Re Harris, G.R. v General Machinery & Equipment

[1987] FCA 123

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD P1481 of 1986 -7.
BANKRUPTCY DISTRICT OF THE SOUTHERN	) I

,! \

DISTRICT OF THE STATE OF OUEENSLAND )

RE: GARRY R. HARRIS

EX PARTE: GENERAL MACHINERY AND EOUIPMENT

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	13 MARCH 1387
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.	The matter be ad~ourned	for hearlng to Friday, 27
March 1987 at 3.45 a.m.

NOTE: Settlement and entry of orders 1 s dealt wlth In

Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT O F AUSTRALIA	)
GENERAL DIVISION	) QLD P1481 of 1986
BPMRUPTCY DISTRICT OF THE SOUTHERN	)
DISTRICT OF THE STATE OF OUEENSLAND	)

RE: GARRY R. HARRIS

EX PARTE: GENERAL NACHINERY AND EQUIPMENT

PINCUS J. 13 MARCH 1987

EX TENPORE REASONS FOR JVTGMENT

It; appears that early In 1985 one Robert Farrls bcuqht a motor, IiGt from che petltlonlng credicor, and used it for about a year. It began tn malfunct:nn and that 1 s sal3 to have been due

to lack of nainEenance.

Fobert Harrls used the motor on hls farm, but he 1 s sald

to have been absent when the trouble arose and his son, the

~udgment debtor, Garry Harrls, contacted the vendor. Not

obtalnlng any satisfaction there, he phoned the present

petitionmg credltor, the Queensland agent	f o r the sale	of	the
motor.

2 .

Conversatlons took place about whlch there is no

consensus. The petitioning credltor's case is that the ~udgment

debtor agreed to buy a new motor and pay for it stralghtaway. The

debtor says the motor was sent by way	of fulfilment of a warranty
obligation.

It seems to me lmprobable that the petitlonlng creditor

would have agreed to replace the old motor for no charge, when it

had no means of knowing whether the original motor had been

deficient when sold. On the other hand, there is a degree of

improbablllty about the petitioning creditor's case.	It is said
the judgment debtor, Garry Harris, who asked for the	new motor,

was thought to be the same person as the R. Harris to whom the new

motor was sent. Ir; 15, posslbly, more llkely that Garry Harrls

dld not clalm to be R. Harrls and that, when the petltlonlng

credltor agreed to send the new motor, lt made no assumption that

Garry Harrls and R. Harris were one and the same person.

There must be some substantial reason for golng behlnd a

judgment and, here, that 1 s perhaps upplled by the mere

circumstances that both the involces for the motor which have been

tendered were sent to R. Harrls. It may be a reasonable Inference

that they were intended for Robert Harris, not for the judgment

debtor. Perhaps the principal reason that Garry Harrls has found

himself involved in these proceedings ithat, as the

correspondence shows, he contacted the ~udgment credltor after the

invoices were sent. It appears to me to be a curiosity, if Garry

Harris was to be liable, that the invoices were sent to R. Harris,

.

L- 3 .

and no claim seems to have been made against him until he	wrote
complaining about the matter.

Were there nothing in the case but the question whether

the new motor was sent on the basis that it was not to be paid

for, I would certainly not go behlnd the judgment. Unfortunately

for the Iugment credltor, there could be reason to question

whether the person llable to pay for the	n w motor is, If anyone,
Garry Harris rather than Robert Harris.	A n addltional reason for

questioning the judgment may be that it Includes the prlce of work

done on the repair of the old motor which seems, plamly, to	have
been Robert Harrls’ motor.

At this stage it is unnecessary to attempt any flnal

conclusion on the matter, for the judgment creditor has asked for

an adlournment. It appears to me, as a matter of fairness, that

it is necessary to grant the adjournment. When the matter was

last heard, the judgment debtor relled upon affldavlts whlch were

filed but not served, so that the judgment creditor became aware

of their exlstence for the first time when the matter was called

on on Frlday, 6 March 1987.

Slnce that date, I have been Informed the new motor has

been returned to the creditor. That was in response to a

suggestion made on 6 March, namely that it was rather unfair to

keep It, as Robert Harris appeared to suggest, merely to put

pressure on the judgment creditor.

4.

In the circumstances, It may be necessary to give the

judgment creditor an opportunity to call further evidence, If it

so desires, to counter that produced rather late by the judgment

debtor. I have thought it mlght be helpful, however, to set out,

by way of giving reasons for granting the adjournment, the lnltial

impression that the facts so far elicited have created on my mmd.

It may be that calllng further evidence would resolve the doubts	I
have, one way or the other.

The matter will be, as requested by the petitioning

creditor, ad~ourned for hearlng until	Friday, 27 March 1987 at
9.45 a.m.

It should be mentioned, however, that unless some

Special arrangement 1 s made ln the meantime, that will have to be

treated as a mentlon date only, because there will not be a ~udqe

available, as thlnqs stand.

i certify that this and the 3 preceding

pages are a true copy of the reasons for

judgment herein of His Honour

Mr. Justice Pincus . i

Associate

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W e d (3 p\u,<LIl I? c-7