Vincent, Clifton George v State Bank of New South Wales

[1995] FCA 872

CATCHWORDS

BANKRUPTCY - Bankruptcy Notice - Court order substituting date from which time for compliance with bankruptcy notice would commence to run - whether bankruptcy notice containing handwritten amendments valid - whether debtor could have reasonably been misled by bankruptcy notice - whether bankruptcy notice could be read in light of Court order accompanying it - alternatively, whether time for compliance with bankruptcy notice should be extended until after determination of appeal against judgment on which notice based.

Bankruptcy Act 1966 (Cth) - s 33, s 41(6A), s 41(6C)

Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71
Re O'Sullivan; Ex parte Bank of New Zealand (1991) 30 FCR 112
Re Hanlin; Ex parte South Properties Development Pty Ltd (1985) 9 FCR 357
Re Wong; Ex parte Kitson (1979) 38 FLR 207
Clyne v Deputy Commissioner of Taxation (No.4) as reported at (1982) 66 FLR 301; (1982) 42 ALR 703; 13 ATR 302
Re McAlpine; Ex parte AMEV Finance Ltd (1987) 17 FCR 42
Re Danielle Pender; Ex parte Warwick Ross Sullivan and Ross Francis Sullivan (Unreported, 22 April 1988)
Lipov v Alexander Fraser & Son Limited (1978) 36 FLR 126
Alan Bond v HongKong Bank of Australia (Unreported, 24 October 1991)
Re Lentini (1991) 29 FCR 363
Re Sterling; Ex parte Esanda Limited (1980) 44 FLR 125

CLIFTON GEORGE VINCENT v STATE BANK OF NEW SOUTH WALES

No. NN 1821 of 1995

FOSTER J
3 NOVEMBER 1995
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NN 1821 of 1995
  )
BANKRUPTCY DIVISION              )

BETWEEN:CLIFTON GEORGE VINCENT

Applicant/Debtor

AND:STATE BANK OF NEW SOUTH WALES

Respondent/Creditor

JUDGE MAKING ORDERS:    FOSTER J

DATE:     3 NOVEMBER 1995

PLACE:    SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.The application to set aside the bankruptcy notice or, alternatively, to extend the time for compliance with it, be dismissed.

2.The debtor pay the creditor's costs of this application.

Note:  Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NN 1821 of 1995
  )
BANKRUPTCY DIVISION              )

BETWEEN:CLIFTON GEORGE VINCENT

Applicant/Debtor

AND:STATE BANK OF NEW SOUTH WALES

Respondent/Creditor

CORAM:    FOSTER J

DATE:     3 NOVEMBER 1995

PLACE:    SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   This is an application by the debtor, Clifton George Vincent, seeking an order that the bankruptcy notice issued against him by the State Bank of New South Wales, be set aside or, alternatively, an order that the time for compliance with the bankruptcy notice be extended.  I shall consider these questions in that sequence.

SHOULD THE BANKRUPTCY NOTICE BE SET ASIDE?
         The bankruptcy notice, which was issued on 20 June 1995, claims the sum of $2,619,661.75 due to the State Bank of New South Wales ("the Bank") under a final judgment obtained by it against the debtor in the Supreme Court of New South Wales on 7 April 1995.  The debtor challenges the validity of
the notice on the ground that it could reasonably mislead as to what is necessary for compliance with it.

The facts relating to the form and appearance of the bankruptcy notice are important and need to be stated in some detail.  The time for compliance with the bankruptcy notice was initially expressed to be "within fourteen days after service of this notice on you, excluding the day on which this notice is served on you".  After extensive unsuccessful attempts had been made to serve the notice on the debtor the Bank sought an order for substituted service.  On 12 July 1995, Registrar Quinn made the order sought together with an order deeming service of the notice on the debtor to be effected on 3 August 1995.  In addition, an order was made for amendment of the notice by deleting from it the words "service of this notice on you, excluding the day on which this notice is served on you" and substituting "3 August 1995, excluding that date". 

As deposed to in the affidavit of Alexander Scott Charaneka, a solicitor in the employ of the solicitors for the Bank, sworn on 29 August 1995, the amendment ordered by Registrar Quinn was made by hand on the original bankruptcy notice and also on photocopies of the original.  The top right hand corner of the first page of the original bankruptcy notice and each copy was then stamped with a red amendment stamp by an officer of the New South Wales District Registry of the Federal Court.  Mr Charaneka signed each amendment stamp having filled in the relevant details.  When completed each stamp read "Amended the 14th day of July 1995 in pursuance of the order of the Registrar dated the 12th day of July 1995 (signed) S. Charaneka Solicitor".  The photocopies of the original bankruptcy notice which had been amended were then sealed by a Registrar. 

It appears from the form of the bankruptcy notice which the parties agreed was the form issued for service in accordance with the Registrar's order, that the amendment was made by drawing two ink lines, one red and one blue, through the words required to be deleted, thus crossing them out of the notice.  These words remained legible under the ink lines.  The new form of words was handwritten above the crossed out words in blue pen and underlined in red pen.  The details on the red amendment stamp were filled in and signed in red pen.  Three new Court seals were placed on the photocopies of the original notice which had been amended.  These appear in blue ink.  One was placed over the red amendment stamp on the first page, another next to the original seal on the second page and the other next to the original seal at the end of the notice on the third page.  The three original seals, one in the top left hand corner of the first page and the others as described on the second and third pages, appear in black because they are photocopies.  Only the seals on the second page have been over-signed.  The signature over the new blue seal differs from the signature over the copied original seal, the new signature purporting to be that of the Registrar in Bankruptcy, that over the earlier seal being of the Deputy Registrar.  The earlier signature is clearly a photocopy.

It is not disputed that the procedure by which the amendment was completed complied with Rule 108 of the Bankruptcy Rules.  Further, it is not disputed that the amended bankruptcy notice was sent by post to the debtor's residence and personally delivered to the offices of his solicitor, accompanied by sealed copies of the orders of Registrar Quinn of 12 July.

The debtor claims that, notwithstanding the fact that the bankruptcy notice satisfies the requirements prescribed by the Bankruptcy Act 1966 (Cth) and the Bankruptcy Rules, it should be set aside on the basis that, in its amended form, it is objectively capable of misleading the debtor in relation to compliance with it. (Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71; Re O'Sullivan; Ex parte Bank of New Zealand (1991) 30 FCR 112). The features of the bankruptcy notice which could reasonably mislead a debtor are contended, in written submissions provided by counsel, to be:-

"(a)The amendment stamp is placed at the top right hand corner of the Notice without any marking or writing to indicate its relationship to the insertion at the bottom of the first page '3 August 1995, excluding that date' and the deletion of the words from `service' to `you';

(b)Most significantly there is no indication at the place of the amendment that it has been authorised by the Registrar such as a signature beside it or a Court stamp placed over it;

(c)The Notice becomes truly messy in that fresh Court stamps have been placed on the Notice whilst it also bears photocopied stamps indicating that the fresh stamps have been placed on photocopies of an earlier version of the Bankruptcy Notice.  Yet, only one date of issue appears on page 2 (importantly a date preceding the amending order).  The Notice is not otherwise dated anywhere by the Registry to indicate the Registrar's consideration of the amendment of the Notice in compliance with the amendment order.  Further uncertainty is caused by two signatures of the Registry on page 2, one by a Deputy Registrar which appears to be a photocopy and one in a fresh stamp."

It is submitted that the alteration which was made to the bankruptcy notice in this case involved a critical part of the notice as it went to its very essence, being the date from which the period for compliance with it, and therefore, the period for the commission of the act of bankruptcy, would commence to run (Re Hanlin; Ex parte South Properties Development Pty Ltd (1985) 9 FCR 357 per Pincus J at 358). It is further submitted that the standard of perfection of expression of a bankruptcy notice, especially critical parts of the notice, should be evaluated in light of observations made by Lockhart J in Re Wong; Ex parte Kitson (1979) 38 FLR 207 at 217, where his Honour stated:-

"A debtor is not required to engage in the task of construing a bankruptcy notice and resolving questions of doubt or ambiguity.  A bankruptcy notice ought to be clear and unambiguous.  Non compliance with its requirements constitutes an act of bankruptcy with quasi penal consequences.  If it is equivocal, generally the equivocation must be resolved in favour of the debtor.  The debtor is not required to ponder whether [his Honour referred to alternative interpretations of the Bankruptcy Notice there in question].  He may read them and reach the conclusion that they are, or he may reach the opposite conclusion, or simply, and this is more likely, not know clearly one way or the other.  He ought not to be faced with this dilemma especially as it arises from a critical part of the bankruptcy notice." 

In this submission, the debtor relies heavily upon the decision of Lockhart J in Clyne v Deputy Commissioner of Taxation (No.4) as reported at (1982) 66 FLR 301. In that case, the bankruptcy notice was argued to be misleading because it did not clearly and unambiguously specify a period of time within which compliance was required. As appears from the bankruptcy notice which is annexed to the judgment of Lockhart J in this report, the typewritten word "fourteen" had been crossed out in ink, but was still legible and above it there were handwritten (appearing in red on the copy served) the words "twenty eight" together with the initials "JH", and an asterisk. The asterisk drew the reader's attention to another asterisk in the top right hand corner of the notice where the statement appears, "Amended pursuant to Order of Court of 25th May 1982. Signed J.P. Hasson Deputy Registrar dated 27/5/82". In those circumstances, it was submitted that the debtor would be in a quandary as to the period within which compliance was required.

Lockhart J stated (at 305):-

"I do not know why the bankruptcy notices served on the applicant and his solicitor pursuant to the court's order did not show the word `fourteen' struck out and `twenty-eight' substituted so that it would have been obvious that compliance with the requirements of the notice was required within twenty-eight days after service of the notice on the applicant.  The order allowed the bankruptcy notice to be amended by substituting `twenty-eight' for `fourteen'.  Plainly this required striking out the reference to `fourteen' and inserting `twenty-eight', otherwise there could not be the substitution of the latter for the former.  However, this was not done.

If the notice were to be read by itself without reference to the copy of the court's order which accompanied it in the post when served on the debtor, in my view it would be misleading and fundamentally defective.  What I said in the passage cited earlier from Wong's case would then be especially apposite."

I shall refer later in these reasons to the effect of service, with the notice, of the copy of the Registrar's order authorising the amendments.  Putting that matter aside, the applicant's contention is that the present notice is even more likely to mislead than the notice in Clyne's case, as it lacked the asterisks which tended to identify the amendments with the amendment stamp placed in the top right hand corner of the notice.  It similarly lacked the placement of the Court's seal over the amendment itself.  Further, it did not have the additional element, present in Clyne's case, of the placing of the Registrar's initials close to the amendment.  It is also contended that the placing of fresh blue seals on the three pages of the notice, a feature not present in the notice in Clyne's case, would serve only further to mislead the recipient of the notice.

Put compendiously, the submission on behalf of the applicant is that a debtor receiving the present notice would be in a worse position than the recipient of the Clyne notice because he could not be reasonably confident that the amendment was duly authorised and, consequently, could not be satisfied as to the period allowed to him for compliance with it.  The applicant also relied upon the decisions of Spender J in Re McAlpine; Ex parte AMEV Finance Ltd (1987) 17 FCR 42 and Einfeld J in Re Danielle Pender; Ex parte Warwick Ross Sullivan and Ross Francis Sullivan (Unreported, 22 April 1988).  In both of these cases reliance was placed upon the reasoning of Lockhart J in Clyne.  In both cases, their Honours followed the Clyne decision as reported at (1982) 66 FLR 301.

I found myself puzzled by a portion of the judgment in Clyne.  The portion, being that cited above, was quite obviously critical to Lockhart J's decision.  It contained the very basis upon which his Honour had come to the conclusion that the notice was potentially misleading.  I found myself unable, to my satisfaction, to reconcile what his Honour said in that passage with the form of the notice appended as a schedule to his Honour's judgment.  It will be observed in the passage quoted that his Honour criticised the notice for non-compliance with the terms of the order for amendment.  Specifically, he said that the notice "did not show the word `fourteen' struck out and `twenty-eight' substituted".  He said that "plainly [the order] required striking out the reference to `fourteen' and inserting `twenty-eight', otherwise there could not be the substitution of the latter for the former.  However this was not done".

The notice in the schedule to the judgment and forming part of it in fact shows the word "fourteen" deleted by its being ruled though with an ink line, the words "twenty-eight" being added (together with asterisk and the Registrar's initials) immediately above the word "fourteen" so struck out.  One might be pardoned for thinking that the notice so amended would have complied with the Court's order.  In these circumstances, I examined other reports of his Honour's judgment in Clyne. The result of this examination was as follows. The report of the case at (1982) 42 ALR 703 has appended to it as an "appendix", a purported copy of the bankruptcy notice referred to in his Honour's judgment. This copy bears no reference to any amendment at all. No amendment stamp is reproduced and the words "twenty-eight" have not been added to it. It is clearly a copy of the original unamended bankruptcy notice issued in the proceedings. The case is also reported at 13 ATR 302. At 311 there appears a purported copy of the notice referred to in the judgment. It also bears no reference to any amendment.

I then obtained the original judgment of Lockhart J from the records of the Court. This document revealed the source of the difficulties I had encountered in reconciling his Honour's judgment with the notice appearing at (1982) 66 FLR 313. The notice appended to his Honour's original judgment does not show the word "fourteen" struck out by its being ruled through with an ink line. Rather, it appears unaltered. The word "twenty-eight" (together with the asterisk and initials to which I have referred) is merely written in above it. Clearly, this is the form of notice to which his Honour was referring in the passage cited, and to which his criticisms were directed. There was no apparent deletion and substitution. In these circumstances, it does not appear that his Honour's judgment can be taken as persuasive authority for the view that the absence of some or all of the features of asterisk, initialling, or overstamping, necessarily leads to invalidity on the basis that the recipient of the notice would be confused as to the period allowed to him for compliance with it. The basis of the relevant confusion, as found by his Honour, was the failure to comply with the Court's order to delete the word "fourteen".

Insofar as the other two judgments cited on behalf of the applicant accepted as persuasive authority the report of Clyne as it appears at (1982) 66 FLR 301, I consider, with respect, that I should not regard them as in any way requiring me to find that the present notice is defective because of the absence of any connection, indicated by initialling, asterisk, or oversealing, between the amendments clearly made in the body of the notice and the duly completed amendment stamp in the top right hand corner.

In light of these considerations, I turn my attention to the notice in the present case and consider whether it could reasonably mislead the debtor.  I am of the view that it could not.  The amendment stamp clearly indicates that the document has been amended on 14 July 1995 pursuant to the Registrar's order of 12 July 1995.  It is signed by a solicitor at the appropriate place in the stamp.  The amendment notice itself is overstamped by what is obviously a freshly applied Court seal.  There is only one amendment on the notice.  It has been clearly made by deleting the words that had previously indicated the date from which the period for compliance would commence to run, and substituting for them the words which clearly indicate the new commencing date.  The notice remains a 14 day notice.

Whilst it is true that the solicitor's or Registrar's initials might have been placed beside the amendment and/or the Court seal might have been placed over the amendment, I do not regard these omissions as fatal to the validity of the notice.  I do not consider that their absence could have reasonably misled the debtor.  There is only one amendment on the notice.  The amendment stamp speaks in terms of an amendment having already been made at the time of the application of the stamp.  The Court seal is placed over the amendment stamp.  In these circumstances there could not reasonably be any confusion as to whether the amendment was made other than in accordance with the Registrar's previous order.

I should add that, in my opinion, the addition on the notice of the fresh blue seal of the Court on each page, rather than confusing the matter, serves clearly to indicate that the notice as originally issued on 20 June 1995 has been amended in accordance with the Registrar's order of 12 July 1995, and that the notice, as so amended, is issued with the authority of the Court.

This conclusion is not dependent upon any service with the notice of a copy of the Registrar's order relating to substituted service of the notice and its amendment.  Indeed, service is disputed and that issue is not before me.  In Clyne, Lockhart J was satisfied that the service of the order with the notice overcame the problems resulting from the failure of the notice to comply with the previous order for amendment.  Had it been necessary, I would have had no difficulty in finding that the service of the order in the present case similarly overcame any problems relating to alleged misleading aspects of the notice.  Because this matter was raised in argument, however, I think it desirable that I consider the submission made on behalf of the applicant that I could not, as a matter of law, have regard to the service of the order with the notice when considering the question whether the notice had the potential to mislead.  It was put that the decision of the High Court in Kleinwort Benson has made this course unavailable.  Reliance was placed upon a particular passage in the majority judgment (at 79-80).  That passage reads as follows:-

"The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v. Federal Commissioner of Taxation (1955) 93 C.L.R. 631, at p.644; Pillai [1970] A.C., at p.1135.  In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908 [1908] 2 K.B. 474, at p.481."

It was submitted on behalf of the applicant that this passage necessarily requires that only the notice itself can be looked at when considering whether it is reasonably capable of misleading the debtor.  Counsel put the proposition that "to consider the Registrar's amending order served with the notice is to ask whether the debtor was actually misled and that is the wrong question". 

I am quite satisfied that this argument should be rejected.  The facts of Kleinwort Benson did not require the High Court to consider whether documents served with a notice could be considered in determining whether the notice could reasonably mislead a debtor.  The passage relied upon must be considered in light of this fact.  So considered, I do not regard it as authority for the proposition relied upon.  Nor do I agree that a consideration of the terms of the amending order necessarily takes one into the area of actual as opposed to potential confusion.  An order can, in my opinion, certainly be looked at for the purpose of determining whether its service together with a notice could operate to remove any confusion to which the notice might otherwise give rise.

I therefore reject the applicant's first submission.  In my opinion, the notice was valid.

SHOULD THE TIME FOR COMPLIANCE BE EXTENDED?
         The debtor has appealed to the Supreme Court of New South Wales Court of Appeal against the decision of Giles J sitting in the Commercial Division, which resulted in the judgment debt upon which the bankruptcy notice is founded.  He seeks an extension of the time for compliance with the bankruptcy notice until after the determination of the appeal.  I am satisfied on the evidence that, unless an order for expedition of the appeal were granted by the Supreme Court, the state of the court lists is such that the appeal will not be called over for the purpose of fixing a hearing date for approximately 32 months.  Obviously the actual hearing will not take place for some period of time after that.  The decision in the appeal, of course, might also be delayed for a considerable period having regard to the pressure of court business.  The extension of time sought, therefore, is a very extensive one.

In support of the application, the applicant submits that the appeal is bona fide and that he is complying with all procedural steps required of him in the conduct of the appeal.  The respondent does not concede that the appeal is bona fide, although it is not contested that the applicant is complying with the procedural requirements.

The applicant has not sought a stay of proceedings from the Supreme Court pending the hearing of the appeal.  The judgment, therefore, remains enforceable.  Nor has the applicant sought an expedited hearing of the appeal.  It was put in argument on his behalf, that such an application would be doomed to failure having regard to the state of the court lists and the fact that the applicant could not urge any particular or special grounds for expedition. 

The applicant gave no evidence in these proceedings.  The evidence relied upon in relation to the application for extension of time was given by his solicitor on affidavit and orally.  The solicitor was cross-examined.  I should indicate that I was not impressed by his evidence.  The judgment of Giles J was tendered in evidence.  I have read and considered it.  If I might say so with respect, it is comprehensive, compelling and convincing.  It notes that many arguments put on behalf of the applicant were abandoned before or during the hearing.  The remaining arguments were rejected for reasons which are fully expressed and would, it seems, be very difficult to refute.  Applicant's counsel did not seek, before me, to embark upon any detailed refutation of his Honour's findings.  He expressed the view that to do so would take an inordinately long time.  This might well be so, but he did not point to any allegedly obvious error of fact or law made by his Honour.  Nor did he indicate how his client might overcome problems resulting from adverse findings as to his credit.

The applicant relied upon the decision of CA Sweeney J in Lipov v Alexander Fraser & Son Limited (1978) 36 FLR 126. In that case his Honour held that this Court had power to extend the time for compliance with a bankruptcy notice pursuant to s 33 of the Bankruptcy Act 1966. His Honour dealt with considerations relating to the making of such an order in the following well known passage (at 130):-

"In the present case, counsel for the creditors rightly conceded that the court has power to enlarge the time for compliance with a bankruptcy notice but contended that in the circumstances of this case, the court should not exercise the power.  He sought to rely on O. 58 r. 17 of the Supreme Court Rules which provides that an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the court or a judge may so order.

It is for the Supreme Court to decide whether it will make such an order.  It is for this Court to say whether the time for compliance with a bankruptcy notice will be extended.  It has been held that the institution of an appeal, which appears to be bona fide, is a good reason for adjourning the hearing of a bankruptcy petition based upon the judgment subject to the appeal (Ex parte Heyworth; In re Rhodes (1884) 14 Q.B.D. 49; Union Bank of Australia Ltd (No. 4) v. Dean (1898) 24 V.L.R. 453).

The courts have had regard to the grave consequences which flow from the effluxion of the time fixed for compliance with a bankruptcy notice.  Judgment has been obtained against the applicant, who has regularly instituted an appeal against it.  He has sworn that he believes that he has proper grounds of appeal against it.  He has not been cross-examined.  The creditors have not offered any evidence in opposition.

In these circumstances, the grant of an extension of time for compliance will enable the applicant, should his appeal succeed, to avoid the commission of an act of bankruptcy, based upon a judgment which should not, on this assumption, have been given against him in the first place."

It must be noted, of course, that the debtor in the present case has given no sworn testimony before me.  Nor has he been cross-examined.  On the other hand, the creditors have offered not inconsiderable evidence in opposition to the extension of time.

The applicant also sought to rely upon my judgment in Alan Bond v HongKong Bank of Australia (Unreported, 24 October 1991), in which an extension of time for compliance with a bankruptcy notice was granted.  The facts in that case, however, were significantly different.  The debtor had filed a prompt notice of appeal against the judgment of the Supreme Court of New South Wales given against him.  He had also brought an immediate application for a stay of the judgment by the Court of Appeal, and also for an expedited hearing of appeal.  He was granted a stay of proceedings and also a significantly expedited hearing of the appeal.  Thus the extension of time sought was for a short period only and in circumstances where the validity of the judgment appealed against was to be decided with great expedition.  In this case, the applicant has not sought a stay and has not sought expedition of the hearing in the Court of Appeal of the Supreme Court of New South Wales.  In my opinion, these are very significant differences indeed.

I am satisfied that the application to extend time cannot be characterised as one brought under s 41(6A) and/or s 41(6C) of the Bankruptcy Act 1966 (See Neaves J Re Lentini (1991) 29 FCR 363 at 367). The question whether time for compliance with a bankruptcy notice should be extended in circumstances where an ordinary appeal has been lodged against the judgment upon which the bankruptcy notice is founded, falls for determination as an exercise of the Court's discretion (See e.g. per Lockhart J Re Sterling; Ex parte Esanda Limited (1980) 44 FLR 125 at 129-130, 131-132).

In the present case, in addition to the matters to which I have already referred, the debtor has, in my view, on the evidence put before me, quite clearly made very deliberate efforts to avoid service upon him of the bankruptcy notice and also to thwart compliance with requirements imposed upon the creditor in respect of the effecting of substituted service.  His behaviour appears to have been devious in the extreme.  Moreover, I entertain a strong suspicion based upon material that emerged during the cross-examination of his solicitor that the debtor has been seeking to deal in a clandestine way with assets which might arguably be available to satisfy in part the judgment against him.

In my view, this is not a case where the Court should exercise its discretion in favour of the debtor by extending the time for compliance with the bankruptcy notice.  The question whether a sequestration order should be made upon the notice, in circumstances where the appeal against the judgment is outstanding is, of course, not a matter with which I am currently concerned.  I dismiss the present application with costs.

I certify the preceding eighteen (18) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:

Date:   3 NOVEMBER 1995

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT/DEBTOR:     R.E. MONTGOMERY

INSTRUCTED BY:  TRIBE CONWAY & CO SOLICITORS

COUNSEL FOR THE RESPONDENT/CREDITOR:    J.E. THOMSON

INSTRUCTED BY:  MINTER ELLISON SOLICITORS

DATE OF HEARING:      26 SEPTEMBER 1995

DATE OF JUDGMENT:     3 NOVEMBER 1995