Re: Williams; Ex Parte: Williams Snr. v Credit Union Australia Ltd

[1996] FCA 1207

JUDGMENT No. AZ,5?.2..Ti"d26..

No. QN 306 of 1996

Re: ERIC JOHN WILLIAMS and ELLEN

ADA WILLIAMS

Debtors

Ex parte: ERIC WILLIAMS SNR.

Applicant

And: CREDIT UNION AUSTRALIA

FEDERAL COURT

LIMITED

OF AUSTRALIA

Creditor

2i; JAN 2003

LIBRARY

0

REASONS M R JUDGMENT

EINF'ELD J BRISBANE 15 APRIL 1996

An application was made to a Registrar in Bankruptcy on 16 February 1996 to issue a bankruptcy notice addressed to Eric John Williams and Ellen Ada Williams, who were the judgment debtors to an order of the District Court (Noud J) at Brisbane in the sum of $9555.65 given on 31 January 1996. Costs were ordered but interest was not. A bankruptcy notice was in due course ordered issued on 16 February, and was served on Eric John Williams on 22 February.

On 27 March 1996, application was made by Eric John Williams Snr, the father of Eric John Williams and the husband of Ellen

Ada ~filiams, for orders or declarations as follows:

1 . All or any liability of Eric John Williams and/or Ellen Ada Williams as guarantors in regard to the lease between Credit Union Australia and Johns Formalwear Pty Ltd a company now being deregistered ceased when the lease was surrendered.

2. No summons has ever been served on Eric John

Williams and/or Ellen Ada Williams.

3. Mrs Williams has not been an officer of Johns

Formalwear Pty Ltd since 7 /10 /89 . , ,

L

4. Order prohibiting any contact with +S Williams ~ , , . , . , . + ,.., : . ,

by any means in regard to this matter. - , . < ., , , .*,,

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In support of that application, affidavits were filed-by bqkh

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Eric Williams Snr and the two debtors, his son and his W$-&. In

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response affidavits were filed on behalf of the creditor by Michael John Smith, a solicitor employed by the creditor's solicitors, dated 12 and 15 April, and by James Parker Bottomley, a member of the firm of solicitors acting for the creditor, dated 12 April.

Having read all those affidavits, I conclude that none of the matters applied for in the application can be granted. The affidavits in support of the orders make various allegations about the motivations of the solicitors for the creditor, but I can see no evidentiary basis at all for any of those allegations. In fact, in view of the matters stated in the affidavits filed for and on behalf of the applicant for the variojs orders, it seems to me that nothing has been established which would suggest that the liability of the debtors for the

debt which was sued upon and eventually made the subject of orders in the District Court did not exist. At any rate, no ground has been raised for going behind the judgment in the way it is formulated in the application to the Court, because there

is no effective challenge to the existence of a true and real

debt.

Tied up with that particular application are the applications for the second and third orders/declarations. The fact that Mrs Williams has not been a director of John's Formal Wear Proprietary Limited since October 1989 has no bearing at all on her liability as a guarantor under the relevant lease. It is also not relevant that the original summons in the District Court may not have been served upon the debtors, because the debtors appeared in those proceedings by a firm of solicitors,

filed a notice of appearance, defences, affidavits as to

discovery, and detailed particulars.

.The fact that the applicants did not attend or appear at the hearing was not at all due to the fact that the summons was not served on them or that the existence of the summons had not been drawn to their attention, but rather because they believed that

the hearing of the District Court should have been held in Maroochydore and not in Brisbane, because Mrs Williams was unweli! and could not travel to the hearing, and for other such reasons not at the time drawn to the attention or receiving the

favour of the District Court. There is nothing at all that I

can do about the decisions of the District Court in that regard.

The third order sought is one prohibiting any contact by the creditor with Mrs Williams. That is not an order which the Court has jurisdiction to make as such, but it appears that it is based upon the fact that Mrs Williams is suffering from frail health and would only be unduly troubled and agitated by further contact with or on behalf of the creditor or the Court. In this regard, her husband, Eric Williams Snr has announced in Court, as he has previously apparently advised in writing, that he is Mrs Williams' representative for the purpose of receiving the service of any documents, contact by telephone, or any other requirements.

It is highly desirable that that request and information be honoured by everyone who has further contact with this case. There is absolutely no point in Mrs Williams being unduly troubled in her state of ill health by what will henceforth be essentially formal matters. At any rate, if Mrs Williams' personal intervention in any matter is required, it can be assumed that Mr Williams, upon receipt of the necessary documentation or information, will at his and his wife's

discretion talk to her about the matter.

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However, f o r t he reasons I have given, t h e r e i s nothing i n t h e

a p p l i c a t i o n before t h e Court t h a t can l e g i t i m a t e l y be upheld,

and t h e app l i ca t ion w i l l t he re fo re be dismissed. I n a l l t h e

circumstances of t he case , I w i l l make no o rde r a s t o c o s t s .