Re Parker, L.J. v Ex parte Parker, L.J. & Anor

[1994] FCA 752

JUDGMENT No. ........ ........ .. ....,. 752 ,qY-

IN THE FEDERAL COURT OF AUSTRALIA )

BANKRUPTCY DISTRICT OF THE STATE )	NO. NB 1486 of 1992
OF NEW SOUTH WALES	)

Re:  LESLIE JAKES PARKER

Bankrupt

Ex parte:  LESLIE JAKES PARKER

Applicant

And :  OFFICIALTRUSTEE INBANKRUPTCY

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 28 SEPTEMBER 1994

By an application flled on 21 September 1994, Leslie James Parker, a bankrupt slnce 28 May 1992 upon a debtor's petition, made application for an injunction to stop the Official Trustee in Bankruptcy from selling or agreeing to sell as trustee a property at 58 Filter Road, Nowra. The application was presented to the Court ex parte late in the afternoon of 22 September, supported by an affidavit dated 21 September disclosing a belief on the part of M r Parker that the Official Trustee was intending to sell the Nowra land by private sale.

The affidavit disclosed that Mr Parker had been the registered proprietor of the Nowra land from about 1966 to 1991 when he transferred it to hls son, Kerry John Parker. It stated that the	circumstances to which I will come, that at present the house on	Trustee had taken control of the property from his son in
the land was unoccupied, but that his son kept horses there as part of the son's business as a racehorse trainer. He said that some of the horses were owned by the son and others were owned by the son's clients. The affidavit said that h ~ s son had offered to obtain a loan of moneys, presumably on the security of the property, to be used to pay out the creditors of the bankrupt estate. It revealed that inquiries had been made at the Advance Bank leading to the bel~ef that a loan wo+d be obtainable of a sufficient size to discharge the debzs. Mr Parker disclosed that there was a public auction of the Nowra property on 17 September but that it was not sold at auction as
the reserve price was not reached. He expressed in his af f idav~t
an anxiety that the property would not obta~n its true value if it was sold at this time and that its sale would preclude his son from carrying on his business as a horse trainer.
Because of the lateness of the hour in the day, I gave an injunction aga~nst the sale and stood over the application until Monday 26 September, ordering that the application, affidavit and
matter came before the Court on Monday, Mr Parker was not present a copy of the order be served on the Official Trustee. When the
but a Mrs Beverley Nicholls attended as a friend of Mr Parker. She informed the Court that Mr Parker had had a heart attack on Friday 23 September and was e~ther then in hospital or had been in hospital in that connection. I stood the matter down for a short while so that further Inquiries could be made and in due.
course a certificate from the Cardiology Registrar of the Prince Henry Hospital was faxed to the Court, stating that Mr Parker was

treated in the Hospital's Accident and Emergency Department on the 23rd with symptoms polnting to hls having high risk of significant heart disease. It does not appear that he had had a cardiac arrest but the Cardiology Registrar recommended that he see a cardiologist on what was described as "a semi urgent basis" for further investigation. In the Registrar's opinion, court proceedings may have a significant detrimental effect on his health and in substance sought a postponement.

The Official Trustee appeared by counsel and solicitor and presented an affidavit of Charles William Butler-Bowdon, a realisation officer attached to the Insolvency and Trustee Service Australia (ITSA). Mr Butler-Bowdon is apparently the officer conducting thls flle in the Offlcial Trustee's office. The affidavit disclosed a remarkably complex series of events. It seems that Mr Parker has been lnvolved in Family Court proceedings against hls former wife for a number of years which have relevance to the present proceedings. On 9 May 1991, the wife made application to the Family Court for maintenance and

which was annexed to Mr Butler-Bowdon's affidavit, Mr Parker was	property orders. According to the order of the Family Court	represented by a lawyer on that occasion as was his former wife. The Family Court ordered that he pay his wife by way of a property settlement the sum of $30,000. If he failed to do so he was to transfer to hls wife the title to a property in Budgong In the county of Camden. The Famlly Court also ordered that untll either the $30,000 was paid or the Budgong property was transferred, Mr Parker be restrained from dealing with the
Budgong property in any manner except for the purpose of complying wlth those orders of the Family Court, "but that he otherwise be discharged of any undertaking given in respect of the residence at Nowra". I do not know to whlch undertaking this is referring, but presume that he had glven some undertaking not to deal adversely with the Nowra property pending the then existing Family Court proceedings. The Family Court made other orders for the further dealing with the matter and for costs.
The affldavlt of Mr Butler-Bowdon annexed a title search in respect of the Nowra property dated 11 March 1994. It is called "Edltlon number 3" and is an extract of the particulars of title apparently entered on 13 December 1993. It showed that the Off~clal Trustee in Bankruptcy was the registered proprietor of the property, and the land was said to be subject to "reservatlons and conditions in favour of the Crown", for which the reader was advlsed to "see Crown grants", and to a covenant, the number of whlch is given but the detalls of which are not stated. The property was subject to a mortgage to the Illawarra
Credit Unlon.
I have not been lnformed what the Crown reservatlons are or what the covenant says but counsel for the Offlc~al Trustee lnformed the Court on lnstructlons that these matters had no relevance to the present proceedings. It is necessary to record that fact because Mr Parker has glven sworn ev~dence today in relation to hls af falrs. One of the matters stated was that he purchased the Nowra property many years ago from some Aboriginal Elders and it was, he says, a condltlon of the purchase that he not dlspose of the property otherwise than to members of hls family. Apparently this restrictive covenant is not registered on the tltle but it may be enforceable by virtue of some legislation relevant to Aboriginal land.
The transfer of the Nowra property to Kerry John Parker apparently took place many years ago. As will be seen, it may have been in November 1991 although the exact date is not clear to me. There is certainly no indication from the information before me that the transfer was made before the 9 May 1991 orders of the Famlly Court relating to the property settlement. In any event, as that order released hrm from a prlor undertaking not to deal wlth the Nowra property, presumably he was entitled to transfer it to the son as of that time, at any rate so far as the Famlly Court order was concerned.
The circumstances under whlch the Official Trustee came to be the registered proprietor of the Nowra property was rased by Mr
Parker today in hls sworn evidence. If hls evldence was correct,
and I shall summarise it briefly, it raises some disturbing questions. The affidavit of Mr Butler-Bowdon annexes a second set of orders of the Famlly Court of 15 March 1993. Apparently on that day an appllcatlon was made to the Court by Mr Parker's ex-wife's lawyer for further orders in relation to the financial arrangements between the partles. The orders disclose that M r Parker was not present and no lawyer was present to represent him. He said on oath today that he was not even informed of the

proceedings, let alone that there were to be any dealings or
activities that day in relatlon to the Nowra property.

As it happens, both the NOWra and the Budgong properties were the subject of orders made in the Famlly Court. The orders disclose that MrParker's apparent application for child maintenance was to be dismissed, that in relatlon to the Budgong property a transfer dated 26 November 1991 from Mr Parker to Norman William Faulks was to be set aside, as was a transfer of the same date of the Nowra property to Kerry John Parker. The transfers themselves are not in evidence but Mr Parker testified that Mr Butler-Bowdon or another representative of the Official Trustee had been present at the Family Court on that day and, so he says, negotiated or participated in the making of the order by that Court setting aside the transfer of the Nowra property to Kerry John Parker.

So far as I can see from the papers, nothing very much happened between these orders of the Family Court on 15 March 1993 and a

letter written by M r Parker to the Official Trustee on 2 December	1993. I should say, before turning to that letter, that Mr
Parker informed me today that he had a solicitor in that period whose name was Brlan Gillard to whom he or his son paid fees for legal services, but who was subsequently removed from his representation of the Parkers by the Law Society in October 1993, allegedly for overcharglng or underservic~ng. Following the dismissal of Brian Glllard, Mr Parker said that he asked the Law Society to appoint another solicitor and they appointed John
McEncroe of Macquarie Street, Sydney. Mr Parker said today, on oath, that Mr McEncroe was not wllllng to act for him pro bono but that he wanted an application made to the Legal Aid Commission. Mr ~arke;~ ev~dence was that he made such an application but it was not granted, as a consequence of which Mr McEncroe never came to act for hlm. In due course the Law Soclety appointed a man named James Gillard (said to be unrelated to Brian Gillard) to represent him, and Mr Parker said that his son has paid James Gillard sizeable sums of money in the nine months since the end of 1993, but that Mr Glllard has not done or has not been able to do anything effective to overturn the orders of the Family Court on 15 March 1993.
In the letter to the Official Trustee of 2 December 1993 to which I earller made reference, Mr Parker wrote:

My circumstances regarding bankruptcy have now

changed, I wlsh to have my bankruptcy annulled. I

have spoken to Maurice Freidman [sic]

I interpose, Mr Friedman is the solicitor for the Offlcial

Trustee : 

to inform him of my position regarding annulment. I have been advlsed by the Law Soclety that the order given on 15 March in the Family Court is to be appealled [sic]. As I was not informed of the hearing, nor were the other parties, it was a false

application put before the court . . . . .

I interpose. By the "other parties" he is referring to Norman William Faulks, to whom I made earlier reference, and to Beverley Nlcholls to whom it is said Mr Faulks transferred the Budgong property subsequently. I return to the letter:

Legal aid has taken the matter over and is appointing solicltor, John McEncroe, to act on my behalf. The case was taken off sollcltor Brian Gillard, advised by the Law Soclety ln October. We are waiting to get back into the Family Law Court. Now my circumstances have changed I owe less than $10,000 to my creditors whlch I will attend to as soon as possible.

Mr Parker informed me that hls transfer of the Budgong property to Mr Faulks was for a consideration of $22,500 and Mrs Nicholls has sald in court today that the transfer by Mr Faulks to her of the property was also done for a consideration of the same sum of money. As I shall show, there may be something quite strange about these transactions.

In a letter dated 28 January 1994 to Maurice Friedman & CO, John McEncroe advised that he does not act for Mr Parker but that he had read a copy of the letter to which I have just referred. He wrote:

the Legal Ald Commission and attended there a number	[I] understand Mr Parker was making an application to
of tlmes and made a number of representations to the commission for aid. However, I was never quite sure whether those at tendances were related solely to hlmself or to his son Kerry John Parker. I was expecting to obtaln instructions from Kerry John Parker but they dld not eventuate.

Mr Butler-Bowdon's affldavlt contalns a letter wrltten on behalf of the Officlal Recelver to Mr Parker on 27 August 1993. It refers him to a letter dated 13 August, whlch I have not seen,

which was sa id t o have been s e n t t o t h e Nowra a d d r e s s . The 27

August l e t t e r s a y s :

That l e t ter concerned your b a n k r u p t c y and t o r e c e n t

proceedings	i n t h e Family Court	o f A u s t r a l i a .
As	a r e s u l t o f t h o s e proceedlngs	t h e ownersh ip o f the
house p r o p e r t y a t 58 F i l t e r Road,	Nowra	now vests w i t h

t h e O f f i c i a l T r u s t e e a s t r u s t e e o f your bankrup t

e s t a t e .

The O f f i c i a l T r u s t e e i n t e n d s t o sell t h i s p r o p e r t y i n

due cour se and you a r e r e q u l r e d t o coopera te f u l l y

w i t h t h e t r u s t e e i n t h i s process .

You a r e r egu l r ed t o a d v l s e t h l s o f f i c e i n w r i t i n g o f

the d e t a i l s o f a n y i n surance whlch you have t aken o u t

I n r e s p e c t o f t h i s p roper t y .

A d d i t i o n a l l y you a r e r equ i r ed t o p rov ide u s w i t h a

phone	number on which you	can be	c o n t a c t e d d u r i n g t h e
d a y and	t o i n f o r m u s o f a n y change	i n your	addre s s .

On 2 9 September 1 9 9 3 , Mr Friedman wro te a l e t t e r t o t h e O f f i c i a l

Recelver who was i n subs tance h l s c l i e n t . I t i s a l s o annexed t o

M r Butler-Bowdon's a f f i d a v i t and s t a t e d a s f o l l o w s :

W e refer t o our l e t t e r o f e ven d a t e and a d v i s e

subsequent t o d l c t a t l n g same, we r e c e l v e d a t e l e p h o n e

c a l l from t h e bankrup t , who adv l s ed h e was t e l e p h o n i n g

u s a t t h e r e q u e s t o f M s . K . Doosey o f t h e Abor ig ina l

Legal S e r v l c e , Red f e rn . Mr Parker adv i s ed h e had been

d i r e c t e d t o t h e Aboriginal Legal S e r v i c e by the Law

S o c i e t y o f New Sou th Wales . W e ga the r h e may have

made a	complaint	t o t h e Law	S o c i e t y i n r e s p e c t o f t h e
h a n d l i n g o f h l s Famlly Law proceedings	and	t h a t ,	a s a

consequence o f t h a t complaint, t h e Law S o c l e t y

r e f e r r e d him t o t h e service.	Whether t h i s i s c o r r e c t
we	cannot say .

I i n t e r p o s e t h a t it does n o t seem l l k e l y t h a t M r Parker would

have been r e f e r r e d t o t h e Abor lg lna l Legal S e r v i c e because o f h i s

compla in t	i n r e l a t l o n t o t h e Family Law	proceed lngs ,	a t l e a s t not
as concerns h l s solicitor.	More	l i k e l y t h e r e f e r e n c e would	have

been about t h e restrictive t i t l e q u e s t l o n t o which I r e f e r r e d

e a r l l e r , whlch i s probably what Mr Frledman had i n m ~ n d . I

c o n t l n u e w i t h t h e l e t t e r :

I n i t i a l l y , M r P a r k e r adv l s ed t h e Abor ig ina l Legal

S e r v i c e would be b r i n g i n g an application i n the Family

Court t o have t h e o r d e r s made by t h a t Court set a s i d e .

I t i s assumed	h i s r e f e r e n c e t o the o rder s was	i n t e n d e d
t o refer t o t h o s e o f 15 March,	1993.	When pressed

f u r t h e r a s t o t h e n a t u r e o f t h e A p p l i c a t i o n , he

i n d i c a t e d t h e A p p l i c a t i o n would be brought by h i s son

Kerry,	b u t	t h a t h e may a l s o be	engaging	t h e S e r v i c e .
W e were	unable	t o ascertain	from	t h e above p r e c i s e l y

what A p p l i c a t i o n i s proposed t o be made by either t h e

bankrup t o r h i s son and, i n t h e c i rcums tances we

~ n d i c a t e d t o M r Parker t h a t so f a r a s we were

concerned the normal procedures were a p p l y i n g i n

r e l a t i o n t o h l s b a n k r u p t c y and t h a t h e should have h i s

S o l i c i t o r w r i t e t o u s .

During t h e cour se o f t h e t e l ephone d i s c u s s i o n , M r

Parker a l s o Ind i ca t ed h e may be in a p o s i t i o n t o pay

o u t h i s bankrup tcy . W e d i d n o t e x p l o r e t h i s a s p e c t

w i t h h im, b u t adv i s ed if he i s a b l e t o pay s u f f l c l e n t

to ensure a l l c r e d l t i s r e c e l v e d [ s i c ]

I t h i n k it means "creditors r e c e l v e d " . . . . .

100 c e n t s i n t h e d o l l a r and a l l expenses i n r e l a t i o n

t o t h e a d m i n i s t r a t i o n o f h i s e s t a t e a r e m e t , h e w i l l

o b t a i n an annulment .

I conclude my readlng o f t h e l e t t e r t h e r e . The r e s t o f lt 1s

formal	and	n o t nece s sary f o r p re sen t	purposes
I n f a c t , e x c e p t f o r t h e l e t t er o f 2	December	1 9 9 3 , Mr	Parker has

done no th lng i n r e l a t l o n t o h l s bankrup tcy o r towards ga ther ing

funds to pay out the creditors. Information given by the Offlclal Trustee's representatives todaydlscloses that creditors have proved in the estate in the sum of $15,814, but that legal fees and other matters have blown out the amount to $44,576.37. One of the items in that sum 1s some $7075 described as "possible

interest bearing claims", so perhaps that can be deleted. Other items ~nclude fees of varlous kinds that may require further consideration. Mr Parker sald that he was told by the Off~cial

Receiver's office last week that the amount required to pay out his Liabilities was $34,000 or $35,000.

Mr Parker rnformed me today that he recently received a letter from hls former wife's solicitor requiring hlm to attend before the Family Court on 21 September 1994, that is, last Wednesday, a week ago today. He said that he went to the Court on that day and obtalned an adjournment of the matter before the Court until Friday, that is, 23 September. On 23 September, he then being unwell and under treatment at the Prince Henry Hospital, Mrs Nicholls went to the Family Court ln his place before appearing

before me. It appears that Mrs Nicholls and Mr Parker must have

known that at least one of the things to be dealt with by the Family Court at that time was something further in relation to the Budgong property because Mrs Nicholls, claiming to be the present owner of that land, apparently told either the Judge or the sollcitor for the former wlfe of her interest and was referred to the duty sollcltor for advlce. Her statement today to thls Court was that the Judge referred her to the duty sollcltor, but that whlle she was seelng the sollcitor, the Judge went on with the application in her absence and, of course, in

the absence of Mr Parker.

Mr Butler-Bowdon's affidavit annexes a letter from the wife's

solicltor enclosing a copy of the orders made by the Family Court
on 23 September. They included orders that:

1. pursuant to section 84 of the Family Law Act, the Registrar of the Family Court be appointed to execute a transfer of the Budgong property from Mr Parker to his former wife, in compliance wlth the order of the Family Court of 9 May 1991

2.   pursuant to section 138 of the Real Property Act, the Registrar General cancel edition 2 of the certificate of title relevant to the Budgong property and issue a new edition

3 .    Mr Parker be restrained from occupying the Budgong property

4.   he be restrained from hindering his former wife or her agents from entering upon and remaining on the Budgong land and dealing with the land

Other orders were also made, including orders for costs. Mr Parker's evidence before this Court today is that he has never, at least not in recent years, occupled the Budgong property, that it belonged first to Mr Faulks and then to Mrs Nlcholls, and that although he knew that there were problems relating to its title

which arose from certaln caveats placed upon the title at earlier tlmes, he hlmself has not had anything to do with that property for some years. I have not seen "edition 2" of the certificate of title. It appears that Mr Faulks also turned up at the Family Court proceedings last week but he was not able to be heard either and that in the circumstances to whlch I have earlier adverted, Mrs Nicholls was denied the opportunity of placing before the Family Court her position in relation to the Budgong property.

If the matters alleged by Mr Parker and by Mrs Nicholls in court today are correct, the whole question of the tltles to both the Nowra property and the Budgong property is open to considerable doubt. For my present purposes it is only necessary to speak in detail of the Nowra property.

The Official Trustee gained title to the Nowra property by the Family Court order whlch set aside the transfer from Mr Parker to his son, an order whlch Mr Parker has sald was made in hls

On the other hand, despite his letter of 2 December 1993, it absence and without notice to hlm, and should not have been made. appears that either no appeal has ever been lodged in the Family Court or, if lodged, not prosecuted. As the setting aside of the transfers in relation to the Nowra property was done at the same time as the Budgong property and as the Budgong property was stlll belng discussed in the Family Court as late as last Friday, ~t would seem that nothlng at all was done to challenge the orders made by the Family Court on 15 March 1993, nor has Mr

Parker done anythlng at all to address the indebtedness in his estate.

There is one other factual matter that needs to be referred to. It seems to be true that the Nowra property was offered for auctlon on 17 September 1994 but was not sold because the reserve price was not reached. However, a M r and Mrs Robinson have negotiated wlth the agent and the Trustee subsequent to the sale and agreed to purchase the property for $86,000. Contracts have not yet been exchanged and a letter has been made available to me from solicitors in Nowra representing the Robinsons which states that thelr cllents are "anxious to proceed with the purchase" but "are prepared to wait on the property whether it is a short period of time or a longer period of time (several months) as long as they end up with the property at the end of the day". The letter goes on:

In the interim perlod they would "llke to know" that the property will be theirs when all matters are resolved.

Mr Parker produced today some evidence of valuation of the	property. A full valuation for borrowing purposes in 1990 valued
the property at $100,000. A real estate valuation of 24 April 1990 stated that the current market value of the property was $103,250. Another real estate valuation of 22 November 1991
stated that the real estate agents 'are presenting the property at $130,000". On the other hand, Mr Butler-Bowdon's affidavit annexes recent real estate valuatlons which suggest that the

value of the house is somewhere between $80,000 and $88,000. If they are correct, the $86,000 negotiated with the Robinsons is a perfectly proper and realistic figure although the material in

Mr Butler-Bowdon's affrdavlt suggests that the value is depressed

by the present dilapidated appearance of the house.

M r Parker said today that its condition at this time is due to

activities carried on at the house by real estate agents either trying to get in or trying to get out. It appears that some of Mr Parker's personal effects are within the house. He says that some items have been removed from there by his ex-wife. There are horses agisting on the property being fed by neighbours. He says that neighbours have seen the real estate agents damaging the house but of course the house has been unoccupied now for a very considerable time and the possibility of vandalism must be h1gh.

The Official Trustee opposes the continuation of the ex parte injunction but Mr Parker seeks its continuation. He said that

on hls son's behalf he has made application to at least two	potentral lenders, the Illawarra Credit Union who has previously
been a lender on the property, and the Greater Building Society which used to be known as the Greater Newcastle Building Society.
A letter from the Illawarra Credit Union in evldence discloses
that he has applied for finance there for $34,000 to repay the debt to the Official Trustee and makes clear that the credit union knows that he is a bankrupt. But its letter merely confirms that discussion has taken place in relation to a loan
to Kerry for this amount and says nothing about the chances of success of the appllcatlon. Mr Parker said that the Illawarra credlt Unlon wlll lend the money and wlll do so shortly, not least because of his previous good record in relation to the earlier loan.
The Greater Bullding Society has presented a letter addressed to Kerry Parker dated yesterday which says that it would be prepared to finance him for $35,000 based on security of the Nowra property but that the approval is dependent upon "satisfactory valuation and CRAA reports being available" and of course on a formal application. Counsel for the Official Trustee points out that the CRAA report would establish that Mr Parker was a bankrupt and that this would mean that a loan to him would never be approved. However, as the letter is addressed to Kerry Parker, it seems perfectly clear that the build~ng society knows that it is Kerry Parker who is doing the borrowing. He is not a bankrupt but is a horse trainer in active training -- in fact he is said to have horses entered into this year's Caulfield and
Melbourne Cups and one of them might only need to come second in
one of those races for all of this to go away.
Mr Parker believes he can conclude a loan in 10 days and
therefore requires a very limited extension of the injunction. The Trustee says that thls ought to be treated as a delaying tactic. The Trustee correctly points to the fact that Mr Parker has had now something approaching two and a half years since his bankruptcy to address his ~ndebtedness. He has certainly had more than a year to do something about it since he was informed that the Nowra property had vested in the Official Trustee. Yet although belng lnformed that the Trustee would move to sell the property if there was no other alternative, he did nothing. The Trustee therefore says that in those circumstances there ought to be entertained by the Court not the slightest confidence that a further delay and an extension of the injunction would be turned to any advantage.
For similar reasons, the Trustee reslsts a mediation suggested by me. My suggestion was done on the basis that it ought to embrace the situation in the Family Court, including the legitimacy of the Off icial Trustee's title to the Nowra property, but the Official Trustee says that if it is sent to mediation, virtually the same material will emerge as has emerged today and nothing will be advanced. Counsel spoke of the need for "evidence" to be brought by Mr Parker in t h ~ s connection. I can only observe that so far as concerns the assertion that the Family Court proceeded to invalidate the transfer of the Nowra
property to Kerry Parker without M r Parker's being notified or being present, not a lot of evidence would be necessary to add
to his sworn material today to support that contention. If that evidence is true, the transfer may very well be challengeable but it would presumably either have to be challenged in the Family Court or in the Equlty Court. If it was being done in this Court it would presumably have to be by a cross-vesting order and I am not sure that cross-vestlng such an appl~cation to the Court in its bankruptcy jurlsdlctlon would necessarily be appropriate.
The fear expressed by Mr Parker in his application for thls ~njunction that the property would or might be sold at an undervalue is not necessary, not even possible, for me to resolve at thls time. The respective valuations now cover quite a range although the higher valuations in the order of $100,000 and more are several years old and may no longer, in the present condition of the house, be valid. On the other hand, this is not really a clalm that the house will be sold at an undervalue. It is a claim for an injunction to permit time for Mr Parker to organise financing to pay out his creditors and the legitimate costs of the Official Trustee. The fear that a loan will not be given to him because he is a bankrupt can, I think, be answered by the fact, firstly, that Kerry Parker is the applicant and, second, that if the money is lent, the debts would be paid and Mr Parker would undoubtedly be able to apply for an annulment and in ordinary circumstances could expect to get it. In this event, shortly after the loan was obtained, he would be free to earn money and pay it off.
However, in all his affidavit material and in other material made available to me, he has described hlmself as a pensioner or
lnvalid pensioner and he presumably therefore has only a minlmal income. Clearly if his health is not given careful attention in comlng days and weeks, he wlll certainly not be able to work in any particularly remunerative activity of a predictable kind for some time. Moreover, it has rightly been pointed out that in a statement of financial circumstances presented to the Family Court on 13 November 1991, Mr Parker disclosed that the value of
the Nowra property was $87,000 whlch, having regard to the valuatlons which he then had available, leaves open some doubt about thelr size.
I should note in passing that ln the very same statement of financial circumstances, Mr Parker disclosed that the Budgong property was part of his real estate and was then valued at $22,000. He says that that was a mistake by the solicitor who completed the document because it had been a copy of some earlier document when he did own the Budgong property. But it is odd that thlrteen days later there was presumably registered a transfer of this property to Mr Faulks following a sale apparently effected a considerable time before for about the same sum. And when the property was sold to Mrs Nicholls at some later tlme, it was again for the same sum. It is unusual that a property retain precisely the same value over a period of many years. All these matters give rise to a serles of quandaries, some of them serious, about what ought now to be done.
The Trustee has a real fear, whlch I accept and recognise, that proceedings to delay the sale of the Nowra property are, if not
time wasting, then certainly not serious and unlikely to turn into anything of any substance. On the other hand, I cannot see the point of someone in fragile health taking the trouble to make such an application and come to the court, probably against medical advice, in the Interests of hls son who is not in the State at the present tlme, if the whole thlng was likely to be futile. It 1s obvlous that lf the loan does not come through in
a reasonably short time, the injunction will be dissolved and the property wlll be sold to the Robinsons.

Furthermore, the Robinsons do not appear to be in any great hurry. They certainly want to be assured that they are getting the property but they do not seem to be unwilling to wait some time for the situation to clarify. If Mr Parker seriously puts forward the matters that he has advocated today in relation to the ownership of both the Nowra property and of the Budgong property, it is obviously necessary that he get legal advice. The concept that he or hls son has paid both Brian Gillard and James Glllard to look lnto the Family Court's dealings with the properties but to do nothing and not even to be present at the Family Court when the matter was heard last Friday, requires some investigation. It may be completely untrue and there may be very good reasons why James Gillard did not attend the Family Court last Friday. There may also be very good reasons why none of the solicitors who have been involved in the matter has in fact moved to set aside the Famlly Court orders of 1993 in relation to both

properties. Certainly, in relation to the Budgong property if	the evidence given to me is correct, Mr Parker has no interest
to protect at all, and the appropriate applicants for relief would be either M r Faulks or Mrs Nlcholls or both. But so far as the Nowra property is concerned, the whole of the dealing with the property by the Offlcial Trustee, including all the steps taken to sell it and the costs lncurred in relation to the administration so far as they relate to that property, may very well be challengeable if the facts given to me are correct. Obviously it is not possible to resolve that matter today and no one asks that it be resolved.
Mr Parker was not cross-examined on his sworn evidence today but
as much of it was hearsay and of a very generalised nature, I draw no inference from that as this stage. It will suffice to say that the most urgent need is to pay out the creditors that have accumulated in the estate and then to annul the bankruptcy if that is appropriate. The only way that can be done in the short term is by Kerry Parker obtaining a loan from one of the lenders referred to as quickly as possible.
I am prepared in the circumstances to extend the injunction to permit that to be attempted but it should clearly be understood that this whole process has a very strict time limit and that further extension of the injunction not only should not be assumed but is quite unlikely unless there are extremely exigent circumstances made available by way of affidavit evidence to the Court on the next occasion. In view of the fact that Mr Parker
must obviously obtain medical treatment and that the Robinsons are not in a hurry to proceed, I am prepared to extend the
injunction up to and including a hearing at 9.30am on Tuesday 25 October.
If the loan has been obtained and the debts paid before that time, that date can be broken by a telephone call to my associate on [phone] or by fax to [phone]. In any such communication my associate may be advised what has been done in relation to the debts and in relation to the Trustee's other claims for reimbursement. In that regard Mr Parker is entitled to discuss with the Official Trustee's representative the quantum of the costs charged and the various items referred to and of course to obtain proof that they are properly payable in all circumstances. To the extent to which any dispute arises, the matter may be brought back to the Court as required in accordance with the provisions of the Act. I will reserve the issue of costs of the application for the injunction.
It may be noted that Mr Parker informed the Court today that so long as he needs to be close to medical treatment, he is living at his son's stables in Kembla Road, Kembla Grange. He does not have a telephone number at that address but his son has a mobile phone. Although his son is presently in Melbourne for the Spring Racing Carnival, the number of the mobile if not already known by the Official Trustee is to be given forthwith. Some other means of urgent contact with Mr Parker is desirable. Obviously if a neighbour's number can be given or a fax number which could
be accessed at short notice if necessary, it should be given, although such numbers should not be used unnecessarily. It is important that contact be able to be obtained.
It is also important that Mr Parker remain in contact with the Official Trustee's office during the period of the adjournment. It will be as certain as there are 24 hours in the day that if there has been no contact in the perlod between now and the resumed hearing, and the loan has not then been obtained, the injunction will not be continued further. That means that there must be contact at least once a week between now and the resumed date between Mr Parker or someone representing hlm and the Offlclal Trustee's office advising of the steps being taken and their progress. The Official Trustee is to be authorised to have direct access to the preferred lender or lenders on the property.
There will be liberty to the Officlal Trustee to apply to break the injunction and the adjournment, whlch may be made by telephone to me at the telephone number given for my associate. In the event that I am not immediately contactable on that number, other numbers wlll be available as to where I can be obtained and I will make orders on the telephone which will have the effect of deallng with this injunction as if it were being done in open court. I say that because for a cons~derable period of the lntervenlng time I wlll be sltting in courts outside of Sydney but that will not prevent me from dealing with this matter with the urgency which it commands.
Mr Parker, which illustrates the importance of the earlier orders
Such llberty to apply 1s to be exercised on 24 hours notice to
that a telephone or fax contact be provided. If such a contact is not provided, I may proceed with the exercise of the liberty to apply as if he had been informed, even if that has not taken place

I certify that t h ~ s and the