Re Ralph Smithers

[1991] FCA 931

JUDGMENT No. ....m-k,./ L

DICTION IN No VP 594 of 1991

V I C T OF THE STATE OF VICTORIA

JULPH SMITHERS

Debtor

EX PARTZ- DAVIDSON RUGHES ESTATES PTY LIMITED

Petitioning Creditor

m:	NORTHROP J
PLACE:	MELBOURNE
JXE:	13 NOVEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

This is the hearing of a petition for a sequestration order

against the estate of Ralph Smithers. Mr Smithers appeared

in person and is relying upon a notice of opposition to the
making of the order and has filed an affidavit in support of
the notice of opposition. The notice of intention to oppose
is a long document and has been read out in full by counsel

as "Davidson Hughes Estate Pty. Limited" purported

to sue a defendant described as "Vivid Dreams Pty.

Limited " .

Paragraph 1 of the Statement of Claim alleged that the Plaintiff "is and was at all relevant times a Company duly incorporated pursuant to the laws of the State of Victorian. That allegation was a palpable falsehood. The Plaintiff did not then and does not now exist.

Paragraph 2 of the Statement of Claim alleged that the Defendant "is and was at all relevant times a Company duly incorporated pursuant to the laws of the State of Victoria". That allegation was a palpable falsehood. The Defendant did not then and does not now exist.

Paragraph 13 of the Statement of Claim alleged that
"the Defendant is indebted to the Plaintiff in the
sum of $212,900.00.

for the judgment creditor. I do not propose to read it again
but it is to be taken as being set out in these reasons. It

is as follows:

"TAKE NOTICE that R a l ~ h IBrian) Sppithere intends to

oppose the petition of Davidson Hughes Estate Pty.
Limited, dated 28th June 1991, amended on 25th July 1991,
to substitute Davidson Hughes Estates Pty. Limited as

Judgment Creditor on the following grounds:-

1. By Writ of Summons issued out of the Supreme Court Suit No. 4443 of 1991, a Plaintiff describing itself

Particulars

One-tenth of the purchase price forfeited $212,900

Less: Paid	-5!ux!Q
$162,900"

That allegation was a palpable falsehood. The Defendant did not exist and could not contract with the Plaintiff. The Defendant had no standing at law to be sued.

Plaintiff did not exist and could not make a loss.

On 24th January 1991 a Summons was issued for respect of the alleged claim.

By Writ of Summons issued out of the Supreme Court	of Victoria at Melbourne on 15th February 1991, in
Suit No. 5050 of 1991, the Plaintiff purported to sue the Judgment Debtor as the alleged guarantor of the purported contract for sale, the subject of the claim by the Plaintiff against the Defendant. The purported contract for sale was null and void. Any purported guarantee by the Judgment Debtor of the performance by the Defendant of the purported contract for sale, was null and void.
By Affidavit of Bettina Louise Evert sworn on 2lst March 1991, Evert deposed as follows:-

"2. I searched the Corporate Affairs Office

seeking the registered office of the
Defendant. Pursuant to the company
extract received, the registered office of
the Defendant was at 572 Burwood Road

Hawthorn. Now produced and shown to me and marked "BLE1" is a true copy of the company extract."

Evert committed wilful and corrupt perjury and misled the Supreme Court as to the identity and registration of the Defendant.

8.    The Affidavit of Evert, by paragraph 12, went on to refer to the service of process in respect of Suit No. 5050 of 1991.

9.   On 7th April 1991, a Summons was issued for Judgment by the Plaintiff against the Judgment Debtor in respect of the alleged claim. On that day, Evert swore an affidavit deposing to the fact that the Judgment Debtor had not filed a defence in those proceedings.

10.  The summonses in respect of Suit No. 4443 of 1991 and Suit No. 5050 of 1991, were heard together. His Honour Mr Justice Marks made an Order against the putative Defendant. Judgment was entered against the Judgment Debtor for $176,074.82.

11.  The judgment entered against the Judgment Debtor is unenforceable against the Judgment Debtor.

Particulars

The Plaintiff does not exist at law and has no standing to enforce the judgment.

12.  The judgment entered against the Judgment Debtor is null and void.

Particulars

(a)	Magna Carta of 1215 conferred upon the Judgment Debtor an inalienable constitutional right as
follows :  -

"To no-one will we sell, to no-one will we

delay or deny right or justice."

(b) The Supreme Court of Victoria has no jurisdiction to violate that constitutional right of the Judgment Debtor. Any purported judgment entered in violation of that right would be ultra vires and, therefore, null and void.

(C) The purported judgment entered against the

Judgment Debtor violated that right and is null and void: -

-

-	the Plaintiff did not and does not exist
at law
=	the Defendant did not and does not exist
-	at law
-	the contract for sale was null and void
-
-
the guarantee was null and void the Plaintiff had no standing at law to
-	sue the Defendant or the Judgment Debtor
-	the Plaintiff had no standing at law to apply for the entry of judgment against
-	the Defendant or the Judgment Debtor
-	Judgment was entered against the Judgment Debtor in reliance upon perjured evidence.

13.  The Judgment Debtor is entitled to have the judgment set aside.

14.  The Bankruptcy Notice issued on 17th May 1991 and numbered B001351 of 1991 is unenforceable against the Judgment Debtor.

Particulars

(a)	The Judgment Creditor, as designated therein, does not exist at law.
(b)	The judgment referred to in the Notice is unenforceable against the Judgment Debtor, or alternatively,
(c)	The judgment referred to in the Notice is null and void.

15.  The Judgment Debtor has a cause of action against Bettina Louise Evert and the partners of Corrs' Australian Solicitors and its successor at law, Corrs Chambers Westgarth, for damages, as follows:-

(a) Abuse of the legal process;

(b) Penrerting the course of justice;
(c) Conspiracy, and

(d) Interference with economic relations.

The Judgment Debtor proposes to issue proceedings for ten million pounds Sterling.

16.

Creditor's Petition dated 28th June 1991, number P594 of 1991, as amended on 25th July 1991, in	The Judgment Debtor is entitled to have the 23rd July 1991, set aside upon each of the following
grounds :	-
(a)	The Bankruptcy Notice issued on 17th May 1991 cannot found a creditor's petition by the

Judgment Creditor or at all. The Bankruptcy

Notice is unenforceable.

(b)	The Bankruptcy Notice does not relate to any judgment entered in favour of the Judgment Creditor against the Judgment Debtor.
(c)	with the putative Bankruptcy Notice does not

The failure of the Judgment Debtor to comply

and cannot constitute an act of bankruptcy.

(d)	The Affidavit of Truth of Statements, sworn by Barry John Hamilton on 28th June 1991 is inadmissible. Hamilton committed wilful and corrupt perjury by deposing that he was a director of a non-existent company.
(e)	The affidavit of Truth of Statements, sworn by Barry John Hamilton on 28th June 1991, as amended by Stuart Bett on 25th July 1991 bears false witness as to the testimony of the deponent, is a contempt of Court and inadmissible.
(i) The deponent did not depose that he was a director of the Judgment Creditor.

(ii) The deponent did not depose that he was authorized by the Judgment Creditor to make the affidavit.

(iii)  The deponent did not depose that the

Judoment Debtor was indebted to the - ~ ~ Z S

Judgment creditor in-the sum of
$176,074.82.

(f)	The Affidavit Verifying Execution, sworn by Barry John Hamilton on 28th June 1991, is inadmissible. Hamilton committed wilful and corrupt perjury by:-
(i) Deposing that he was a director of a non- existent company.

(ii) Deposing that the common seal of the non- existent company was affixed to the Creditor's Petition.

(g) The Affidavit Verifying Execution, sworn by Barry John Hamilton on 28th June 1991, as amended by Stuart Bett on 25th July 1991 bears false witness as to the testimony of the deponent, is a contempt of Court and inadmissible.

Particulars

The deponent did not depose that he was a

(i)  director of the Judgment Creditor.

The deponent did not depose that he was

(ii)  authorised by the Judgment Creditor to make the affidavit.

(iii)  The deponent did not depose that he was

familiar with the common seal of the

Judgment Creditor.

(h)	The Creditor's Petition, as amended, does not disclose an act of bankruptcy by the Judgment Debtor, vis-a-vis the Judgment Creditor, and
does not disclose a cause of action by the Judgment Creditor against the Judgment Debtor.

(i)  Stuart Bett has, by amending the Creditor's Petition, committed a contempt of Court.

Particulars

(i)  Causing the Judgment Creditor to falsely claim that the Judgment Debtor was indebted to it in the sum of $176,074.82 pursuant to a judgment obtained in the Supreme Court on 30th April 1991.

(ii)  Causing the Judgment Creditor to falsely claim that the Judgment Debtor failed to comply with a bankruptcy notice, vis-a-

vis, the Judgment Creditor.

(j)	The Affidavit Verifying Paragraph 4 of Petition, sworn by Suzanne S m u t on 4th July
1991, is inadmissible because the searches
carried out are irrelevant to any questions in issue between the Judgment Creditor and the Judgment Debtor.
(k)	The Affidavit Verifying Paragraph 4 of Petition, sworn by Suzanne S m u t on 4th July 1991, as amended by Stuart Bett on 25th July 1991, bears false witness as to the testimony of the deponent, is a contempt of Court and inadmissible.

particulars

The deponent did not depose that she searched under a bankruptcy notice issued on the application of the Judgment Creditor against the Judgment Debtor and dated 17th May 1991.

17.  The Judgment Debtor is entitled to an order for

costs against the Judgment Creditor and the partners
of Corrs Chambers Westgarth.

Further Take Notice that the Judgment Debtor intends to rely upon the following additional grounds:-

18.  There is a principle of English Constitutional Law that the Parliament of Westminster cannot derogate from its own sovereignty.

19.  An enactment of the Parliament at Westminster purporting to create a sovereign State and confer legislative power upon the parliament thereof, would be ultra vires and, therefore, null and void.

20.  By an enactment entitled the Commonwealth of Australian Constitution Act (63 and 64 Victoria, Chapter 12), the Parliament at Westminster purported to create the Commonwealth of Australia as a sovereign State and confer legislative power upon the Parliament of the Commonwealth. The Commonwealth of Australia Constitution Act is null and void.

21. By an enactment entitled the Currency Act 1965 (Act No. 95, 1965), the Parliament of Australia purported to create the Australian dollar as the lawful

currency of the land. The Currency Act 1965 is null

and void. The "Australian dollar" is not a unit of

currency known to the law.

22. By an enactment entitled the Corporations Act 1989, the Parliament of Australia purported to make provision for the (national) incorporation and/or registration of companies as legal persons. The Corporations Act 1989 is null and void. The Judgment Creditor, ACN 005 752 901, is not a legal

person known to the law.

23.  The Judgment Debtor is entitled to have the Creditor's Petition struck out.

Particulars

(a)	The Petition seeks to rely upon a debt expressed in "Australian dollars".
(b)	The Judgment Creditor has no standing to prosecute the proceedings.

Further Take Notice as follows:-
(a) The Judgment Debtor requires discovery.

(b) The Judgment Debtor intends to interrogate.

(c)	The Judgment Debtor requires all questions of fact
in dispute between the parties to be tried by a jury. "

It can be said, in substance, that there are three main

matters raised by the notice of opposition. The first relates
to the existence of the judgment debt, the second relates to
the facts upon which the judgment debt was obtained and the
facts giving rise to that judgment, and the third relates to
what might be said to be constitutional aspects arising from
the powers of the Court at Westminster in England to create

Australia by legislation, and also, in relation to legislation

in Australia relating to currency. I can say at the outset

that there is nothing at all in that third ground of

opposition and it is rejected.

The facts giving rise to the-other two grounds are, in

themselves, not that complex. The judgment upon which the
bankruptcy notice is based is a judgment given in favour of
the plaintiff in a Supreme Court action in matter No. 5050 of

1991 on 30 April 1991. The plaintiff is named as Davidson

Hughes Estate Pty Limited and has a judgment in the sum of	$176,074.82 against the defendant, Ralph Smithers. That
judgment still stands and there has been no attempt to have it set aside. It appears that in reality the name of the company is Davidson Hughes Estates Pty Limited, the letter "S" not
appearing as part of the word "Estate" in the judgment. the judgment creditor, Davidson Hughes Estate Pty Limited and the petition, as issued and originally presented, had the same name. By order of a Deputy Registrar in Bankruptcy made on 23
July 1991, leave was given to the petitioning creditor to change the name to Davidson Hughes Estates Pty Limited and since then the necessary amendments have been made and all documents are now in the correct name.

The first objection by the debtor is that there is no

such entity as Davidson Hughes Estate Pty Limited, therefore the judgment itself is void and of no effect. This argument is rejected on two main grounds, first, as far as this Court is concerned, the judgment exists. The Court recognises that

judgment. Until set aside, it is treated as a valid judgment,

and it is not possible for this Court to determine whether in

fact it is void or not. In any event there is authority for

the proposition that the misnaming of a company of itself does
not lead to any invalidity. Acts taken by the company,
notwithstanding the misdescription, give rise to the company's
rights and obligations, which are unaffected by the
misdescription. Reference is made to F. Goldsmith

jsicklesmerel Ltd v Baxter (1970) Ch. 85, and Re Nth. Old.

Auto SDares Co. Ptv. Limited (1984) 2 Q.R. 241. This Court,
behind a judgment upon which a bankruptcy notice is founded except where there is evidence of fraud, collusion or miscarriage of justice. In the present case there is no evidence of any of those matters. Attempts were made to show that the judgment debt was based upon a contract of guarantee which was based upon a contract between Davidson Hughes Estate	in the exercise of jurisdiction in bankruptcy, will not go that this is a defect itself, since each is wrongly named, in
one case the "S" was not included, in the other case an "S" was included, and that this vitiated the whole of the judgment. That is not sufficient of itself to suggest fraud,
collusion or miscarriage of justice. In those circumstances the Court must accept the existence of the judgment as it
stands and cannot go behind it. The mere fact also that a
judgment may be irregular as a matter of fact does not of itself render that judgement of no effect. This is made clear
by what was said by Gibbs J in the case of Re Ferauson: Ex
parte E.N. Thorne & CO Ptv Ltd lin Lia.1 (1969) 14 FLR 311 at
320, and I set out the passage which was read out in Court:

"Even if the illegality prevented the company from
recovering the money as money lent, and the company's
only right against the debtor were based on the breach of
a fiduciary duty recognised by courts of equity, it would
not follow that the present petition against the debtor
must fail. The reason why a court having jurisdiction in

bankruptcy will go behind a judgment has been discussed

in a number of cases, of which Corney v (1951) 84

CLR 343 is perhaps the most important. The court will go
behind the judgment for the purpose of considering
whether it was founded on a real debt. The fact that the
judgment may be irregular or wrong in form is no

sufficient reason for dismissing the petition (see Jn re

Beauchamp [l9041 1 KB 572, at p581, and see also &g

Bedford: Ex Darte H.C. Sleiah loueenslandl Ptv Ltd (1967) company for the amount which it claimed, even if the form of the action and the form of the judgment should have been different. However, once the existence of the debt

9 FLR 497, at p499. The object of going behind a
judgment is not to inquire whether the proper procedure
was followed to obtain it, but to determine whether the
debtor in reality owed to the creditor the moneys which
the judgment held that he owed. Once it is found that
the debtor was really indebted to the petitioning
creditor in the amount for which judgment was given, any
irregularities of procedure, however important they may
have been had they been relied upon in the proceedings
in which the judgment was obtained, cease to be of
importance. I say nothing as to the case in which,
although the existence of a real debt is established, it
is shown that the court which gave the judgment had no
jurisdiction to pronounce it. The Supreme Court of New

is found, it cannot be sufficient cause for refusing to
make a sequestration order that a judgment for the
correct amount, given by a court having jurisdiction, was
obtained by the wrong procedure or given in the wrong
form. It therefore does not become necessary finally to

decide whether the debtor was liable at common law as

well as in equity. The important thing is that he was

and remains indebted to the company in the amount for

which judgment was given."

It is thus necessary to turn to the question of whether

the bankruptcy notice is bad or not, because the bankruptcy
notice mis-describes the creditor in that the demand is to pay

the judgment creditor in its name, Davidson Hughes Estate Pty

Limited. A mis-description of a creditor in a bankruptcy

notice only invalidates the notice where the mis-description

is such as to be capable of misleading the debtor in the

circumstances of the case. This is made clear by what was

said by Toohey J in Re Crisafulli: Ex Darte National

~omercial Bankina Cor~oration of Australia Ltd (1985) 11 FCR

at 272 at 274-275. The question is not whether, in this case,
the debtor was misled in fact, but whether the bankruptcy
notice was capable of misleading the debtor to whom the notice

is directed. The whole passage, which was read out during the

course of submissions, is as follows:

question. That is "an impermissible field of inquiry";
it is "the capacity of the bankruptcy notice to mislead
the debtor to whom the notice is directed that matters,
not some hypothetical debtor" (Re Wirnborne at 500). The
judgment creditor has at all material times occupied the
same address. During the relevant period it has
undergone one change of name, from National Commercial

"Whether Mr Crisafulli was misled in fact is not the Australia Bank Ltd. In a further affidavit, Mr Peterson deposed to the fact that the change of name of the petitioning creditor "was notoriously well known throughout Australia because of the wide media coverage at the timen. He further deposed: "As a result notice

these proceedings". Whether notice was given is not the
question but in any event I am of the opinion that Mr

of the change would have been given to the debtor in conclusion being at best an inference from the fact that there had been publicity surrounding the change of name.

debtor had dealt with a company by a particular name and
then received a bankruptcy notice in a name that was
different. Compare Re Howes: Ex uarte Huahes [l8921 2 QB
628. Nor was the notice defective in its contents. I stress again that this is not a case in which the The distinction between a notice being misleading because of its contents and a notice being misleading because of events that have occurred has not, I think, always been

maintained. In this present case the possibility of the

debtor being misled could arise only if and when he
attempted to take some action pursuant to the bankruptcy
notice. In my opinion, given the continued occupancy of
the judgment creditor at the same address, the similarity
in its name before and after the change and the publicity
surrounding the change of names, this is not a case in
which the debtor was likely to be misled. In my view,
had the question arisen, it is not likely that the debtor
would have been in any doubt as to the identify of the
company with which he was to deal. If, on receipt of the
bankruptcy notice, he had sought to deal with the
judgment creditor by letter, telephone or personal
approach, there is no reason to think that his use of the
company's former name would have presented an obstacle or

led to any confusion on his part. In other words, I do

not think that the bankruptcy notice was capable of
misleading this debtor in the particular circumstances of
this case.

This is not a case for the application of s306 of the

W r u u t c v Act 1966 (Cth); there was not a formal defect

or an irregularity in the bankruptcy notice because it
was issued in the name of the company that obtained the
judgment against Mr Crisafulli and was otherwise in

accordance with 641 of the Act. Subsection (5) of s65 of

the Companies Code provides that a change of name of a
company does not operate

"(a) ...

(b)	to prejudice or affect the identity of the body corporate constituted by the company or its continuity as a body corporate
(C) ..	.
(d)	to render defective any legal proceedings by or against the company."

In my view there is no warrant for setting aside the bankruptcy notice. The judgment creditor has established an act of bankruptcy on the part of the debtor and has otherwise established its entitlement to a sequestration order though it needs leave to amend its name in the petition to the name it now possesses."

In the present case, having regard to the fact that the only mis-description in name was the absence of the "S", the bankruptcy notice could not, in the circumstances of this

case, mislead the debtor or have the capacity to mislead the

debtor as to who the creditor was. In these circumstances the

submission based upon the defect in the name of the judgment
creditor in the bankruptcy notice is rejected.

For these reasons, the court rejects the submissions made

by Mr Smithers, based upon his notice of opposition to the
making of the sequestration order.

Coming to the petition then, I am satisfied that the

debtor on 19 June 1991 committed the act of bankruptcy alleged in the petition as amended. I am satisfied with the proof of the matters of which 852 (1) of the Bankruptcy Act 1966

requires proof. I make a sequestration order against the
estate of the debtor.	I order that costs, including any
reserved costs, be taxed and paid according to the Act.	I

direct that a draft of this order be delivered to the
Registrar within 7 days in accordance with Rule 124 (2) of the

Bankruptcy Rules.

I certify that this and the preceding twelve (12) pages are a
true copy of the Ex Tempore Reasons for Judgment of the

Honourable Mr Justice R.M. Northrop.

Associate: r	1	&
Date: 6