Sommer and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 836
•18 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 836
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6219
GENERAL ADMINISTRATIVE DIVISION ) Re ENID SOMMER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Honourable Dr B H McPherson CBE Deputy President Date18 September 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............[Sgd].................................
Deputy President
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits & Allowances – aged pension – whether assets exceeded limit constraining payment of the aged pension – whether the debt of $1 million or more has ceased to exist – expiration of the limitation period of six years does not destroy the debt – decision under review affirmed.
Limitation of Actions Act 1974 (Qld) ss 5,10,10(1) (a), 36
Corporations Act 2001 (Cth) s 129 (3)
Sherman & Sherman [2008] FMCAFam 413
Heydon v Perpetual Executors, Trustee & Agency Co (WA) Limited (1930) 45 CLR 111
Courtenay v Williams (1846) 15 LJ Ch 204
Australia and NZ Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 QdR 478
Bradford Old Bank Ltd v Sutcliffe [1918] 2 KB 833
Norton v Ellam (1837) 2 M&W 461; (1837) 150 ER 839
Re Hawkins and Secretary, Department of Family and CommunityServices [2005] AATA 1219
Re Juric-Kacunic and Secretary, Department of Family and Community Services [2003] AATA 15; (2003) 72 ALD 771
Unicomb v Secretary, Department of Social Security [1998] FCA 204
Re Secretary, Department of Family and Community Services [2002] AATA 737
Courtenay v Williams (1846) 15 LJ Ch 204, 206
Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177
Higgins v Scott (1831) 2 B & Ad 413; (1831) 109 ER 1196
Commonwealth v Mewett (1997) 191 CLR 471, 534
Noble v State of Victoria (App No 9023 of 1997; Qld Sup Court)
China v Harrow UDC [1954] 1 QB 178; [1953] 2 All ER 1296
Hillingdon LBC Ltd v ARC Ltd [1999] Ch 139
Bradford & Bingley plc v Rashid [2006] 4 ALL ER 705; [2006] 1WLR 1066
Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146
REASONS FOR DECISION
18 September 2008 Honourable Dr B H McPherson CBE Deputy President 1. On 20 September 2007, which was the date on which her application was rejected by Centrelink, the applicant, Mrs Enid Sommer, qualified in all respects save one to receive the age pension. The respect in which she failed to do so was the value of her assets. At the date in question, the asset limit for a person like Mrs Sommer, who was single and did not own her home, was $650,250. Mrs Sommer had assets that exceeded that limit, or so it was confirmed by the Social Security Appeals Tribunal (the SSAT). It is their decision on that ground affirming rejection of her claim for the aged pension that now falls to be reviewed by this Tribunal.
2. The SSAT reached its conclusion by including in the value of Mrs Sommer’s assets debts said to be owing to her amounting to $1,458,426.04. This is the aggregate of the indebtedness shown as due to Mrs Sommer on a “spreadsheet” which is annexed as ex BS12 to the affidavit of her son Bret. It was originally filed in matrimonial proceedings in the Federal Magistrates Court, in which Mr Burnett FM gave judgment on 20 March 2008[1]. Those proceedings were between Bret and his former wife Gordana, and incidentally raised issues concerning the indebtedness to Mrs Sommer of Bret and Gordana.
[1] See Sherman & Sherman [2008] FMCAFam 413
3. There has been no real dispute that, during a period running from about December 1997 to February 2003, Mrs Sommer paid from her own resources sums aggregating $1,458,426.04 shown on the spreadsheet ex BS12. The figures in that document were arrived at after analysing Mrs Sommer’s bank statements and deposit slips. The record of payments made and received as shown in the spreadsheet has been accepted as correct both by Centrelink and the SSAT and by Mr Burnett FM in his reasons for judgment dated 20 March 2008[2]. The spreadsheet has been used as the starting point for all inquiries about the amount of the debt due to Mrs Sommer. If not adopted, then there is practically speaking no evidence of any amount being owed to Mrs Sommer at any time. No contention to that effect has been advanced in these proceedings. What ex BS12 shows, however, is that some of the payments included in the total of $1,458,426.04 were made or credited to B & G, which can only mean Bret and Gordana Sommer, while some were made to World Enterprises or to On-Site Power. Some other payments are also shown to have been made to In Vogue; but they are comparatively small in amount and may safely be ignored. World Enterprises Pty Ltd and World Enterprises Group Pty Ltd are names of companies which at one time carried on a business under the trade name On-Site Power. That business engaged in making power generators and was bought in or about 2005 or 2006 from a vendor who on settlement failed to transfer the patents protecting the product being manufactured. Both Bret and Gordana were directors of and shareholders in World Enterprises Pty Ltd, which may be referred to as the old company. Bret alone was director of and shareholder in World Enterprises Group Pty Ltd (the new company) which took over the business of On-Site Power in 2006. The old company is insolvent, and that may or may not also be true of the new company.
[2] Sherman & Sherman [2008] FMCAFam 413
4. At the hearing of the matrimonial proceedings in the Federal Magistrates Court between Bret and Gordana, there was a dispute about whether the payments shown in ex BS12 were in fact loans or gifts. Bret and his mother contended that they were loans, while Gordana claimed they were gifts. The question whether the payments to Bret and Gordana were of one character rather than the other was relevant to those proceedings, which concerned division of matrimonial assets and liabilities on separation and dissolution of the marriage. As regards the payments in ex BS12 to Bret and Gordana (which were found to amount to $358,000) Mr Burnett FM concluded that they were gifts made by Mrs Sommer to her son Bret and not payments by way of loan requiring repayment to her. His Honour said he was “inclined” to the view that, in relation to Mrs Sommer’s payments to the company or companies, they too were also “in the nature of a gift to Bret himself”; but Mr Burnett FM refrained from deciding this question, saying that there was “no need to make any express findings in relation to the nature of the advances to the company.”
5. Whether a particular payment of money is intended as a gift or a loan has been regarded by the High Court as a question of fact, as to which there are in law no operative presumptions one way or another[3]. Mr Burnett made his finding that the payments to Bret and Gordana were gifts and not loans after hearing evidence from witnesses, who did not testify before me. I would therefore not be prepared to take a different view from the conclusion that the payments totalling $358,000 to Bret and Gordana bore the character of gifts by Mrs Sommer to her son.
[3] Heydon v Perpetual Executors, Trustee & Agency Co (WA) Limited (1930) 45 CLR 111.
6. On the other hand, there are reasons why the payments to the companies amounting in all to some $1,045,000 stand on a somewhat different footing. No express finding was made in the Magistrates Court about whether they constituted loans or gifts. The affidavits of Bret and Mrs Sommer assert the former, and in the Tribunal there was no evidence to the contrary from Gordana or anyone else. No doubt a finding on this issue here is very much a matter of inference from undisputed facts. But there are various reasons for concluding that loans rather than gifts were intended. To start with, it seems rather unlikely that Mrs Sommer would have wished to donate such a large amount to a corporation or corporations, even admitting that they were entities in which her son and daughter-in-law were interested. It is true that, had repayment never been sought or made before Mrs Sommer died, the question may never have arisen at all if, as seems likely, Bret becomes her only testamentary beneficiary. The present matter therefore seems to me in a number of ways to resemble Courtenay v Williams[4], where the learned Lord Chancellor (Lord Lyndhurst) concluded:
“Probably … the testator never expected the money would be repaid; but still he reserved to himself the right of being repaid if he should think proper, in case the circumstances should be such as to enable the party to repay the money.”
[4] Courtenay v Williams (1846) 15 LJ Ch 204 at 204-205.
7. In that instance, there were also circumstances that led his Lordship to the conclusion the payments were intended not as absolute gifts, but as loans. In the present matter there are circumstances supporting a similar inference. In particular, there is a six page formal Loan Agreement dated 20 December 2001 that was executed by Mrs Sommer and the old company. In it Mrs Sommer is described as the Lender and World Enterprises Pty Ltd as the Borrower. The Agreement recites the request of the Lender for an Initial Advance, as well as the possibility of requests to lend additional moneys being made in the future. Recital D declared that the parties had agreed to enter into the Agreement to record the terms of the Initial Advance and each loan of additional moneys to be made. Clause 1 defined the Principal Sum as all monies advanced by the Lender to the Borrower “pursuant to or in connection with the Agreement.” By clause 3, the Principal Sum was to be repaid in one lump sum on the seventh anniversary of the date on which the first advance was made.
8. The Agreement was prepared by a leading firm of Brisbane solicitors. It contains a space for the dollar amount of the Initial Advance which, however, was not completed by insertion of a figure. The Agreement is, as I have said, dated 20 December 2001, and it bears a stamping notation showing that on 20 January 2002 it was stamped to an amount of $250,000. There is an entry dated 8 November 2001 in the spreadsheet ex BS12 showing a payment by Mrs Sommer to World Enterprises of $250,000 on that date. In the course of the Tribunal hearing, Bret volunteered the information that the Loan Agreement was entered into in order to record the loan by Mrs Sommer of $250,000 payable by the company as the purchase price for the business of On-Site Power, which was being acquired at that time.
9. At about the same time as the Loan Agreement was entered into, a company charge was lodged by the same solicitors after execution by the old company granting a charge to the extent of $300,000 in favour of Mrs Sommer charging the assets and undertaking of the company with payment of all moneys owing by the chargor to the chargee. The charge was apparently registered with ASIC after Certification in Form 250 of compliance with stamp duties law had been made by Bret on behalf of the company. Those two instruments bear dates of 19 July 2001 and 31 May 1999. There are obvious discrepancies between the dates and the date of the Loan Agreement and of the payment of $250,000 recorded in ex BS12, which may need elucidation; but it is nevertheless a possible inference that the need to certify the stamp duty paid on the registration of the charge is what prompted the execution of the Loan Agreement. Bret explained that the various amounts, some of them large, recorded on ex BS12 as having previously been paid to World Enterprises in fact represented loans to that company made by Mrs Sommer in the course of an earlier business conducted by that company before Bret and Gordana came to Queensland from New South Wales. They are all fairly capable of being described as monies advanced by the Lender to the Borrower “pursuant to or in connection with” the Agreement.
10. The upshot of all this is that (as contended by Mrs Sommer, Bret and the Department) I find that amounts totalling $1,000,000 or more were paid and lent by Mrs Sommer to World Enterprises Pty Ltd or later to World Enterprises Group Pty Ltd trading as On-Site Power. The amount in question has never been repaid, although in 2006 a sum of $28,000 or $29,000 was paid to her by Bret. It was as much as remained after what Bret described as a “line of credit” had been used up. On the material, so far as it goes, it seems to represent a payment by him to his mother at a time when both of them and the business had fallen on hard times. The real question for decision is whether the SSAT was correct in holding that the amount of that unpaid indebtedness of about $1,000,000 was to be brought to account at its face value as forming an asset of Mrs Sommer in determining whether or not her assets exceeded the limit of $650,250 constraining payment of the aged pension. If it was to be assessed at its face value of $1,000,000 or more, then her application for the pension was, as the SSAT decided, rightly rejected.
11. At this juncture, the critical issue in these proceedings is whether the debt of $1 million or more has ceased to exist, or had done so on 20 September 2007. Mrs Sommer could in law have achieved that result by executing a deed under seal forgiving the debt altogether. Precisely what would have been the consequential effect on her right to the aged pension, I need not stay to see, because Mrs Sommer has chosen not to forgive the debt. It is therefore not affected by any act on her part. What is said, however, is that under the Limitation of Actions Act 1974 (Qld) (“the Limitation Act”) time has run against the debt, which has now ceased to be enforceable and is statute-barred. Section 10 of the Limitation Act provides that:
“(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action arose –
(a)…an action founded on simple contract …
(2)…
(3)An action upon a speciality shall not be brought after the expiration of 12 years from the date on which the cause of action arose.”
An action to recover a debt arising on an ordinary loan of money answers the description in s 10(1)(a) of an action founded on a simple contract. It is well settled by authority that in such a case the cause of action accrues, and the six years specified in s 10(1)(a) of the Limitation Act begins to run, when the loan is made.
12. The authority commonly relied on in this connection[5] is the statement of Scrutton LJ in Bradford Old Bank Ltd v Sutcliffe[6], that in general, “a request for payment of a debt is quite immaterial, unless the parties to the contract have stipulated it should be made”. That principle goes back well before then, at least to the time of Norton v Ellam[7] where Parke B said:
“I entertain no doubt at all on this point. It is the same as the case of money lent payable upon request, with interest, where no demand is necessary before bringing the action. There is no obligation in law to give any notice at all; it you choose to make it part of the contract that notice shall be given, you may do so. The debt which constitutes the cause of action arises instantly on the loan. Where money is lent, simply, it is not denied that the statute begins to run from the time of lending.”
[5] See for example Australia and NZ Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 QdR 478 at 484.
[6] Bradford Old Bank Ltd v Sutcliffe [1918] 2 KB 833 at 848 – 849.
[7] Norton v Ellam (1837) 2 M&W 461 at 464; (1837) 150 ER 839 at 840.
13. On this footing the loans recorded in ex BS12 would have become statute-barred six years after the dates on which each of the payments of loans were made to the company by Mrs Sommer. Some, but by no means all of them, would have become statute-barred at the date (20 September 2007) at which Mrs Sommer’s application for the aged pension was rejected. At present, all of the loans except the last two paid over on 28 January 2003 and 27 February 2003 would now be statute-barred.
14. But this is to reckon without the Loan Agreement itself and the provision it makes concerning the right to claim repayment of the loan. As appears from the extracts quoted from the judgments of Scrutton LJ and Parke B, the parties may agree to depart from the general rule. They can stipulate in their contract that the loan shall not fall due until some time or event after it was made. If they do so, then the cause of action to recover the debt does not accrue, and time does not start to run, until that time or event takes place.
15. This in my opinion is what the parties did in the present case. Reference has been made to clause 2.3 of the Loan Agreement providing that the Principal Sum shall be repaid on the seventh anniversary of the date on which the first advance is made by the Lender to the Borrower. The drafting is somewhat obscure; but, taken with clause 2.4 authorising the Borrower to pay the whole or part of the money owing before the Termination Date (which is the end of the seven-year period), it seems reasonably clear that the intention of the parties was to postpone for seven years the date at which the Borrower was bound to repay the loan.
16. From this it would follow that the cause of action for recovery of a debt under the Loan Agreement would not accrue until seven years after the particular sum in question was paid and lent by Mrs Sommer. Accepting that, under the statute, time would begin to run only six years after the expiration of that accrual date, it means in practical terms that it would be 13 years from the date at which a particular loan was made before its recovery would be time-barred under the Limitation Act.
17. What has been said so far has proceeded on the basis that the debts arising from the loans made by Mrs Sommer are simple contract debts and so attract s 10(1)(a) of the Limitation Act prescribing a six year limitation period. If, however, they were specialty debts they would attract the 12 year limitation period in s 10(3) of the Act. A speciality is a deed under seal. The only basis for suggesting that the Loan Agreement is a deed under seal is that Mrs Sommer’s signature at the end of it is placed above a form of testatum that reads “Signed sealed and delivered by Enid Elsie Sommers.” However, the other party, which is the company World Enterprises Pty Ltd, does not profess to have sealed the instrument of Loan Agreement but simply to have “executed” it.
18. Having regard to s 129(3) of the Corporations Act 2001 (Cth) it would have been quite simple, if the company had intended to do so, to have expressed the Loan Agreement as being executed as a deed. In that event, it would presumably have had the effect of a deed or specialty for the purposes of s 10(3) of the Limitation Act, and so would attract the 12 year limitation period. It is however, legally impossible to conceive of a hybrid instrument that, as to one party is a deed, and as to the other is no more than a simple contract. In fact, the language of the Loan Agreement is throughout not that of covenant but of simple contract, and that, in my opinion, is the true character in which it took effect. In my view, therefore, the applicable period of limitation in respect of the loans by Mrs Sommer to the companies or either of them is the period of six years specified in s 10(1)(a) of the Limitation Act, beginning with the date on which the cause of action accrued under cl 2.4 of the Loan Agreement.
19. It is necessary now to consider the impact if any of expiration of the limitation period on the existence and value of a debt. There is no doubt that a debt is a form of personal property, and as such an asset like any other property. The Social Security Act 1991 (“the Act”) defines “asset” as property or money; “financial asset” as including “financial investment”; and “financial investment” as including:
“(e) a loan that has not been paid in full.”
20. The value of a debt as an asset would ordinarily depend on the prospect of its being repaid. From reading the helpful reasons of Member Carstairs in Re Hawkins and Secretary, Department of Family and Community Services[8], I learn that at one time in the course of administering the legislation, it was thought necessary to produce actuarial evidence of the true value of a debt. It was to avoid the need for this that s 1122 was inserted in the Act. It provides –
“1122.If a person lends an amount after 27 October 1986, the value of the assets of the person for the purposes of this Act includes so much of that amount as remains unpaid …”
[8] Re Hawkins and Secretary, Department of Family and Community Services [2005] AATA 1219.
21. Legal ingenuity has sought to import into the word “lends” in s 1122 the meaning that there must be a legally enforceable right to claim repayment of the sum lent. The attempt to gloss the section in this way was rejected by Branson J in Unicomb v Secretary, Department of Social Security[9], applied in Re Hawkins, above. See also Re Secretary, Department of Family and Community Services[10], and Re Juric-Kacunic and Secretary, Department of Family and Community Services[11] [2003] AATA 15; 72 ALD 771, confirming that under s 1122 the value of a loan is not to be discounted because of its irrecoverability but is fixed at the amount remaining unpaid. The value of Mrs Sommer’s loans to the World Enterprise companies is therefore $1,045,000 or thereabouts, which is equal to the whole amount lent as well as the amount unpaid on those loans.
[9] Unicomb v Secretary, Department of Social Security [1998] FCA 204..
[10] Re Secretary, Department of Family and Community Services [2002] AATA 737
[11] Re Juric-Kacunic and Secretary, Department of family and Community Services [2003] AATA 15; (2003) 72 ALD 771.
22. The Departmental Guide to the Social Security Law makes the same point. It says “Money loaned by a customer is an assessable asset. The value is the amount owed to the customer (section 1122)”. The Guide goes on to discuss circumstances in which a loan “ceases to exist”. It says:
“A loan no longer exists for social security purposes when:
· it is repaid …
· the period specified in the Statute of Limitations has elapsed since the date of the loan, or last repayment, or demand to repay (whichever is the later) so the loan is not legally able to be recovered.”
23. It must be borne in mind that the Guide is no more than it professes to be. It is not a legal textbook, but a guide for use in administering the welfare system. Still, the observation remains relevant that it is not in law correct to say that a loan no longer exists “if the period specified in the Statute of Limitations has elapsed”. In adopting the expression “an action shall not be brought …”, s 10 of the Limitation Act, as well as ss 11, 12, 14, 25, 27(2) and 28, was deliberately repeating a verbal formula taken from the old Limitation Act 1623, passed in the time of King James I. Reasoning that a statute in that form did no more than prevent a common law action from being brought, the courts have repeatedly held that the statute bars the remedy and not the right. As Lord Lyndhurst said in Courtenay v Williams[12]:
“The debt exists, but the remedy alone is barred. The debt existed in this case, but no action could be brought to recover the money: that is perfectly clear. The act of parliament only goes to this extent: it only says that no action shall be brought to recover any debt after the expiration of six years from the time the debt was incurred. It does not extinguish the debt; the debt still continues to exist …”
[12] Courtenay v Williams (1846) 15 LJ Ch 204 at 206.
24. Similar statements appear in Australian decisions of high authority. In respect of a debt, said Kitto J in Motor Terms Co Pty Ltd v Liberty Insurance Ltd[13], the operation of the Statute of Limitation “is only to bar the remedy: it does not extinguish the debt”. A statute of limitations “in the traditional form”, goes only to the remedy. “The cause of action”, say Gummow and Kirby JJ, “has not been extinguished”[14].
[13] Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177.
[14] Commonwealth v Mewett (1997) 191 CLR 471 at 534.
25. Because, after the statutory period has expired, the debt is not extinguished, it continues to survive for various purposes. If, for example, a statute-barred debt is paid, the payment is not recoverable. A statute-barred debt is capable of supporting a lien or charge[15]. Such a debt is entitled to the protection contained in s 51 (xxxi) of the Constitution[16]. It follows that the indebtedness of the companies to Mrs Sommer of the amount of $1,045,000 did not cease to exist, but subsisted even after the expiration of the period of limitation of six years under s 10(1)(a) of the Limitation Act.
[15] Higgins v Scott (1831) 2 B & Ad 413; (1831) 109 ER 1196.
[16] Commonwealth v Mewett (1997) 191 CLR 471.
26. It is relevant to notice another consequence of the traditional language in which s 10(1)(a) is cast. The expiration of the limitation period specified in that and other provisions of the Act is directed against the bringing of an “action”. It says an “action shall not be brought”. What is more, it is a rule of procedure that the limitation is operative only if it is pleaded as a defence in the action. The defendant may forbear or may be prevented from pleading it, or he may otherwise fail to plead it if he so chooses, in which event “the statutory bar does not arise for consideration”[17]. In that event, the action is not susceptible of being summarily struck out as an abuse of process[18].
[17] Commonwealth v Mewett (1997) 191 CLR 471 at 534.
[18] Noble v State of Victoria (App No 9023 of 1997; Qld Sup Court) at [31].
27. Moreover, s 5 of the Limitations of Actions Act 1974 defines “action” as including “any proceeding in a court of law”. The same language has received an expansive interpretation in England in China v Harrow UDC[19] and in Hillingdon LBC Ltd v ARC Ltd[20]. But it does not seem to me to be reasonably possible to regard the definition of “action” in s 5 as including an application to Centrelink for an age pension under the Social Security Act 1991. Centrelink, to which such an application is made, is not a “court of law” according to any ordinary understanding of that expression; and that remains so even if, as may be the case here, the “proceeding” may yet find its way on appeal to the Federal Court.
[19] China v Harrow UDC [1954] 1 QB 178; [1953] 2 All ER 1296.
[20] Hillingdon LBC Ltd v ARC Ltd [1999] Ch 139.
28. It therefore seems to me that there is no recognisable basis in law that would justify Centrelink in applying s 10(1)(a) of the Limitation of Actions Act 1974 (Qld) to a debt against which the period of six years has run under that provision. On any view of the law, the debt remains an “asset” within the meaning of the Social Security Act 1991 and one that under s 1122 falls to be valued by the extent to which it remains unpaid at the date at which Mrs Sommer’s application for age pension was made. Here it was completely unpaid.
29. It is a possible view of the spreadsheet ex BS12, together with the statements made about it in the affidavits of Bret and Mrs Sommer, that taken together they may constitute a written acknowledgement of indebtedness in terms of s 36 of the Limitation of Actions Act 1974[21]. If so, it would set time running again under s 35(3) of that Act. The statements referred to appear to me to embody an unqualified admission to Mrs Sommer to the extent of $1,000,000 or more. A written acknowledgment may be derived from any source[22]; but only if it is a source with authority to make binding admissions. The difficulty is that there are two directors of World Enterprises Pty Ltd, and only Bret has made any admissions about the amounts owing in ex BS12. Gordana has not done so, and on his own Bret has no actual or ostensible authority to bind the company.
[21] See Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177 and Bradford & Bingley plc v Rashid[2006] 4 ALL ER 705; [2006] 1WLR 1066 at 1074.
[22]See Re Compania de Electricidad de la Provincia de Buenos Aires Ltd [1980] Ch 146 at 194.
30. This is in no way affects my conclusion that, at the date of Mrs Sommer’s application to Centrelink on 20 September 2007, she had an “asset” in the form of the debt of $1,000,000 or more owed to her by one or both of those two companies. The expiration at that date of the limitation period of six years specified in s 10(1)(a) of the Limitation Act did not destroy that debt or any part of it, which however continued to exist, and which had a value for the purposes of the Social Security Act equal to the amount (which was the full amount) that remained unpaid on it at that date.
31. From this it follows that the decision of the Social Security Appeals Tribunal dated 21 November 2007 was correct and must be affirmed.
32. I might add that at the hearing Mr Bret Sommer, with the acquiescence of the applicant Mrs Sommer, advised that, since the lodging of the application to this Tribunal to review the decision, Centrelink has begun paying the aged pension to Mrs Sommer on and from 5 July 2008. Mr Hamilton, who appeared for the respondent in these proceedings, was evidently not previously aware of this development. If it is the fact, it would render these proceedings otiose except as regards amounts between 20 September 2007 and 5 July 2008, when no pension was paid. But I do not think that I am called to decide more than the question as to which the review was sought.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President
Signed:.....................[Sgd].........................................................
Elizabeth Young, Research AssociateDate/s of Hearing 2 September 2008
Date of Decision 18 September 2008
The Applicant was represented by Mr Bret Sommer, her son
Solicitor for the Respondent Mr Bob Hamilton, Departmental Advocate
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