as one of the debtors named in the

petitlon at present before the Court.

In cross-examination, the debtor agreed that the name "Farman" was made up of parts of the surnames of himself and Mr Manley and that that name had been chosen in connection with a proposal that he and Mr Manley carry on a business together. He was adamant that no such business venture eventuated and that he had no financial interest in Farman Earthmoving & Excavations except as an employee. It is curious, however, that the correspondence from Rod Tate & Partners Pty Limited to which reference has been made was addressed not to the registered business address but to 98 Hardwood Road, Landsborough, that being the debtor's home address.

Mr Wllkinson, in his affidavits and orally, gave evidence which is at varlance in a number of respects with that of the debtor.

In his affidavit sworn on 7 August 1992, Mr Wilklnson deposed that his dutles involved the general management of the business carried on by the creditor under the name Hunters Sand & Gravel, working out the hourly rates for haulage, preparing quotations, checking invoices and the general supervision of the drivers and staff.

In his affidavits sworn on 14 May 1 9 9 2 and 7 August the end of 1 9 8 9 when he was employed by M r Clay. He said the 1992, Mr Wllkinson s a ~ d that he flrst met the debtor towards

meeting took place at the debtor's place of employment. The debtor approached hlm and said: "Me and a mate are going into business together". According to Mr Wilkinson, the debtor went on to say that "they already had one contract lined up which was a fairly large contract and they were interested in getting a good price for haulage" of "fill" material. He said that the debtor did not then name the person with whom he was going into business but did give him the address of the job site and asked hlrn "to prepare a quote for him". He said that the debtor told him that "the job site was at Chevallum and that the fill wanted would have to be carted to Tallowood [sic] Drive, Maroochydore". He said that the debtor told him how many kilometres it was between those two places.

The debtor denled that he had met Mr Wilkinson while he was employed by Mr Clay. He denied he made any statement to Mr Wilkinson that he and a mate were going into business, that they had a large contract lined up or that they were interested in getting a good price for haulage.

In cross-exammation, Mr Wilkinson, while maintaining that his flrst meeting with the debtor took place on slte when the debtor was working for M r Clay, said that the meeting took place in October 1989, probably towards the beginning of the month. If the debtor's evidence as to when his employment with Mr Clay ceased is accepted, Mr Wilkinson must be mistaken either as to the date when, or the place

where, the meeting took place.

Mr Wilkinson said that a couple of days after the meeting to which he had deposed he went out to the job site on his own and "performed some calculations in relation to the distance which our trucks would need to travel" and that he then prepared a quote for the debtor. Within a week after their initial meeting he telephoned the debtor and advised him of the price. In that telephone conversatron, the debtor for the first time mentioned the name John Manley. According to Mr Wilklnson, the debtor telephoned later to say "that the prlce (of our quote) was alright and he asked us to start the work the next day".

In cross-examination, Mr Wilkinson agreed that an hourly rate is appropriate where the cartage is to be over a distance of less than 5 kilometres and that, In such a case, it is unnecessary to know the location of the job in order to provide a quotation. It is otherwise where the cartage is to

be 5 kilometres or more.	In such cases a rate per cubic metre
has to be worked out.

Before starting work on the job, a credit check was carried out on Mr Manley by telephoning his bank manager at Buderim. However, as Mr Wrlkinson explained, the creditor had no information on the debtor, as he had not been in business on his own before, and it could not make any check on him. Mr Wllkinson said that the credltor "started work on the job the

that on that day he went to the site which he identified as	following day on the 24th of November, 1989". He also said
being "at Maroochy Lakes", not at Chevallum.
There is no reference in Mr Wilkinson's affidavit sworn on 14 May 1992 to him informing Mr Manley or the debtor of an hourly rate for the cartage of material. In his affidavit sworn on 7 August 1992, however, there is a reference to an hourly rate being agreed between himself and the debtor for what he referred to as "short haul jobs" from "Maroochy Lakes to Tallowood [slc] Drive and to the Maroochydore Road job". A price for that cartage was said to have been requested by the debtor on 2 8 November 1989, that is to say, some days after the creditor had commenced the cartage work to whrch Mr Wrlkinson had previously referred. If his affidavit evidence is accepted, the cartage that commenced on
2 4 November 1989, which was charged at an hourly rate,
occurred without any price having been negotiated.
Mr Wilkinson also said that he had not heard the name "Farman Excavation and Earthmoving" either at the time he gave the quote to the debtor or when the work was being carried out.
Mr Wilkinson gave oral evidence whrch was in conflict with that to which he had deposed in his affidavits. The effect of his oral evidence was that, during the conversation with the debtor while the debtor was employed by
Mr Clay, the debtor had requested him to give an hourly rate for the cartage of "fill" material in relation to what I have
referred to earlier in these reasons as the Maroochy Lakes
Estate job and that it was dur~ng a later conversation on 2 8
November 1 9 8 9 at the Maroochy Lakes Estate site that he was requested to prepare a quotation for cartage from Chevallum to the Tallow Wood Drive Estate. Further, according to his oral evidence, it was after the conversation on 2 8 November 1989 and not after the earlier conversation with the debtor that he went to the Chevallum slte and checked the mlleage from that site to the Tallow Wood Drive Estate so that he could work out a price per cubic metre. It is clear from his evidence that it was unnecessary to follow that procedure where an hourly rate was being quoted.
Mr Wilkinson's evldence as to the work done in relation to the Maroochy Lakes Estate was also at variance with that of the debtor. The debtor's evidence was that the cartage of the bulk of the material was from the Maroochy Lakes Estate to the site near the school with a comparatively
small quantity diverted to the Tallow Wood Drive Estate. MI
Wilkinson said the reverse.
In his affidavits, Mr Wilkinson said that on the day the creditor commenced work at the Maroochy Lakes Estate site he met with Mr Manley and the debtor on the site. He deposed that:

Manley in Mr Farrell's presence, who are the truck	"The three of us were standing together and I said to Mr
dockets to be made out to - Manley and Farrell? And Mr Manley said yes. Mr Farrell did not say anything when that was said."

He said in his affidavits and Ln his oral evidence that he made enquiries of Mr Manley and the debtor on four or five occasions to confirm that the cartage dockets were to be made out in the names of Manley and Farrell. His explanation as to why it was necessary to make those enquiries on four or five occasions was unconvlnclng. He also said that, before any work was carried out, he instructed the truck drivers "to make dockets out to Manly [slc] and Parrell".

The debtor could not recall any conversation wlth Mr Wilkinson at which he was present when the name or names in which the cartage dockets were to be made out was discussed. He said he did not know how they came to be made out to Manley and Farrell.

In his affidavit sworn on 14 May 1992, Mr Wilkinson stated that he had spoken to the debtor personally at his home on at least four occasions during April and May 1990 demanding payment of the amount then outstanding. The debtor admitted, so Mr Wilkinson said, that he owed the amount outstanding to the creditor. This, the debtor denied. He said that, on any occasion that M r Wilkinson had spoken to him about the outstanding account, he had simply referred him to M r Manley. In cross-examination, Mr Wilkinson agreed that his statement

that the debtor had admitted liability for the debt was based	solely on the debtor's failure to deny liability and his
statement, when approached for payment, that he would see what he could do. That material clearly provides no sufficient basis for the conclusion that Mr Wllkinson drew.
Reference has already been made to the system operated by the creditor involving the use of cartage dockets.
An examination of the cartage dockets in evidence reveals
that, although there are variations in spelling and in the order in which the names appear, each of the cartage dockets relating to the work carried out by the creditor on both the Maroochy Lakes Estate job and the Tallow Wood Drive Estate job shows the customer as belng Manley & Farrell. In many instances, however, some of the other particulars whlch were required to be included on the docket do not appear. The debtor signed a number of the dockets acknowledgmg that the cartage particularrsed on the docket had been performed. The invoices relatlng to the work done in relation to those jobs are also addressed to Manley & Farrell, again with some variations in spelling. The monthly statements, together with the relevant invoices, were forwarded to "Manly [sic] & Farrell, Kerenjon Ave, Buderim Q. 4556". That was M r Manley's then home address. According to MS Tenkate's recollection, all cheques received in payment were Mr Manley's cheques. She thought it possible they were drawn on an account in the name of J.R. & R. J. Manley. There is no evidence to show how the monthly statements came to be forwarded to Mr Manley's home
address.
It must be said that there are unsatisfactory features of the evidence given by the debtor. The following are examples. The evidence concerning the basis on which he was remunerated by either J.R. & R.J. Manley or Farman Earth Moving & Excavations is far from convincing and by no means supports his assertion that his status was simply that of an employee of the proprietors of one or other or both of those businesses. Further, there is no satisfactory explanation why the quotation provided to Rod Tate & Partners Pty Limited in relation to the Tallow Wood Drive Estate was made in the name of Farman Excavations & Earthmoving or why the arrangements to sub-contract part of the work to the creditor were not made in the name of that firm. The absence of such explanation is of greater significance in the light of the debtor's evidence that the name "Farman" was based on the surnames of himself and Mr Manley and was to be used in connection with a proposed joint business enterprise. Another unexplained feature of this aspect of the matter is that correspondence concerning that work was forwarded to the debtor's home address. Again, as all negotiations were oral and not evidenced in writing, it is inconceivable that there was not some discussion with Mr Wilkinson or some other representative of the creditor as to the identity of the entity to be charged for the work to be carried out by the creditor. Yet the debtor, if he is to be bel~eved, could recall no discussion of that topic at which he was present. Unless he was aware that the work was to be
charged to "Manley & Farrell", one might reasonably have expected him to raise some question when he saw his name
included as part of the name of the customer on the various cartage dockets.
Mr Wilkinson's evidence, however, is even more unsatisfactory. There are significant inconsistencies between the affidavit material, the oral evidence he gave in chief, and his evidence in cross-examination. His evidence in cross- examination concerning the work to be performed by the creditor and the quotations provided in respect of that work, except as to the dates when varlous events occurred, agrees substantially wlth the debtor's evidence. Desplte his assertions as to what took place, he did not appear to me to have a clear recollection of the events and tended to change hls evidence once faced with a difficulty arising from his earlier evidence. He was also prone to put forward as evidence as to the facts what was no more than the conclusions at which he had arrived from material which, on examination, did not support what he was asserting.

In the result, and notwithstandlng the reservations

I have as to the debtor's evidence, where there is conflict

between them, I prefer the evidence of the debtor.

There is no direct evidence establishing as between
the debtor and Mr Manley or any other person a partnership

which, as part of its business activities, undertook the work

Wood Drive Estate. The evidence does not establish that the	being carried out on the Maroochy Lakes Estate or the Tallow
debtor was entitled to receive any part of the proflts from such enterprises or was liable for any losses that accrued. There is no evidence of a jolnt bank account. There is no evidence that the debtor received any payments from the head contractor for the Tallow Wood Drive Estate. Indeed, the evidence, so far as it goes, suggests that all financial dealings were transacted through an account in the names of J.R. & R. J. Manley, there being no suggestion that the debtor had an interest in that account.
The evidence, in my opinion, falls far short of establishing that the debtor and M r Manley were in partnership. The evidence also falls far short of establishing any other basis on which it can be said that the debtor became personally liable to the creditor.
In the result, on the evidence before the Court I am not satisfied that, in truth and reality, the debtor is indebted to the creditor in the amount referred to in the petition. Not being satisfied with the proof of the debt relied on by the creditor, the petition, in so far as it seeks
a sequestration order against the estate of the debtor, is
dismissed. In the light of all the circumstances, however, I think this is an appropriate case in whlch to make no order as to costs

I certlfy that this and the

preceding 21 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neavgs.

Dated: 16 July 1993

Counsel for the judgment creditor : Mr G.J. Koppenol

Solicitors for the judgment creditor : C.A. Sciacca &

Associates

Counsel for the judgment debtor	: Mr P. Aldrldge
Solicitors for the judgment debtor	: Rea & Sockhill
Date of hear~ng	: 4 September 1992