Rodgers v Bush

[2006] FMCA 1137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RODGERS v BUSH & ANOR [2006] FMCA 1137

BANKRUPTCY – Application by Trustee for declaration that debtor was a person already made bankrupt – evidence concerning identity – respondent provides evidence – where respondent does not rebut identity evidence of witness or required him to be called for cross examination – form of declarations – costs of second respondent – effect of declarations on existing bankruptcy.

Applicant: PETER RODGERS AS TRUSTEE OF THE BANKRUPT ESTATE OF PETER JO

First Respondent: ALEXANDER BUSH

Second Respondent: UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (ACN 053 572 017)

File Number: SYG246 of 2006

Judgment of: Raphael FM

Hearing date: 1 August 2006

Date of Last Submission: 1 August 2006

Delivered at: Sydney

Delivered on: 1 August 2006

REPRESENTATION

Counsel for the Applicant: Mr A Gruzman SC

Solicitors for the Applicant: Matthews Folbigg Pty Ltd

For the First Respondent: In Person

Solicitors for the Second Respondent: Kemp Strang

ORDERS

THE COURT DECLARES THAT:

1. The respondent is the same person as the bankrupt known as “Peter Jo” (Bankruptcy File No. NSW 3484/5/2).

2. An order for the sequestration of the estate of Alexander Bush described as Peter Jo was made 13 July 2005.

3. Peter Rodgers of Rodgers Reidy Accountants, Level 8, 333 George Street Sydney, NSW 2000 is the trustee of the estate of the debtor Alexander Bush.

THE COURT ORDERS THAT:

1. Creditors petition be dismissed.

2. Costs of the trustee and of the Uniting Church in Australia Property Trust be paid out of the bankrupt estate of Alexander Bush in accordance with the Bankruptcy Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG246 of 2006

PETER RODGERS AS TRUSTEE OF THE BANKRUPT ESTATE OF PETER JO

Applicant

And

ALEXANDER BUSH

First Respondent

UNITING CHURCH IN AUSTRALIA PROPERTY TRUST
(ACN 053 572 017)

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an interim application in matter SYG 246 of 2006, which is a proceeding brought by the Uniting Church in Australia Property Trust (ACN 053 572 017) for the sequestration of the estate of a person known as Alexander Bush. But the applicant in this proceeding is not the Uniting Church but Peter Rogers as trustee of the bankrupt estate of Peter Jo.  Mr Rogers seeks an interim order to the effect that the court should declare that the respondent, Mr Bush, is the same person as a bankrupt known as Peter Jo, who was declared bankrupt by order of Registrar Kalavaris of this court on 13 July 2005 on the petition of Designeffect Pty Ltd.

2. The man who calls himself Alexander Bush and who appears today on his own behalf, changed his name on 19 December 2003 from Beon Hwi Jo to Alexander Bush [change of name certificate exhibit 6].  The gentleman claims to be a chartered accountant, registered in Korea, a migration agent and a business adviser who carries on business from an address at 256-258 Beamish Street, Campsie, New South Wales. He claims that one of his clients was Mr Peter Jo.  He claims that Mr Peter Jo wanted to obtain permanent residence in Australia and was being advised to do this through the obtaining of a business residence visa 457.  The basis upon which this visa would be obtained would be the investment by Mr Peter Jo in a property redevelopment at 55 Aird Street, Parramatta. 

3. In order to progress the development approval Designeffect was employed.  One of the directors of that company was Mr Sinisa Lazarevic.  In an affidavit filed in other proceedings No 648 of 2006, which was an application for examination in the bankruptcy of Mr Peter Jo, Mr Lazarevic tells that he met a person called Peter Jo in about July 2003.   They had a conversation in relation to his company performing some work for a company known as ABS 21 Pty Ltd.  The affidavit exhibits a number of documents.  The first is a quotation from Designeffect for the preparation of preliminary sketches.  It is signed “as agreed” by Mr Peter Jo, ABS Pty Ltd but the signature is not Mr Peter Jo, it is a signature of Beon Hwi Jo.

4. The next document exhibited by Mr Lazarevic to his affidavit is a letter from BH Jo & Associates to him dated 27 January 2004.  That sends with it a consent of landowner in relation to the site.  The letter is signed by Peter Jo and the signature is that of Peter B Jo, although to my untrained eye it bears a remarkable resemblance to the signature of Beon Hwi Jo on the previous page.  The consent of landowner, which is attached to that fax, bears the signature Beon Hwi Jo.  There are a number of other documents attached to Mr Lazarevic’s affidavit, some of which are signed by Peter Jo, some of which are signed by Mr Beon Hwi Jo.

5. Interestingly enough, one of the last is a letter from MF Collections to Mr Peter Jo, signed by Mr Peter Jo in which he agrees to pay $1,500 by the 30 of each month starting on 31 October.  It is interesting because in the evidence which I heard today from Mr Bush, he indicated that Mr Peter Jo had left Australia some time in 2003.  There is a further document of interest in Mr Lazarevic’s affidavit and that is the final one which is a letter dated 20 April 2005 from a firm of solicitors called Eden Lawyers, which is headed “Peter Jo – bankruptcy notice” and states:

   “We are writing in reference to the bankruptcy notice issued by you on our client.

   Our client has advised us that he is willing to pay the amount owing to you.  The only issue he has is regarding the method of payment. . . .”

   This is a strange letter to come from a firm of solicitors in respect of a client who has been served with a bankruptcy notice in Australia not withstanding that he is meant to be in Korea.

6. Mr Rogers, as Mr Peter Jo’s trustee, arranged with the court to have an examination undertaken of Mr Bush.  This took place on 23 May 2006.  Mr Bush appeared.  He was questioned by Mr Gruzman who appears before me today.  Mr Lazarevic was in court and on 29 May 2006 swore an affidavit in which he states:

   “1. I refer my affidavit sworn on 16 May 2006 [which is the affidavit to which I have previously referred].

   2.  I was present in court on 23 May 2006 from about 10 am until about 3.30 pm.  A person identifying himself as “Alexander Bush” attended in response to an examination summons issued by the trustee of the bankrupt estate of Peter Jo, Peter Rodgers.   I recognised the person who identified himself as “Alexander Bush” to be the person who had introduced himself to me as Peter Jo in July 2003, as set out in paragraph 3 of my earlier affidavit.”

   Mr Lazarevic was not required for cross examination.

7. Mr Bush gave evidence in court today.  He told me that Mr Jo, Mr Peter Jo was an old friend of his and that he was helping him obtain his visa.  He told me about the redevelopment and that because Mr Peter Jo did not pay the design fee he became bankrupt.   He indicated that Mr Peter Jo was out of the country during the process and that he might have signed some letters on his behalf, although he can’t recall.  The impression I obtained from the evidence given by Mr Bush was that this Mr Peter Jo was a rather shadowy figure, responsible for raising finance.  In response to questions from Mr Gruzman, Mr Bush said that it was very difficult to contact Mr Peter Jo.  Sometimes he did it through a public phone but usually he just waited for Mr Peter Jo to telephone him.  He did not have Mr Peter Jo’s telephone number. 

8. Mr Bush agreed that in 2003 he had changed his name from Jo to Bush but that notwithstanding this change of name he continued to use the name “Jo” particularly in relation to Korean clients of his, to whom that name was familiar.  In response to a number of questions from Mr Gruzman, all Mr Bush could answer was that he was unable to recall.  For example, he was unable to recall when Mr Peter Jo was last in Australia.  He could not recall when he last spoke to Mr Peter Jo.  Mr Gruzman put to Mr Bush that he was the person who had been served with bankruptcy notices and a petition in the name of Peter Jo and that had acknowledged that he was that person.  Mr Bush was unable to recall.  Mr Gruzman then put to Mr Bush that he had caused letters to be faxed and signed Peter Jo from his fax number in Beamish Street, Campsie, but he could not recall.  Mr Gruzman asked Mr Bush whether he had met a lawyer called Clinton Ooi, a partner in Eden Lawyers but Mr Bush could not recall.  He did not recall whether or not he had made an offer to pay off the debt for Mr Peter Jo, or that his offer had been accepted. 

9. I am satisfied from the evidence presented to me that Alexander Bush and Peter Jo are one in the same person.  Mr Lazarevic made a positive identification.  The evidence given by Mr Bush today has not convinced me to the contrary.  Indeed, I found Mr Bush’s method of giving evidence was such that it disinclined me to believe him.  I think that the documents produced by Mr Lazarevic in his first affidavit indicate quite clearly that Beon Hwi Jo and Peter Jo were really the same person and that the letters were signed without regard to the name.  Mr Gruzman has posited that Peter might be the English equivalent of Beon Hwi.  He may be right but I was more influenced by the similarity in the handwriting and the way in which documents were purportedly signed by Peter Jo on notepaper of businesses with which Mr Bush said in evidence today Mr Peter Jo he had no connection.

10. Having made that finding it is appropriate that I should provide Mr Rogers with the declarations he seeks.  He seeks other interim orders as well.  The first is that the creditor’s petition be dismissed.  I would be minded to grant that because there is no benefit in two sets of bankruptcy proceedings against the same person.  He wishes me to make a declaration that an order for the sequestration of the estate of Alexander Bush was made on 13 July 2005.  I think that is appropriate because Alexander Bush is the legal name of the man who passed himself off as Peter Jo.  It would follow from that that I should declare that Peter Rogers is the trustee of the bankrupt estate of Alexander Bush.

11. Mr Rogers asks for any other order that the court sees fit to make.  The only other order I would make is that the costs of this application, being the costs of Peter Rogers, be paid out of the bankrupt estate of Alexander Bush in accordance with the Bankruptcy Rules and that the costs of the Uniting Church in Australia Property Trust also be paid out of the bankrupt estate of Alexander Bush, with the same priority as if that company was the petitioning creditor in the original creditor’s petition, subject to the priority of Designeffect Pty Ltd. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: