Westview Frames and Trusses (NSW) Pty Ltd v Murabito - [2022] FedCFamC2G 897

Federal Circuit and Family Court of Australia
(DIVISION 2)
Westview Frames and Trusses (NSW) Pty Ltd v Murabito [2022] FedCFamC2G 897

File number(s): SYG 1905 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 2 November 2022

Catchwords: BANKRUPTCY – application for review of sequestration order made by Registrar on the basis of the debtor not having complied with the requirements of a bankruptcy notice – whether creditor has established preconditions to the making of a sequestration order – whether the debtor and creditor made an arrangement to the creditor’s satisfaction for settlement of the judgment debt on the basis of which the bankruptcy notice was issued – whether debtor able to pay his debts – application for review dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) ss 5(2), 43, 47, 52(1), 52(2)(a)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256(1), 256(2)

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) rr 2.02(3), 4.04(1)(a), 4.04(1)(b), 4.06(3), 4.06(4)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 2.02(3)

Civil Procedure Act 2005 (NSW) s 101

Cases cited:
Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728

Bechara v Bates [2021] FCAFC 34

Conlan v Mladenis [2007] FCA 1129

Deputy Commissioner Of Taxation v Caporale [2013] FMCA 5

Re Eric Trojan v Corporation of the Town of Hindmarsh (1987) 16 FCR 37; [1987] FCA 276

Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596

Rigg v Baker [2006] FCAFC 179

Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143

Sandell v Porter (1966) 115 CLR 666

Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc v McGuire [2022] FedCFamC2G 286

Division: General

Number of paragraphs: 126

Date of hearing: 14 and 28 June and 31 October 2022

Place: Sydney

Counsel for the Applicant: Mr R Parsons on 14 and 28 June 2022

Solicitor for the Applicant: Mr C Brown of O’Neill Partners Commercial Lawyers on 31 October 2022, by telephone

Solicitor for the Respondent: Mr E Patakas of Evangelos Patakas & Associates on 14 and 28 June and 31 October 2022, by video and telephone

Counsel for the trustee in bankruptcy: Mr D Eardley on 14 and 28 June 2022, by video and telephone
ORDERS

SYG 1905 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF STEVEN MURABITO

BETWEEN:
WESTVIEW FRAMES AND TRUSSES (NSW) PTY LTD ACN 150 774 628

Applicant

AND:
STEVEN MURABITO

Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

2 November 2022

THE COURT ORDERS THAT:
1.The application by Mr Steven Murabito (applicant) for orders to the effect set out in the email sent at 1:59 pm on 31 October 2022 by the applicant’s solicitor to the associate to Judge Manousaridis is dismissed.
2.Pursuant to r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), compliance by the applicant with r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) is dispensed with.
3.The application made by the applicant on 28 June 2022 for an adjournment of the hearing of the application for review is dismissed.
4.The application made by the applicant at the hearing on 14 June 2022 to read the applicant’s affidavit sworn on 14 June 2022 is refused.
5.The application made by the applicant on 28 June 2022 to read the affidavits sworn by the applicant on 27 June 2022 and 28 June 2022, and to read the affidavit sworn by Lilly Stojcevski on 28 June 2022 is refused.
6.The application for review of the orders made by a Registrar of this Court on 7 April 2022 that:
(a)a sequestration order be made against the estate of the applicant; and
(b)the costs of the respondent to the review, Westview Frames and Trusses (NSW) Pty Ltd (respondent), be taxed in the amount of $12,945.20 and be paid from the estate of the applicant in accordance with the Bankruptcy Act 1966 (Cth),

is dismissed.
7.Subject to order 8, the respondent’s costs of the review be paid out of the estate of the applicant and have the same priority as the costs of the creditor’s petition.
8.There be liberty to apply within 21 days of the date these orders are pronounced for an order varying or discharging order 7.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction

The respondent, Mr Murabito, applies for review of a sequestration order made against his estate by a Registrar of this Court on 7 April 2022. The act of bankruptcy on the basis of which the Registrar made the sequestration order is Mr Murabito’s failure to comply with the requirements of a bankruptcy notice (Bankruptcy Notice) issued on the application of the applicant (Westview) against Mr Murabito on 10 March 2021, an amended version of which has been deemed to have been served on him on 14 May 2021.
The Bankruptcy Notice demands that Mr Murabito pay to Westview $98,192.66. That is the sum of the following three amounts.
(a)$92,054.21, being the amount of a judgment (Judgment Debt) entered in the Local Court of New South Wales (Local Court) on 8 February 2021 pursuant to an order made on 2 February 2021;
(b)$538.45, being interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW) on the Judgment Debt from 3 February 2021 to 9 March 2021; and
(c)$5,600, being the costs Mr Murabito was ordered to pay Westview on 16 April 2020 in a previous bankruptcy proceeding Westview commenced against Mr Murabito in this Court ($5,600 FCC costs order).
Mr Murabito does not dispute that Westview has satisfied the preconditions for the making of a sequestration order under the Bankruptcy Act 1966 (Cth) (Act) and the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). Mr Murabito submits, however, that a sequestration order ought not be made, first, because in a telephone conversation between Mr Murabito’s and Westview’s lawyers on 18 August 2021, Mr Murabito claims an arrangement was made to Westview’s satisfaction for the settlement of the debt the Bankruptcy Notice demands; and, second, because Mr Murabito is able to pay his debts.
nature of review
Mr Murabito has applied for a review of the Registrar’s decision under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) which, together with s 256(2), provides:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The time for applying for review has been prescribed by r 2.02(3) of the Bankruptcy Rules, and it is within 21 days after the day on which the power was exercised.
A review under s 256(2) of the FCFC Act is a “hearing de novo”. That means that an: [1]
applicant for review under [s 256(2)] is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar’s exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153]- [154].
[1] Conlan v Mladenis [2007] FCA 1129, at [5] (Sundberg J)
Further:[2]
(b)The hearing (or rehearing) of the creditor’s petition is not prosecuted by the debtor (applicant for review) but by the creditor in the proceeding in which the registrar’s order was made.
(c)The application for review is a demand that the claim for relief (the sequestration order) be heard by a judge.
(d)The onus is upon the creditor to prosecute its petition. The only onus of the debtor/bankrupt against whose estate a sequestration order has been made is to prove either solvency or any other sufficient cause under s 52(2) of the Bankruptcy Act 1966 (Cth).
[2] Bechara v Bates [2021] FCAFC 34, at [27]
course of hearing
The matter came for hearing before me on 14 June 2022. At its commencement counsel for Westview, Mr Parsons, informed me that Westview’s lawyers had been served with substantial material in the morning, and he needed time to determine whether he could proceed with the hearing, if the material were admitted. The material consisted of an affidavit made on 14 June 2022 by Mr Murabito (14 June Murabito affidavit), together with over two hundred pages of exhibits. The purpose of the affidavit was to prove that Mr Murabito is able to pay his debts. I adjourned the matter until 11:05 am to give Mr Parsons time to consider whether he could proceed with the hearing if the material were admitted. When the hearing resumed Mr Parsons said he required further time. Counsel for the trustee in bankruptcy (Trustee), Mr Eardley, submitted that the application for review should be dismissed, given the serious breach of the orders I made on 5 May 2022 for the filing of evidence and, more particularly, because Mr Murabito must have known that by serving voluminous material on the morning of the hearing neither Westview nor the Trustee could be in a position to properly deal with the material.
In response to these submissions I suggested to the parties that one way to proceed would be as follows:
(a)Westview would read the affidavits on which it relies to prove the matters Westview is required to prove under s 52(1) of the Act and the Bankruptcy Rules.
(b)Mr Murabito’s lawyer, Mr Patakas, would read or seek to read the affidavits on which Mr Murabito intends to rely, including the 14 June Murabito affidavit, at which point I would hear submissions on whether I should read the 14 June Murabito affidavit, which would include submissions on whether that affidavit is reasonably capable of proving Mr Murabito is able to pay his debts.
(c)I would then proceed to hear Mr Murabito’s grounds of opposition on the assumption Westview’s application for an adjournment were refused.
Mr Parsons read the affidavits on which Westview relied; and Mr Patakas read the affidavits which Mr Murabito made on 28 April 2022 and filed on 2 May 2022. Ms Zhou was then interposed as a witness and, after I read her affidavit, Ms Zhou was cross-examined by Mr Patakas. I then heard submissions on whether I should read the 14 June Murabito affidavit, during which Mr Patakas addressed the question whether the material in that affidavit was reasonably capable of showing that Mr Murabito is able to pay his debts. In the course of making his submissions, however, Mr Eardley informed the Court that the Trustee had received information from the Australian Taxation Office (ATO) relating to amended notices of assessment. This occurred late in the hearing, and I adjourned the hearing to 28 June 2022. The expectation was that by that day Mr Murabito would have had an opportunity to deal with the information the Trustee said he had received from the ATO.
At the resumed hearing on 28 June 2022 Mr Patakas indicated he intended to read two further affidavits made by Mr Murabito, one made on 27 June 2022 (27 June Murabito affidavit),[3] and one made on 28 June 2022 (28 June Murabito affidavit),[4] and also an affidavit made by Ms Stojcevski on 28 June 2022 (28 June Stojcevski affidavit).[5] The 27 June Murabito affidavit addresses a number of claims Mr Murabito says he first became aware of at the end of the hearing on 14 June 2022. The 28 June Murabito and Stojcevski affidavits address the amended notices of assessment issued by the ATO. Mr Patakas applied for an adjournment to enable Mr Murabito to obtain further evidence in relation to the amended notices of assessment.
[3] MFI1
[4] MFI2
[5] MFI3
After some discussion I suggested that I would deal with the issues before me as follows:[6]
HIS HONOUR: Look, what I propose to do is this: I’m going to hear everything Mr Patakas wants to tell me about how the affidavits he has provided assist in proving solvency, and I assume that’s the principal purpose, then I’m going to ask him to tell me exactly what it is he expects will happen if I grant him the adjournment and how that will help his client, and the onus is on his client to prove solvency. What he expects will happen and then I’m going to reserve. I’m going to ask Mr Parsons [counsel for Westview] if he has a few additional up-to-date affidavits of debt to file, and what I’m going to do is I’m going to adjourn [sic] the application for leave to file these affidavits and for an adjournment.
And the advantage of that is I am going to look at the affidavits and the material closely to save the parties the trouble of doing that, and if I – and listen and deal attentively with what’s being said from Mr Patakas about why he says he needs the adjournment, bearing in mind it’s not on an affidavit, and the principal question I’m going to ask myself is whether – the usual – is there an adequate explanation, but the most important will be, well, even if I let it in is there any utility; does it get or will it get the applicant anywhere. Is there an arguable case he will be able to establish solvency, and if there isn’t then the question of solvency will be decided against the applicant, and I assume there’s no other issue of – the review will be dismissed.
. . . .
. . . . In the meantime, if I find there’s something arguable and some utility, well, then, the adjournment will be granted. There will be something in my reasons about it which will be of some assistance to the parties, and then the matter can be further litigated. That’s what – and I do that often to save the parties the necessity of having to go back and do the material. I undertake the work. On the face of it, this material – proving solvency is never easy. This may or may not go some of the way; I don’t know, but at the very least this way I will attend to the evidence, and if it’s not good that will save the other parties trouble; if it is good, well, it serves everyone’s interests for it to be properly litigated, so that’s what I propose to do.
[6] T14.30-T15.10
At the conclusion of the hearing, I made the following orders:
1.Judgment on the application for adjournment is reserved.
2.Assuming an adjournment is not granted, judgment on the applications are reserved.
Order 2 refers to “applications” because, as I will note later, there is a question about whether Mr Murabito lodged his application for review within 21 days after the date on which the Registrar made his orders, and, if not, whether an order should be made extending time.
events after hearing
At 1:34 pm on 28 October 2022 my associate informed the parties that the matter would listed for judgment at 2:15 pm on 31 October 2022. At 4:52 pm on 28 October 2022 the lawyers for Westview sent to my associate the following email:
We act for the Applicant Creditor in this matter, and refer to your email below regarding his Honour’s judgment in this matter.
Noting his Honour’s indication that he does not require the parties’ attendance at Court, we confirm that we wish to reserve our client’s position as regards making submissions as to the nature and terms of any costs orders until after we have had an opportunity to consider his Honour’s judgment and final orders.
At 1:08 pm on 31 October 2022 Mr Patakas sent the following email to my associate (errors in original):
We refer to your email the notice of his Honour handing down judge today.
We note the email to you by the solicitor for the applicant and by way of clarity the following:
1.It is our understanding that his Honour on 28 June 2022 adjourned the matter so that:
(a) he would determine the respondent’s interlocutory oral applications to rely on late evidence and to seek an adjournment of the matter for the determination by the ATO of the respondent’s complaint and request to set aside of the various amended assessments of which he was notified in Court on 14 June 2022; and
(b)thereafter the hearing of the review application would be resumed which our Mr Patakas had informed his Honour at the time orders were proposed for reservation of the above judgments, was required for the hearing to be concluded.
2.Our client understood based on the above that the hearing of his review application had not concluded and would be relisted for a later date following the judgement on his interlocutory applications
3.We understand from the application’s solicitors when seeking to be heard on cost after today’s judgment, that contrary to our above understanding of the status of the adjournment on the last occasion, his Honour intends to determine today both interlocutory applications and the finally determine the respondent’s review application.
4.Would you please clarify which of the respondent’s applications will be determined by his Honour’s intended judgement today and if as proposed by the Applicant’s solicitors it is intended to include judgment of the Respondent’s review application then we seek the following:
(a)That we attend court before his Honour’s judgment is delivered to seek appropriate orders to address the above discrepancy of the parties understanding of the status of the hearing of the respondent’s review application; and
(b)That his honour adjourns the handing down of judgment until later today to allow such appearance wherein our client proposes to seek time to file an application and affidavits in support for appropriate orders for the further conduct of the matter having also regard to the development with the ATO since the hearing on 28 June 2022.
We look forward to your urgent reply.
On this email being drawn to my attention my associate, at my direction, sent an email to the parties at 1:14 pm on 31 October 2022 stating that “[t]he matter will remain listed for judgment”, and my associate provided the parties with telephone dial in details. At 1:59 pm on 31 October 2022 Mr Patakis sent the following email to my associate (errors in original):
Thank you for your reply.
I will attend by phone as requested 9while my client will attend in person).
Given the little time please be advised I will be seeking the following orders on behalf of my client:
The Respondent seeks orders that
1.If the Court determines the Respondents interlocutory application for an adjournment fails then order that:
(a)order 2 made on 28 June 2022 be stayed until further order of the Court;
(b)the balance of the Respondent’s Review Application be adjourned for a period of 21 days;
2.The respondent file and serve such further applications and affidavits in support by 7 November 2022;
3.The applicant file and serve any affidavits upon which they rely in any application by the respondent by 14 November 2022;
4.The respondent file and serve such further written submissions in respect of his review application and any other interlocutory applications by 16 November 2022;
5.The Applicant file and serve further submissions in respect of the review application and any further applications by 18 November 2022; and
6.List the matter for further directions and allocations of a hearing date on 21 November 2022.

At 2:15 pm on 31 October 2022 the matter was called, but I did not give judgment. I heard submissions Mr Patakas made in support of an application for the orders he identified in the second of the emails he sent to my associate on 31 October 2022. Mr Patakas submitted that he did not understand that the effect of the orders I made at the conclusion of the hearing on 28 June 2022 was that, if I were to refuse Mr Murabito’s application for an adjournment, I would proceed to deal with the merits of Mr Murabito’s application for review. I asked Mr Patakas what evidence he expected Mr Murabito would provide if I were to make the orders Mr Patakas sought. Mr Patakas said the evidence would relate to further developments in relation to the amended notices of assessments the ATO had issued. Mr Patakas said that “certain avenues” had become apparent. In response to my question whether the additional evidence would relate to any other issue, Mr Patakas said he did not think so.
At the conclusion of the hearing, I made the following orders:
1.The listing of the matter for judgment at 2:15 pm on 31 October 2022 is vacated.
2.Judgment on the application for orders set out in the email sent at 1:59 pm on 31 October 2022 by the applicant’s/respondent’s solicitor to the associate to Judge Manousaridis is reserved.
3.The matter is listed at 9:15 am on 2 November 2022 for judgment on:
(a) the application referred to in order 2; and
(b) the matters that were reserved for judgment on 28 June 2022.
questionS for decision
The questions that arise, therefore, are as follows:
(a)Should I make the orders for which Mr Patakas, on behalf of Mr Murabito, applied at 2:15 pm on 31 October 2022?
(b)Assuming (a) is answered in the negative, should I grant the application for an adjournment Mr Murabito sought at the hearing on 28 June 2022?
(c)Assuming (b) is answered in the negative, has Westview satisfied the preconditions under s 52(1) of the Act and under the Bankruptcy Rules for the making of a sequestration order?
(d)If (c) is answered in the affirmative, are the 14 June Murabito, 27 June Murabito, 28 June Murabito, and 28 June Stojcevski affidavits, if read, reasonably capable of establishing that Mr Murabito is able to pay his debts?
(e)If (d) is answered in the affirmative, should Mr Murabito be permitted to litigate the question of his solvency, given the late notification of his intention to rely on the 14 June Murabito, 27 June Murabito, 28 June Murabito, and 28 June Stojcevski affidavits?
(f)If (d) is answered in the negative, does the material Mr Murabito filed before 14 June 2022 prove he is able to pay his debts?
If all questions are answered adversely to Mr Murabito, his application for review must be dismissed. If questions (c) or (f) are answered adversely to Westview, the sequestration order and orders for costs the Registrar made must or may be set aside, the creditor’s petition must or may be dismissed, and there may remain outstanding the question of what, if any, orders may be made about the remuneration and costs of the Trustee that was appointed on the Registrar’s making the sequestration order.[7]
[7] Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143
There is an additional question. It relates to whether Mr Murabito applied for review of the sequestration order within 21 days after the day on which the Registrar made the sequestration order. Given the Registrar made the sequestration order on 7 April 2022, Mr Murabito was required to apply for a review of the Registrar’s order by 28 April 2022. Mr Murabito, however, did not lodge his application for review for filing until 10:53 am on 29 April 2022. The Court, however, has power under r 1.07 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) to dispense with compliance with the GFL Rules or with the Bankruptcy Rules. Given Mr Murabito was only one day late in filing his application for review, their being no evidence of prejudice that would flow to the Trustee, and my having to examine in any event the apparent merits of the grounds on which Mr Murabito relies for submitting a sequestration order ought not be made, I am satisfied it is in the interests of justice that I dispense with Mr Murabito’s compliance with r 2.02(3) of the Bankruptcy Rules.
application made on 31 October 2022
The principal basis on which Mr Patakas applied for the orders on 31 October 2022 is his understanding that I would only give judgment on the application for an adjournment Mr Murabito made at the hearing on 28 June 2022 without giving judgment on the merits of Mr Murabito’s application for review. That is an unreasonable understanding of the orders I made at the conclusion of the hearing on 28 June 2022, particularly having regard to my having discussed at the hearing what I proposed to do, and also the manner in which the hearing was conducted.
In any event, Mr Patakas’ unreasonable understanding of the orders I made on 28 June 2022 would not necessarily be determinative of the application he made on 31 October 2022 if Mr Patakas could demonstrate some utility in my making the orders he sought. Mr Patakas did not, however, identify any tangible utility in my making the orders. Apart from noting that the additional evidence would relate to the assessments the ATO issued, Mr Patakas did not identify what that evidence would be. More fundamentally, although Mr Patakas is not expected to have known this, I have approached Mr Murabito’s application for review on the assumption that Mr Murabito has no liability under the amended assessments the ATO has issued. Thus, there would be no utility in permitting Mr Murabito an opportunity to put on evidence in relation to the amended assessments the ATO issued to show he is not liable for the tax liabilities asserted in those notices.
For these reasons, I propose to dismiss the application Mr Patakas made on behalf of Mr Murabito at 2:15 pm on 31 October 2022.
application for adjournment
In support of Mr Murabito’s application for an adjournment Mr Patakas took me through the 27 June Murabito affidavit, the 28 June Murabito affidavit, and the 28 June Stojcevski affidavit. Mr Patakas then identified the purpose or purposes for which Mr Murabito applied for the adjournment. Mr Patakas submitted:[8]
Now, the reason we wanted the adjournment is, your Honour, if you would go to page – the beginning of the position paper which is at page 58 called The Findings of Our Audit. It’s a fairly long document, your Honour, but if you look throughout that, particularly the relevant facts, you will see that they – I have to find this – they treat numerous properties which are held in trust as being held beneficially by Mr Murabito, so the purpose of our adjournment is to look at this material and to the extent there is a risk that the court would consider the liabilities for these tax debts to be relevant to our solvency, to put forward to the court the true position of my client about these various assumptions based upon which these extraordinary large debts have come about, meaning the extraordinary large assessments
[8] 28.06.2022 T33.10
There would be no utility in granting an adjournment for this purpose. As I have already noted, I have approached Mr Murabito’s application for review on the assumption that Mr Murabito has no liability under the amended assessments the ATO has issued. I therefore propose to order that Mr Murabito’s application be dismissed.
Background
On 10 August 2018 Westview filed a statement of claim against Mr Murabito in the Local Court. Westview recovered a default judgment for $58,735.36 against Mr Murabito on 9 December 2018. On 28 August 2019 Westview obtained a bankruptcy notice directed to Mr Murabito demanding payment of $58,735.36; and, on 30 October 2019, Westview filed a creditor’s petition with this Court on the basis of Mr Murabito’s failure to comply with the requirements of the bankruptcy notice. The creditor’s petition was dismissed by consent on 16 April 2020 after, on 14 April 2020, the default judgment was set aside; and Mr Murabito was ordered to pay Westview’s costs in the amount of $5,600.
After a contested hearing, on 2 February 2021 Westview recovered a judgment against Mr Murabito in the sum of $92,054.21 (this being the “Judgment Debt” I identified at the beginning of these reasons). On 10 March 2021 Westview obtained the issue of the Bankruptcy Notice and arranged for it to be served on Mr Murabito on 20 April 2021.
On 4 June 2021 Mr Murabito filed an application in this Court for an order extending the time for compliance with the requirements of the Bankruptcy Notice (Extension Proceeding).[9] The application was listed for hearing on 10 August 2021, and the time for compliance with the Bankruptcy Notice was extended up to that day.
[9] Affidavit of D Carbone 28.04.2022, [5], annexure “A”, page 9
Also on 4 June 2021 Mr Murabito filed with the Local Court three applications to pay the Judgment Debt by instalments, but the Local Court refused all three applications on that day.[10] On 19 July 2021 Mr Murabito filed a further notice of motion to pay the Judgment Debt by instalments; and, on that day, the Local Court ordered that Mr Murabito pay the Judgment Debt by monthly instalments of $5,000 commencing on 11 August 2021 (Instalment Order).[11] Also on 19 July 2021, however, Westview filed a notice of motion objecting to the Instalment Order (Instalment Order Proceeding). The notice of motion was listed for hearing on 5 August 2021. On that day the Local Court ordered that the objection be listed for hearing on 19 August 2021. The Local Court also ordered that within 7 days Mr Murabito provide to Westview’s lawyers an up-to-date financial statement, and that Mr Murabito pay the first instalment of $5,000 by 11 August 2021 “as per existing Intsallment [sic] Order”.[12]
[10] Affidavit of D Carbone 28.04.2022, annexure “G”, page 35
[11] Affidavit of D Carbone 28.04.2022, annexure “D”, page 16
[12] Affidavit of M Zhou 09.06.2022, annexure “A”, page 11
At 10:47 am on 9 August 2021 Mr Carbone, the lawyer for Mr Murabito, sent an email to Ms Zhou, the lawyer for Westview, in which he suggested that the Extension Proceeding that was due to be heard on 10 August 2021 be adjourned to 20 August 2021, given that the Instalment Order Proceeding was due to be heard on 19 August 2021.[13] After he sent the email Mr Carbone and Ms Zhou had a conversation to the following effect:[14]
Mr Carbone: Would you please give me your client's nominated bank account details into which my client can pay the first $5,000 instalment due on 11 August 2021?
Ms Zhou:I will need to get my client's instructions and will let you know.
Mr Carbone: Have you considered the proposed short minutes to adjourn Mr Murabito’s Application in the Federal Circuit Court which I sent you today?
Ms Zhou:Yes, my client agrees but we will need to also provide for a further extension for compliance with the Bankruptcy Notice.
[13] Affidavit of M Zhou 09.06.2022, annexure “A”, page 5
[14] Affidavit of D Carbone 28.04.2022, [12]; affidavit of M Zhou 09.06.2022, [8.4]
After this conversation Ms Zhou sent an email to Mr Carbone attaching consent orders signed by Ms Zhou on behalf of Westview that the Extension Proceeding be adjourned to 24 August 2021.[15] That proceeding was adjourned to 24 August 2021.
[15] Affidavit of M Zhou 09.06.2022, annexure “A”, page 8
At 3:52 pm on 10 August 2021 Ms Zhou sent to Mr Carbone the following email:[16]
[16] Affidavit of M Zhou 09.06.2022, annexure “A”, page 16
We provide trust account details as requested. However, please note that we currently do not have instructions to accept payment in reduction of the debt noting the current proceedings on foot in both the Federal Circuit Court and the Local Court of NSW.
Our client reserves their rights generally in relation [to] both proceedings and to maintain the status quo.
Unless further instructed, our clients [sic] position remain unchanged as to its opposition to any further extension of compliance of the Bankruptcy Notice 252073 and the objection to the Instalment Order of 19 July 2021. Both issues are presently in Court pending determination and funds paid into the below account will not be accounted to the Judgment Creditor until after final determination in those proceedings or further instructions or agreement between the parties.
O'Neill Partners Trust Account
Bank:            . . . .
BSB No:        . . . .
A/C No:         . . . .
Ref:               . . . .
Payments made into the above account shall in no way be construed as acceptance of an instalment plan to pay the judgment debt.
Megan Zhou | Consultant Solicitor
On 18 August 2021, the day before the Instalment Order Proceeding was due to be heard, Ms Zhou and Mr Carbone had a conversation. According to Ms Zhou words to the following effect were spoken:[17]
Ms Zhou:My client will only consider an adjournment of both proceedings to allow your client to comply with the obligation to provide more information about his financial position and otherwise maintain the status quo, such that your client remains under an obligation to make his instalment payments pursuant to the Instalment Order. As such, we can adjourn the matters to November 2021 and reserve the position generally
Mr Carbone: That’s fine.
Ms Zhou:I will email proposed orders in both proceedings for your consideration
[17] Affidavit of M Zhou 09.06.2022, [12]
According to Mr Carbone, words to the following effect were spoken:[18]
Mr Carbone:    Have you had a chance to discuss with your client whether it agrees to the instalment arrangement with my client for the judgment sum in the Bankruptcy notice based on the $5,000 monthly instalment as per the instalment order?
Ms Zhou: My client is prepared to agree to a further three $5,000 instalments to be made as ordered for September to November 2021 and reserves its position on agreeing to a further arrangement on the same instalments after those instalments. It will agree therefore to extend the time for compliance with the bankruptcy notice to say 23 November 2021 to allow that to be done and for your client to provide more information about his financial position.
Mr Carbone:    That [sic] great. Agreed.
Ms Zhou:        Fine. I will send you proposed orders to reflect that agreement.
[18] Affidavit of D Carbone 28.04.2022, [15]
After this conversation, at 3:52 pm on 18 August 2021 Ms Zhou sent to Mr Carbone the following email (emphasis in original):[19]
Please see attached draft Orders which we propose on behalf of the Plaintiff.
We have not been served with your clients supporting material in relation to the financials as ordered by the Court on the last occasion.
We propose for both proceedings be adjourned generally. We note your client is reuqired [sic] to maintain the instalment order in the meantime.
[19] Affidavit of M Zhou 09.06.2022, [13.1]; annexure ”A”, page 17; affidavit of D Carbone 28.04.2022, [16], annexure “L”
Ms Zhou attached to her email two draft orders. One was in relation to the Extension Proceeding, and it provided that that proceeding be adjourned to 11:00 am on 23 November 2021, with the time for Mr Murabito complying with the Bankruptcy Notice being extended up to 23 November 2021. The second draft order related to Westview’s opposition to the Instalment Order; and it provided that the hearing of Westview’s objection be adjourned to 18 November 2021 at a time suitable to the Local Court.
Mr Carbone sent an email to Ms Zhou at 8:52 pm on 18 August 2021 attaching “signed Consent Orders”, and requesting that Ms Zhou submit both “to the relevant Courts and confirm that no appearance will be necessary by” Mr Carbone.[20]
[20] Affidavit of M Zhou 09.06.2022, annexure “A”, page 21
There are differences between the accounts Ms Zhou and Mr Carbone give of their telephone conversation before Ms Zhou sent her email at 3:52 pm on 18 August 2021. There is, however, only one potentially substantive difference between the two accounts. On Ms Zhou’s account, she told Mr Carbone that Westview would only consider agreeing to a three month adjournment of the Extension Proceeding and the Instalment Order Proceeding if Mr Murabito provides additional information about his financial affairs, whereas, on Mr Carbone’s account, Ms Zhou said Westview had agreed to the Extension Proceeding and the Instalment Order Proceeding being adjourned for three months.
To the extent there is any difference of substance, I prefer Ms Zhou’s account of the conversation she had with Mr Carbone on 18 August 2021, and find that on 18 August 2021 Ms Zhou had a conversation with Mr Carbone to the effect she recalls she had. First, in the email she sent to Mr Carbone after the conversation, Ms Zhou attached orders which she said “we propose”, and she also used the word “propose” in relation to adjourning the Extension Proceeding and the Instalment Order Proceeding. Mr Carbone, on the other hand, simply responded by sending an email attaching consent orders he had signed without confirming that the proposed consent orders Ms Zhou sent and which Mr Carbone signed reflected any agreement he and Ms Zhou had made in any conversation. Second, as appears later, Mr Carbone incorrectly deposed in his affidavit that he did not appear at the hearing on 14 September 2021. That leads me to find that Mr Carbone’s memory is not as reliable as Ms Zhou’s memory.
In any event, nothing turns on whose account of the conversation I accept; for it resulted in the one agreement by no later than when Mr Carbone sent by email on 18 August 2021 the two sets of consent orders, one in relation to the Extension Proceeding, and one in relation to the Instalment Order Proceeding. That agreement was that:
(a)on 19 August 2021 Ms Zhou would apply for the Court in the Extension Proceeding to make orders in terms of the consent orders Ms Zhou and Mr Carbone signed, which provided for the adjournment of that proceeding until 23 November 2021;
(b)on 19 August 2021 the Local Court would be requested to adjourn the Instalment Order Proceeding to 18 November 2021;
(c)Westview would allow Mr Murabito to make three payments under the Instalment Order, provided Mr Murabito would do so in accordance with the Instalment Order; and
(d)Westview otherwise reserved its position, by which I find the parties agreed that Westview would consider what it intended to do with the balance of the Judgment Debt by 18 November 2021, assuming that Mr Murabito complied with the Instalment Order until that time.
This agreement is reflected in both Ms Zhou’s and Mr Carbone’s accounts of their conversation on 18 August 2021. According to Ms Zhou she said that Mr Murabito “remains under an obligation to make his instalment payments pursuant to the Instalment Order”, and that “we can adjourn the matters to November 2021 and reserve the position generally”; and on Mr Carbone’s account, Ms Zhou said Westview was prepared to agree “to a further three $5,000 instalments to be made as ordered for September to November 2021” (emphasis added), and that Westview “reserves its position on agreeing to a further arrangement on the same instalments after those instalments”. Further, in her email she sent to Mr Carbone at 3:52 pm on 18 August 2021, Ms Zhou stated “your client is reuqired [sic] to maintain the instalment order in the meantime”.
On 19 August 2021 the Instalment Order Proceeding was adjourned to 18 November 2021.[21]
[21] Affidavit of D Carbone 28.04.2022, annexure “N”; annexure “S”, page 66 [15]
At 10:49 am on 24 August 2021 Ms Zhou sent to Mr Carbone “updated Consent Orders for this morning”. That was a reference to the listing of the Extension Proceeding before a Registrar. Ms Zhou asked Mr Carbone to inform her whether the updated consent orders were agreeable, and further said she would be happy to appear and mention Mr Carbone’s appearance.[22]
[22] Affidavit of D Carbone 28.04.2022, annexure “O”, pages 57-58

Ms Zhou appeared before the Registrar in the Extension Proceeding on 24 August 2021 where the Registrar made an order extending the time for compliance with the Bankruptcy Notice to 14 September 2021, and adjourned the Extension Proceeding to 11:00 am on 14 September 2021.[23] Ms Zhou informed Mr Carbone what occurred at the hearing of 24 August 2021 in an email she sent to Mr Carbone at 11:39 am on 24 August 2021, Ms Zhou reported as follows (emphasis in original):[24]
We refer to the Federal Circuit Court listing this morning and confirm my appearance before the Registrar. We confirm we have mentioned your appearance by consent noting the consent orders submitted last week.
I sought an adjournment until November 2021 however the Court was not minded to make the adjournment. The Registrar made comments in relation to jurisdiction as to your clients [sic] application as it related only to the extension of time for compliance and no grounds have been provided for the setting aside of the bankruptcy notice. The Court was of the view that the application made not having had sufficient grounds or jurisdiction to be brought.
Noting that this is your clients [sic] application, the Registrar simply advise [sic] me to notify your office that your appearance is required and the Court simply adjourned the matter to 14 September 2021.
[23] Affidavit of D Carbone 28.04.2022, annexure “P”
[24] Affidavit of D Carbone 28.04.2022, annexure “O”, page 57
Ms Zhou suggested in her email that, in view of the Registrar’s comments, the most appropriate way for the Extension Proceeding to be dealt with would be to have it dismissed. Ms Zhou requested that Mr Carbone inform her of Mr Murabito’s intentions so that an appropriate consent order could be prepared before the next occasion; or, if Mr Carbone wished to appear to make submissions, he should note that the next hearing date was 11:00 am on 14 September 2021.
At 9:46 am on 14 September 2021 Mr Carbone sent to Ms Zhou an email attaching details confirming the deposit of $5,000 into Westview’s lawyers’ trust account.[25]
[25] Exhibit A
According to Ms Zhou, on 14 September 2021, before the listing of the Extension Proceeding, Ms Zhou had a conversation with Mr Carbone to the following effect:[26]
Ms Zhou:This matter is back before the Court at 11am. What is your client’s position on his application?
Mr Carbone: My client wants to pay by instalments and doesn’t want to be made bankrupt. He will comply with the Local Court instalment order - can you ask your client not to proceed with bankruptcy while the instalment order is in place? We may have to dismiss the application.
Ms Zhou:I will need to get instructions. If your client’s application is dismissed today, my client will want some costs. I would suggest $880.00 in fixed costs in my client's favour.
Mr Carbone: Ok.
Ms Zhou:Ok, could you dial in for your appearance today. I will reach out to my client now and email you my instructions.
[26] Affidavit of M Zhou 09.06.2022, [16]
Ms Zhou then sent the following email to Mr Carbone at 10:25 am on 14 September 2021:[27]
We are instructed as follows:
1.The Judgment Creditor agrees for today’s Federal Circuit Court application to be dismissed by consent.
2.The Judgment Creditor agrees to withhold filing of a Creditors Petition until after 18 November 2021 unless there is a breach of the local court instalment order of 19 July 2021 in the interim.
3.The Judgment Debtor pay the Judgment Creditor’s costs of the Federal Circuit Court proceedings SYG1008/2021 in the fixed sum of $880.00.
[27] Affidavit of M Zhou 09.06.2022, annexure “A”, pages 26-27
Mr Carbone accepts he received this email from Ms Zhou. Mr Carbone, however, says he was unable to seek Mr Murabito’s instructions because on 14 and 15 September 2021 Mr Carbone had to appear with senior counsel in the “Samkara Proceeding”, and also because of “other overwhelming court commitments by [Mr Carbone] and Mr Murabito”. The “Samkara Proceeding” was a proceeding shareholders of a company of which Mr Murabito was also a member commenced against Mr Murabito in the Supreme Court of New South Wales (Supreme Court).[28]
[28] Affidavit of D Carbone 28.04.2022, [22]
At 11:00 am on 14 September 2021 the Extension Proceeding came before a Registrar and was heard by telephone. The Registrar made orders that the Extension Proceeding be dismissed, and that Mr Murabito pay Westview’s costs fixed in the sum of $880.[29]
[29] Affidavit of M Zhou 09.06.2022, [18]; Affidavit of D Carbone 28.04.2022, annexure “R”, page 62
In his affidavit Mr Carbone does not refer to having any conversation with Ms Zhou on 14 September 2021; and he deposes he did not appear before the Registrar when the Extension Proceeding was mentioned, and that he “later learnt that on 14 September 2021 the Registrar made the orders dismissing Mr Murabito’s Application”.[30] Ms Zhou, however, annexed to her affidavit email communications between Ms Zhou and the Court’s Registry. In her email sent at 2:26 pm on 3 June 2022 Ms Zhou attached the orders the Registrar made on 14 September 2021, stated that Ms Zhou appeared before the Registrar on 14 September 2021; noted that her notes indicate Mr Murabito appeared via his lawyer by telephone; and requested that the Registrar confirm whether the applicant or his lawyers appeared at the hearing on 14 September 2021.[31] A lawyer of the Federal Court of Australia (FCA) responded by email sent on 8 June 2022 in which the following was stated:[32]
Our records indicate that on 14 September 2021 there was an appearance by Mr D Carbone for the Applicant and Ms Zhou for the Respondent.
[30] Affidavit of D Carbone 28.04.2022, [23]; annexure “R”, page 62
[31] Affidavit of M Zhou 09.06.2022, annexure “A”, pages 28-29
[32] Affidavit of M Zhou 09.06.2022, annexure “A”, page 28
In evidence given under cross-examination Mr Carbone accepted there is no doubt that he appeared for Mr Murabito at the hearing before the Registrar on 14 September 2021.[33] Mr Carbone was also cross-examined about Ms Zhou’s account of the conversation she says she had with Mr Carbone on 14 September 2021. Mr Carbone said he did not “specifically recall that conversation”;[34] although Mr Carbone appeared to say he and Ms Zhou had agreed to some consent orders, although it is unclear whether these related to the orders in relation to the hearing of 14 September 2021.[35] Although nothing turns on it, I find that on 14 September 2021 Ms Zhou and Mr Carbone had a conversation to the effect Ms Zhou deposes they did.
[33] 28.06.2022 T51.40
[34] 28.06.2022 T48.30
[35] 28.06.2022 T50.30
At 1:53 pm on 12 October 2021 Ms Zhou sent to Mr Carbone an email in which she said that “your client has not paid the instalment due on 11 October 2021” (emphasis in original).[36] The text of the email formed part of Ms Zhou’s on-forwarding of the email she had sent to Mr Carbone on 14 September 2021, paragraph 2 of which stated that the “Judgment Creditor agrees to withhold filing of a Creditor’s Petition until after 18 November 2021 unless there is a breach of the local court instalment order of 19 July 2021 in the interim”.
[36] Affidavit of D Carbone 28.04.2022, annexure “Q”
On 14 or 15 October 2021 Westview applied to the Local Court to set aside the Instalment Order. Westview’s application was supported by an affidavit made by Ms Zhou on 14 October 2021 in which she deposed that Mr Murabito had made the instalment payments due on 11 August and 11 September 2021, but he did not make the instalment payment due on 11 October 2021.[37] On 15 October 2021 the Local Court set aside the Instalment Order.[38]
[37] Affidavit of D Carbone 28.04.2022, annexure “S”
[38] Affidavit of D Carbone 28.04.2022, annexure “S”
Proof of matters in s 52(1) of the Act and Bankruptcy rules
Subsection 52(1) of the Act provides as follows:
At the hearing of a creditor’s petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
The matters that must be stated in a creditor’s petition are prescribed by s 47(1A) of the Act, which provides that if “the rules of court prescribe a form for the purposes of this subsection, the petition must be in the form prescribed”. Rule 4.02 of Bankruptcy Rules prescribes a form for the purposes of s 47(1A) of the Act. The form requires the creditor, among other things, to identify the act of bankruptcy on which the creditor relies, and the debt or debts the creditor claims the debtor owes it.
In the amended creditor’s petition filed on 12 November 2021 Westview claims Mr Murabito failed to comply on or before 14 September 2021 with the requirements of the Bankruptcy Notice served on him on 14 May 2021.[39] Westview relies on the affidavit of service of the Bankruptcy Notice made by Ms Antonija George on 25 May 2021.
(a)Ms George deposes to the service of a number of documents, including an “Amended Bankruptcy Notice Number 252073 dated 19 April 2021”. That is the Bankruptcy Notice which contains a handwritten amendment to paragraph 1 of page 2 of the Bankruptcy Notice. The amendment consists of the crossing out of the printed words “after service on you of the Bankruptcy Notice” that appear after the words “You are required, within 21 days”, and substituting the words “after 14 May 2021”. Thus, the Bankruptcy Notice required that Mr Murabito comply with the requirements of the Bankruptcy Notice within 21 days after 14 May 2021, that is, by 4 June 2021.
(b)Ms George also annexed to her affidavit an order for substituted service of the Bankruptcy Notice made by a Registrar on 15 April 2021 which, in addition to providing the means by which the Bankruptcy Notice was to be served, provided that that Bankruptcy Notice “shall be deemed to be served on [Mr Murabito] on 14 May 2021”, and ordered that the Bankruptcy Notice be amended in the manner I have described.
(c)Ms George also deposes to having served the Bankruptcy Notice using the methods authorised by the orders for substituted service.
[39] Affidavit verifying creditor’s petition W Brady 15.10.2021
Thus, I am satisfied the Bankruptcy Notice was served on Mr Murabito on 14 May 2021. I am also satisfied that the time for compliance with the requirements of the Bankruptcy Notice has been extended on a number of occasions, and finally extended to 14 September 2021, and that Mr Murabito did not comply with its requirements by that time. Mr Murabito, therefore, committed an act of bankruptcy on 14 September 2021.
Westview filed a creditor’s petition on 15 October 2021. The creditor’s petition is in the prescribed form,[40] and, as required by s 47 of the Act, an officer with authority has made an affidavit verifying it on behalf of Westview.[41] Westview also filed, at the time it filed the creditor’s petition, an affidavit required by r 4.04(1)(a) of the Bankruptcy Rules,[42] and an affidavit of service of the Bankruptcy Notice, as required by r 4.04(1)(b).[43] Westview also filed a “Trustee Consent to Act Declaration” signed by Mr Andrew Barnden.
[40] Form B6
[41] Affidavit verifying creditor’s petition W Brady 15.10.2021
[42] Affidavit of Search A George 15.10.2021
[43] Affidavit of Service A George 25.05.2021
The amended creditor’s petition filed on 12 November 2021, together with the affidavit required by r 4.04(1)(a) of the Bankruptcy Rules,[44] and the affidavit of service of the Bankruptcy Notice,[45] together with other documents, were served on 30 November 2021 in the manner required by the orders for substituted service a Registrar made on 29 November 2021.[46] Further I read an affidavit of debt,[47] being an affidavit which, under r 4.06(4) of the Bankruptcy Rules, must be made as soon as practicable before the hearing of the creditor’s petition, and also an affidavit of search,[48] as required by r 4.06(3) of the Bankruptcy Rules.
[44] Affidavit of Search A George 15.10.2021
[45] Affidavit of Service A George 25.05.2021
[46] Affidavit of Service A Taylor 02.12.2021
[47] Affidavit of Debt W Brady 27.06.2022
[48] Affidavit of Search A George 27.06.2022
I am satisfied Westview has proved the matters it is required to prove under s 43 and s 52(1) of the Act and the Bankruptcy Rules and that, subject to the matters on which Mr Murabito relies, a sequestration order should be made against his estate.
ground 1 of notice stating grounds of opposition
As I noted at the beginning of these reasons, Mr Murabito relies on two grounds for resisting the making of a sequestration order. The first ground is as follows:
The Bankruptcy Notice Number BN252073 dated 19 April 2021 (being issued 10 March 2021) the subject of the Creditors Petition filed 12 November 2021 was complied with by the instalment agreement entered into by the Creditor with the Debtor on 18 August 2021 via their respective solicitors.
The ground does not identify the terms of the agreement that is said to have been made on 18 August 2021; and it does not identify how the agreement is said to have constituted compliance with the requirements of the Bankruptcy Notice. Considered alone, therefore, the ground has no merit.
At the hearing Mr Patakas (who, as I have already noted, appeared for Mr Murabito) identified as the relevant agreement the agreement Mr Patakas submitted arose in the conversation Ms Zhou and Mr Carbone had on 18 August 2021,[49] and included the proposed consent orders. Mr Patakas submitted the agreement “amounted to a satisfaction of the bankruptcy notice”.[50] When I asked Mr Patakas whether his submission was that the effect of the agreement was that Mr Murabito agreed to pay three monthly instalments of $5,000 to satisfy the Judgment Debt, Mr Patakas said that was not his submission:[51]
The submission is that an agreement has been made that the parties would reach a future agreement in relation to the entirety of the debt, but the agreement currently is that it’s an agreement for the making of three monthly instalments until the parties are in a position to agree on the balance of the debt.
[49] Mr Patakas incorrectly referred to this agreement as having been made on 24 August 2021
[50] 28.06.2022 T66.40
[51] 28.06.2022 T67.10
The agreement this submission identifies cannot reasonably be characterised as an arrangement “to the creditor’s [that is, Westview’s] satisfaction for settlement of the debt” as was provided by the Bankruptcy Notice. Nor can the agreement Ms Zhou and Mr Carbone made on 18 August 2021 be characterised as the making of any such arrangement. As I have already found, the effect of their agreement was that Westview would consent to the Instalment Order Proceeding and the Extension Proceeding being adjourned to 18 and 23 November 2021 respectively on the condition that Mr Murabito would comply with the Instalment Order until 18 November 2021, and Westview would consider its position in relation to the payment of the balance of the Judgment Debt by 18 November 2021. The condition, however, was not satisfied because Mr Murabito failed to make the instalment that was payable on 11 October 2021. Further, whatever agreement was reached, it did not address the $5,600 FCC costs order.
Mr Murabito therefore fails on ground 1 of his notice stating grounds of opposition to the making of a sequestration order.
ground 2 of notice stating grounds of opposition
The second ground on which Mr Murabito relies for opposing the creditor’s petition is he is able to pay his debts.
Principles[52]
[52] In this section I repeat what I said in Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc v McGuire [2022] FedCFamC2G 286, at [47]-[52]
On a creditor satisfying the matters specified by s 52(1) of the Act the Court may make a sequestration order. Under s 52(2)(a) of the Act, however, if the Court is satisfied by the debtor that the debtor is able to pay his or her debts, the Court may dismiss the petition.
Subsection 52(2)(a) of the Act does not use the word “solvent”;[53] nor does it use the words “as and when they become due and payable”.[54] It simply says “he or she is able to pay his or her debts”. In other words, s 52(2)(a) does not in terms require the debtor to be “solvent”. Notwithstanding the omission of “solvent” in s 52(2)(a) of the Act, that paragraph has been construed as requiring the Court to be satisfied the debtor is “solvent” in the sense of not being “insolvent” as that term was explained in Sandell v Porter:[55]
Insolvency is expressed in s. 95 [of the Bankruptcy Act 1924 (Cth)] as an inability to pay debts as they fall due out of the debtor’s own money. But the debtor’s own moneys are not limited to his cash resources immediately available. They extend to moneys which he can procure by realization by sale or by mortgage or pledge of his assets within a relatively short time – relative to the nature and amount of the debts and to the circumstances, including the nature of the business, of the debtor. The conclusion of insolvency ought to be clear from a consideration of the debtor’s financial position in its entirety and generally speaking ought not to be drawn simply from evidence of a temporary lack of liquidity. It is the debtor’s inability, utilizing such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due which indicates insolvency. Whether that state of his affairs has arrived is a question for the Court and not one as to which expert evidence may be given in terms though no doubt experts may speak as to the likelihood of any of the debtor’s assets or capacities yielding ready cash in sufficient time to meet the debts as they fall due.
[53] Being a term which is defined in s 5(2) of the Act.
[54] Which is part of the definition of “solvent” in s 5(2) of the Act.
[55] Sandell v Porter (1966) 115 CLR 666, at 670-671. The cases which so construed s 52(2)(a) of the Act were identified by Cowdroy J in Rigg v Baker [2006] FCAFC 179, at [104].
Some of the relevant principles for determining whether, on this approach, a debtor is able to pay his or her debts were identified by Driver FM (as his Honour then was) in Deputy Commissioner Of Taxation v Caporale as follows (references omitted):[56]
The inquiry emphasises that it involves a consideration of the ability to command cash resources through his or her own assets. The Court must also look at the level of the debtor’s recurrent expenses and earnings in addition to whether there are cash resources from assets.
A respondent debtor bears the onus of proving to the Court that their assets are sufficient to pay their liabilities as and when they become due and payable. It is not sufficient to simply show an excess of assets over liabilities. The respondent debtor must also establish that their assets are available to be realised and that they are capable of ready realisation.
[56] Deputy Commissioner Of Taxation v Caporale [2013] FMCA 5, at [23] and [24]
The words “able to pay his or her debts” that appear in s 52(2)(a) of the Act do not mean “willing and able” to do so.[57] A debtor, therefore, who is able to pay his or her debts, but who is unwilling to pay the debt owed to the debtor’s petitioning creditor, remains a person who can pay his or her debts, and the Court may, in its discretion, dismiss a creditor’s petition against such a debtor. Thus, in Re Sarina; Ex parte Wollondilly Shire Council, it was said that a debtor is “able to pay his debts but is recalcitrant, his creditors may resort to the remedies otherwise afforded by the law such as execution against his property and garnishee proceedings”.[58]
[57] Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596, at page 599 (Bowen CJ, C A Sweeney and Lockhart JJ)
[58] Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596, at page 599

Potentially relevant to the case before me is the judgment of the Full Federal Court in Re Eric Trojan v Corporation of the Town of Hindmarsh.[59] In that case the debtor paid into court the amount of the judgment debt demanded in a bankruptcy notice that was issued against the debtor and his wife. The money the debtor and his wife paid into court had been paid to them jointly by the trustee of a discretionary trust. The debtor attempted to prove he was in a position to pay the debt; but both the debtor and his wife refused to use the money paid into court to pay the debt. The primary judge made a sequestration order against the debtor, but not against the wife, finding that the debtor’s wife, but not the debtor, was solvent. The primary judge made the sequestration order after he refused the debtor leave to reopen his case to show that his wife had given the debtor her share of the money that was paid into court. Apart from the money that was paid into court, it appeared the debtor was not a person of sufficient substance to pay his debts, although it appeared the trust had sufficient assets to do so.
[59] Re Eric Trojan v Corporation of the Town of Hindmarsh (1987) 16 FCR 37; [1987] FCA 276
The Full Federal Court dismissed the debtor’s appeal. First, the fact the trust had assets sufficient to pay the judgment debt did not demonstrate the debtor was able to do so, because the debtor did not control the assets of the trust. Second, given the money was paid jointly into court, the debtor could not show that his wife’s share was available to pay the debt. Third, even if the money that had been paid into court was available to pay the debt, there remained a discretion not to make a sequestration order, and the Full Federal Court held that the discretion ought not to be exercised in favour of the debtor. The Full Federal Court said:[60]
Section 52(2)(a) envisages a situation which will probably bear fruit in payment. It is not easy to see any other reason why the legislature saw fit to make a demonstration of ability to pay only a discretionary ground of dismissal of a petition, and not an absolute bar to its success. At all events, cases such as the present fall fairly within the reach of a proper judicial discretion of the kind conferred by the section. Far from being an authority in the appellant's favour, the Sarina case, when properly understood, affirms the existence of a discretion which in the very different circumstances of the present case a court could hardly contemplate exercising otherwise than in favour of the respondent. However, since his Honour rightly held that the asset in Court was not sufficient to satisfy him that the appellant was able to pay his debts, no question of the exercise of his discretion on the footing of satisfaction of the appellant's ability to pay his debts arose.
[60] Re Eric Trojan v Corporation of the Town of Hindmarsh (1987) 16 FCR 37; [1987] FCA 276, at page 48
Finally, I refer to what is required to prove solvency. Speaking in the context of corporate insolvency, Weinberg J in Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd said that to discharge the onus of proving solvency “the Court should ordinarily be presented with the “fullest and best” evidence of the financial position of the respondent”; and that “[u]naudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency. Nor are bald assertions of solvency arising from a general review of the accounts, even if made by qualified accountants who have detailed knowledge of how those accounts were prepared”.[61]
[61] Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728, at [44]
Mr Murabito’s evidence
Mr Murabito relies on a number of affidavits.
First Murabito 28 April affidavit
The first is an affidavit made on 28 April 2022 that was filed on 2 May 2022 (First Murabito 28 April affidavit). At paragraph 36 of that affidavit Mr Murabito annexes what he describes as his “current statement of Assets and Liabilities”, which is as follows:

Assets Approx. Value $ Liabilities Value $

Jointly 50:50 with Lilly Stefanovic [sic]

29 Wymston Parade Five Dock

5 Bedroom 3 bathroom Family home (half share with Lilly Stojevscki) [sic]

Property Logic Valuation dated 23 April 2021 $5.5 M
$5,500,000
ANZ Banking Group (First Mortgage)

As per ANZ bank statement of Loan Account No . . . . dated 7 April 2022
$2,090,000

Cross Claim against Australian Mortgage Finance Services Pty Ltd and from AET Corporate Trust Pty Ltd estimated to be more than $700,000 $700,000
Australian Mortgage Finance Services Pty Ltd (AMFS) (Second Mortgage by transfer of mortgage from AET Corporate Trust Pty Ltd as custodian for ASCF #1 Fund and ASCF #2 Fund )

See: FASC in Supreme Court Proceeding No 2020/309462 - Balance of claim - Comprising interest and costs

[Disputed on grounds set out in affidavit S Murabito sworn
28 April 2022]
$74,345.00

AMFS costs order made on 17 September 2021 – estimated $25,000

Costs Claim against AMFS in AMFS Proceeding No 2020/309462 Estimated $35,000 $35,000 Legal fees to Evangelos Patakas & Associates in AMFS Proceeding No 2020/309462 Estimated $50,000

Joint Total $6,235,000 $2,219,345

Net Joint Assets $4,065,655

S Murabito 50% share of Joint net Assets $2,032,827

Solely Steven Murabito

Claim for Indemnity against Samuel Homes Pty Ltd as the director and guarantor to Westview Frames and Trusses (NSW) Pty Ltd and expected payment from Samuel Homes Pty Ltd claim under its Contract Works $92,370 Westview Frames and Trusses (NSW) Pty Ltd ACN 150 774 628
Debt as per Creditors Petition filed 12 November 2021 and costs $92,370

Insurance Policy with March Advantage Insurance $12,945 Costs ordered on 7 April 2022 $12,945

Costs Order against Karadag & Karadag in Proceeding No 257925/202l: pursuant to Judgment of Ward J made on 5 April 2022 Approximate Costs $115,000 estimated on assessment recover more than 80% of the invoice sum. $92,000 Karadag & Karadag
[Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022] $325,463

Claim for Damages breach of Deed & Costs against Karadag & Karadag Proceeding No 257925/2021:
Estimated $250,000 250,000 Costs to Sydney Law Practice for Karadag & Karadag litigation Proceeding No 257925/2021: $125,000

Claim for Indemnity against Samuel Homes Pty Ltd as the director and guarantor $19,000 Esanda Finance
Car Lease (est) $19,000

Claim for debt by Samuel Homes Pty Ltd as creditor for the sums borrowed for Westpac and applied for business purposes $27,000 Westpac Business Loan (est) $27,000

~~Claim for debt by~~ ~~Samuel Homes Pty Ltd as creditor for the sums borrowed for Westpac and applied for business purposes~~ ~~$25,515~~ ~~Westpac Credit card~~ ~~$25,515~~

ANZ Loan (est) $33,000

ANZ –Credit card $33,652

Claim by S Murabito against Ageist Pty Ltd (and formerly H&H Mezz Pty Ltd) in Supreme Court of NSW Proceedings No 2020/158209 $700,000
Ageist Pty Ltd (and formerly H&H Mezz Pty Ltd) in Supreme Court of NSW Proceedings No 2020/158209

[Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022
$400,000

Legal fees to Evangelos Patakas & Associates for AMFS proceeding No 2020/309462 since 25 February 2022 and Creditors petition Proceeding No SYG 1905 of 2021 estimated $35,000

Total $1,218,830 $1,128,945

S Murabito Total Joint and Solely held Assets
$3,215,657

S Murabito Net Assets 2,086,712

I admitted this schedule as a summary of what Mr Murabito claims are his assets and liabilities on the basis I would give no weight to it other than to the extent there is other evidence to support it.[62] Mr Murabito annexed documents that show he and Ms Stojcevski are registered proprietors as joint tenants of a parcel of land, which I assume is the property at 29 Wymston Parade Five Dock (Five Dock Property), a real estate agent’s appraisal of the Five Dock Property as having a market value of between $5.5 million and $5.8 million; and a valuation of the Five Dock Property of $5.5 million. Mr Murabito also annexes a document issued by Australia and New Zealand Banking Group Limited (ANZ Bank), which is headed: “Your home loan at a glance”.[63] The document records that the original loan was $2.09 million (Home Loan); the current balance of the loan is $2,440,954.23; the minimum monthly payment is $9,795.74 per month; and the “current bank managed payment” is $10,690.81 per month. In his affidavit Mr Murabito deposes that “[o]ur current debt to the ANZ Bank is $2,090,000 as recorded in” the document ANZ Bank issued which Mr Murabito annexes to his affidavit.[64] That statement does not correctly describe the information contained in the ANZ Bank document.
[62] 14.06.2022 T30.5
[63] First Murabito 28 April affidavit, [40]; annexure “AC”
[64] First Murabito 28 April affidavit, [40]; annexure “AC”
Second Murabito 28 April affidavit
The second affidavit on which Mr Murabito relies is another affidavit he made on 28 April 2022 (Second Murabito 28 April affidavit). In that affidavit Mr Murabito addresses the following matters:
(a)Claims by Australian Mortgage Finance Services Pty Ltd (AMFS), which has a registered second mortgage over the Five Dock Property. Mr Murabito says the mortgage secures a debt it acquired from AET Corporate Pty Ltd (AET) who had lent money to Samuel M Holdings Pty Ltd (SMH) which Mr Murabito and Ms Stojcevski guaranteed. Mr Murabito and Ms Stojcevski are in dispute with AMFS and AET “regarding that loan and AET’s premature and wrongful termination in March 2019 of that loan in breach of a roll over agreement extending it to June 2019”.[65] Mr Murabito then refers to AET having appointed a receiver and manager over SMH in June 2019 and on 23 September 2020 SMH selling land of which SMH was the registered proprietor; AET transferring the outstanding debt to AMFS which then commenced proceedings in the Supreme Court for orders to recover a debt of $74,345.99 and an order for possession of the Five Dock Property; “[d]ue to circumstances beyond” Mr Murabito’s and Ms Stojcevski’s control they were unable to file a defence and on 17 September 2021 the Supreme Court ordered that default judgment be entered against Mr Murabito and Ms Stojcevski; on 6 October 2021 Mr Murabito and Ms Stojcevski filed a notice of motion seeking a stay of the default judgment and an order to set it aside; the default judgment as against Mr Murabito was set aside; and on 7 April 2022 the Supreme Court directed Mr Murabito to file an amended defence by 15 April 2022.[66] Mr Murabito concludes this part of his affidavit as follows:[67]
Based on the above I not only dispute that I am liable to AMFS for the judgement [sic] sum of $74,345.99 plus costs but I claim that AMFS and AET are liable to me, Lilly and Samuel M Holdings for sums in excess of $700,000.
(b)Caveats lodged over the Five Dock Property by Parkview Estate Pty Ltd and Dynamic Bradview Roofing Pty Ltd. The caveats relate to Ms Stojcevski’s share of the Five Dock Property, and they are disputed.[68]
(c)Mortgage registered by Capital Securities Australia Pty Ltd. This was registered to secure loans that have been discharged.[69]
(d)Caveat lodged by Agora Capital Corporation Pty Ltd. That has remained by oversight, and does not relate to any debt.[70]
(e)Caveat by Ageist Pty Ltd (Ageist). The caveat purports to relate to an agreement between Ageist and Mr Murabito and Ms Stojcevski, but both Mr Murabito and Ms Stojcevski deny having entered into any agreement with Ageist. Ageist claims the debt is one that H&H Mezz Pty Ltd (HHM) assigned to Ageist which arose from a loan of $400,000 HHM made to SMH, and in relation to which Mr Murabito and Ms Stojcevski granted a security over the Five Dock Property. Mr Murabito and Ms Stojcevski dispute the debt on the same ground that they dispute the debt to Ageist; and in any event claim that Ageist and HHM are liable to SMH, Mr Murabito, and Ms Stojcevski for $700,000.[71]
[65] Second Murabito 28 April affidavit, [6]
[66] Second Murabito 28 April affidavit, [5]-[14]
[67] Second Murabito 28 April affidavit, [15]
[68] Second Murabito 28 April affidavit, [16]-[17]
[69] Second Murabito 28 April affidavit, [18]-[21]
[70] Second Murabito 28 April affidavit, [22]-[25]
[71] Second Murabito 28 April affidavit, [26]-[31]
Third Murabito 28 April affidavit
The third affidavit on which Mr Murabito relies is another affidavit made on 28 April 2022 (Third Murabito 28 April affidavit). In that affidavit Mr Murabito addresses the following matters.
(a)The notice of appearance of Mr and Mrs Karadag as supporting creditors in the amount of $325,000. Based on the matters Mr Murabito identifies, he deposes that he disputes he is liable to Mr and Mrs Karadag for the $325,000 they claim; he and Ms Stojcevski are liable to pay $20,000 to Mr and Mrs Karadag for costs; Mr and Mrs Karadag are liable to pay $90,000 to Mr Murabito and Ms Stojcevski for the costs in the “Samkara Proceeding”; and that Mr and Mrs Karadag “are likely to be liable to [Mr Murabito] for damage and further legal costs as result of the Karadag Oppression Proceedings which at this time is not quantified”.[72]
(b)Smaller credit card and loan debts. Mr Murabito says he owes Westpac about $27,000 on a personal loan, and about $25,515 on his credit card. These debts have been frozen since a sequestration order was made.[73]
(c)Mr Murabito guaranteed a car lease liability for SMH with Esanda in the amount of $19,000 which Mr Murabito believes is not in default.[74]
(d)Mr Murabito borrowed a small sum and held a credit card with ANZ Bank. The debt had been assigned to Transactional Capital Finance Australia who in turn assigned it to Credit Corp. Mr Murabito believes the debt is around $33,000.[75]
(e)Mr Murabito says he is entitled to an indemnity from SMH “for all of the above Westpac and Esanda liabilities and expect to be paid shortly for the proceeds of its insurance claim regarding the project for which Westview provided the disputed frames”.[76]
[72] Third Murabito 28 April affidavit, [16]
[73] Third Murabito 28 April affidavit, [17]
[74] Third Murabito 28 April affidavit, [18]
[75] Third Murabito 28 April affidavit, [19]
[76] Third Murabito 28 April affidavit, [20]
14 June Murabito affidavit
The fourth affidavit on which Mr Murabito relies is an affidavit made on 14 June 2022 (that is, the “14 June Murabito affidavit” I defined earlier in these reasons). As I noted earlier in these reasons, Westview and the Trustee objected to my reading this affidavit; and I resolved that objection by deciding I would hear submissions on that question in the course of which Mr Patakas would address whether the affidavit, if read, is reasonably capable of proving Mr Murabito can pay his debts. Thus, I will refer to this affidavit for the purpose of determining whether, if read, and considered with other material that has been admitted, it is reasonably capable of proving Mr Murabito is able to pay his debts.
Mr Murabito annexes what he describes as an updated and revised statement of his assets and liabilities.[77]
[77] 14 June Murabito affidavit, [5]; annexure “A”

Assets Approx. Value $ Liabilities Value $

JOINT ASSETS & LIABILITIES (50:50 with LILLY STEFANOVIC [sic])

29 Wymston Parade Five Dock

5 Bedroom 3 bathroom Family home (half share with Lilly Stojevscki) [sic]

Property Logic Valuation dated 23 April 2021 $5.5 M
$5,500,000 ANZ Banking Group (First Mortgage)
As per ANZ bank statement of Loan Account No . . . . dated 7 April 2022 $2,457,000

Claims against ANZ for Refunds (approx) in respect of accounts for the property: 29 Wymston Pd Five Dock

For Joint Home Loan Acc No . . .
(a) for Break Free Package Unaccounted discount rates,
(b) Unaccounted interest rate Reduction due to incorrect Investment rates rather than Home Loan rates;
(c) Loan Default & Enforcement Costs Disputed charges

For Joint Offset Account No . . . . . for
(d) Junk Insurance Premiums;
(e) Improper & Disputed fees charges

(a) $256,968

(b) $66,052

(c) $96,413

(d) $6,466

(e) $1,110
$427,009

Australian Mortgage Finance Services Pty Ltd

Cross Claim against Australian Mortgage Finance Services Pty Ltd and from AET Corporate Trust Pty Ltd estimated to be more than $700,000 $700,000 Australian Mortgage Finance Services Pty Ltd (AMFS) (Second Mortgage by transfer of mortgage from AET Corporate Trust Pty Ltd as custodian for ASCF #1 Fund and ASCF #2 Fund )
See: FASC in Supreme Court Proceeding No 2020/309462 - Balance of claim – Comprising interest and costs
[Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022] $74,345.00
(D)

AMFS costs order made on 17 September 2021 – estimated $25,000

Costs Claim against AMFS in AMFS Proceeding No 2020/309462 Estimated $35,000 $35,000 Legal fees to Evangelos Patakas & Associates in AMFS Proceeding No 2020/309462
Estimated $50,000

Joint Total (including Claims) $6,662,009 Joint Total (Incl Disputed Debts) $2,606,345

Net Joint Assets $4,055,694

S Murabito net Assets (50% share of Joint Net Assets) $2,027,847

ASSETS & LIABILITIES
SOLELY STEVEN MURABITO

Claim for Indemnity against Samuel Homes Pty Ltd as the director and guarantor to Westview Frames and Trusses (NSW) Pty Ltd and expected payment from Samuel Homes Pty Ltd claim under its Contract Works Insurance Policy with March Advantage Insurance
$95,638

$12,945

Westview Frames and Trusses (NSW) Pty Ltd ACN 150 774 628
Debt as per Creditors Petition filed 12 November 2021 and costs

Costs ordered on 7 April 2022

$95,638

$12,945

Karadag & Karadag in Proceeding

Costs Order against Karadag & Karadag in Proceeding No 257925/202l: pursuant to Judgment of Ward J made on 5 April 2022
Approximate Costs $66,000 estimated on assessment recover more than 80% of the invoice sum. $59,000
Karadag & Karadag

[Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022]
$325,463 (D)

Claim for Damages breach of Deed & Costs against Karadag & Karadag Proceeding No 257925/2021:
Estimated $250,000 250,000 Costs to Sydney Law Practice for Karadag & Karadag litigation Proceeding No 257925/2021: $110,000

Esanda Finance (ANZ Bank)

Claim for Indemnity against Samuel Homes Pty Ltd as the director under agreement $16,523
Esanda Finance
Car Loan (as per Credit Report)

Disputed to the extent of claims for refunds and other offsets for sums due by ANZ
$16,523 (D)

Esanda Finance
Claims for Refunds for two car loans Not known Esanda Finance ($9,733)
Repaid – disputed $9,733 (D)

Westpac

Claim for debt by Samuel Homes Pty Ltd as creditor for the sums borrowed by S Murabito from Westpac under this Flexi Loan which S Murabito applied/loaned to Samuel Homes Pty Ltd for its business $14,475
Westpac Flexi Loan Account No $28,951

Disputed to the extent of claims for refunds and other offsets for sums due by ANZ
$14,475 (PD)

Claim for debt by Samuel Homes Pty Ltd as creditor for the sums borrowed by S Murabito from Westpac under this Credit Card which S Murabito applied/loaned to Samuel Homes Pty Ltd for its business. $25,515 Westpac - Credit card $25,515 (PD)

Claims for Refund in respect of Junk Insurance & other charges Not known

Claims for Refund in respect of Junk Insurance & other charges Not known

ANZ Bank

Claims against ANZ for (est) Refunds in respect of this account No . . . . for Junk Insurance Break Free Package & Generally Not known ANZ Personal Loan Acc No . . . .
Disputed to the extent of claims for refunds on this account and offsets for other refund sums claimed form [sic] ANZ $27,767 D

Claims against ANZ for (est) Refunds in respect of this account No . . . . for Junk Insurance Break Free Package & Generally Not known ANZ -Credit Card Mastercard Low rate Acc No . . . .
Disputed to the extent of claims for refunds on this account and offsets for other refund sums claimed from ANZ $24,133 D

Claims against ANZ for Refunds (approx) for accounts connected with property: 16 Croydon Street Petersham which repaid in February 2017 and closed:
Unaccounted discount rates in respect of:
2 Home Investment Loan Accounts No . . . and . . . and an Equity Manager account No . . . .
AND
Refunds for Breakfree Package Fees and other wrongly charged sums to an associated Offset Account No . . ..
$72,167

$3,693
$75,860

Claims against ANZ for Refunds (approx) for accounts connected with property: 100 Port hacking Road Sylvans [sic] which repaid in February 2017 and closed:
Unaccounted discount rates in respect of:
a Home Investment Loan Accounts No
AND
Refunds for Breakfree Package Fees and other wrongly charged sums to an associated Offset Account – statement to be located
$40,259

Not known

Claims for damages against the ANZ as a result of above claims for overcharging:
(a) Loss & damage for interest charged on ANZ Credit Card debt of about $23,000 at 12% p.a. for 4 year term of debt and above loans
(b) Loss & damage for interest charged to Murabito by other lenders – AMFS at 36% p.a. for 3 years of alleged default
(c) Loss & damage on other bases
(a) $11,000

(b) $80,292

Not Know [sic]

Claim by S Murabito against Ageist Pty Ltd (and formerly H&H Mezz Pty Ltd) in Supreme Court of NSW Proceedings No 2020/158209
(estimated) $700,000 Ageist Pty Ltd (and formerly H&H Mezz Pty Ltd) in Supreme Court of NSW Proceedings No 2020/158209
[Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022 $400,000 (D)

Legal fees to Evangelos Patakas & Associates for AMFS proceeding No 2020/309462 since 25 February 2022 and Creditors petition Proceeding No SYG 1905 of 2021 estimated $35,000

Toyota Financial Services – compensation payment $1,000 Citibank Credit Card (Not admitted) $16,928

Kennards Hire (Not admitted) $3,274

Hume Doors & Frames (Not admitted) $14,984

Total assets including claims $1,382,507 Total Liabilities including disputed $1,132,378

S Murabito Total Joint and Solely held Assets
$3,410,354

S Murabito Net Assets $2,277,976

The letter ends with the following signatures:
This part of the letter contains two dates. One is 13 June 2022, which appears to have been printed. The second is “Jun 14, 2022”. This date appears to have been printed underneath each signature, which appear to be electronic signatures. In addition to “Jun 14, 2022” there is also recorded three times – “00:44 GMT + 10”, which appears under the purported signature of “Jo Natoli”, “00:46 GMT + 10”, which appears under the purported signature of “Lupco Stojcevski” and above the words “Director Samuel Homes Lupco Stojcevski”, and “00:46 GMT + 10”, which appears under the second purported signature of “Lupco Stojcevski” and above the words “Debtor/Borrower/Guarantor Lupco Stojcevski”.
Income. Mr Murabito says that until he was injured on 27 October 2021 he was receiving an annual income from his then employers of “$1,118,000”; but after his accident Mr Murabito could not work, and he has been receiving workers compensation payments. Mr Murabito says he is currently receiving weekly workers compensation of $1,330, net of tax. Mr Murabito has mostly recovered from his injuries, and expects to be able to work in about one month at the place he worked at the time he was injured as a manager earning $118,000 annually, and to performing his duties for SHPL from which he received income of about $250,000.[113]
[113] 14 June Murabito affidavit, [95]-[100]
Samuel Homes Pty Ltd. Mr Murabito says SHPL has lodged a claim on its insurer under its third party and material damage policies for the “damage for the loss and damage it has suffered by the non-compliant material supplied by” Westview. SHPL claims $479,000. Mr Murabito had been informed by “the broker” of SHPL that SHPL’s claim will be assessed “by … some-time next week advising whether the claim will be paid or whether the insurer will commence litigation by way of a claim by” SHPL.[114] Mr Murabito annexes a claim. The claim form alleges that “between 17/06/2017 to 4/06/2018” SHPL purchased materials such as frames and trusses, and these “were damaged and altered voiding the engineers approval accompanying the materilas [sic]”; and, due “to the size of the materials the damage was not identified at delivery immedialty [sic] but sometime after erection and the complications of the erection of the damaged materials were later identified”. The claim form further states that the “insured is making a claim for damage to materials rendered no longer compliant with the building code requiring rectification and replacement and costs not limited to delays and contractual defaults and legals”.[115] Mr Murabito further says he will apply the money he will receive either directly from the insurer or indirectly from SHPL to satisfy his debt to Westview.[116]
[114] 14 June Murabito affidavit, [101]
[115] 14 June Murabito affidavit, [101]; annexure “AO”
[116] 14 June Murabito affidavit, [105]
27 June Murabito affidavit
In this affidavit Mr Murabito addresses two proceedings in the District Court of New South Wales by a Mr Fitzgerald and the New South Wales Police, and four proofs of debt the Trustee received from Credit Corp. These are not the subject of any evidence Westview or the Trustee have adduced to the Court; but are claims Mr Murabito says were brought to his attention by the Trustee. Mr Murabito deposes to matters on the basis of which he states these claims disclose no liabilities. For the purpose of this proceeding I will assume that the claims Mr Murabito addresses do not reflect any liabilities on his part.
28 June Murabito and Stojcevski affidavits
These affidavits address the ATO amended assessments; and both Mr Murabito and Ms Stojcevski depose to matters on the basis of which Mr Murabito states he is not liable on any outstanding assessment for tax. For the purpose of this proceeding I will assume that Mr Murabito does not have any liability to the ATO.
Westview’s evidence
Westview has sought to read the affidavit of Mr Brown. It exhibits documents in relation to the ATO amended assessment, and some material in response to Mr Murabito’s affidavits he sought to read at the hearing on 14 June 2022. I have already noted that I will proceed on the assumption that Mr Murabito does not have any liability in relation to the ATO amended assessment; and I will read Mr Brown’s affidavit only if I decide to read the affidavits Mr Murabito sought to read at the hearing on 14 June 2022.
Are the June Murabito affidavits reasonably capable of proving he can pay his debts?
I now consider whether the affidavits Mr Murabito sought to read at the hearings on 14 and 28 June 2022 (June Murabito affidavits) are reasonably capable of proving that he is able to pay his debts. If that question is answered in the negative, it follows that I would exercise my discretion against Mr Murabito filing them after the time by which he was required to have filed his evidence, because it would be futile to permit Mr Murabito to file and rely on them.
There are a number of observations that may be made about the June Murabito affidavits. The first is that, even if admitted and accepted, the June Murabito affidavits are not only incapable of proving that Mr Murabito is able to pay his debts; if admitted and accepted, their contents would demonstrate that Mr Murabito is not able to pay his debts. That is evident from what Mr Murabito says about the Home Loan.
As I have noted in paragraphs 86 and 87 of these reasons, in the 14 June Murabito affidavit Mr Murabito deposes to ANZ Bank agreeing to Mr Murabito and Ms Stojcevski paying the normal monthly instalments based on the $2.09 million amount they originally borrowed; and Mr Murabito said that he and Ms Stojcevski “have continued to make our monthly instalments to” ANZ Bank. As I have also noted, however, the document Mr Murabito annexes to his affidavit to support this evidence only records amounts that are debited to the Home Loan. These include the monthly debiting of interest, varying from the $7,063.59 debited on 5 April 2022 to the $7,477.86 debited on 6 June 2022; and the document does not record any payments by Mr Murabito or Ms Stojcevski.[117] Further, the bank statements in relation to the Home Loan that Mr Murabito exhibits to the 14 June Murabito affidavit show that after 26 April 2019, when $5,000 was credited to the Home Loan account, only four amounts, totalling $410, have been credited to the account; and ANZ Bank continued to debit the Home Loan account with interest every month.[118]
[117] 14 June Murabito affidavit, [12]; annexure “E”
[118] 14 June Murabito affidavit, exhibit SM1
This demonstrates that, since around May 2019, Mr Murabito has had and continues to have no capacity to meet his obligations to pay interest in relation to the Home Loan. This would remain the case even if, as Mr Murabito claims, ANZ Bank had failed to apply a discounted rate of interest, and had improperly debited items to the Home Loan and to other accounts. If ANZ Bank had indeed failed to apply discounted rates, and had improperly debited items to Mr Murabito’s accounts, Mr Murabito would be entitled to no more than the reversal or reduction of the debits ANZ Bank made to the Home Loan and to other accounts, and any interest that had been charged to those amounts. Mr Murabito would have remained liable to make interest payments, properly charged; but he would still have had no capacity to meet his obligation to pay interest. Mr Murabito’s having been unable to meet interest payments on the Home Loan since at least May 2019 demonstrates that Mr Murabito is not able to pay debts as and when they fall due, including interest that is properly payable in relation to the Home Loan.
That Mr Murabito is not able to pay his debts is also apparent from his not having paid the Judgment Debt (which was entered on 8 February 2021) or the $5,600 FCC costs order (which was made on 16 April 2020). It is true that in the 14 June Murabito affidavit Mr Murabito annexes a letter dated 7 June 2022 from RJN offering to lend SHPL and Mr Murabito $250,000.[119] But there are a number of matters that raise doubts about the authenticity of the letter or, if authentic, about the genuineness of the offer contained in the letter.
(a)The first page of the letter contains the date “7 June 2022”; the letter is stated to have been signed on 13 June 2022; the letter suggests that the signatures were affixed to the letter by electronic means on a different day, namely, 14 June 2022; and the three signatures were affixed at two different times: “00:44 GMT + 10”, which appears under the purported signature of “Jo Natoli”, “00:46 GMT + 10”, which appears under the purported signature of “Lupco Stojcevski” and above the words “Director Samuel Homes Lupco Stojcevski”, and “00:46 GMT + 10” which appears under the second purported signature of “Lupco Stojcevski” and above the words “Debtor/Borrower/Guarantor Lupco Stojcevski”.
(b)The letter is purportedly signed by Jo Natoli for RJN; but the letter does not identify what relationship he has with RJN.
(c)Under the heading “[s]ecurity” there is listed the Five Dock Property; but the letter does not identify the type of security that is to be provided.
(d)The letter refers to “your finance application in March 2022”, but there is no evidence of any application for finance, or of the information that was provided in support of the finance application.
(e)Later in the 14 June Murabito affidavit Mr Murabito refers to SHPL having made a claim on its insurer, and that Mr Murabito expects that SHPL will use the proceeds from that claim to indemnify Mr Murabito against his liability to pay the Judgment Debt. Mr Murabito does not there refer to any offer by RJN to lend $250,000 to SHPL for purposes that include indemnifying Mr Murabito against his liability to pay the Judgment Debt, something it is reasonable to expect Mr Murabito would have done had RJN in fact offered to lend SHPL $250,000 for such purposes.
[119] 14 June Murabito affidavit, [93], [94]; annexure “AL”.
In these circumstances, there would be no reasonable prospect that this letter could be held to be authentic or, if authentic, the letter would reflect a genuine offer to lend $250,000, or, if it does reflect a genuine offer, there would be any realistic prospect that the conditions for making the loan could be satisfied.
A second observation that may be made in relation to the June Murabito affidavits is that they rely on a statement of Mr Murabito’s assets and liabilities that is not consistent with statements of assets and liabilities Mr Murabito had made on previous occasions. In the 14 June Murabito affidavit Mr Murabito claims he has assets of $2,277,976 and liabilities of $1,132,378, resulting in net assets of $1,145,598. In the First Murabito 28 April affidavit, on the other hand, Mr Murabito states he has assets of $2,086,712 and liabilities of $1,128,945, resulting in net assets of $957,767. In the affidavit Mr Murabito made on 19 July 2021 in support of his application for an instalment order (Instalment Order affidavit),[120] Mr Murabito deposed to having assets of $1,500,516 and liabilities of $1,339,000, resulting in a net asset position of $161,516. Mr Murabito has not given any evidence that could reasonably explain how the net asset position of $161,516 he stated in the Instalment Order affidavit had grown to $1,145,598 by the time Mr Murabito made the 14 June Murabito affidavit. In these circumstances, little weight can be given to any uncorroborated evidence Mr Murabito gives to support any statement of his assets and liabilities, or their values.
[120] Affidavit of M Zhou 19.11.2021, annexure “C”, page 15
Even if, however, the statements of assets and liabilities contained in the June Murabito affidavits and in previous affidavits he made were reasonably capable of establishing the correct identity of all of Mr Murabito’s assets and liabilities, and their values, there is no material in the June Murabito affidavits that is reasonably capable of showing how, and by when, Mr Murabito would be able to access his net assets to raise money to pay his debts, including the Judgment Debt and the $5,600 FCC costs order. In other words, the June Murabito affidavits are incapable of showing that Mr Murabito can pay his debts as and when they fall due.
A third observation that may be made is that, apart from the Five Dock Property, the assets Mr Murabito says he has are legal claims he asserts he has against a number of persons. But most of the claims Mr Murabito says he has are based on little more than assertion or on evidence that is not admissible.
(a)Mr Murabito’s asserted claims against ANZ Bank based on an alleged failure by ANZ Bank to apply a discounted interest rate to the interest that was charged to the Home Loan, and to his other accounts, is based on an asserted conversation or conversations with staff of ANZ Bank whom Mr Murabito does not identify by name, in which the staff informed Mr Murabito and Ms Stojcevski that it did not look like the discounts were applied to the interest charged. That is hearsay evidence, and not admissible to prove the truth of what Mr Murabito deposes the unidentified staff of ANZ Bank said about a discount not being applied.
(b)Even if Mr Murabito’s evidence with ANZ Bank staff about discounted interest rates is admissible, the June Murabito affidavits do not disclose any reasonably arguable basis that Mr Murabito’s evidence would be accepted:
(i)Mr Murabito does not identify the staff member who had informed Mr Murabito and Ms Stojcevski that ANZ Bank had not applied the discount rate to the Home Loan.
(ii)There is no evidence that Mr Murabito had sent any email or other written communication to ANZ Bank confirming that ANZ Bank had informed him and Ms Stojcevski that ANZ Bank did not apply the discounted interest rate, demanding that ANZ Bank rectify that omission.
(iii)In May 2022 Mr Murabito engaged GMR to identify whether any of the improper practices the subject of the class action against ANZ Bank applied to accounts Mr Murabito held with ANZ Bank, including “Breakfree interest discounts”. There is no evidence Mr Murabito informed GMR that ANZ Bank had informed him that the discount rate was not applied to the Home Loan or to any other loans he had taken from ANZ Bank. There is no evidence from Mr Murabito about whether GMR has reported to him about whether it has made any efforts to discover improper practices by ANZ Bank that has led to charges or other amounts being debited to any of his accounts with ANZ Bank.
(iv)Mr Murabito is in possession of documents ANZ Bank issued to its customers inviting them to claim refunds. Mr Murabito does not say whether he applied for any refund. Mr Murabito does say that he did not receive any letter from ANZ Bank that he could apply for a refund. Assuming that is correct, however, it remains the case that he is aware that ANZ Bank has invited him to apply for a refund; yet Mr Murabito has given no evidence about whether he has applied for a refund.
(v)Mr Murabito has not adduced evidence that is reasonably capable of showing whether the interest rate that was charged to the Home Loan or to the other loans did or did not reflect any discount. That would have required evidence of the undiscounted rates of interest ANZ Bank applied to loans, the discounts Mr Murabito would have been entitled to be applied to his loans, and whether the interest actually charged had not been discounted.
(vi)Although Mr Murabito has engaged Mr Patakas to prepare detailed schedules of the amounts for which Mr Murabito had been overcharged, there is no evidence that Mr Murabito has provided these schedules to ANZ Bank with a demand that it pay to Mr Murabito the amounts Mr Patakas calculated as having been incorrectly charged to Mr Murabito.
(c)The “ANZ Wymston Home v Investment Loan Rate Claim” is based on nothing more than asserted advice Mr Patakas has given Mr Murabito that ANZ Bank has been charging interest on the Home Loan at a higher rate than is applied to investment properties. That discloses no reasonable basis for claiming ANZ Bank had applied an incorrect interest rate to the Home Loan.
(d)The ANZ Wymston Loan Default and Enforcement Costs Refund Claim is premised on the contention that Mr Murabito was not in default of the Home Loan because ANZ Bank had been applying a higher interest rate than it was entitled to apply. That contention is untenable given I have found there is no arguable basis for Mr Murabito to contend that ANZ Bank had overcharged him interest. But the contention would be untenable even if Mr Murabito were correct in his claim that ANZ Bank had overcharged him interest; and that is because, as I have already noted, Mr Murabito has not been in a position to meet his obligations to pay interest properly charged on the Home Loan since around May 2019.
(e)SHPL’s claim on its insurer, as recorded in the claim form annexed to the 14 June Murabito affidavit, is an entirely unparticularised claim which is incapable of disclosing any reasonable claim under any policy of insurance SHPL may have had.
Conclusion
I am satisfied that the June Murabito affidavits are not reasonably capable of proving that Mr Murabito is able to pay his debts and it would therefore be futile to permit Mr Murabito to read those affidavits. For that reason, I will not permit Mr Murabito to read those affidavits, and I will make an order to that effect. Given this conclusion, I do not need to consider whether I should read the affidavit Mr Brown made on 27 June 2022.
Do the 28 April Murabito affidavits demonstrate Mr Murabito is able to pay his debts?
In this section I consider whether the affidavits Mr Murabito made on 28 April 2022 establish that Mr Murabito is able to pay his debts. As with the June Murabito affidavits, the central aspect of the April Murabito affidavits is Mr Murabito’s statement of his assets and liabilities contained in the First Murabito 28 April affidavit (April statement of assets and liabilities). The observations I made in relation to Mr Murabito’s statement of assets and liabilities contained in the 14 June Murabito affidavit apply to the April statement of assets and liabilities.
(a)First, the April statement of assets and liabilities is significantly different from the assets and liabilities Mr Murabito identified in the Instalment Order affidavit; and Mr Murabito has provided no evidence on the basis of which these differences can be explained such as would lead me to find that the assets and liabilities contained in the April statement of assets and liabilities correctly records Mr Murabito’s assets and liabilities, or their values.
(b)Second, not only am I not satisfied that the April statement of assets and liabilities does not correctly record Mr Murabito’s assets and liabilities; I find that it omits one significant liability; and that is the interest on the Home Loan. It also omits the $5,600 FCC costs order.
(c)The April statement of assets and liabilities does not identify when the liabilities it does identify are due and payable; and, moreover, does not explain how any debts that have accrued or will accrue will be paid out of or using the assets identified in the April statement of assets and liabilities.
(d)With the exception of the Five Dock Property, the assets listed in the April statement of assets and liabilities are legal claims. But the material on the basis of which Mr Murabito relies are incapable of proving he has any reasonable prospects of succeeding on those claims or, to the extent he will succeed, whether that would result in the recovery of money. Further, there is no evidence on the basis of which a finding can be made about the time by which Mr Murabito’s claims will result in his having money with which to discharge his liabilities.

For these reasons, I am not satisfied that the affidavits Mr Murabito made on 28 April 2022 are capable of proving, or in any event, prove that Mr Murabito is able to pay his debts. Ground 2 of Mr Murabito’s notice stating grounds of opposition, therefore, fails.
conclusion
Westview has proved the preconditions for the making of a sequestration order against the estate of Mr Murabito; and Mr Murabito has not succeeded, and has not demonstrated he has any reasonable prospects of succeeding, if he were permitted to read the June Murabito affidavits, on the grounds on which he relies for submitting that a sequestration order ought not be made. I therefore propose to dismiss Mr Murabito’s application for review.
I also propose to order that Westview’s costs be paid out of Mr Murabito’s estate, and that such costs have the same priority as the costs of the creditor’s petition. I will, however, reserve to the parties liberty to apply within 21 days for an order to vary or discharge the order for costs I propose to make. I do so because after the parties were informed of the day on which I would give judgment, the lawyers for Westview sent an email to my associate on 28 October 2022 noting that Westview wished to reserve its position as to the nature of any costs order that should be made until after Westview considers my reasons for judgment and final orders.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 2 November 2022

File number(s):	SYG 1905 of 2021
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	2 November 2022
Catchwords:	BANKRUPTCY – application for review of sequestration order made by Registrar on the basis of the debtor not having complied with the requirements of a bankruptcy notice – whether creditor has established preconditions to the making of a sequestration order – whether the debtor and creditor made an arrangement to the creditor’s satisfaction for settlement of the judgment debt on the basis of which the bankruptcy notice was issued – whether debtor able to pay his debts – application for review dismissed.
Legislation:	Bankruptcy Act 1966 (Cth) ss 5(2), 43, 47, 52(1), 52(2)(a) Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 256(1), 256(2) Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) rr 2.02(3), 4.04(1)(a), 4.04(1)(b), 4.06(3), 4.06(4) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 2.02(3) Civil Procedure Act 2005 (NSW) s 101
Cases cited:	Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 Bechara v Bates [2021] FCAFC 34 Conlan v Mladenis [2007] FCA 1129 Deputy Commissioner Of Taxation v Caporale [2013] FMCA 5 Re Eric Trojan v Corporation of the Town of Hindmarsh (1987) 16 FCR 37; [1987] FCA 276 Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 Rigg v Baker [2006] FCAFC 179 Robson as former trustee of the estate of Samsakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143 Sandell v Porter (1966) 115 CLR 666 Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc v McGuire [2022] FedCFamC2G 286
Division:	General
Number of paragraphs:	126
Date of hearing:	14 and 28 June and 31 October 2022
Place:	Sydney
Counsel for the Applicant:	Mr R Parsons on 14 and 28 June 2022
Solicitor for the Applicant:	Mr C Brown of O’Neill Partners Commercial Lawyers on 31 October 2022, by telephone
Solicitor for the Respondent:	Mr E Patakas of Evangelos Patakas & Associates on 14 and 28 June and 31 October 2022, by video and telephone
Counsel for the trustee in bankruptcy:	Mr D Eardley on 14 and 28 June 2022, by video and telephone

SYG 1905 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF STEVEN MURABITO
BETWEEN:	WESTVIEW FRAMES AND TRUSSES (NSW) PTY LTD ACN 150 774 628 Applicant
AND:	STEVEN MURABITO Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	2 November 2022

Assets	Approx. Value $	Liabilities	Value $
Jointly 50:50 with Lilly Stefanovic [sic]
29 Wymston Parade Five Dock 5 Bedroom 3 bathroom Family home (half share with Lilly Stojevscki) [sic] Property Logic Valuation dated 23 April 2021 $5.5 M	$5,500,000	ANZ Banking Group (First Mortgage) As per ANZ bank statement of Loan Account No . . . . dated 7 April 2022	$2,090,000
Cross Claim against Australian Mortgage Finance Services Pty Ltd and from AET Corporate Trust Pty Ltd estimated to be more than $700,000	$700,000	Australian Mortgage Finance Services Pty Ltd (AMFS) (Second Mortgage by transfer of mortgage from AET Corporate Trust Pty Ltd as custodian for ASCF #1 Fund and ASCF #2 Fund ) See: FASC in Supreme Court Proceeding No 2020/309462 - Balance of claim - Comprising interest and costs [Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022]	$74,345.00
AMFS costs order made on 17 September 2021 – estimated	$25,000
Costs Claim against AMFS in AMFS Proceeding No 2020/309462 Estimated $35,000	$35,000	Legal fees to Evangelos Patakas & Associates in AMFS Proceeding No 2020/309462 Estimated	$50,000
Joint Total	$6,235,000	$2,219,345
Net Joint Assets	$4,065,655
S Murabito 50% share of Joint net Assets	$2,032,827
Solely Steven Murabito
Claim for Indemnity against Samuel Homes Pty Ltd as the director and guarantor to Westview Frames and Trusses (NSW) Pty Ltd and expected payment from Samuel Homes Pty Ltd claim under its Contract Works	$92,370	Westview Frames and Trusses (NSW) Pty Ltd ACN 150 774 628 Debt as per Creditors Petition filed 12 November 2021 and costs	$92,370
Insurance Policy with March Advantage Insurance	$12,945	Costs ordered on 7 April 2022	$12,945
Costs Order against Karadag & Karadag in Proceeding No 257925/202l: pursuant to Judgment of Ward J made on 5 April 2022 Approximate Costs $115,000 estimated on assessment recover more than 80% of the invoice sum.	$92,000	Karadag & Karadag [Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022]	$325,463
Claim for Damages breach of Deed & Costs against Karadag & Karadag Proceeding No 257925/2021: Estimated $250,000	250,000	Costs to Sydney Law Practice for Karadag & Karadag litigation Proceeding No 257925/2021:	$125,000
Claim for Indemnity against Samuel Homes Pty Ltd as the director and guarantor	$19,000	Esanda Finance Car Lease (est)	$19,000
Claim for debt by Samuel Homes Pty Ltd as creditor for the sums borrowed for Westpac and applied for business purposes	$27,000	Westpac Business Loan (est)	$27,000
~~Claim for debt by~~ ~~Samuel Homes Pty Ltd as creditor for the sums borrowed for Westpac and applied for business purposes~~	~~$25,515~~	~~Westpac Credit card~~	~~$25,515~~
ANZ Loan (est)	$33,000
ANZ –Credit card	$33,652
Claim by S Murabito against Ageist Pty Ltd (and formerly H&H Mezz Pty Ltd) in Supreme Court of NSW Proceedings No 2020/158209	$700,000	Ageist Pty Ltd (and formerly H&H Mezz Pty Ltd) in Supreme Court of NSW Proceedings No 2020/158209 [Disputed on grounds set out in affidavit S Murabito sworn 28 April 2022	$400,000
Legal fees to Evangelos Patakas & Associates for AMFS proceeding No 2020/309462 since 25 February 2022 and Creditors petition Proceeding No SYG 1905 of 2021 estimated	$35,000
Total	$1,218,830	$1,128,945
S Murabito Total Joint and Solely held Assets	$3,215,657
S Murabito Net Assets	2,086,712