Re Troost, Pauline Grace Charlotte Ex Parte Bristol Acceptance Corporation Pty Ltd
[1997] FCA 336
•16 Apr 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
BANKRUPTCY DISTRICT OF THE STATE ) No. NP1442 of 1996
)
OF NEW SOUTH WALES )
RE: PAULINE GRACE CHARLOTTE TROOST
Debtor
EX PARTE:BRISTOL ACCEPTANCE
CORPORATION PTY LIMITED
Creditor
CORAM: BEAUMONT J.
WHERE MADE: SYDNEY
DATE: 16 APRIL 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The petition be dismissed.
The creditor pay the costs of the debtor.
Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
BANKRUPTCY DISTRICT OF THE STATE ) No. NP1442 of 1996
)
OF NEW SOUTH WALES )
RE: PAULINE GRACE CHARLOTTE TROOST
Debtor
EX PARTE:BRISTOL ACCEPTANCE
CORPORATION PTY LIMITED
Creditor
CORAM: BEAUMONT J.
PLACE: SYDNEY
DATE: 16 APRIL 1997
REASONS FOR JUDGMENT
Before the Court is a petition seeking a sequestration order on the grounds of non-compliance with the requirements of a bankruptcy notice. The debtor relies on a number of grounds of opposition to the making of that order. In the circumstances, I need deal with only one of those grounds, and that is, that there was no act of bankruptcy in that the petition was presented before the commission of an act of bankruptcy.
In short, the debtor’s submission is that the bankruptcy notice, which was a 21 day notice, was served on 14 November 1996 yet the petition was presented on 5 December 1996. That is to say, if it is assumed for the moment that the notice was not in fact served until 14 November, then the act of bankruptcy would not have been committed until 6 December. In Re Egar; Ex parte K R & J Secombe Pty Ltd (1986) 68 ALR 509, I dealt with a similar situation and held that the petition was bad and could not be cured under s.306 of the Bankruptcy Act 1966.
The real question then is the date of service of the bankruptcy notice. On behalf of the petitioning creditor reliance is placed upon the affidavit evidence of service of Graeme John Parker, a licensed commercial agent.
In his affidavit sworn 14 November 1996, Mr Parker said this:
"1.On Tuesday the 12th day of November 1996, at 4.11 o’clock in the afternoon, I served PAULINE TROOST with the following document:-
(a)BANKRUPTCY NOTICE a true copy of which was sealed and signed by the Deputy Registrar in Bankruptcy.
by delivering it to her personally at B & R STORAGE DISTRIBUTION PTY LIMITED, 226 MILLER ROAD, VILLAWOOD 2163 in the State aforesaid.
2.I identified the person I served as the said PAULINE TROOST by asking:
‘Are you PAULINE TROOST the person referred to as the Judgment Debtor in this Bankruptcy Notice which I now hand to you?’ The female replied: ‘Yes, I am.’"
In response to this evidence, the debtor, Pauline Grace Charlotte Troost, swore an affidavit on 3 March 1996, in which she said, amongst other things, the following:
"1. I am one of the Judgment Debtors herein.
2.At about 8:30am on the morning of 14 November, 1996 I was served with the Bankruptcy Notice herein.
3. ...
4.At approximately 6:39pm on 14 November, 1996 I faxed a copy of the Bankruptcy Notice to my Solicitor. Annexed hereto and marked ‘A’ is a copy of the facsimile showing the time and date of the transmission. I chose this time to send this fax as again I did not want my staff to find out. Due to the seriousness of the Bankruptcy Notice I faxed it to my Solicitor on the day that I received it."
Annexed to that affidavit was a copy of the bankruptcy notice. I need not annex it to these reasons, however it should be noted that a copy of the bankruptcy notice was forwarded by way of facsimile transmission and that the copy bears a notation from the facsimile transmission equipment indicating that a message was sent from “B & R Storage L/P” on 14 November 1996 at 6:39 p.m.
Mr Parker responded to this evidence in a further affidavit, sworn on 10 March 1997, in which Mr Parker said, amongst other things, the following:
"1.I refer to my Affidavit of Service sworn on 14 November 1996 filed in this matter.
2.I have read the Affidavit of Pauline Troost sworn on 3 March 1997 in which she states that she was served with the Bankruptcy Notice at 8.30 am on 14 November 1996.
3.I know that I swore my Affidavit of Service on 14 November 1996 which was not the date upon which I personally served Pauline Troost at Villawood.
4.Further, I have confirmed that Pauline Troost was served at 4.11 pm on 12 November 1996 by reference to my field notes. Annexed hereto and marked with the letter ‘A’ is a true copy of my field notes of 12 November 1996 which refers to personal service on Pauline Troost on that date.
5.Annexed hereto and marked with the letter ‘B’ is a true copy of the Invoice submitted to Corrs Chambers Westgarth in this matter which records that service was effected on Pauline Troost at 4.11 pm on 12 November, 1996."
There is annexed to the affidavit, as it is stated in paragraph four, a copy of a field report. This is an important document and is annexed to these reasons.
Both Mr Parker and Mrs Troost gave oral evidence. Mr Parker’s evidence proceeded as follows:
“Q:Mr Parker, do you have any recollection as to whether the bankruptcy notice in these proceedings was served in the afternoon or in the morning?
A:It was served in the afternoon.
Q:Do you have any particular reason for your recollection on that matter?
A:Yes. Usually my daily work - I’d come into the city and pick up work in the morning and head out around the Bankstown, Villawood, Liverpool area back towards Campbelltown. I have been doing that for the last five years.
Q:On 14 November 1996 did you follow your usual practice?
A:On the 14th or the 12th?
Q:Sorry, I withdraw that. On 12 November 1996 did you follow that usual practice?
A:Yes I did.
Q:Can you explain to the Court how what you have just told the Court assists your recollection now of whether the bankruptcy notice was served in the morning or in the afternoon?
A:When I go and serve a - any document I come out to the motor vehicle; I look at the time that’s on the clock in the car and the date and put that exactly straight down onto my run sheet or my top copy sheet for my affidavit purposes. If it’s in the afternoon it’s in the afternoon. It’s definitely not any other time.
Q:Mr Parker, do you have a usual practice for the arrangements for the signing of affidavits of service?
A:Yes.
Q:What is the practice?
A:Once I serve a document I then the next day take it back into the company with - I have - work for, drop off the document and then the - and pick up more work, then the following day I go back and sign the affidavit taking back in the documents I’d served that particular day.
Q:In relation to the bankruptcy notice in question do you have a specific recollection as to whether you followed that practice?
A:Yes, because I served the document on the 12th. On the 13th approximately between 11 and 2, I dropped it off to a company called Hunter Group in - in Macquarie Street with all the rest of my work. I then went back to Hunter Group on the 14th and signed the affidavit - say - I signed the affidavit."
Mr Parker was then cross-examined. His evidence proceeded as follows:
“Q:Yes, annexure A to your affidavit?
A:Yes, that’s correct.
Q:And is that the only document that is brought into existence at the time any notice to be served by you is served in relation to the service?
A:Yes.
Q;And is that the document upon which you rely to say that - in your evidence that the notice was served on a particular date at a particular time?
A:That’s correct.
Q:Apart from what is in this document, you do not have a recollection?
A:No.
Q:And do you always complete a document in this form when you serve a document?
A:Always.
Q:Now, can I take you to the line, ‘the date served’. Do you notice how you have written ‘12-11’?
A:Yes.
Q:Now, could you tell the Court why you have written ‘12-11’ where you contend that the service took place on the 12th day of that particular month?
A:Yes. I wrote the 12th and then I wrote a stroke beside it and then I wrote - because I saw I - I - there was another stroke there for the month I then wrote the 11th month.
Q:You see you have written the 11th referring to the month on two separate occasions; is that the case?
A:Yes, but I accidentally made a mistake when I was writing it down because there was - I didn’t look at the bar that was going there to separate the date between the month.
Q:See, but you complete this document every time you effect a service; I think that is your evidence?
A:Yes, it is.
Q:Surely you know this document top to bottom with every stroke and every bar in it?
A:I do. I work for three other agents that have three different types of sheets so when you get into a car you pick up the sheet to write and other sheets don’t necessarily have that - those two gaps - a gap between the date and the month.
Q:Under the date served there is the reference to time served?
A:Yes.
Q:That has been either corrected or written over several times. Do you know why?
A:Yes, because my - sometimes my writing is not that legible and therefore my wife, who’s my partner, sits beside me and goes over the figures to make them legible.
Q:So that portion of the document has effectively been completed by your wife?
A:Just that timing, yes.
Q:And you rely upon the clock in your motor car for the time of service?
A:I do.
Q:Does that display the date?
A:Date and time.
Q:And do you have any other reference other than that date supplied to determine what the date is?
A:I have another clock that is in the car.
Q:You have got two?
A:I carry a hand clock that tells me the date and time, as well.
Q:Do you have reference to the hand clock in entering this or just to the clock in the car?
A:No, I just used the clock, the date and the time, in the car.
Q:Can I suggest to you, sir, that you have in fact made an error in respect of the date of service. It, in fact, took place on the 14th?
A:No, that’s not correct.
Q:You have given evidence in your affidavit annexing a letter from the Hunter Group to Corrs Chambers Westgarth which identifies the date and time of service. Do you see that letter, annexure B? It is after your run sheet.
A:Yes.
Q:The reference in that letter to the date and time of service would be based upon the information that you had submitted to that firm?
A:That’s correct, sir.
Q:And in swearing your first affidavit of service, could I suggest to you that an error which was initially entered in your run sheet was carried through into that affidavit?
A:No, I don’t believe it is. There was no error made.
Q:On your run sheet under the heading of Attempts, there are two previous attempts. Were they made by you or by somebody else?
A:No, they were made by somebody else.
Q:If you are unable to effect service of a document on the day that you receive it from your principals, do you try again the following day with the same document?
A:If you’re unable to serve it.
Q:Yes?
A:Yes, you would. Well, not necessarily the following day. It could be some time, it could be the next two days or the three days. It does not have to be the following day.
Q:Would you retain the document for that purpose?
A:Yes.
Q:So it is quite possible that you received the bankruptcy notices for service on 12 November and then only were able to effect service by the 14th?
A:No, that’s not correct. I served the document on the 12th.
Q:I think you said you lived at Ruse?
A:Yes.
Q:That is in Campbelltown?
A:That’s correct.
Q:Is it possible that you effected service of these documents in Villawood at 8.30 on the morning that you served them because you were travelling to the city on that day?
A:No, not at all because I normally don’t go through that area. I normally go around the back over towards Parramatta - over the back of Parramatta on the Cowpasture Road to do other documents over in the Wentworthville and Parramatta area in the mornings.
Q:So, in the morning you do, in fact, endeavour to attempt to effect service of documents before you go into the city?
A:Yes, I do.
Q:I put it to you that you effected service of this document on 8.30 on the day you did effect service but simply had a mistake in the time?
A:No, that’s not correct.
Q:In fact, there may even be a mistake in the time on the run sheet because your wife has been unable to read your writing?
A:I don’t - that is not correct at all. The date that was put down on the date is my writing. The date served was the 12.11.96 and that’s exactly what I did and that is my writing."
Mrs Troost was also cross-examined as follows:
“Q:Is it possible, Mrs Troost, that you’re confused as to when you were served with any documents?
A:No, not the first document, no.
Q:Is it possible that you’re confusing the service of the petition with the service of the bankruptcy notice?
A:No.
Q:Is it possible that when you say in your affidavit that when you were served in the morning you were recalling the service of the petition?
A:I remember being served in the morning in November, 14th November. That I recall.
Q:Is it possible that your recollection as to being served with a document by Mr Parker in the morning is a recollection of your being served with the petition?
A:I recall being served with a bankruptcy notice.
Q:It is possible, is it not, that you were served with the bankruptcy notice on 12 November, is it not?
A:It’s not possible. I was served on the 14th at 8.30 in the morning.
Q:How are you so sure that you were served with the bankruptcy notice at 8.30?
A:Because the staff do not arrive till 9 o’clock and I was grateful that they weren’t there.
Q:It is possible though, is it not, that you were served on 12 November and did not send the bankruptcy notice to your solicitor till the 14th?
A:I wouldn’t sit on a document like that. As I’ve said previously, I take these things very seriously and I would not have sat on it for two days.
Q:But it is possible you did, is it not?
A:No, it’s not possible.
Q:Well, in fact you were served on the 12th, were you not?
A:I was served on the 14th which is a Thursday.”
Mrs Troost was cross-examined in other respects too and it is fair to say that her version of the events was squarely challenged.
The question then is really one of the creditworthiness of the two witnesses. As I follow their evidence, there is no intermediate position open. That is to say, I either accept Mr Parker entirely and find that there was service on 12 November, or I accept Mrs Troost entirely and find that service did not take place until 14 November.
I have come to the conclusion that I should prefer the evidence of Mrs Troost. There are several reasons for this. In the first place, and perhaps most importantly, Mr Parker was, as has been seen, quite candid in his admission that, apart from what was in the field report, he did not have any independent recollection of these events. His position may be contrasted with that of Mrs Troost who claimed to have a very distinct and specific recall of what had happened.
It is true that reliance on her behalf on the transmission of the copy of the bankruptcy notice to her solicitors on 14 November may be seen to be equivocal on the point in issue. That is, it is possible that, consistent with Mr Parker’s version, Mrs Troost may have in fact waited for two days before transmitting the document to her solicitor. But against that I have to say that I was most impressed by the way in which Mrs Troost gave her evidence. I found her version of the events to be a convincing one, and as I followed the cross-examination, she was not really shaken on any point.
On the other hand, as the references I have made to the cross-examination of Mr Parker show, there are some difficulties in accepting that the procedures followed by Mr Parker in the preparation of his field report were entirely reliable. A copy of the field report, annexed to these reasons, speaks for itself but, as emerged in the cross-examination, changes were made to the document which I accept may well have been made innocently. However, the changes must leave me with a residue of doubt in terms of the reliability of the exercise undertaken. I refer, in particular, to the circumstance as appears in the field report, that changes were apparently made to the time at which the document is alleged to have been served.
Taking into account these circumstances, and in particular as I have mentioned, having regard to the understandable and frank concession by Mr Parker that he does not have any independent recollection of these events, I must prefer the unshaken evidence of Mrs Troost. I therefore find that service took place on 14 November and not on 12 November. For the reasons I have previously given, it must follow that the petition should be dismissed.
The petition will be dismissed with costs.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont
Associate:
Dated: 16 April 1997
Counsel and Solicitors Mr R Tregenza
for the debtor: instructed by Sullivans
Counsel and Solicitors Mr J Lockhart
for the creditor: instructed by Corrs Chambers Westgarth
Date of hearing: 16 April 1997
Date judgment delivered: 16 April 1997
0