Re Lewin and Glasson; Ex parte Milner

[1986] FCA 158

Re: MORRIS WALTER LEWIN; ROGER McMILLAN GLASSON
Ex Parte: BRYAN JOHN MILNER
No. NSW P471 and P464 of 1986
Bankrutcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
Pincus J.

CATCHWORDS

Bankruptcy - creditor's petition - appeal against judgment on which bankruptcy notice founded - prospects of success on appeal - proper test as to whether petition adjourned pending appeal - attempts to place assets beyond reach of credits.

Bankruptcy Act, 1966,ss.33(1)(a); 52(3)

Trade Practices Act, 1974, s.52

HEARING

BRISBANE

#DATE 24:4:1986

For the applicants: Mr. F.G. Lever instructed by Harris, Hosie & McGarvey

For the respondents: Mr. R.S. Hulme QC with Mr. Moore instructed by Schrader, Coyle & Associates

ORDER

As to each petition:

I make a sequestration order against the estate of the debtor and order that the petitioning creditor's costs of and incidental to this petition be taxed and paid in accordance with the Act.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

The petitioning creditor in these two matters, which were heard together, seeks a sequestration order in respect of the estates of the judgment debtors, Dr. Lewin and Mr. Glasson. In each case the bankruptcy notice relies on a judgment for damages which, together with interest, amounted to $54,552.20 as at 25 February 1986. The reasons for judgment are reported in 61 A.L.R. 557; the case concerned a large guava project.

1. The judgment in question was entered by order of Lockhart J. made on 17 December 1985 in proceedings brought under s.52 of the Trade Practices Act 1974. Lockhart J. heard, with the application brought by the petitioning creditor (no. G164 of 1982), another application brought by many applicants against the judgment debtors (no. G85 of 1983). Although the petitioning creditor relies, of course, only on the judgment in his favour, the amount of the liabilities of the judgment debtors under the orders of Lockhart J. in G164 of 1982 and G85 of 1983, including costs, is said to be in the vicinity of $2.5 million. The judgment debtors applied for a stay of execution, but failed to obtain one beyond 21 January 1986. On 28 February 1986 I granted orders restraining dealings in property by Dr. Lewin and others, under the Mareva principle.

2. The judgment debtors argue that no sequestration order should be made because an appeal has been lodged against the orders of Lockhart J. The judgment debtors are, as I find, actively taking steps in prosecution of the appeal. Their counsel argues that, in accordance with certain authorities to be referred to, the proper course is to adjourn the bankruptcy petitions until the appeals in these matters are disposed of. It is also contended that the Mareva orders should be varied to provide for the debtors' costs of the appeal.

3. It is argued on behalf of the petitioning creditor, on the other hand, that the judgment debtors have no prospect of eliminating their liability under the judgments referred to above and that the only reasonable grounds of appeal are grounds which, if successful, will result in some reduction of the judgments. Counsel for the petitioning creditor argues that, at best for the judgment debtors, the appeal may produce a reduction to a figure still substantially in excess of the value of the judgment debtors' estates.

4. The argument before me went into considerable detail as to the cogency of the various grounds of appeal. It is not clear whether the argument should have done so, but since it did, I cannot fail to take into account the views of the merits of the appeal which I have formed. Some of the evidence before Lockhart J. was analysed by counsel for the petitioning creditors in an attempt to show that the appeal only had such prospects as mentioned in the preceding paragraph. In the result, however, the question as to the prospects of the appeal falls, I think, within a fairly narrow compass. I do not set out the facts of the applications before Lockhart J. in detail; they concerned false and misleading statements in certain brochures.

5. It is common ground, for the purposes of this proceeding only, that legal questions of an arguable kind arise with respect to the three matters set out below. If the appeal were to succeed on those points, the judgment would be reduced by about $1 million. The contention of the petitioning creditor, however, is that the only other points in the case are factual issues and that there is no real possibility that the judgment of Lockhart J. will be upset as to them.

6. The aspects of the appeal which the petitioning creditor conceded, for the purposes of this argument only, were arguable were:
   
   (i) The judgment under appeal took no account of the benefit
   

of tax deductions which had been allowed the applicants in consequence of the losses suffered.

(ii) Lockhart J. allowed interest on the primary loss, for loss

of use of the money invested.

(iii) Five of the applicants were said not to have relied on the

brochures issued and held to have been misleading; they came into the venture on the advice of others, who were induced by the brochures.

1. Before setting out the issues in the appeal further, it is desirable to consider what must be shown by an appellant judgment debtor in these circumstances. The work by Williams and Muir Hunter on Bankruptcy (19th ed.) at p.66, under the heading "Stay of Proceedings where Appeal from Judgment" says:
   
   

"Where the appeal is bona fide, the proper order is to stay the petition generally, with liberty to apply, and where it is evidently frivolous a receiving order should be made."

That is a note to s.5(4) of the English Bankruptcy Act 1914 which gives the court express power, where the act of bankruptcy relied on is non-compliance with a bankruptcy notice, to "stay or dismiss the petition on the ground that an appeal is pending from the judgment or order". Similar provision was made in s.56(4) of the Commonwealth Bankruptcy Act 1924, but there is nothing of the kind in the 1966 Act. The only reference to such a stay in the 1966 Act is in s.52(3) which is as follows:

"The court may, if it thinks fit, upon such terms and conditions as it thinks proper, stay all proceedings under a sequestration order for a period not exceeding 21 days."

1. It appears, therefore, that there is no express power in the current statute to stay these proceedings on the ground of pendency of an appeal. There is, of course, power to adjourn them under s.33(1)(a).

2. The case which the debtors principally relied on is the decision of the Court of Appeal in Ex Parte: Heyworth In Re: Rhodes (1884) 14 QBD 49. That related to s.7(4) of the English Bankruptcy Act 1883, the terms of which are in no relevant respect different from s.5(4) of the English Act of 1914, or s.56(4) of our Act of 1924. Baggallay L.J. said at p.51 that it was "a matter for the discretion of the registrar whether he would at once adjudicate the debtor a bankrupt, or stay the proceedings on the petition pending the appeal". He went on to add that if the appeal was not bona fide a receiving order should be made and said:
   
   

"In the present case it appears to me that there is a substantial question raised by the appeal, and it is possible that on the hearing of the appeal the alleged debt may be got rid of altogether."

Bowen L.J. said that the registrar:

"... has an absolute discretion to consider what is the best thing to be done under the circumstances. And it would be impossible for this Court to interfere with the exercise of his discretion unless we were satisfied that the registrar could not have been right. If it could be shewn that the appeal from the judgment must be a frivolous one, we might reverse his decision. But, so long as he might reasonably have come to the conclusion that there was a reasonable ground of appeal, it would be a monstrous thing that a receiving order should be made while the appeal is pending."

I do not think that Bowen L.J. meant that the registrar must have adjourned the petition unless the appeal was shown to be frivolous, but rather that the exercise of the registrar's discretion could not be reversed except on strong grounds of that kind.

1. There appears never to have been a significant departure from the law as laid down in Heyworth's case. I accept it as authority for the view that under the provision being considered by the court there, the registrar had a discretion but should, in general, adjourn the hearing of the petition based on a judgment debt if it were shown that the judgment debtor had instituted a bona fide appeal on substantial grounds.

2. It is not clear whether the power to adjourn under our 1966 Act should be taken to be governed by the law with respect to the effect of statutory provisions such as s.7(4) of the English Bankruptcy Act 1883, or s.56(4) of our 1924 Act. A decision suggesting that our 1966 Act should be read as if it had such provision in it is Lipov v. Alexander Fraser & Son (1978) 36 FLR 126 where at p 130 Sweeney J. said:
   
   

"It is for this court to say whether the time for compliance with a bankruptcy notice will be extended. It has been held that the institution of an appeal, which appears to be bona fide, is a good reason for adjourning the hearing of a bankruptcy petition based upon the judgment subject to the appeal ..."

1. There is, however, authority for the view that, absent a statutory provision of the kind construed in Heyworth's case, the law as there laid down is inapplicable: In re Amalgamated Properties of Rhodesia Ltd. (1917) 2 Ch 115. That was a petition to wind up a company on the ground of failure to comply with a statutory demand for payment. Although the company had appealed against the judgment on which the notice was based, Sargant J. held the petitioners were prima facie entitled as a matter of right to a winding up order, relying on an unreported decision of the Court of Appeal. He made reference to the position in bankruptcy and referred to s.5(4) of the Bankruptcy Act 1914 one of the provisions discussed above. He remarked at p.123:
   
   

"It is said that that provision recognizes the importance of a pending appeal as a ground for staying or dismissing a petition, and that the same considerations are applicable in the case of a petition for the winding up of a company. In my judgment, that provision is all in favour of the petitioners, because it seems to me to empower the Court in bankruptcy cases to take into consideration a circumstance which, apart from the statutory provision, the Court might not have been entitled to rely upon. It is noticeable that, although that provision, or a similar provision, has been in the bankruptcy legislation ever since the year 1883, no such provision has been introduced into the legislation as to winding up companies, although in certain other respects the rules in bankruptcy have been applied in the winding up of companies."

This dictum tends to show that the practice as laid down in Heyworth's case was dependent upon the existence of the statutory provision there under consideration. Sargeant J. made an order for winding up but gave the company an opportunity to give security for the debt, which was one for costs. When the case went to the Court of Appeal, the parties agreed to a variation of that arrangement, but Swinfen Eady L.J., with whom the other members of the court agreed, said he saw no ground for differing from the judgment of Sargant J. (p.124).

1. As further support for the view that the law as laid down in Re Heyworth depends on the terms of the particular statute there in question, I refer to in Re Flatau; Ex Parte Scotch Whisky Distillers Limited (1888) 22 QBD 83.

2. Looking beyond the law relating to bankruptcy and winding up, it should be noted that, in general, the pendency of an appeal is not taken to deprive the successful party of the right to enforce the judgment. An applicant for a stay of execution must show special circumstances: Klinker Knitting Mills Pty. Ltd. v. L'Union Fire Accident and General Insurance Co. Ltd. (1937) VLR 142, J.C. Scott Construction's v. Mermaid Waters Tavern Pty. Ltd. (No. 2) (1983) 2 QdR 255 at 258.

3. If there is a substantial difference between the rule applicable with respect to a stay of execution and that applicable to adjournment of bankruptcy proceedings, that must be justified on the basis that bankruptcy involves a change of status. Yet it must be kept in mind that execution can be just as disruptive of the debtor's affairs, at least at the outset, as bankruptcy. Here, the judgment creditors are presently entitled to have all the property available seized and sold in execution.

4. In the present case, the pendency of the appeal is the only circumstance relied on as a ground of adjournment, but there are other matters, referred to below, which bear upon the question whether an adjournment should be granted. If the practice under s.56(4) of the Bankruptcy Act 1924 was that a bona fide appeal instituted against the judgment on which the bankruptcy notice was founded was, prima facie, good ground for adjournment of the petition, I do not think that is so under the 1966 Act. The question whether the appeal is brought bona fide and on substantial grounds is, however, a circumstance to be taken into account in exercising the discretion whether or not to adjourn the petition.

5. The argument concentrated on the position of the debtor Dr. Lewin, perhaps because the prospect of the judgment creditors' obtaining a substantial dividend from the estate of Mr. Glasson seemed rather remote. Further, it would not seem to be an appropriate case in which to make a sequestration order against one, but not both, of the debtors. It should be noted, however, that the impact of bankruptcy upon Mr. Glasson would, on the material, plainly be less than that upon Dr. Lewin. Mr. Glasson says he has no assets apart from a sum of $68,379.10 held in trust by his solicitor. The only immediate effect upon his property would, it seems, be to vest that sum in a new trustee. There is no suggestion that bankruptcy would affect Mr. Glasson's current employment.

6. Nevertheless, Mr. Lever for the debtors argued strongly that to make Mr. Glasson bankrupt would interfere with the exercise of his right of appeal. He pointed out that the trustee might well not pursue the appeal, not because it has no prospects of success, but because to do so would involve considerable expense and because the unsecured creditors, other than the judgment creditors, are not, by comparison, of significant amount.

7. Counsel for the judgment debtors, apart from the three points listed above, relied principally upon the contention that it is arguable that Lockhart J. was wrong in holding, as he did, that the judgment debtors had knowledge of the falsity of the statements of which the petitioning creditor complained. No legal question appears to be involved, and the matter is purely a factual point. Lockhart J. held as follows:
   
   

"Glasson, Lewin, Morrison and Bennett were the persons principally involved in raising funds from the applicants for the purposes of the guava venture. Glasson and Lewin were the shareholders and directors of Delita. They controlled its affairs. I am satisfied that Glasson and Lewin knew of all relevant conduct of Delita and of Morrison and Bennett and of Robert Morrison and Associates relating to the raising of funds and the establishment and running of the guava projects including facts bearing on the issue of the documents and the falsity of their contents. Knowledge is an essential ingredient in establishing that Glasson and Lewin aided and abetted the principal offence: Yorke v. Lucas

(1983) 49 ALR 672.

The requisite knowledge of Glasson and Lewin existed."

1. Counsel for the judgment debtors argued that there was a prospect of reversing these findings, principally for the reason that the judgment debtors made enquiries in Hawaii of Mr. Putnam Clark, mentioned in the reasons of Lockhart J., and they might have believed that the statements made in the brochures were true on the basis of what Mr. Clark said. The brochures held out that processors in Hawaii would buy the guava produce. It is not necessary to quote at length from either the brochures or the evidence of Mr. Clark. One of the former described by Lockhart J. as a "fair sample" says that Hawaiian processors:
   
   

"... will take all the puree we can give them. They do not have enough production to cater for their local demand, let alone to supply the rest of America or the Japanese market.

In other words, it appears our total production could be sold to export markets."

Other statements emphasizing the existence of foreign buyers for the guava puree and the strength of the demand are to be found in the brochures.

1. The record of the evidence of Mr. Putnam Clark, which I have read, does not support the assertions just quoted. He said, in effect, that at the time Dr. Lewin and Mr. Glasson spoke to him he was optimistic as to the future of the guava industry. He said nothing to suggest that he had ever held the view quoted from the brochure or had told Dr. Lewin or Mr. Glasson that he held that view. They, for their part, gave no evidence that Mr. Clark had informed them of the matters I have quoted from the brochure; they gave, in fact, no evidence at all.

2. Apart from the evidence of Mr. Clark (who was the only witness called to support the truth of the statements in the brochure), there was other evidence of a mood of optimism, during the relevant period, among some people in Hawaii as to the future of guavas there; Lockhart J. found such a mood to exist. However, although a considerable amount of the documentary evidence was analysed before me, and I asked counsel to show me those pieces of evidence which gave most support to an attack upon the reasons of Lockhart J. on this aspect, nothing was referred to which could, in my view, create the least doubt about the correctness of the quoted findings of his Honour. If, as is apparently intended to be asserted on the appeal, it was not open to Lockhart J. to find that the debtors knew the contents of the brochure to be false, that must be on the basis that they were totally misinformed as to Hawaiian demand; yet all the likely sources of information on that subject were gone into at the trial and none supported the content of the brochure.

3. I am therefore not prepared to hold that there is a substantial ground on which to attack the finding of Lockhart J. that the judgment debtors knew of the falsity of the relevant documents. There was no suggestion that they were unaware of the contents of the documents.

4. The only other aspect of the case which was, in the end, pressed by counsel for the judgment debtors was that matters held to have been misleading were, in some respect, statements about the future - i.e. predictions. Counsel for the judgment debtors argued that a substantial ground of appeal was that, to the extent that the statements had that character, it was not shown that the judgment debtors had the requisite state of mind. It was said that it had to be shown that opinions about the future were not in truth held, or lacked any adequate foundation: Global Sportsman Pty. Ltd. v. Mirror Newspapers Ltd. (1984) 55 ALR 25 at 31 (Full Court). The conclusion expressed above with respect to the preceding point disposes of this matter also. Nothing was placed before me to encourage the thought that it is seriously arguable that the finding of Lockhart J. as to the knowledge of the judgment debtors of the falsity of the relevant documents is insupportable. Nor is there anything in the reasons to suggest that his Honour fell into the error of holding predictions to be false merely because, in the result, the facts turned out otherwise.

5. The record of proceedings is voluminous and it may be that counsel would, on closer examination, be able to extract from it some bases of attack on the judgment of Lockhart J. more promising than those just discussed; but there is an onus on the judgment debtors to point to some aspect of the reasons which gives them a real chance of success on appeal, other than with respect to the three points listed above. They have failed to do so, although their counsel, who appeared at the trial, was quite familiar with the details of the case. It was one in which the statements made as to the export demand in existence at the relevant time seem plainly enough to have been false. There was ample material from which Lockhart J. could have inferred that the debtors knew they were false and he did so infer, being encouraged to do so, no doubt, by the fact that the debtors gave no evidence.

1. There are, apart from the question of the prospects of success on appeal, other aspects of the matter relevant to the exercise of the discretion whether or not to adjourn the petitions.
   
   1. The request for adjournment of the petitions is linked with
   

an application mentioned above, that money for the costs of the appeal be released from the operation of the Mareva orders currently in force in respect of Dr. Lewin. On the figures presented, pursuit of the appeal will substantially erode the funds available to satisfy the judgment, if the appeal is unsuccessful. I have referred above to the fact that Mr. Glasson says his assets consist in a sum of $68,379.10. The value of Dr. Lewin's assets is a more debatable point; it depends upon which of the valuations in evidence is used. On one view, Dr Lewin's net asset position is worse than that of Mr. Glasson, but, without reaching a precise conclusion on the matter, it seems to me likely that his estate will realise some hundreds of thousands of dollars, leaving aside any question of attacking transactions under ss.120-122 of the Bankruptcy Act. Nevertheless, since the costs on both sides are likely to be well in excess of $100,000, the reduction in the debtors' estates consequent upon the appeal, would be significant. Admittedly, the costs of the appeal are not large compared with the sum of well over $1 million so far spent in the litigation, but it is close enough to the truth to say, as Mr. Hulme Q.C. submitted, that the appeal will be paid for by the creditors whether it succeeds or fails. In such a situation, the debtors have no incentive to refrain from incurring the costs of appeal.

1. The evidence shows that the money lost by the creditors did

not simply disappear. Much of it was channelled into trusts associated with the debtors. There is evidence that some of these trusts have substantial funds. Whether or not those funds are beyond the reach of the creditors, it is not necessary to determine. However, it seems likely that adequate moneys are available in the hands of members of the debtors' families to finance the appeal. There is no suggestion that they propose to do so.

This is by no means a decisive factor in determining whether to adjourn the petitions. However, it bears upon the contention made by Mr. Lever for the debtors that the appeal is not likely to be pursued, even if it really has merit, if sequestration orders are made. In many such cases, no possible source of funds may be available to finance an appeal other than creditors' moneys. That is not so here.

1. During the course of the litigation, claims were made by the

debtors against the cross-respondents Robert Morrison and John Bennett mentioned in his Honour's reasons. The dispute between the debtors and these cross-respondents was settled on the basis of a deed under which Messrs. Morrison and Bennett undertook to indemnify the debtors as to one-third of their liability to the applicants in the case. There is no evidence as to whether Messrs. Morrison and Bennett have any funds, but they are, also, a possible alternative source of moneys to pursue the appeal - i.e. alternative to the funds available for distribution to the creditors from the debtors' estates. Again, this is not a factor of great weight but tends to distinguish the case from those in which it cannot be seen how the trustee can pursue the appeal other than by use of the creditors' moneys. Messrs. Morrison and Bennett should have a considerable interest in the appeal's being pursued, if it has substance.

1. I have referred above to an order I made in January

restraining dispositions of assets. The question of such a restraint first arose shortly after Lockhart J. handed down his initial reasons for judgment on 19 September 1985. On the following day an application for an injunction was made to Bowen C.J. and undertakings inhibiting property dealings were given on behalf of the respondents. On the same day as those undertakings were given - i.e. 20 September 1985 - two payments were made, which were the subject of comment by Mr. Hulme Q.C. One was for $20,800 to the "Homestead Trust" for rent. That was a trust which had been established, shortly after commencement of the proceedings, by transfer of property to Dr. Lewin's wife. The second payment was a gift of $20,000 to "Summerland Christian Life Retirement Village Foundation". According to a draft affidavit by Dr. Lewin which is in evidence, the second cheque was not cleared until 25 November 1985. There is no evidence as to whether these payments were made before or after the undertaking was given to Bowen C.J., but on either view they evidence a tendency on the part of Dr. Lewin to try to diminish the amount available to the creditors. Apart from those two payments, a number of other transactions were entered into between the commencement of the proceedings and the giving of the undertaking to Bowen C.J. which seem, prima facie, likely to have had a similar motive. On the same day as the transfer of the property mentioned (Dr. Lewin's residence) to the "Homestead Trust", land of considerable value was transferred to Teplara Pty. Ltd. as trustee for the Summerland Christian Life Properties Trust and another like transaction took place the next day. In May 1985 Dr. Lewin repaid a $60,000 loan due to the Lewin Family Settlement, a trust set up by him, and shortly thereafter transferred 140,000 shares in Lewin International Pty. Ltd. by way of gift to his wife.

This is not a complete account of the course of conduct mentioned, but enough has been said to show that they are transactions requiring investigation and which may need to be reversed.

As against that, it is true that the position of the creditors may, at least to some extent, be preserved by the Mareva orders already made and, if necessary, by the giving of further undertakings. However, deferment of bankruptcy cannot help, and may well hurt, the interests of the creditors which, at this stage, as it seems to me, must receive some consideration. As time passes, the risk that events may occur diminishing the prospects of effective reversal of such transactions increases.

The considerations just mentioned with respect to Dr. Lewin apply also to Mr. Glasson although (on the evidence so far available) to a considerably lesser extent.

Conclusion

1. The primary consideration is that the debtors failed to demonstrate that any reasonable grounds of appeal exist other than the three mentioned above which will, if successful, still leave a debt of about $1.5 million, a sum substantially in excess of the net value of the assets of the debtors. That is in itself, and without regard to any of the other factors mentioned, sufficient reason to refuse the adjournments sought.

2. There will therefore be a sequestration order on each petition.

3. As to each petition:
   
   1. I find that act of bankruptcy alleged in paragraph 4 of the
   

petition.

1. I am satisfied of the other matters of which the Bankruptcy

Act requires proof.

1. I note that Peter David Rodgers, a registered trustee, has

consented to act as trustee of the estate of the debtor.

1. I make a sequestration order against the estate of the

debtor and order that the petitioning creditor's costs of and incidental to this petition be taxed and paid in accordance with the Act.