Re Fasham, B.T.

[1988] FCA 270

DNISrON

A Debtor

ORDERS

DXTE OF O R D Q : 26 MAY 1383

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THE COURT ORDERa THAT:

1.    A Saquestratlon Order 5s made agarnst the ?scat2 ~f

the Debtor.

&&g:	This order is to be settled and filed in accordance
with rule 124 of the Bankruptcy Rules.

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_. Costs, mcluding reserved costa, be rn accordance Date of Commission of Act of Bankruptcy: irith the statute.

24 J u l y 1337.

UPTCl DISTRICT OF THE STATE OF VICTORIA

EX =ORE REASONS FOR JZTDGMENT

This is a contssted bankruptcy petitron. The sole

ground of the contast is as to vhether o r nut there jras proper personal ser -nce of t h e bankruptcy notice on the debtor.

It is never easy in a case a€ ssnfllctlng evidence

for a Judge ta be sure af xhat actually happened m the day
in question. He do not have any magical power vhich enables
us to tell truth from fictlon. We can only do the Sest that

we are able to , relying upon our impression of the people

who have given evidence and of the surrounding circumstances
of the case.

In this matter the process server gave his evidence

firmly. Hls account -as clrcumstantral and convlnclng.

There uuuld be no reason to doubt hlm were it not for the conflicting svldence -which has been led. In favour uf his account is the fact that I find it rnherently unlikely that an srpericnced process server would have acted as he 1s alleged to have acted - servlng the document on the xrong premises to a person who had not Ldentified hlmself as the debtor and was in fact a different person, and then swearlng

an affidavit vhich recorded the correct przmlses,	and set ugt
questions and ansuers which identlfred	the person served as
the debtor.
Xn account has been glven bp Mr Wlison as tu how the document xas served on him.	T h a t account xas aat aut rn
his affidavlt and	he supportsd it un uath rn ths xitness box.
There was nothrng I could see rn hrs demeanour tu lead me	50

doubt his videncc. There are, however, anumber of

3urrounding circumstances which must	cause me, and do cause
me, to have such doubts.

In ths first place, the explanatLun given a s to

-&t	happened to the document, after rt vas allegedly served
in error on Mr	Wilson, depends very heavily upon the conduct

of the person called Vicki Askeu, who is supposed to have

received the document directly	or indirectly from Hr Wilson,
and then to have taken	it upon herself to send it to Mr

Fasham’s solicitors without previously making any contact

vith Mr Fasham - although she knew his place of residence sin

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Sydney and was regularly in contact with him about mattvs

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affecting the company with which they were both connectd.

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Mr Fasham says she only told him about he bankruptcy notlfce after sending it to hls solicitors.

.

In spite of that rather strange conduct, Miss Xskjpv

has not been called to provlde the mlsslng link :n the account as to how the document is supposed to have got from Mr Wilson to Mr Fasham'z solicitors; and no explanatlon has been glven a6 to why she was not called. Her evldcnce would

have been mast significant.

Similarly, although perhaps of less importance, Mr

Ford (Mr Fasham's solicitor) was alleged to have received

these documents from Miss Askew and to h a v e , , t 5 y e &

contacted Mr Fasham, drawing them to his attention.	It would
have been significant	if that had in fact happened, and

evldence of it had been put before ne, but no attempt =as

made to call Mr Ford or to explain ;Ihy he was not called.	It
Mr Ford in the circumstances In which the document =as	seems that the alleged defective service %as not notlced by
recelved by him, nor was it reported to hlrn xhen he then contacted Mr Fasham. I find it strange that, when that first
contact wa6 made, it did not become immediately apparent to
both of them that this document had found its way to Mr Ford
without ever having been served on Mr Fasham; but apparently
that is the nituation. Following telephone discussions
between them, nothing was said about the defective nature of
the service - and no action was taken to brlng It to the
notice of the petitioner or his solicitors; Indeed, a series

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of negotiations tbok place over some period of time about the

bankruptcy petition, without any mentlon being made of any

allegation of defective service.

Another missing piece of evidence which could have

been significant was the diary, whlch allegedly enables Mr Fasham to say that he was in Ceelong on the day un which service was supposed to have been made upon hlm. I find it strange that it did not occur to hlm that It would be helpful to have the diary in court. I appreclate that It is not his

awn diary, but it is apparently a iompany dlarj- I n xhlch a

number of entries are made which serve to lndlcata uhere	he
M S at the time.	I find it equally strange that, If that *S

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brought to the notice of hi6 legal advisers, they d& . ;

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take steps to see that the diary was in court. : $

MC Fasham was unable to explain the alleged fact

that documents posted to him at his admitted address in

Sydney were returned marked "not known at this address". It

1s also of some significance that, on the other occaslon in

which documents were	attempted to be served upon him m	thls
matter - I refer to the bankruptcy petltion	- he refused	to

accept service of them.	That is at least conslstent uith an
attitude that he does not believe in accepting, or	admitting

acceptance of, legal documents whlch are attempted to be

served upon him.

Finally, there is evidence about the drafting of Mr

Wilson's very important affidavit in this matter. It is

clear that the drafting by hand of that affidavlt was done by

Mr Fasham. Varying accounts have been given by Mr Fasham and

Mr Wilson as to the clrcumstances Ln which that came about. They are mutually inconsistent, because Mr Fasham's evidence is that the discussions giving rise to the materlal In the

affidavit took place, for the most part, m telephone

conversations between Melbourne and Sydney, and t h a t the

affidavit was drawn by him in Sydney and delivered tcj his counsel, and through the counsel to hls solicitors, as soon

as he arrived in Melbourne on the morning of the day on which

it was sworn.

Mr Wilson, on the other hand, says that the

document was drafted following discussions over lunch some

days before it waa sworn;	that it was drafted in Melbourne
and was brought to him soon afterwards at the	Magistrates'
Court in Melbourne xhlsh	he was attendrng, so that he xould
be able to check the accuracy	of it.

Neither of those accounts 1 s consistent wlth the

independent evidence, because they both involve the affidavit

being drafted over a period of days before it was sworn;

whereas the evldence from a solicitor, Hr Stevens, an

employee of Mr Fasham's solicitors, and the production	of the
solicitor's file, show that, on the day before the	affidavit
was sworn, Hr Fasham was	still saying that he was not aware
who had received the document:	and it is clear that it xas
only the follouing morning that the affidavit drafted	by Mr
Fasham was sworn by Mr Wilaon.	On that basis there simply

was not time for the discuasione, which either of them swore

to, to have occurred.

For all these reasons I have reached the clear

conclusion that I should accept the evidence of the process gerver. All the other matters of xhxh I am requlred t o be satisfied have been proved to my satlsfactron. I am satisfied that an act of bankruptcy was commlttrd; that it was committed on 24 July 1387; I am satlsfied with the praof

of the matters set out	In sectiun 52 sub-sectlon (1) of	the
Act.

There will be an order of sequestratlon against the

estate of the debtor, the act of bankruptcy belng the fallure of the debtor to comply with the provisions of a bankruptcy notice on or before 24 July 1987. Costs, including reserved

costs, sill be in accordance with the statute.