Tartaglia, Re G. Ex Parte T. Del-Pizzo

[1986] FCA 352

CATCHWORDS

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Moneys lent - bankruptcy notice and petition issued - debtor	i.
denies debt - credibility of creditor and debtor - contradictory
evidence - balance of improbability - sequestration order.	i -
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Bankruptcv Act	i .

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I	Re:	GUISEF'PE	TARTAGLIA and Ex parte: TERESA DEL-PIZZO
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I	No. P 1972 of 1985
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I	FORSTER, J.
I	ADELAIDE

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I	22 AUGUST	1986	, I
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IN THE FEDERAL COURT OF AUSTRALIA )

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GENERAL DIVISION	1	NO. P 1972 of 1985
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BANKRUPTCY DISTRICT OF THE STATE	1
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OF NEW SOUTH WALES AND THE	) )

AUSTRALIAN	CAPITAL	TERRITORY	)
Re: GUISEPPE TARTAGLIA

Dehtor

Ex parte:

TERESA DEL-PIZZO

Creditor

JUDGE MAKING	ORDER	FORSTER J.
WHERE MADE	ADELAIDE

DATE OF ORDER	:	4 22 AUGUST 1986
THE COURT ORDERS THAT:

1.	Debtor's notice of opposition be dismissed.
2 .	A sequestration order with respect to the debtor's
estate.
3.	The costs of the petitioning creditor he taxed and paid
in accordance with the Bankruptcy Act.
-	Note :	Settlement and entry of order is dealt with in
Bankruptcy Rule 124.

IN THE FEDERAL COURT OF AUSTRALIA )

)

GENERAL DIVISION	)	No. P 1972 of 1985
1

BANKRUPTCY DISTRICT OF THE STATE- )

)

OF NEhI SOUTH WALES AND THE	) )
AUSTRALIAN CAPITAL TERRITORY	1
Re: GUISEPPE TARTAGLIA

Debtor

Ex parte:

TERESA DEL-PIZZO

Creditor

REASONS FOR JUDGMENT

FORSTER J. :

The petitioning creditor Teresa Del-Pizzo ( "the

creditor") sued the debtor Guiseppe Tartaglia in the Supreme

Court of New South Wales for moneys lent by her to him and

interest thereon. She entered a default judgment against him in

this action for $29,632-35 which sum bore interest at 13.5% per

annum. The creditor caused a bankruptcy notice to be issued on

10 August 1985 which was served upon the debtor on 8 September

1985. The debtor took no action following the service of the

bankruptcy notice and the creditor on 20 December 1985 caused to

be issued the bankruptcy petition in this matter. It was set

for hearing on 18 March 1986 and on that day the debtor filed a

notice of intention to oppose the petition, dated the previous

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day, in which he denied that he was indebted to the creditor the amount stated in the petition or for for

any amount and also

denied that he had committed an act of bankruptcy. Directions

were given for the filing of affidavits and for discovery and the

matter eventually came before me for hearing.

Some facts, but not many, are not in dispute. The

debtor lived in the accommodation at Five Dock of which the

creditor was tenant from some time late in 1979 to early 1984

with three intervals. The creditor says that during this period

she lent to the debtor, or advanced on his behalf, in various

ways, a large number of sums of money totalling $20,597. The

debtor admit6 that he borrowed some small sums from time to time

and %hat a few sums were paid by the creditor on his behalf, but

he says that he paid all these sums back and owes the creditor

nothing. The creditor and the debtor both gave evidence and

were cross examined on their affidavits. Documents were

tendered as exhibits. There was also short evidence from a Miss Old who proved that the paper on the back of which exhibit 3 was

written was portion of a print out from the computer of

Manchester Unity, her employer, and that of the creditor.

The evidence of the debtor was in fact a contradiction

of that of the creditor at almost every point so that their

relative credibility is of great importance. There were

improbabilities about the evidence of each and 1 remember during

the hearing considering and saying to counsel that the case

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looked, to some extent at least, as if it might be decided on the balance of improbability. There are difficulties of belief with

respect to both the creditor and the debtor but further

consideration has confirmed.-the view I took at the time that I

I	prefer the evidence of the creditor to that of the debtor where
they conflict. Making all due allowance for the apparent
difficulties he had with the language the debtor frequently
contradicted himself and, in my view, was quite prepared to, and
did, fabricate stories to account for evidence, for instance the
i.o.u's., the existence of which he could not deny. He also

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said that he was working for most of the time that he w a s living

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with the creditor and that he put in annual income tax returns

through a tax agent. I suggested to the debtor's counsel that

he would be wise to tender to the court copies of these returns

or some evidence of their having been submitted to the Deputy

Commissioner of Taxation. I also suggested that if neither

copies of returns nor evidence of their preparation was available

the debtor would be wise to account if he could for their

absence. This discussion with counsel occurred during the

morning on the first day of the hearing. The debtor's case was

closed during the afternoon subject to his right to reopen to

I	deal with the matter of income tax returns. At the end of the
hearing at the luncheon adjournment on the following day counsel
for the debtor informed me that he had no more evidence of any sort to call and nothing was said to account for the failure to
deal with the matter of the debtor's tax returns. I regard this
of significance in assessing the general credibility of the

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debtor and I am unable to believe that he was working as much as he sald he was. I prefer to believe the creditor when she says

that he worked very little and that as a consequence she had to

.--make hire purchase payments with respect to the Volkswagen car to which I will refer later.

The creditor says that the debtor asked for and got

money from her for a variety of purposes over the period from

late 1979 to March 1984. She was in the habit of keeping a

record of payments made to or on behalf of the debtor. Up to 12

October 1981 the total of the amounts lent was $8,885. The raw

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i records to support this total have been destroyed but there is

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what may be described as an i.0.u.	signed by the debtor dated 12	,.
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October 1981 promising to pay $8,885 (exhibit 4 ) . The debtor .. .

admits that his slgnature appears at the foot of this document

and also at the foot of exhibits 2 and 3 . Exhibit 2 is a list

of payments recorded by the creditor and said to have been made

by her to or on behalf of the debtor from 1 April 1982 to 10 September 1982. She says that he signed this list as an acknowledgment that he received the sums set out in the list. Exhibit 3 is an acknowledgment of a debt of $19,000 with interest made, as I have said, on the back of a portion of a print out from the computer of Manchester Unity. The creditor says that

the debtor came to her at her work some time towards the end of

1983. He told her that he wanted money to take to the races at Canterbury so that he might back a horse with respect to which he

had a tip. The creditor says that she did not have her records

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with her at work but knew that the debtor owed her approximately

$19,000. She lent the debtor some money to go to the races but

only after he had signed the acknowledgment, exhibit 3.

The debtor accounts for his admitted signature on these

three documents by saying that he was in the habit of practising

his signature on pieces of paper and on pages of notebooks and

wrlting pads. Exhibits 2 and 4 are quite apparently pages from

a notebook. He accounts for his signature on exhibit 3 by saying that the piece of paper must have been lying about the creditor's flat and he practised his signature on it. He says that in each case the sheets of paper contained no writing when

he signed them and that the creditor must have added the writing

later. I disbelieve the debtor as to these three signatures and

believe the creditor. This means of course that I believe that

the debtor acknowledged to the creditor that she had paid to	or
for him the sums listed in exhibit 2 that he owed her $8,885	on

12 October 1981 and that he owed her approximately	$19,000
towards the end of 1983.

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Quite a large component of the moneys said to be due by

the debtor to the creditor was payments made with respect to a

Volkswagen car. The debtor wished to buy a second hand

Volkswagen car. It was necessary for him to borrow money for

the purpose from a finance company. The debtor was not an

acceptable borrower to the finance company so the car was bought

and the necessary money borrowed in the name of the creditor.

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Two contracts for loan were entered into by her and monthly

repayments of	a little over $187 were called	for. The creditor	..
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says that the debtor made the first two or three payments to the c

finance company and was able to do so because he was in

employment. Thereafter the creditor says that one way or

another she made all of the payments whether for repayment of the

loan or for insurance or for repairs to the car. The debtor

denies this and says that he was working nearly all the time and

was making nearly all the payments which he was able to do

because he was working. I was disinclined to believe the debtor

as to this. Production of copies of the income tax returns or even proof that he had lodged any would have diminished or

perhaps overcome this disinclination to believe the debtor on

this issue but neither copies nor	evidence was forthcoming and.no
explanation was given.

I should say that in many ways the creditor's story of her relationship both personal and financial with the debtor is

somewhat hard to believe. Even though she was working at two

jobs and paying no tax with respect to her wages at one of them

she must have had serious difficulty in finding money to lend to

the debtor at the rate of over $4,000 per year and pay her rent

and buy food for both of them. Examination of the figures

however indicates that it was possible for her to have done it

and I believe she did. I think that the creditor was a very

foolish woman where the debtor was concerned. I think however

that she was besotted with him and was as putty in his hands.

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i	I	She continued to lend the debtor money even though she must have
known that his promises to repay were worthless. I think that
she was very much in love with him and it is not unknown in human
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l	affairs for people in this condition to behave very foolishly and
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I	for a long time. Having considered and reread the evidence and
having a good recollection of the impression which both the
debtor and the creditor made upon me when giving evidence, I am
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I	left with no doubt that the debtor owes the creditor the sum
claimed in the bankruptcy petition.

The debtor'fi notice of opposition therefore fails and is

dismissed and I make a sequestration order with respect to his

estate and order that the costs of the petitioning creditor be

taxed and paid in accordance with the Bankruptcv Act.

I certify that this and the preceding pages are

a true copy of the Reasons

for Judament ofi Mr Justice

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Forster.

Associate