Transcrete Aust Pty Ltd v Mani
[2010] FMCA 434
•17 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRANSCRETE AUST PTY LTD v MANI & ANOR | [2010] FMCA 434 |
| BANKRUPTCY – Application to set aside sequestration order – conflict of evidence as to whether applicant executed security documentation – allegation that applicant visited relevant premises with parrot on her shoulder – allegation sustained – application dismissed. |
| Evidence Act 1995, s.140 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59 SZGDC v Minister for Immigration and Citizenship [2008] FCA 1638 |
| Applicant: | TRANSCRETE AUST PTY LTD (A.C.N. 007 448 035) |
| First Respondent: | CEMAL MANI |
| Second Respondent: | REYHAN MANI |
| File Number: | MLG 576 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 21, 28 May & 8 June 2010 |
| Date of Last Submission: | 8 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. King |
| Solicitors for the Applicant: | Coopers Lawyers |
| Counsel for the Second Respondent (the Review Applicant): | Mr J. McKay |
| Solicitors for the Second Respondent (the Review Applicant): | David Tonkin & Associates |
| Counsel for the Trustee: | Mr R. de Lemos |
| Solicitors for the Trustee: | Harris Carlson Lawyers |
ORDERS
The application filed on 6 April 2010 be dismissed.
The costs of the Petitioning Creditor and of the Trustee be taxed in accordance with the Federal Court Rules and be paid from the estate of the Second Respondent in accordance with the Bankruptcy Act 1966.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 576 of 2009
| TRANSCRETE AUST PTY LTD |
Applicant
And
| CEMAL MANI |
First Respondent
| REYHAN MANI |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The matter before the Court is an application for review filed on
6 April 2010 by Reyhan Mani, whom I shall describe as the applicant, to annul her bankruptcy and to set aside a sequestration order and another order made by Registrar Luxton on 22 October 2009.
In her affidavit filed on 6 April 2010, the applicant relevantly says, and I paraphrase, first, she was formerly married but the marriage ended to all effects and purposes in 2000.
Second, her former husband had a business as a concreter but she says she had no involvement in it.
Third, the husband moved from the former matrimonial property in 2009. He had been living in another sort of shed out the back since 2000 and the applicant did not know where he then lived.
Fourth, the applicant denied that she signed guarantee documentation upon which the bankruptcy notice and creditor’s petition are based.
Fifth, she said she had no knowledge of the Magistrates’ Court proceeding upon which the bankruptcy proceeding itself was based.
Sixth, that when she was served with what she described as Court documents in April 2009, she passed these on to the husband, who said he would fix it.
Seventh, she explained the reasons for the delay in bringing the application, and I would indicate at this stage that I am prepared to accept those reasons. The delay is not a matter that prejudices Transcrete Aust Pty Ltd (“Transcrete”).
It is important to note what the applicant said about the guarantees and indemnity which stand, as it were, as the basis for the sequestration order. In paragraph 12 of her affidavit, the applicant said, and I quote:
“Transcrete allege I signed an undated guarantee, indemnity and charge in order for Mr Cemal Mani business (“Jemal Concreting”) to be supplied goods from Transcrete (“the Guarantee”). This is completely false. I did not sign this document or any other such document. I did not provide any guarantee or indemnity or any other type of surety or charge or security for Mr Cemal Mani’s business. I was not involved with his business. I did not know who signed my name. I did not know it was due.”
At paragraph 15 she said:
“I have no recollection of ever receiving any Magistrates’ Court documents or letters of demand relating to the Transcrete. Now produced and show to me and marked “RM-1” is a copy of a draft Application to set aside the creditor’s default judgment in the Magistrates’ Court. The affidavit in support is also almost complete. If successful in this application, I plan to commence my application in the Magistrates’ Court immediately. My defence is simple: I did not sign the Guarantee and had no knowledge of it.”
It should be noted that, of her own motion, the applicant goes on, in her affidavit, to traverse proceedings with the Economix group of companies. At paragraph 19, she says:
“Economix Concrete Pty Ltd, and Economix Building Supplies Pty Ltd (“Economix”) commenced legal proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”) against me claiming I signed a guarantee and indemnity in relation to Mr Cemal Mani’s business (Jemal Concreting). VCAT was the wrong venue and the VCAT proceeding was dismissed. Economix then commenced a proceeding in the County Court of Victoria seeking $189,363 plus interest from me. Economix claimed I signed a guarantee and indemnity agreement which guaranteed and/or indemnified any money owed by Jemal Concreting. I did not sign the said agreement and have denied it from the beginning. Now produced and show to me, marked “RM-2” is a copy of the parties’ pleadings.”
At paragraph 39 of her affidavit, the applicant went on to say:
“My name and signature has been used to the benefit of Mr Cemal Mani to enable him to continue to trade. My name and signature has been used without my authority or consent. I had no knowledge of its use and Transcrete or Economix never told me about their respective Guarantees until litigation. Mr Cemal Mani also misled me about my legal obligations when he told me that he would look after everything and not to worry I trusted him.”
It is clear on the applicant’s own material that the denial of the execution of guarantee was central to both this case and the Economix case.
I note, first, the statement of claim for the Economix group of companies in the County Court pleaded the execution of the guarantee in that case on 27 March 2006. Second, the defence denies any involvement by the wife in the husband’s business. Third, the amended statement of claim pleads the execution of the guarantee on 30 May 2006. I would interpolate and say it is quite clear that the applicant was overseas from 11 May 2006 until 20 June 2006.
On 21 May 2010 the matter commenced in this Court. The applicant was called to give evidence. She denied a capacity to converse fluently in English and said she had only a limited capacity to read in that language. Evidence was given through an interpreter. She denied signing both guarantees, that is to say both in the Transcrete and Economix cases. She said she was not in Australia on 30 May 2006 which, as I have said, is correct. She admitted delivering sandwiches on site, both to her son who lives with her and on one occasion recently to her husband.
The matter was adjourned because the creditor said it desired to call a witness who saw the applicant execute the Economix guarantee. No submission was made that this evidence was irrelevant by the applicant. That is scarcely surprising, given the way she puts her case, and the structure of her own affidavit. On 26 May 2010, an affidavit was filed on behalf of Ray Dimech, who is the general manager of Economix. He deposed that the applicant can indeed speak English fluently and he deposed that he had seen the applicant deliver sandwiches to her husband on site, and so far as I can recall was, I think, not challenged in respect to that particular assertion.
Mr Dimech said that on or about 27 March 2006, the husband requested credit but that that application was not accepted as it turned out that he was not the registered owner of the family home. He deposed that the applicant and her husband attended the Economix office together to sign a guarantee between late April and 30 June 2006. He deposed that he saw the applicant there, with a parrot on her shoulder. It should be noted that, in cross-examination, it was expressly put to Mr Dimech that the applicant never attended the Economix office at any stage, but he stuck to his evidence.
It emerged that Mr Dimech did not, in fact, see the applicant execute the guarantee. This occasioned another adjournment. Thereafter, affidavits of Fiona Zahara and Winston Spiteri were filed on 7 June 2010. Ms Zahara deposed that the husband had applied for credit on
27 March 2006 and that she did not agree because it turned out that his wife was the registered owner of the family home. She said that the husband and wife attended between late April and June 2006. She said that she explained the guarantee to them at that time and that she saw the applicant sign the guarantee in her presence.
Ms Zahara was cross-examined. She gave a detailed description of the applicant visiting the Economix premises. She described a parrot on the applicant’s shoulder as white, and her description of how she met the applicant and her husband and took them into her office to sign the documentation was in my view wholly convincing. She explained that the date of 27 March 2006 was when the husband came in. The husband in fact had asserted, according to Ms Zahara, that he indeed owned property, which proved not to be the case. A delay in execution was caused by Ms Zahara checking and discovering that this assertion by the husband was not true, and I accept her evidence in that regard. It is consonant with commonsense, and Ms Zahara was, in general, a good witness.
Ms Zahara explained that the date of 30 May 2006 had been filled in by her and she said this was an error. In this respect, her evidence was less convincing. It was clear, despite her denial, that this is either a family firm or one in which her family has a major part. I will never know quite how the 30 May 2006 date was entered. However, I accept without any doubt whatsoever that the applicant attended the Economix premises and signed the documentation she is said to have signed. Not only was Ms Zahara’s evidence entirely credible, and she identified the applicant without any difficulty in Court, and described the parrot as white, but so too was the evidence of Mr Spiteri. He described a white parrot, and also the applicant signing the documentation. It emerged in further evidence by the applicant that she does indeed own a white cockatoo.
Although she says she never went to Economix and never signed the guarantee, and suggests the parrot may have been somewhere else on site and also that there’s some possibility of mistaken identity as to who it may have been there is attended, it is clear that she did visit Economix with the parrot, and that she signed the guarantee.
There is, in fact, other evidence before the Court. Westpac loan documentation from 2003, being exhibit R1, is inconsistent with the applicant’s evidence. It shows her as being married, and being an account manager. Furthermore, the evidence about delivering the sandwiches to the husband on the site suggests greater involvement with the husband than she admits. I accept she may well have some difficulties with English, but her English is clearly better than she was prepared to admit in her evidence before the Court.
It is important to note that the applicant’s case is not an Amadeo or Giumelli type of case. She does not say that she signed the documents under duress or that she did not understand them. She does not even admit she may have signed the documents but does not remember them and would not have understood them in any event. She in fact roundly denies signing both guarantees, and says in respect of Economix, that she never attended Economix premises, and therefore could never have signed the guarantee at all.
Given that I am clear that she did indeed attend Economix and did sign the guarantee, I refer to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 (2003) 198 ALR 59 at page 70, where McHugh and Gummow JJ said, at paragraph [49]:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
In SZGDC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23], Finkelstein J observed that cases of this sort of poisoned-well scenario would be rare. What his Honour said was:
“There may be circumstances where it is not necessary to pay due regard to corroborative evidence.”
And he referred to the case I have just read from, and the passage I have just read, and went on to say:
“That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.”
This, in my view, is one of those rare cases. I am afraid I just do not believe the applicant. It is not just the fact that she visited Economix with a parrot on her shoulder, which after all the witnesses were most unlikely to forget, but the Westpac documentation and the evidence of Mr Dimech about sandwiches all point to the same conclusion. Because of the way the applicant has herself run her case, denying both guarantees, and I find she signed one of them for a certainty, it seems to me that the finding I make regarding the Economix guarantee properly founds a conclusion that she signed the Transcrete one as well.
The applicant was plainly far more involved with her husband’s business than she admits. She has signed the Economix guarantee in 2006. The most I know about Transcrete is from the applicant’s affidavit at paragraph 12, which says that it is alleged she executed an undated guarantee and denies doing so. She says that the husband or those associated with him may have forged her signature. There is the same suggestion of forgery in relation to the Economix guarantee. I pay proper regard to the terms of s.140 of the Evidence Act 1995 when dealing with assertions of this sort. In my view, it is clear the applicant signed both guarantees.
I am not suggesting that she has perjured herself. The applicant’s evidence was given with conviction. She may well believe her evidence, although of course she may not. But unfortunately, whichever of those situations obtains, I do not believe her. The application will be dismissed. The costs, including those of the trustee whose participation has been proper, and properly conducted, are to be paid from the estate of the bankrupt.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 17 June 2010
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