Re Slaminka, P. v Ex parte Varshavsky, Z

[1985] FCA 225

Re: PETER SLAMINKA
And: ZOYA VARSHAVSKY
No. B 8324 of 1984
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION BANKRUPTCY DISTRICT
OF THE STATE OF NEW SOUTH WALES
AND THE AUSTRALIAN CAPITAL TERRITORY
Morling J.

CATCHWORDS

Bankruptcy - application to set aside bankruptcy notice - non-payment of maintenance - counter-claim for half living expenses - must be substantial and bona fide - no obligation on de facto to share expenses - no present legal liability

HEARING

SYDNEY
#DATE 18:4:1985

ORDER

1. Application dismissed.

2. Applicant to pay respondent's costs.

JUDGE1

This is an application by Peter Slaminka to set aside a bankruptcy notice served upon him on 17 September 1984 by Zoya Varshavsky. The bankruptcy notice is founded upon a final order made on 4 April 1984 by a Special Magistrate sitting in the Children's Court arising out of proceedings between the parties in that court. The proceedings were in respect of an application for maintenance of an ex-nuptial child born to Mrs Varshavsky, the applicant, Mr Slaminka, being the father of that child.

1. The order made by the Children's Court required payment of maintenance in respect of the ex-nuptial child and a sum of $2850 for professional costs.

2. The application before this court is based upon a claim by Mr Slaminka that he has a counter claim set off or cross demand against the respondent for a sum in excess of $5,000 which exceeds the amount of the final order claims against him in the Children's Court. Particulars of the alleged counter-claim have been furnished on affidavit and are substantially as follows:
   
   

(a) the applicant claims that the respondent is indebted to him in respect of a sum of about $437 for telephone calls which were made whilst they were living together in a de facto relationship;

(b) the applicant claims that the respondent agreed to pay one half of the rental of accommodation which they shared for some time during 1981 and 1982;

(c) the applicant claims that the respondent agreed to pay half the costs of leasing his motor vehicle during the time that they were living together;

(d) the applicant claims that the respondent agreed to pay half the amount of telephone and electricity bills incurred by him at a time before he commenced to cohabit with the respondent.

1. In order to understand the nature of the applicant's claim it is necessary to refer to the history of the relationship between the parties. Some time prior to July 1981 the respondent was living with her husband. About 13 July she came to an arrangement to live with the applicant. She moved in to his accommodation about that time, bringing some furniture with her. The applicant met the cost of removing her furniture from her former matrimonial home to his premises. Within a short time after 13 July the parties commenced to live together as man and wife.

2. The applicant had a son by another woman and it seems that between July 1981 and February 1982 the applicant, his son and the respondent lived in a common household. For a time they lived in Perth and stayed with a friend of the applicant. It seems that the applicant during this period paid the rental of the accommodation, the lease payments on his vehicle, and food and other related expenses. The applicant alleges that the respondent made numerous overseas telephone calls during the time that they were cohabiting. There is no evidence at all to support his claim that the respondent agreed to make herself responsible for any part of the telephone and electricity accounts incurred by him prior to July 1981.

3. According to the applicant his de facto relationship with the respondent ceased in October 1981. At that time the respondent would have been about three months pregnant. However, the respondent continued to live with him. He claims that it was only fair that she should have shared the living expenses. He claims that he told her he knew she could not afford to pay her share of those expenses and that he said he was prepared to wait until she had the money. He alleges that she said that she would pay him, "When my divorce comes through and I get a half share of my house. I will pay you half of all the living expenses when that comes through". There is no evidence that the respondent has been divorced or that she has obtained a half share, or any share, of any house. There is evidence from the respondent denying much of what the applicant claims.

4. In order to succeed in this application it is not necessary that the applicant should show conclusively that he has a claim of the kind which he seeks to set up. On the hearing of an application such as this the Court is not called upon to determine the validity of the counter claim. But the authorities make it clear that the Court must be satisfied that the applicant has a substantial and bona fide claim which he should fairly be permitted to litigate before the bankruptcy proceedings against him are allowed to continue. I need only refer to the authorities referred to in the Bankruptcy Practice at p.77.

5. In my view the applicant does not have such a substantial and bona fide claim. There are several reasons why I hold this view. In the first place the relationship between the parties was such that there is a strong presumption that the applicant provided accommodation and support for his de facto wife and his coming child at his own expense. I do not think she was under any legal obligation to pay moneys to the applicant in respect of her occupation of the house. It is significant that it is now over three years since the agreement alleged by the applicant was made, yet no proceedings have been taken (apart from this application) to enforce what he now claims to be legally enforceable rights. Further, even if the applicant's evidence is accepted in its entirety, his case is that the respondent would only become liable to pay any money to him when certain events happened, that is to say, when her marriage was dissolved and she received a half share in her house. Since there is no evidence that those events have occurred, there is no basis for the present legal liability on the respondent to meet any claim which the applicant alleges he has against her.

6. Thirdly, the claim that the respondent would pay half of the electricity and telephone bills incurred by the applicant for July 1981 is unsupported by any evidence at all and seems to be highly improbable. I should add that there is a claim that the applicant incurred legal costs of $150 in respect of a caveat lodged by the respondent against the lands of a third party. Apart from the minimal amount of that claim I am not persuaded that the applicant has any claim enforceable in a court of law against the respondent in respect of the legal costs he incurred.

7. For these reasons I am of the opinion that no basis has been made out for setting aside the bankruptcy notice and the application is dismissed with costs.