Re Sabri, J.L. Ex parte Equus Financial Services Ltd v Sabri, J. L.
[1993] FCA 923
•30 Nov 1993
JUDGMENT No. ...?l. ! ...l ,..2..?.., ,
IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY )
BANKRUPTCY DIVISION
)
No. VX 497 of 1992
--..
Re:JAMES LYFTI SABRI
A Debtor
EX parte: EQUUS FINANCIAL SERVICES LIMITED
Applicant
JAMES LYFTI SABRI
First Respondent
TIM ARTHUR JONAS
Second Respondent
Coram: Olney J
Place : Melbourne
a: 30 November 1993
13 D E C 1993
MINUTE OF ORDER FEDERAL COURT OF AUSlRAlJA
THE COURT ORDERS THAT: PRINCIPAL
1. The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in rule
124 of the Bankruptcy Rules.
2. The applicant pay the costs of the debtor to be taxed as one bill with the costs ordered in VX 496 of 1992.
3. The applicant pay the costs of the trustee to be taxed as one bill with the costs ordered in VX 496 of 1992.
IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY )
BANKRUPTCY DIVISION ) No. VX 497 of 1992
Re:JAMES LYFTI SABRI
A Debtor
EX part€?: E Q W S FINANCIAL SERVICES LIMITED
Applicant
JAMES LYFTI SABRI
First Respondent
TIM ARTHUR JONAS
Second Respondent
Coram: Olney J Place: Melbourne Date: 30 November 1993
REASONS FOR DECISION
INTRODUCTION
matter VX496 of 1992, has to do with the affairs of Mr & Mrs This application, together with a similar application in Sabri who, on 8 November 1992, signed separate authorities pursuant to s 188(1) of the Bankruptcy Act authorising the second respondent, a registered trustee, to call a meeting of their respective creditors and to take over the control of their property.
The affairs of the two debtors are closely linked but there
are a few minor differences. It will however be convenient to deal with matters arising in respect of Mr Sabri in sola at ion, notwithstanding that the several meetings of creditors to which reference will be made hereunder were in
fact concurrent meetings of the creditors of each of thedebtors. For the most part the conclusions I have arrived at
in relation to Mr Sabri's affairs are equally applicable in
the case of Mrs Sabri and are adopted in separate reasons
published in matter VX496 of 1992.THE AUTHORITY TO CALL A MEETING OF CREDITORS On the same day as he signed the authority pursuant to
s 188(1), Mr Sabri (hereafter referred to as the debtor) gave
to the second respondent (hereafter in this portion of these
reasons referred to as the controlling trustee) a statement of
his affairs and a statement indicating how he proposed that
his affairs be dealt with under Part X of the Bankruptcy Act
(the debtor's proposal). The authority became effective for
the purposes of Part X on 9 November 1992 when the controlling
trustee consented in writing to exercise the powers conferred
by the authority (S 188(2)).
The debtor's proposal was that he be required to execute a deed of arrangement which would include the following terms:
1. The payment of the sum of $60,000 wrthrn seven days from the executron of the deed by the debtor and the trustee.
2. At the date of the execution of the Deed the assignment of all of my divisible property wlthin the meanrng of Section 116 of the Bankruptcy Act 1966.
3. Upon the completron of the terms of the Deed I am to be released from all provable debts.
4. I will procure the agreement of the followmg credrtors not to
submlt claims ln the event that a Deed of Arrangement be
executed by me.
- Bitona Pty Ltd
Hakl Sabri- Hysen Sali - Saml & Mary Karaflll
The debtor's statement of affairs discloses 25 unsecured
creditors representing liabilities of $4,338,490. In
addition there are liabilities of $10,963 being the excess of
hire purchase commitments over the value of the property
hired. The only assets disclosed are $150 cash in hand and $5,000 representing half the value of household furniture.
The net deficiency is $4,344,303. The statement also
discloses contingent liabilities to 18 creditors totalling
$8,942,612. One of the contingent creditors is Equus
Financial Services (Equus) in respect of which an estimated contingent deficiency of $lm is shown in respect of a
guarantee.
In the statement of affalrs the four creditors referred to in paragraph 4 of the debtor's proposal are shown as unsecured creditors in respect of a total sum of $1,576,170.
As required by s 189A the controlling trustee prepared a report in which he summarised and commented on the debtor's affairs as disclosed in the statement of affairs
- 4 -
(S 189A(2)(a)) and set out other information relevant to those
affairs (S 189A(2)(b)). As required by s 189A(3), he stated
his opinion as to whether it would be in the best interest of
the creditors to deal wlth the debtor's affairs under Part X
in the manner indicated in the debtor's proposal. His
opinion was that it would be in the creditors' best interests to do so. Without going into detail, it 1s falr to say that this opinion was in part based upon a comparison of the likely
benefit to creditors in the event of the debtor being made
bankrupt with the likely benefit under the debtor's proposal.
In elther event the return would be minlmal, but under Part X
the likely dividend was thought to be slightly greater and the
payment would be made sooner.
THE FIRST MEETING (11 December 1992)
A meetlng of the creditors was duly convened and held on 11
December 1992. The second respondent was elected chairman and filled that role at the subsequent adjournments. (In relation to the various meetings of creditors, the second respondent will hereafter be referred to as the chairman). A substantial part of the meeting was taken up with a
consideration of the various proxies lodged by creditors.
In a number of cases the chairman indicated that he would not
be allowing the proxy for voting purposes at that stage and it
was obvious that the meeting would have to be adlourned to
permlt further inquiries to be made. Equus lodged a proxy and claimed to be entitled to vote for an amount of
$809,992.11. The mlnutes of the meeting record as follows concerning the Equus proxy:
Proxy from Equus Financial Services In favour of Mr Nick Russo for an amount of $809,992.11 with the Instruction to vote against the proposal. The Chairman advised that the proxy was unsupported at this stage, and that he would be not allowlng ~t for voting purposes at thrs point in time. Mr Nrck Ruaso advrsed that he had in his
possession further materlal substant~at~ng h ~ s proxy form which he
was willing to provlde. The Cha~rman advised that assumlng the meeting was to be adlourned, then the further substant~ation could be provided prior to the adjourned rneet~ng.
The meeting did not consider the debtor's proposal and by
resolution of the creditors it was adjourned until 28 January
1993.
THE SECOND MEETING 128 Januarv 1993)
At the resumption of the meeting of creditors on 28 January
1993, when considering the proxies, the chairman again
indicated that he would not be admitting Equus to vote at that
stage. Although the minutes do not expressly refer to the
fact, there was pending in the Supreme Court of Victoria at
the time, and had been for some time, an action in which Equuswas suing the debtor and others in respect of various claims and in which the debtor had denied liability and filed a counter-claim. The amount sought to be recovered against the debtor in the Supreme Court action was the same liability for which Equus claimed to prove as a creditor at the meeting of creditors. Equus' claim to vote was the subject of detailed
discussion. The minutes record as follows:
The Chairman advlsed that the Equus debt had previously not been admitted for votrng purposes at the orlglnal meeting of creditors on 11 December 1992, as there was considerable doubt as to what amount, if any, they should be ent~tled to vote for. The Chalrman further advlsed that he had engaged the servrces of Mr Peter Agardy, a sollcltor with the legal f ~ r m Cornwall Stodart, to provrde h ~ m wrth some advice in regard to the Equus clalm. The Chairman then read the relevant paragraph of Mr Agardy's letter of advlce, whlch rn summary suggested that Equus should not be permitted to vote, although the vlew was not expressed with any confidence.
The Charrman then lnvited Mr Agardy to comment further on the matter. Mr Agardy advlsed that as the case was set down for hearlng in the near future, then he was very weary about golng into great detarl as to the relatlve merits of each sldes case. Mr Agardy provided a very brlef summary of the nature of the case that had been in progress for the last two years.
Mr Agardy explained that in determrnlng whether the Equus debt should be categorised as contrngent, what he was confronted with was two
conflicting ludgments of slngle ~udges of the Federal Court, whlch
made the task of recommending whether or not to admit the Equus debt
that much more dlfflcult.The Chalrman advlsed that the Importance of this issue could clearly be viewed from the schedule that had been handed out to creditors. The Chalrman advlsed that should he admit the Equus proxy to vote for the full amount claimed, then the proposal would fall by .l8 of one percent. Alternatrvely, should he reject the Equus debt for voting purposes rn full, then the proposal would succeed by a comfortable margin.
The chairman suggested that the meeting be further adjourned until 23 March 1993 and the creditors so resolved.
THE THIRD MEETING (23 March 19931
The meeting of creditors resumed on 23 March 1993 and was relatively brief.
Set out below are the relevant portions of the mlnutes.
First, from the portion of the minutes headed "Introduction":
The Chalrman further explained that the first adlourned meeting of creditors held 28 January 1993 was adlourned to enable the Charrman to seek further evidence in relation to two proxles lodged at the meetlng. The Chairman then advlsed that in relatlon to the first of these proxles, belng from a Mr Ellas Mazloum for an amount of $368,400, he had examined the substantlatlon provided, and would now be admitting this debt for votlng purposes.
The Chalrman further advlsed the meetlng that the second proxy which he had not as yet admltted for voting purposes was that from Equus Financial Serv~ces. The Chairman confirmed his statement from the previous meeting that he had received legal advlce from Mr Peter Agardy from Cornwall Stodart solrcltors that he should not admit the proxy for votlng purposes. The Chalrman then explained that at the prevlous meeting of credrtors, lt was anticipated that the issue would be declded at a court case between Equus and the debtors, whlch was set down for hear~ng on 16 February 1993. The case was subsequently adjourned until 21 April 1993.
and second, from the portion headed "Advice re Equus Debt":
The Chairman advised that he had recelved Counsel's advlce on the lssue of whether he should admit the proxy from Equus for voting purposes.
The Chairman then provided a summary of Counsel's advlce.
The Chairman then explained that Counsel's advlce to him indicated that Equus should be afforded an opportunity to produce further evldence which may support thelr claim.
Equus have subsequently requested that they be glven thls opportunity.
The chairman indicated that he intended exercising his power pursuant to s 201 to adjourn the meeting to allow Equus to provide additional documentation supporting its claim if it saw fit.
The meeting was adjourned to 6 April 1993.
THE FOURTH MEETING ( 6 A~ril 1993) Upon resumption of the meeting of creditors on 6 April 1993
the chairman indicated that there were three matters that
should be dealt wlth. The first had to do with the entitlement of Equus to vote. The other two were unrelated
to Equus' claim and are not relevant to these proceedings.
The relevant portions of the mlnutes referring to the
discussion concerning Equus's c l a m to vote are as follows:
The Charrman explained that the Equus debt had been lrsted as a
contingent credrtor on the Statements of Affalrs of the debtors.The Charrman further explalned that he was aware at the tune of preparing hls Controllrng Trustee report, that lrtrgatlon was on foot between the debtors and Equus as to whether a debt actually existed.
The Charrman explained that the Act states that "a credrtor rs not entrtled to vote in respect of an unliquidated or cont~ngent debt or a debt the value which rs unascertalned".
The Chalrman advlsed the meetrng that he had not permitted Equus to vote at the origlnal meetrng of creditors, but had undertaken at that time to obtaln further advice as to whether or not Equus should be entrtled to vote. The Charrman explarned that he had requested the advlce of Mr Peter Agardy, a partner at the firm of sollcltors Cornwall Stodart. Mr Agardy had, prlor to the second meetlng of creditors, advised the Chalrman that on the balance of probabrlitles he should not admlt Equus to vote at that meetrng. The Chairman further advlsed that Mr Agardy had attended the second meetlng of credltors and addressed those present on the relevant issues.
The Chairman then advrsed that the second meetlng of credrtors was further "adjourned for a consrderable length of tlme on the basls that the lltrgatlon between the debtors and Equus was due to be heard ln late February and that as such the trlal ludge may make the
Chairman's decrs~on for hlm". The Chalrman explained that the court hearlng had been subsequently adlourned and that as a result he had been required to obtain Counsel's advrce on the matter. The Chalrman explained that the advice, whrch he had at the previous adlourned meetlng of credrtors, stated that the Chairman should only admlt Equus to vote for the amount of approximately $48,000 arrslng out of a lease agreement.
The Chairman then explained that the advice further stated that ln addition, he should afford Equus the opportunrty to produce add~t~onal information that could be submitted to Counsel that may cause Counsel to arrive at a different declslon.
The Charrman advlsed that a further subm~ssion had been provlded by Equus and that thls had been forwarded on to Counsel.
The Chalrman read to the meeting of credltors a passage from the second advrce recelved from Counsel whlch he consldered to be
approprlate as follows: "After peruslng the material subm~tted by Gadens Rldgeway on behalf of Equus I see no reason to alter the oplnlon set out in my flrst memorandum".
Mrs Susan Fledler asked whether the advice from Counsel expanded on thrs, and also requested what further documentatron had been provlded by Equus.
The Chairman advised that Mr Steven Metter, representing Equus, had been provlded at the prevrous meeting of creditors wrth a list of information that Counsel requ~red in order to reconsrder hls opinion.
Mr Steven Metter explalned that Gadens Ridgeway, sollcrtors for Equus, had provlded the Chalrman wlth all evldence that they consldered to be approprlate rn deciding the entrtlement of Equus to
vote. Mr Metter explalned to the Chalrman that, "You have all of the informatron at this polnt rn tune, and there is no further information that Equus can supply you with.
I n o u r s o l r c r t o r s oprn lon r t 1s sufficient information t o admit
t h e d e b t , whereas l n your s o l i c i t o r s op in ion it is not" .
M r M e t t e r t h e n e x p l a m e d t h a t he wrshed t o p u t t h e meeting on n o t i c e
t h a t Equus would l ~ t l g a t e by app ly lng t o t h e Supreme Court f o r an
m j u n c t i o n . M r Metter f u r t h e r exp la rned t h a t Equus would a l s o be
s eek lng t o appo ln t a L rqu lda to r t o J a r r a h Holdings P ty L td ( " J a r r a h " ) .
M r s Susan F e l d l e r exp l a ined t h a t J a r r a h had a l r e a d y been p r ev rous ly wound up.
The Chalrman a g a m e x p l a ~ n e d t h a t lt w a s t h e r i g h t of any c r e d r t o r t o
app ly t o t h e c o u r t l £ t h e y f e l t t h e r r t r e a t m e n t was u n j u s t . The
Chalrman f u r t h e r explained t h a t ,
" I have gone th rough t h e p roce s se s t h a t I have o u t l m e d and I
do n o t c o n s i d e r t h a t a Chairman could do any more t h a n I have
done. I have r e l l e d upon t h e independent a d v i c e s o f my
s o l l c ~ t o r as w e l l a s two s e p a r a t e submissions from Counsel who
rs e x p e r ~ e n c e d i n t h e s e ma t t e r s " .
After some further discussion relating to the cost of obtaining counsel's advice, the chairman is recorded as saying:
I do no t b e l l e v e t h a t any Chairman could do more t h a n t h e p r o c e s s
t h a t I have done i n r e l a t i o n t o t h e Equus deb t . Accordingly my de t e rmina t i on i n r e l a t i o n t o t h e r i g h t o f Equus t o v o t e 1s t h a t t h e y
should be e n t i t l e d t o v o t e f o r t h e amount of $48,914.35, be ing t h e
h ighe r o f t h e two a l t e r n a t i v e f i g u r e s recommended by Counsel.
Ultimately it was moved and seconded:
t h a t t h e d e b t o r James L y f t i Sab r i , b e r e q u i r e d t o execu t e a deed of
arrangement whlch w l l l rnc lude t h o s e terms r e f e r r e d t o i n t h e d e b t o r s
p roposa l d a t e d 8 November 1992 submi t ted pursuan t t o s e c t i o n
1 8 8 ( 2 ) ( c ) o f t h e Bankruptcy Act.
The motion was declared carried there being a majority in
number and a three-fourths majority in value voting in favour.
The total value of the claims of creditors votlng for the
motlon was $7,341,662.69 with $1,765,742.18 against. Equus
is recorded as having voted against the motion in respect of
the sum of $48,914.35. In percentage terms 80.61% in value
of the creditors voted in favour of the motion. In some of
the documents filed in these proceedings it is said that the
value of the creditors supporting the motion was 78.14% but
that percentage does not accord with the value of the
creditors recorded as voting for or against the motion.
Had Equus been admitted to vote in respect of a sum of or exceeding $730,393.07 (assuming all other creditors voted in the same way) the motion would not have achleved the required
75% majority in value in favour.
Further motions were carried at the meeting appointing the chairman as trustee of the deed of arrangement and fixlng his
remuneration. (The second respondent is hereafter referred
to as the trustee).
The debtor and the trustee executed a deed of arrangement in accordance with the terms of the resolution on 20 April 1993 and subsequently the money payable thereunder was paid to the trustee.
THE APPLICATION
Equus commenced the present proceedings on 22 July 1993 when
it filed an application seeklng the following rellef:
1. An rnterlocutory in~unction pending the hearlng and determination of t h ~ s matter or further order restraining the second respondent by himself, his agents, servants or howsoever from d~str~buting to any of the credrtors of the flrst respondent any distribution or dividend pursuant to the
provisions of Deed of Arrangement dated 20 April 1993 between
the first and second respondent;
2 . An order sett~ng aside the declslon of the second respondent in whlch he refused the applicant the rlght to vote at a meeting of the creditors of the first respondent held 6 Aprll 1993;
3. Declarations that the Deed of Arrangement entered into by the
first respondent as debtor wlth the second respondent as trustee on 20 Aprll 1993 pursuant to Part X of the Bankruptcy Act 1966 1s void;
4. Sequestrat~on orders against the estate of the flrst respondent.
No grounds for relief were stated in the application.
On 28 July 1993 an order was made by consent whereby the trustee undertook not to make any distribution pursuant to the deed of arrangement pending the hearing and determination of these proceedings.
The application has been amended on two occasions and at the time the matter was before the Court the relief sought and the grounds for seeking relief were as follows:
1. An interlocutory lnlunctlon pending the hearing and
determination of this matter or further order restraining the
second respondent by himself, his agents, servants or howsoever from distributing to any of the credltors of the first respondent any distribution or dlvldend pursuant to the provisions of Deed of Arrangement dated 20 Apr~l 1993 between the first and second respondent;
2. An order pursuant to sectlon 212A of the Bankruptcy Act 1966 ("the Act") settlng aside the dec~slon of the second respondent in whlch he refused the applicant the rlght to vote at a meeting of the credltors of the first respondent held 6 Aprll 1993;
2A.
An order pursuant to sectlon 222(2) of the Act declaring that the arrangement the sublect of a speclal resolution passed at a meet~ng of the creditors of the flrst respondent on 6 April 1993 1s void;
3. Alternatively, a declaration that the Deed of Arrangement entered lnto by the first respondent as debtor with the second respondent as trustee on 20 April 1993 pursuant to Part X of the Bankruptcy Act 1s void;
4.
A Sequestration order against the estate of the flrst respondent.
The grounds relled upon in relatlon to the relief sought are:
1. The applicant is and was at all materlal times a credltor of the flrst respondent;
2. The second respondent at a meetlng of the cred~tors of the f~rst respondent held 6 Aprll 1993 refused to allow the applicant to vote ln respect of the speclal resolution when ~ t s
vote would have influenced the outcome;
3. The first respondent omitted a materlal partrcular from his Statement of Affalrs, namely, that the applicant was an unsecured cred~tor;
4. The frrst respondent rncluded an incorrect and materral
particular rn his Statement of Affarrs, namely, that the
applicant was a contrngent creditor;
4A.
The second respondent dld not disclose in h ~ s Report pursuant to section 189A or at all:
(a) the full facts and circumstances of a loan from Provrdent Flnance Corporatron Ltd or its assignment to Louls Mazloum; (b) the existence of a creditor's petltlon agalnst the debtor; (c) the fact that is was llkely that a costs order would be made affecting the amount available for distribution to the credltors. 5. The Deed of Arrangement is not rn the mterest of creditors generally in that it will produce a dlvrdend whlch will be elther non-existent or of inslgn~flcant value by reason of the fact that the amount proposed to be distributed to cred~tors will be extlngurshed in whole or substantial part by the costs
of the second respondent.
The debtor caused an amended notice of intention to appear to be filed on 21 September 1993. Although described as an amended notice it appears to be the only notice filed by the debtor, and it was filed in response to an amended application flled by Equus on 10 September 1993. The application was further amended on 29 September 1993 by the inclusion of
paragraph 4A of the grounds but the debtor did not respond by way of a further notice. The notice filed on 10 September 1993 sets out the debtor's grounds for opposing the
application as follows:
1. The second respondent correctly refused the Applicant the rlght to vote at a meeting of credltors of the first Respondent held 6 Aprll, 1993 and the declslon should not be set aside pursuant to Section 212A of the Bankruptcy Act 1966.
2. There rs no relevant doubt as to whether the Deed of Arrangement entered lnto by the f~rst Respondent as debtor wrth the second respondent as Trustee on 20 Aprrl, 1933 was entered Into in accordance wlth Part X of the Bankruptcy Act 1966 and therefore the Court has no jurisdlctlon to adjudicate on Ground 2A of the amended application.
3.
The Deed of Arrangement was entered into ln accordance w ~ t h the provisions of Part X of the Bankruptcy Act 1966.
4. Alternatively, if the Deed were not entered rnto in accordance with the provisions of Part X of the Bankruptcy Act 1966 (which is denied) the Court should exerclse its discretion under Sectlon 222(2) of the Bankruptcy Act 1966 not to declare the Deed of Arrangement vold.
5. The f~rst Respondent drd not omlt a materlal partlcular or
include an lncorrect and material partlcular in his statement
of affairs.6.
Alternat~vely to paragraph 4, if the first Respondent did so omlt a materlal particular or lnclude an lncorrect and materlal particular ln hls statement of affalrs:
(a)
it is not in the best Interests of the creditors that the Deed be declared void;
(b) there has not been such a fundamental breach of the requirements of the Bankruptcy Act 1966 to warrant the
Court declaring the Deed to be void;
(c)
the Court should otherwise exercise lts dlscretlonary powers under Sectlon 222(4) of the Bankruptcy Act 1966 not to declare the Deed vold;
7. Further, there is sufficient cause that a sequestrat~on order should not be made.
Before proceeding to deal with the evidence adduced in support
of the application there are two other matters to which
reference should be made in order to provide the context in
which the issues raised in the amended application were
argued.
THE BANKRUPTCY PETITION
First there is the matter of a bankruptcy petition issued
against the debtor. The relevant court file shows that on 21
January 1992 provident Finance Corporation Pty Ltd (Provident) obtained judgment against the debtor for $137,976 and that on 11 February 1992 Provident caused a bankruptcy notice to be issued in which the sum of $140,562 was claimed. The bankruptcy notice was served on 21 February 1992 and a
creditor's petition presented on 13 April 1992, and served on
11 May 1992. Upon the return of the petition on 23 June 1992
ANZ Banking Group and Countrywide Building Society appeared as
supporting creditors. The petitioning creditor sought to
withdraw the petition but the matter was adjourned to 14 July
1992 to enable ANZ Banklng Group to make appllcatlon to be
substituted as petitioning creditor. Such an application was
filed on 8 July 1992 and an order for substitution made on 14
July 1992 on which occasion the hearing of the petition was
adjourned by consent to 9 November 1992.
The debtor havlng signed an authority pursuant to s 188 on 8
November 1992, the hearing of the petltion was adjourned first
to 15 December 1992 and subsequently from time to time to 16
February 1993, 29 March 1993 and 8 April 1993. On the latter
date (being two days after the creditors had voted in favour
of the Part X proposal) the petition was dismissed by consent
and the following order for costs was made:
The pet~tioning creditor's costs and the supporting creditor's costs
taxed and paid out of the debtor's deed of arrangement ln proceedings mcluding reserved costs of and incidental to the petltlon are to be number VX 497/92 with the same priority as ~f a eequestration order
had been made.
The costs of the substituted petitioning creditor have since been taxed and allowed in the sum of $2,587.85. The
supporting creditor's costs have been taxed and allowed in
the sum of $2,936.50.
THE SUPREME COURT ACTION
The second matter to which some reference must be made is the
Supreme Court action which has previously been adverted to.
At the time of the first adjourned meetlng of creditors on 28
January 1993 it was anticipated that the trial would commence
on 16 February 1993, but the matter was not reached and was
stoodover for hearing on 21 April 1993. In the intervening
period the creditors had approved the debtor's proposal and
on 20 April 1993 the debtor and the trustee executed the deed
of arrangement. When the trial commenced on the following
day there was some debate as to whether the proceedings should continue against the debtor and after hearing argument the judge gave the plaintiff (Equus) leave pursuant to s 233 to proceed against the debtor to judgment but no further. The trial continued for five hearing days. On the evening of the fifth day, the parties agreed to a compromise and on 28 April
1993 judgment was entered by consent against six of the eight
defendants (including the debtor) in the sum of $800,000
inclusive of both interest and costs.
THE AFFIDAVIT EVIDENCE
I now turn to deal with the affidavit evidence tendered in
support of and opposition to the present application. In so
doing I do not propose to canvass in any detail any of the
facts already outlined which are not in dispute nor matters
whlch are not relevant to the questions in issue.
Nicola Russo (Russo) is the managing director of Equus and in
an affidavit sworn 22 July 1993 he set out the basis of Equus'
claim against the debtor. In summary it is said that on or
about 30 September 1988 Equus entered into a Time Share
Finance Agreement with (lnter alia) the debtor whereby
Equus agreed to flnance the acquisition by third party
purchasers of time share intervals in a resort being developed
by Jarrah Holdings Pty Ltd (Jarrah). The debtor guaranteed
Jarrah's obligations. A number of purchasers defaulted under varlous loan agreements with Equus whereupon Equus made demand on the debtor for payment of amounts owing pursuant to the
time share finance agreement.
Further, on or about 4 April 1989 Equus advanced Jarrah
$300,000 pursuant to a Working Capital Loan Agreement and the
debtor guaranteed Jarrah's obligations under it.
It is said that Jarrah failed to pay any amounts due to Equus In respect of its liability under the two agreements and that Equus commenced the Supreme Court action to recover the
money owing from (inter alia) the debtor. The result of that action has already been referred to.
In connexion with the debtor's Part X proposal Russo says that on 25 November 1992 he received notice of the meeting to be held on 11 December 1992. On or about 8 December 1992 a letter was received from the trustee advising that contingent creditors were precluded from voting at the meeting and seeking verification of the nature and amount of the debt owed
to Equus. Subsequent to the adjournment of the meeting of
creditors on 11 December 1992, Equus provlded the trustee with various documents to which reference was made in a fax message sent by a member of the trustee's staff to Equus on 25 January
1993. The full text of that message is as follows:
As you are aware the matter of your voting entitlements at the adjourned meetrngs of creditors for Jlm and Rhonda Sabri are to be referred to our Solrc~tors for therr opinron. Thrs offrce 1s now in possessron of the following:
(a) A copy of the Tlmeshare Finance Agreement. (b) A copy of the Worklng Capital Agreement. (In relatlon to thrs agreement, I note that the copy that rs ln my possession is undated and unsigned, although you have explarned that our ldentlcal copy of same was subsequently slgned. I note that your undertaking to provrde me with a copy of this srgned agreement ln the near future).
(c) Copy of a cheque made payable to Permanent Trustee Company Limlted In the amount of $177,334.42. (d) Coverlng letter from permanent Trustee Company Limited, addressed to Equus Frnancral Services Limited acknowledgrng recerpt of payment of $177,334.42 for the transfer of tuneshare
weeks owned by Jarrah, Sabr~ and Glgas. (e) Copy of guarantee and indemnity signed by James and Rhonda Sabrr dated 31 March 1989. (f) Copy of further amended statement of claim dated 14 May 1992. (g) Copy of amended defence and counterclaim to further amended statement of clam dated 19 June 1992. I would be pleased rf you would advise as to whether I now have all documents on which you intend to rely when substantiating the
meeting of creditors. nature and amount of your debt at the forthcomrng adjourned If you have any further queries or should you wish to discuss the above matters further, please do not hesitate to contact me on (03)
289 9898.
On 26 January 1993 the trustee sent Equus a copy of written advice obtained by the trustee from Mr Peter Agardy of
Cornwall Stodart. In that advice Agardy referred to the
decisions of Bowen CJ in Re Levy : Ex parte Scholefield
Goodman & Sons Ltd (1980) 50 FLR 99 and of Heerey J in Re
McLean: Ex oarte Friends' Provident Life Office (1992) 108 ALR 360 and concluded by saying:
The matter rs frnely balanced. The test suggested by Heerey J in McLean requrres the chairman to make a harder doclslon than that set out by Bowen CJ In Levy. In short, the chairman is requ~red to make an assessment of the whole of the proceedrng.
On balance, we would recommend that you not allow Equus to vote.
However we cannot express that vlew with any confidence.
We have considered only the clam pursuant to the two agreements.
We have not dealt with the clam ln relat~on to the motor vehicle and we do not propose to do so without your specrfic instructions.
We suggest that, a reasonable time prior to the meetlng, which we understand has been adjourned to Thursday 28 January 1993, you rnform Equus of the substance of thrs adv~ce and the limited rnformatron and documents on which it is based. The purpose of such notlflcatlon 1s to glve Equus an opportunity to present to you addltlonal evrdence, or to take whatever action they thrnk frt, if they wish to do so.
In the trustee's letter enclosing the solicitor's advice he requested Equus to provide any additional evidence,
information or documentation whlch Equus believed should be
considered in determining its claim.
Equus sought its own legal advice which was conveyed by letter
dated (wrongly it would seem) 21 January 1993 and on 27
January 1993 a copy of same was sent to the trustee. The nub of the advice received by Equus is expressed as follows:
A number of the facts upon which Cornwall Stodart's advlce may have been based should be clarified.
1. In particular, it re noted that at no stage dld Equus apply for summary judgment. Thls was because the action was issued in the Commercral Lrst of the Supreme Court and only in the rarest of cases does that 1 s t allow for summary judgment
applications.
2. Whilst Cornwall Stodart refer to the McLean case they appear to distinguish ~t on the basis that execution of the guarantees was not in dlspute ~n that case. The fact is, that rn the subject case Sabrl does not dispute execution of the guarantee.
For your information we enclose a copy of his Wrtness
Statement and refer you in particular to page 18 and 19. You wrll note he admrts to signing the guarantee.
Based on the most recent authority of Re McLean, Equus should be allowed to vote. If the Cha~rman remains undecrded then it may well be approprrate to adlourn the meetlng for a further month pending the
outcome of the lit~gatlon on foot whlch is scheduled to commence in
the Supreme Court on 16 February 1993.
On the basls of the foregoing Equus indicated that if the trustee remalned undecided it would seek to have the meeting scheduled for 28 January 1993 adlourned as suggested by its solicitors.
The trustee swore an affidavit in reply on 11 August 1993. To a large extent the contents of the reply are common cause and have already been referred to. There are however several matters not mentioned by Russo which are relevant. The trustee says that after the meeting of creditors on 28 January
1993 he instructed his solicitor (Agardy) to obtain counsel's
advice on the claim by Equus to be entitled to vote at the meeting of creditors. For the purpose of providing advice counsel was given all documents which the trustee had received from Equus and from the debtor's representatives.
The trustee received counsel's advice on 22 March 1993. The
substance of the advice was that Equus should be admitted to
vote in the sum of either $48,914.35 or $46,644.35 due under a deed of mortgage to Equus (which debt was admitted by the debtor) and that Equus should be afforded the opportunity to
provide further documentary evidence to support the balance of
its clam.At the meeting on 23 March 1993 the trustee (as chairman)
informed the creditors of the substance of counsel's advice
and Equus' representative was given the opportunity to make a
copy of the paragraph in counsel's advice which particularised
the matters upon which he considered further evldence was
required.On 30 March 1993 the trustee received from Equus' solicitors a bundle of documents which were sent to Agardy with instructions to obtain further advice from counsel. Such advice was received by the trustee on 5 April 1993.
Relevantly, thls advice was that after perusing the
material submitted to him counsel was of the view that Equus
had not provided material sufficient to support its claim and
that he could see no reason to alter the opinion previously
expressed. Accordingly, counsel's advice was that unless pursuant to S 189(4), prlor to the adjourned meeting on 6 April 1993, Equus produced the requlred particulars, Equus ought to be entltled to vote only as to the sum previously mentioned. In the event, Equus did not produce any additional material to support its claim and the chairman
admitted it to vote as to the sum of $48,914.35 only. The trustee says that he has at all times acted pursuant to
legal advice. Although it was initially clalmed that the two advices from counsel were privileged both have slnce been
tendered in evidence in these proceedings.THE ADVICE FROM COUNSEL
Mr R.S. Randall of counsel provided the trustee with the two
written advices referred to above. The first is dated 22 March 1993, the second 5 April 1993. In his first advice counsel indicated that he had been briefed
with some 21 documents whlch he identified. On the basis of those documents, he was able to conclude that Equus was
entitled to vote at the Part X meeting at least in respect of
a debt due under a mortgage, the exact amount of the net
liability being somewhat uncertain but it was either
$48,914,35 or $46,664.35. (As it happened the debtor admitted this liability and Equus was permitted to vote and
dld vote in respect of the sum of $48,914.35).As to the balance of the claimed debt, counsel was unable to express a concluded vlew in the absence of certain further information which he suggested Equus be given the opportunity
of providing. Acting on thls advice the chairman adjourned the meeting held on 23 March 1993 to give Equus such an
opportunity.
In the second advice, counsel confirmed having received certain further documents but after perusing same he saw no reason to alter the opinion previously expressed. He pointed out that Equus had been afforded the opportunity to produce
evidence as to three specific matters but had not done so.
Counsel also commented upon submissions made by Equus'
solicitors in a letter to the chairman following the meeting
of 23 March 1993.
It would be entirely inappropriate for the Court to enter
upon an examination of the advice given by counsel to the
chairman and to express an opinion as to that advice. Apart from any other reason, the Court does not have before it all
of the documents and other instructions that were provided to
counsel and the facts proved in these proceedings are
madequate to permlt of a conclusive opinion.Be that as it may, it is clear from the two advices from counsel that there were a number of issues both of fact and
law about which Equus and the debtor were in dispute. It is also clear that (except to the limited extent mentioned
earlier) the debtor not only denled liability but was then,
and had been for a considerable period, strenuously defending
the Supreme Court action in which Equus sought to establish
the liability against him.Whilst some of the conclusions upon which counsel based
his advice may be open to debate, there is no question that
the advice is reasoned. It does not contain any patent
errors or absurdities. The final expression of opinion, addressed as it is to the chairman to provide guidance in the
performance of his duty as chairman of the Part X meeting,
follows logically from the reasoned argument and is in clear
terms.I have no doubt that it was entirely appropriate that the chairman should accept and act upon the advice received from
counsel. THE GROUNDS OF THE APPLICATION The first two grounds of Equus' application to this Court
(namely the claim that Equus was a creditor of the debtor and
was prevented from voting when its vote would have affected
the outcome) will be dealt with in detail below. The remaining grounds can be dealt with quite summarily. The related assertions that the debtor omitted a material particular from hls statement of affairs, namely that Equus was an unsecured creditor (ground 3) and that the debtor included an incorrect particular by including Equus as a contingent creditor (ground 4) can only be made good if Equus
can establish that it was in fact a creditor. Equus was shown as a contingent creditor in circumstances where there
was an ongoing dlspute in the Supreme Court as to whether or
not there was a liability. Whatever the final conclusion, it
is quite nonsensical to suggest that the assessment made by
the debtor by which he characterised the liability as a contingent debt amounted to the omission of a material particular or the inclusion of an incorrect particular.
Ground 4A was added in the course of the proceedings. It does not warrant any serious consideration. The evidence amply establishes that at the time the s 189A report was prepared the loan from Provident, which had been the basis of
Provident's bankruptcy petition, had long since been assigned to Ellas Mazloum and there was no reason to make any reference to the matter in the report. It is true that the existence of the bankruptcy petition was not referred to in the trustee's report but the omission does not appear to be a material one. No-one from Equus has said that Equus was unaware of the petitlon but even if it be so that Equus or indeed the creditors generally were unaware of the petition it is difficult to imagine what relevance should be attached to the matter. As it is, both the substituted petitioning creditor (ANZ) and the supporting creditor (Countrywide) took an active part in the proceedings at the various meetings of creditors and if the creditors had been interested to know if bankruptcy proceedings were pending, someone could have asked but no-one did.
There can be no doubt that the order for costs made by the Registrar upon the dismissal of the petition had the effect of reducing the amount of money available to the creditors, but there is no evidence to suggest that the trustee was aware that it was likely that such a costs order would be made at
the time he prepared his report. In my opinion there is no substance in the complaint contained in ground 4A. The final ground raises a matter which goes to the exercise of the Court's discretion in the event that a basis for granting relief is established and will be dealt with later.
ENTITLEMENT OF VOTE Section 198 deals with entitlement to vote at a meeting of creditors under Division 2 of Part X. It provides (so far as relevant):
198(1) Subject t o t h i s s e c t ~ o n , every c r e d ~ t o r 1s e n t l t l e d t o vote a t a meeting under t h i s Division.
( 2 ) A c r e d ~ t o r is not e n t i t l e d t o vote l n r e spec t of an
u n l ~ q u ~ d a t e d o r contmgent debt o r a debt t h e va lue of which is not ascertained.
( 3 ) For t h e purpose of enabling a c r e d l t o r t o vote , a debt
t h a t i s certain but 1s payable l n t h e f u t u r e s h a l l be
deemed t o be payable a t t h e t i m e of t h e meeting.
( 4 ) A c r e d ~ t o r 1s not e n t l t l e d t o vote (otherwise than l n
respect of t h e e l e c t l o n of a cha~rman of t h e meetlng) ,
unless he has made known t o t h e chairman p a r t ~ c u l a r s of h i s debt.
And S 201 provides that:
Any ques t lon a s t o t h e r l g h t of a person t o vote a t a meeting under
t h i s Division, o r a s t o t h e amount of t h e debt l n r e spec t of whlch a
person rs e n t ~ t l e d t o vote a t such a meetlng, s h a l l be determined by
t h e Chairman, who may, l f he t h l n k s ~.t necessary t o do so, adjourn t h e rneetlng f o r a perlod, not exceed~ng 1 4 days, t o enable him t o
m v e s t i g a t e t h e matter .
A debtor, a creditor or any other person affected by an act, omisslon or decision, of the controlling trustee, may apply to the Court, and the Court may make such order in the matter as
it thinks just and equitable (S 212A).
Equus seeks to rely upon S 212A as a basis of jurisdiction for the Court to set aside the second respondent's decision (in his capacity as chairman of the meeting of creditors) refusing Equus the right to vote at the meeting of 6 April 1993. The section applies only to the conduct of the controlling trustee and has no relevance in relation to a decision made by the chairman of a meeting pursuant to S 201, notwithstanding that the controlling trustee may have also been the duly elected chairman of the meeting. It is however now accepted that notwithstanding the absence of any specific provision in S 201 for an appeal against a chairman's determination, the Court has jurisdiction to determine the right of a creditor to vote at a meeting under Part X (Forshaw v Thom~son (1992) 35 FCR 329). Upon an application for avoidance of a deed of arrangement pursuant to S 222 on the ground that a creditor was wrongly admitted to vote or excluded from voting on the special resolution for the deed, the Court will have regard to the evidence presented at the time of the application and is not confined to the material presented to the chairman pursuant to ss 198 and 201. (Re Treaonning (1983) 74 FLR 327; Zantiotis v Andrew (No 2 1 (1988) 80 ALR 299). The Court is not bound by the decision of the chairman (Re Levv: Ex parte Scholefield Goodman & Sons Ltd (1980) 50 FLR 99;
Zantiotis v Andrew (1987) 80 ALR 23).
THE CASE FOR EOUUS
The power of the Court to make a declaration pursuant to S 222(2) as to the validity or invalidity of a deed of arrangement arises when there is a doubt, on a specific ground, whether the deed was entered into in accordance with Part X. The refusal of the chairman of a meetlng of creditors to allow a creditor to vote on a special resolution for an amount which if allowed, would or could affect the
outcome of the vote, would, if such refusal proved to be unsoundly based, glve rise to a doubt as to whether the deed subsequently entered into pursuant to the resolution, was entered lnto in accordance with the Part. Thls is the basis upon which Equus seeks the Court's intervention.
At the first meeting of creditors on 12 December 1992 Equus
sought to vote in respect of a claimed debt of $809,992.11.
If it had at the meeting of 6 April 1993 been allowed to vote
In respect of that sum rather than the sum of $48,914.35
(assuming all other figures remained constant) the special
resolution would have been supported by only 74.39% in value
of the creditors voting and would not have been passed.
It is said for Equus that the Court can, and indeed should, have regard to the fact that subsequent to the meeting of creditors the debtor consented to ludgment in the Supreme Court action in the sum of $800,000 and that this establishes that Equus was entitled as of 6 April 1993 to vote in respect
of that amount at least. If that had been the case, the
majority in value voting in favour of the proposal would have been 74.47% and thus the resolution would not have been passed.
But when the full circumstances of the consent judgment are
analysed, it would seem that this last approach is not valid.
The transcript of the proceedings in the Supreme Court on 28
April 1993 shows that the judgment was for $800,000 inclusive
of costs and interest. In an affidavit sworn by Russo on 2 September 1993 a statement to the same effect is made. In the same affidavit Russo refers to discussions held on the evenlng of 27 April 1993 at which he, his solicltor, the debtor, the debtor's solicitor and others were present which preceded the parties reaching the agreed compromise. The debtor says in an affidavit of 27 August 1993 (to which Russo's affidavit of 2 September 1993 is a reply) that when he agreed to settle the Supreme Court action he allowed something in excess of $200,000 for costs. Russo has not made any specific response to that assertion, and no inference can be drawn from the absence of such a response. It is fair however to conclude that the fact that the costs of a proceeding which had been on foot for over two years and in respect of which a trial had run for five hearing days in the Supreme Court would be quite substantial and that (even disregarding the interest component) Equus accepted somewhat less than $800,000 in satisfaction of its claim. Be that as it may, it is simply not possible to quantify the amounts
which represented the various components of the settlement.
In these circumstances it is not open to Equus to claim that the judgment for $800,000 obtalned on 28 April 1993 establishes that at 6 April 1993 the debtor was liable to it for that sum nor indeed for any other ascertainable sum.
The claim by Equus to vote in respect of the sum of $809,992.11 was based upon a document entitled Financier's Certificate which was dated 11 December 1992 and signed by Russo on behalf of Equus. On the face of it the certificate is said to have been issued pursuant to clause 9 of the Timeshare Finance Provision Agreement between Equus and Jarrah, clause 7(a) of the Working Capltal Loan Agreement between the same parties and clause 7 of a deed of mortgage between Equus and the debtor.
In the certificate it is stated that the total monies outstanding by Jarrah and the debtor at 10 December 1992 were:
(a) Under the Finance Provisions Agreement $ 30,962.86 (b) Under the Working Capital Loan Agreement $493,969.00
(c) Under the Deed of Mortgage $ 52,236.35 (James L Sabri only)
SUB TOTAL $576,168.21
Plus Costs associated with collection of the
above amounts as at 30 November 1992 $233,823.90 TOTAL $809,992.11
mortgage as the debtor admitted liability for the amount shown It is unnecessary to make further reference to the deed of in respect thereof and Equus was admitted to vote for that sum
less a minor adjustment which is not presently relevant.Neither the Timeshare Finance Provision Agreement nor the Working Capltal Loan Agreement is in evidence in these proceedings although extracts from clause 9 and 7(a) respectively of those agreements appear in the advice from
counsel dated 22 March 1993. On the material before the Court it is not possible to reach a conclusion as to the effect (if any) of the certificate dated 11 December 1992.
Counsel, who had substantially more information before him than the Court has, was of the view that the certificate did not bind the chairman and further that in any event the amount claimed for costs represented a contingent liability at the best. I am not able to, nor do I, make any flnding one way or the other.
Equus also relied on an affidavit of Russo sworn 14 September 1993 to which are exhibited two documents. The first is a
document entitled "Financier's Certificate" which purports to have been issued pursuant to clause 5 of a Guarantee and Indemnity between Equus and the debtor and Mrs Sabri dated 4
April 1989 (the guarantee) . The document is dated 10 September 1993 and is signed by Russo on behalf of Equus.
The second exhibit is a copy of the guarantee referred to in
the certificate. It bears the date 4 April 1989 and has been
signed, inter alia, by the debtor. The guarantee is addressed to Equus and other related corporations and contains a covenant guaranteeing to Equus and the other corporations payment of each and all sums of money interest and damages in which, inter alia, the debtor may then or thereafter be indebted or liable or contingently indebted or liable to Equus or any of the related companies on any account whatever.
Clause 5 of the guarantee provides:
5. A Certrficate srgned by you any attorney dlrector or manager of (Equus) or any officer of (Equus) authorrsed by you for such purpose or (Equus') secretary for the trme berng or by any person purporting to be an attorney director manager secretary or authorised officer of (Equus) as to any sum payable to you or any of you pursuant to t h ~ s guarantee as at the date set out ln such Certificate shall rn all courts and at all trmes be prma facie evldence of the facts therern stated.
The certificate dated 10 September 1993 is in these terms:
Equus Financial Servrcee Lrmrted (006 912 344) being the Flrst Company under the Guarantee and Indemnity (as deflned therern) dated
4 April 1989 between Equus Flnanclal Servrces Limited and the
Guarantors, certifies pursuant to the Guarantee and Indemnity as set out rn Clause 5 of that Agreement that as at 6 Aprrl 1993, the amount of rndebtedness of the Guarantors to the Plarntrff was $893,544.91.
In my opinion this certificate cannot advance Equus' case.
Equus says that it is prima facie evidence that at 6 April
1993 the debtor was indebted to Equus in the sum of
$893,544.91, but no particulars have been provlded and no
attempt has been made to reconclle it wlth the certificate of
11 December 1992. Assuming for present purposes that the two
certificates relate to the same basic liability, the second
would suffer from the same vice as the first insofar as it presumably contains an element which on one view represents a contingent liability. In any event, it would seem that at
the time the certificate was issued the relevant liability as between Equus and the debtor has been compromised and accordingly the contractual basis for issuing the certlflcate
had ceased to exist. For these reasons the certificate of 10 September 1993 cannot now be treated as prima facie, or any other, evidence of a liability existing between Equus and the debtor as at 6 April 1993.
CONCLUSION The conduct of the several meetlngs of creditors by the chairman insofar as it related to determining the right of Equus to vote, cannot be faulted.
At the outset the debtor treated Equus as a contingent creditor. The parties were then and had been over a substantial period of time engaged in litigation involving the question of whether the debtor was liable to Equus, and if so, for what amount. On the information then available to the chairman the claim was one whlch could reasonably be said to be in respect of "an unliquidated or contingent debt or a debt the value of which is not ascertained".
At the first meeting Equus sought to prove the debt as a liquidated sum presently due. It relied upon a certificate purporting to have been issued pursuant to three separate agreements. The chairman was clearly entitled to enquire
further, particularly as at that stage the three agreements had not been made available to him. The creditors, quite appropriately, adjourned the first meeting to give Equus, and others, the chance to substantiate the claims made.
At the second meeting the chairman had available to him legal advice from a solicitor to the effect that Equus' claim to vote should not be admitted. However, no final decision was made but rather, the creditors agreed to adjourn the meeting to a date by which it was thought the Supreme Court actlon would have been resolved. It was no-one's fault that the case was not heard as originally planned.
At the third meeting the chairman had the advice of counsel to the effect that Equus' claim to vote should be admitted to a limited extent but as to the balance it should not be admitted. Counsel suggested that Equus be given a further opportunity to support its claim and Equus sought to have that opportunity. The chairman, quite appropriately, exercised his statutory power to adjourn the meeting to give Equus the opportunity it sought.
The chairman had available to him at the fourth meeting further advice from counsel to the same effect as before. Equus was either unable or unwilling to provide all of the information which counsel considered necessary to support its
clalm. The chairman was perfectly entitled to accept and act on the advice of counsel which is what he did, and allowed Equus to vote only to the limited extent previously recommended by counsel.
In determining that Equus was entitled to vote as to the sum of $48,914.35 and no more the chairman exercised a function conferred upon him by S 201. The manner in which he exercised this function was entirely proper and nothing about
his conduct in that regard can in my opinion be said to raise a doubt as to whether the deed of arrangement was entered into in accordance with Part X so as to give rise to the exercise by the Court of the powers conferred by S 222(2).
Nor has anything been established by the evidence that would raise such a doubt on any other ground. Equus has sought to establish by evldence that at 6 April 1993 the debtor was liable to it in a sum of at least $800,000. It has sought to do so on several bases but for the reasons given above has failed to do so. Nothlng in the evidence is capable of leading to a conclusion different from that expressed by the chairman's legal advisers namely that Equus had not established that it was a creditor entitled to vote for the amount of its claim as at 6 April 1993.
Equus has failed to establish any basis for the Court to exercise its powers pursuant to s 222(2) or s 222(4). That being so there is no occasion to consider the matter referred
to in s 222(5). Nor 1s there any basis for an application for sequestration order. The application will be dismissed.
I certlfy that this and the preceding 34 pages are a true copy of the reasons
for judgment of the
Honourable Mr Justice Olney
Associate: wbhdQJLflm
Heard: 27 and 28 September 1993, 1 October 1993
Place : Melbourne
Judgment : 30 November 1993 Appearances - Counsel for the applicant: Mr W.T. Houghton Solicitors for the applicant: Gadens Rldgeway Counsel for the first respondent: MS J. Davles Solicitors for the first respondent: Mr S.P. Gardiner Solicitors for the second respondent: Cornwall Stodart
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