Wilson, in the matter of Wilson v Official Trustee in Bankruptcy (No 2)

[2000] FCA 1040

FEDERAL COURT OF AUSTRALIA

Wilson, in the matter of Wilson v Official Trustee in Bankruptcy (No 2)
[2000] FCA 1040

BANKRUPTCY – application under s 99 of the Bankruptcy Act 1966 (Cth) for an order that a proof of debt be expunged – where admission by applicants that admitted sum in fact owed – whether allegation that affidavit of debt and proof of debt knowingly false relevant – whether proof of debt withdrawn – whether petitioners had acknowledged no claim on estates pursuant to an enforceable agreement with bankrupts

Bankruptcy Act 1966 (Cth) ss 99, 263B

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

ERNEST ARTHUR WILSON & ANOR v OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR
N 8402 OF 1999

EMMETT J
18 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8402 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

BETWEEN:	ERNEST ARTHUR WILSON (DECEASED) FIRST APPLICANT
PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT
DONALD WIGGINS AND KEVIN ROBINSON ESTATES OF AUSTIN AND RENE WIGGINS SECOND RESPONDENTS
JUDGE:	EMMETT J
DATE OF ORDER:	18 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicants pay the costs of the first respondent on the basis of the first respondent submitting to such orders as the court sees fit to make other than orders as to costs.

3.        The applicants pay the costs of the second respondents.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8402 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

BETWEEN:	ERNEST ARTHUR WILSON (DECEASED) FIRST APPLICANT
PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY FIRST RESPONDENT

DONALD WIGGINS AND KEVIN ROBINSON
ESTATES OF AUSTIN AND RENE WIGGINS

SECOND RESPONDENTS

JUDGE:

EMMETT J

DATE:

18 JULY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application under section 99 of the Bankruptcy Act1966 (Cth) (“the Bankruptcy Act”) made in respect of the estate of Ernest Arthur Wilson and the estate of Patricia Lorraine Williams.  A sequestration order was made in respect of the estate of Ms Williams on 17 February 1986 and a sequestration order was made in respect of the estate of Mr Wilson on 23 April 1986.  Mr Wilson has since died and Ms Williams is the legal personal representative of Mr Wilson. 

2. Section 99 of the Bankruptcy Act provides as follows:

   “(1) Where a creditor or the bankrupt considers that, by virtue of a decision of the trustee under subsection 102(1), (3) or (4), a proof of debt has been wrongly admitted he or she may apply to the Court for an order that the proof be expunged or that the amount of the admitted debt be reduced, and the Court may make an order accordingly.”

3. On 6 April 1979 a memorandum of agreement (“the Agreement”) was entered into between Mr Wilson and Ms Williams as purchaser and Donald Wiggins and Helen Wiggins as vendors.  The Agreement related to sale of the business of the hotel known as Gardiners Inn Hotel at Blackheath, New South Wales.  The price was to be $65,000, a deposit of $5000 was to be paid forthwith, a payment of $25,000 was to be made in cash on settlement, and the balance of $35,000 was to be provided as a loan to be advanced “by D. Wiggins and Family”.

4. On 13 August 1979 a traders bill of sale was entered into between Mr Wilson and Ms Williams as mortgagors and Mr Austin Wiggins and Mrs Rene Wiggins and Mr Kevin Robinson and Mr Donald Wiggins as mortgagees.  The bill of sale was to secure an advance of $35,000 and it contained other provisions which are not presently relevant.  The mortgagees are described in the bill of sale as follows:

   “AUSTIN WIGGINS and RENE WIGGINS both of c/- 11 Reid Ave., Campsie, Pensioners, and KEVIN ROBINSON of Berry, Horse Trainer, and DONALD WIGGINS of Bomaderry, Chemist.”

5. There was, it appears, default in the making of payments in accordance with the bill of sale as a consequence of which a judgment was entered in the District Court in favour of Austin Wiggins, Rene Wiggins, Kevin Robinson and Donald Wiggins against Mr Wilson and Ms Williams in the sum of $58,100.  A Certificate of Judgment certifies that that judgment was entered on 25 March 1985.

6. A proof of debt was lodged in the Estate of Mr Wilson and in the Estate of Ms Williams.  The precise form of the proofs of debt is not entirely clear.  However, it is common ground that the claim in the proofs of debt was for $38,228.71, after taking account of repayments of the loan totalling $19,300.  A single proof of debt document appears to have been signed by Austin Wiggins and is dated 21 August 1986.  The copy in evidence contains in typescript the name “Patricia Lorraine Williams”.  That has been ruled through and the name “Ernest Arthur Wilson” has been inserted in handwriting.  The proof of debt asserts that:

   “ERNEST ARTHUR WILSON… is justly and truly indebted to AUSTEN [sic] WIGGINS, RENE WIGGINS, DONALD WIGGINS and KEVIN ROBINSON in the sum of $38,228.71.”

7. It is common ground that those four creditors have been admitted to rank for a dividend in each estate in the sum of $19,329.  It is the decision of the Trustee to admit those creditors in that sum that is under review before me.  Several grounds have been advanced by Ms Williams, who appeared on her own behalf and in her capacity as legal personal representative of the estate of Mr Wilson. 

   FALSE SWEARING

8. The first two grounds are similar.  First, an assertion is made that the affidavit of debt relied on by the petitioners in support of the petition was knowingly false.  The affidavit of debt asserted that Mr Wilson and Ms Williams were indebted to the petitioners in the sum of $66,132.60.  That amount failed to take account of the payments that had been made by Mr Wilson and Ms Williams. 

9. The circumstances surrounding the affidavit of debt have not been fully explored before me although there is evidence, by way of admission, in effect, on behalf of the petitioners, that the affidavit was incorrect in asserting that the sum of $66,132.60 was owing.  I have heard argument on this question on the assumption in favour of the applicants, but without in any way considering the correctness of the assertion, that the affidavit was in fact knowingly false. 

10. The question before me is whether or not money is in fact owing to the creditors in the amount admitted by the Official Trustee. It is no part of the Court's function, in considering an application under section 99 of the Bankruptcy Act, to investigate whether there may have been some offence committed in relation to the swearing of affidavits.  If, indeed, a false affidavit was sworn then there ought to have been prosecution of the deponent.  The deponent was Austin Wiggins who has since died, as has Rene Wiggins.  The executor of both of their estates is Mr Kevin Wiggins. 

11. The second ground is that the proof of debt that has been lodged also claimed an amount greater than that which has now been admitted by the Official Trustee. Section 263B of the Bankruptcy Act provides as follows:

    “A person shall not –
    (a) make a false or misleading statement in a proof of debt lodged with a trustee under this Act; or
    (b) lodge with a trustee under this Act a proof of debt which is false or misleading in any material particular.”

    A penalty of $1000 or imprisonment for six months is the sanction for contravening that provision. 

12. The proof of debt to which I have referred was signed by Austin Wiggins.  If there was an offence committed, then no doubt it was highly desirable that it should have been prosecuted.  However, Mr Wiggins has since died.

13. Assuming for the moment that there has been a contravention of the Bankruptcy Act in the lodging of the proof of debt and assuming for the moment that a false affidavit of debt was filed, those matters, it seems to me, do not impinge on the question before me.  No reliance is placed upon the false materials to support the indebtedness in respect of which proof has been admitted.  No argument has been advanced in these proceedings that the sum of $19,329 is not now owing.

14. Those questions were explored to some extent in earlier proceedings before me for the annulment of the bankruptcies.  In the course of giving reasons for dismissing the applications for annulment, I examined the question of whether or not there had been proper evidence before the Court to support a conclusion that Mr Wilson and Ms Williams were indebted in an amount sufficient to support the bankruptcy petitions.  I concluded that there was.  I do not consider that the fact, if it be the fact, that a false proof of debt was lodged or that a false affidavit of debt was relied on is material to the question of whether or not the petitioners have properly been admitted to rank for dividend in the sum of $19,329. 

    RESPONSIBILITY FOR PROOF OF DEBT

15. Next, it was asserted on behalf of the former bankrupts that the petitioners did not prepare their proof of debt.  This argument has little substance.  The proof of debt to which I have referred is signed by Mr Wiggins.  It has annexed to it detailed calculations of the sum of $38,228.71.  The assertion is made that those figures could not have been prepared by Austin Wiggins in the light of his original affidavit of debt and that he must have received some assistance from the Official Trustee.  Further, it was said that the amount that has actually been admitted was not calculated by the petitioners.

16. Wherever the information was obtained and how the amount of $19,329 was arrived at appear to me to be irrelevant unless there is some challenge to that amount.  As I have said in this proceeding there has not been any challenge to the conclusion that the former bankrupts were in fact indebted for at least that sum.

    PETITIONERS NOT CREDITORS

17. Next, an argument was advanced that one of the petitioners was not entitled to be party to the bill of sale.  The assertion was made that Donald Wiggins, being one of the vendors, was in fact a retired hotelier and was not a chemist of Bomaderry.  Kevin Wiggins is in fact a chemist of Bomaderry.  Ms Williams suggested that a mistake was made in the preparation of the bill of sale and that the name of Donald Wiggins was wrongly inserted instead of Kevin Wiggins. 

18. It may be that there is a mistake in the bill of sale in referring to Donald Wiggins as being a chemist of Bomaderry.  However, I do not consider that the evidence before me supports a conclusion that there was a mistake in naming Donald Wiggins as a party rather than Kevin Wiggins.  No attempt has ever been made to seek rectification of the bill of sale, judgment has been entered in the name of Donald Wiggins.  The Agreement contained a provision referring to a loan to be advanced by D. Wiggins and family.  I do not consider there is any substance in this ground.

    WITHDRAWAL OF PROOF

19. Finally, an assertion was made that the proof of debt has been withdrawn.  In the course of argument that contention was refined, in effect, to a contention that there is in existence an enforceable agreement between Mr Wilson and Ms Williams on the one hand and the petitioners on the other that, in consideration of the former bankrupts giving an indemnity to the petitioners, the petitioners would acknowledge that they have no claim in the estates.  It is necessary to examine the circumstances surrounding communications that took place in September, October and November of 1999 in order to decide this question. 

20. An assertion that the proof has actually been withdrawn cannot succeed.  The Trustee in Bankruptcy has been represented in the proceedings and there is no suggestion that the proof is no longer regarded as current.  The contention is based on communications that, at most, could constitute an agreement to withdraw or some acknowledgment that there is no indebtedness.  The latter would lead nowhere in view of the acceptance for the purposes of these proceedings that the sum of $19,329 is owing. 

21. On 26 September 1999, Mr Wilson drove to Bomaderry on the south coast of New South Wales in order to serve the application which is presently before me.  He spoke to Donald Wiggins and said:

    “Don, I am going to serve papers on you and the family to have the Bankruptcy set aside.”

    Don Wiggins replied:

    “Dick I don’t care what you serve I will not be coming to court.  You can subpoena me if you like.  It will mean nothing, I will not go.  You contact my brother Kevin. He was the executor of the dad's will, he handled everything.  He dealth [sic] with the trustee.”

    Mr Wilson then approached Mr Kevin Wiggins and told him what his brother Donald had said, Mr Kevin Wiggins said:

    “That is right.”

22. Mr Wilson and Mr Kevin Wiggins had a discussion concerning the amount of the debt and the circumstances in which it had been reduced from approximately $66,000.  In the course of that conversation Kevin Wiggins said:

    “I had contacted Jim Garrett [who had been the Trustee in Bankruptcy] on behalf of the family and told him that the family wished to withdraw the claim and the trustee refused to allow us to withdraw.  I believe this was in late 1989 or early 1990.
    ………………………
    I will get all the family together with the solicitor and prepare a document.  My solicitor, Peter Hansen of Marriott and Oliver at Nowra once worked for the Official Trustee but that will make no difference.  We will still sign the agreement because we know the money dad claimed is not owed.  Ring Peter Hansen and discuss with him what we have talked about.  I will arrange a meeting next week at his office and the family will sign it.”

23. Mr Wilson also served Mr Kevin Robinson with the section 99 application who said:

    “Dick, I want none of this.  I don't want anything from the bankruptcy and I don’t want to go to court.”

24. Mr Wilson subsequently rang Mr Hansen and told him of his conversation with Kevin Wiggins.  Mr Hansen said:

    “I am too busy to deal with it now.  Put it down on paper and I will give you my fax number.  Send it to me.”

    Mr Wilson then contacted his solicitor, Mr John Whitfield, who prepared a document which was then sent by facsimile transmission to Peter Hansen.  Kevin Wiggins contacted Mr Wilson and Mr Wilson contacted Mr Wiggins on a number of occasions thereafter.  On one of those occasions Kevin Wiggins said:

    “The meeting is arranged for 2p.m. on Tuesday next.”

    Mr Wilson said:

    “Good, I will ring you then.”

25. Mr Wilson rang Mr Kevin Robinson in the early afternoon of 7 October 1999.  Mr Robinson said:

    “I went to a meeting with Kevin (Wiggins) and Don (Wiggins) at Peter Hansen's office.  Kevin told me that Peter Hansen had spoken to Bob Cruickshanks (Deputy Official Receiver) before the meeting.  Bob Cruickshanks had advised Peter Hansen to instruct us not to sign the agreement and not to come to court as the Official Trustee would handle this matter for us. 
    ………………………
    Kevin has told me that Peter Hansen once worked for the Official Trustee and with Bob Cruickshanks and it appears they are friends.”

    Mr Wilson said:

    “You and the family agreed the Bankruptcy claim was not ‘justly and truly’ owed by us.  You agreed to sign the document to take to the court and now you are telling me you are doing nothing on Bob Cruickshanks advice.  This application was served on you under the Bankruptcy Rules and your solicitor has no right to be contacting ‘his friend’ at ITSA for advice and Cruickshanks had no business giving this advice.”

    Mr Robinson said:

    “Dick, I’m going along with what the solicitor is advising me because I do not want to go to court.”

    Mr Wilson said:

    “It’s not that simple.  Your solicitor should have been acting on your instructions and not acting to protect the Official Trustee and Bob Cruickshanks.  I’m disappointed that you would not come forward so the truth could be exposed.  You had nothing to hide because you wished to withdraw the claim. [sic] in 1989 or 1990.  The only one’s [sic] that have anything to hide are the Official Trustee and Bob Cruickshanks for they at no time notified us that you had wished to withdraw this claim.  If they had done their duty we would never have been in the mess we are in now having to attach perjury and fraud and being dragged through the courts due to the misconduct and incompetence of the trustee.”

26. On 15 October 1999 Mr Wilson served a further notice of motion and affidavit on Mr Kevin Robinson at Berry, New South Wales.  Mr Robinson said:

    “I have told you, Dick, I am not interested in the Bankruptcy.  I have told you what happened.  Kevin is in Queensland for a few days but should be back next week.  The family will get together when he comes back and we will sign a document advising of what we have told you.”

    The reference to "Kevin" was clearly a reference to Kevin Wiggins.  I should interpose that Mr Robinson is the brother-in-law of Kevin and Don Wiggins. 

27. Mr Wilson rang on the following Thursday and Sunday but Mr Kevin Wiggins had not returned.  On Monday, 25 October, Mr Wilson again rang Mr Robinson who said:

    “Kevin still has not returned, but I will obtain advice from my own solicitor, not Mr Hansen.”

    Mr Robinson rang back and said to Mr Wilson:

    “My solicitor has told me to sign.  If you drive down to the stables at Berry Don and I will be there and we'll sign the document giving an account of what occurred over the claim against you.  Kevin is still away, when he returns I will give him the document to sign.”

    Mr Wilson said:

    “I also need Kevin to verify that he was told by Mr Hansen of Mr Cruickshanks advice not to appear and not to sign this document.”

28. Ms Williams accompanied Mr Wilson to Berry on 25 October 1999 where they saw Mr Robinson.  Mr Robinson said:

    “I could not get on to Peter Hansen when I received your document, which you have forgotten to sign, so I have seen my own solicitor for advice and he has given me this letter for you for court.”

    That appears to be a reference to a form of indemnity prepared by Ms Williams.  Mr Robinson said that on 25 October 1999 Mr Wilson “was also offering a covenant and indemnity”.

29. The document prepared by Ms Williams is in the following form addressed to Kevin Wiggins as the executor of the Estates of Austin and Rene Wiggins and to Donald Wiggins and Kevin Robinson :

    “We, PATRICIA LORRAINE WILLIAMS and ERNEST ARTHUR WILSON, hereby covenant and agree that we will not hold responsible or make claim against and will indemnify and release from claim Kevin Wiggins as executor of the Estates of Austin and Rene Wiggins, Don Wiggins, Kevin Robinson in relation to all matters and moneys arising out of the Traders Bill of Sale dated the 13th August 1979 between the parties relating to the Gardiner’s Inn Hotel, Blackheath.”

30. The document bears the date 19 October 1999 and it is signed by Ms Williams but while there is provision for signature by Mr Wilson, it was not signed by Mr Wilson.  However, Ms Williams said that she saw Mr Wilson sign a copy of the document and that by accident she took home the copy of the release that originally had been sent to Mr Robinson containing his notations to Mr Hansen to contact him.  The document in evidence in fact contains such notations. 

31. When Mr Wilson and Ms Williams spoke to Mr Robinson, as I have said, he referred to a letter from his solicitor.  Ms Williams read the letter from a Mr Pottenger, which is dated 25 October 1999 and is in the following terms:

    “We advise Mr Robinson has attended our office this date with certain documentation regarding the Federal Court proceedings which we understand are returnable tomorrow.  It appears that the comments in the recent affidavit of your client stating that Mr Robinson's aim in this matter to be done with it and not to go to court are accurate. 

    Accordingly, it is our instructions that Mr Robinson is prepared to forgo any monies which (might) be owing to him on the basis that your clients will agree to forego all claims against him whatsoever in respect of this matter and any proceedings which might be initiated outside of this matter arising from the same subject. 

    Our client notes that your clients agree not to make any claim against Kevin Robinson in relation to all matters and moneys arising out of the Traders Bill of Sale dated 13 August 1979 between the parties relating to the Gardiner’s Inn Hotel at Blackheath.  It would therefore seem appropriate that in the proceedings tomorrow the Federal Court is advised that your clients discontinue any action against Kevin Robinson as a respondent.  Mr Robinson consents to that course.  A copy of this letter may be tendered to the court if required.”

1. Ms Williams says that after reading that letter she said:

   “Dick has not signed because you have said you would give us a document covering all that you and Kevin Wiggins had told Dick when he served the application on you.  Now you’ve said Peter Hansen is changing all that because he once worked at ITSA with Cruickshank.  How do you know what you intend to do.  This letter from Mr. Pottenger says nothing of what you had said.  All it does is clear you and no one else of any court action.  That is not good enough.  We have prepared a document addressed to Cruickshank, similar to that which Kevin told Dick to send Hansen through solicitor John Whitfield which Hansen ignored.  It is only what you have said.  Don't sign it if it's not right.”

   Mr Wilson said:

   “I keep telling you all I want is the truth.”

2. By this time Mr Donald Wiggins had arrived at the stables where they were speaking to Mr Robinson.  Ms Williams went out and spoke to him.  Mr Robinson then called Mr Donald Wiggins into the office where they read and signed a document that had been prepared by Ms Williams.  The document is addressed to Mr Robert J. Cruickshanks, ITSA.  Its terms are as follow:

   “1.The claim made against Mr. E.A. Wilson and Miss P.L. Williams for approximately $66,000 contained in the Creditors Petition which resulted in their bankruptcy was a claim that was incorrect at the time.  It was not just and truly owed by Mr. Wilson and Miss Williams.

   2.Mr. Austin Wiggins had failed to declare that Mr. Wilson had made payments totaling [sic] approximately $19,500 to the ANZ Bank, Albion Park, before the default judgment resulting in the bankruptcy.  The family was also unaware these payments had been made by Wilson.

   3.Mr. Austin Wiggins did not declare that under the lease agreement, Mr. Wilson and Miss Williams were to receive $10,000 toward repainting of the property and that the $10,000 was never paid.  Mr. Austin Wiggins was in charges [sic] of finances concerning the hotel on behalf of the family.

   4.In relation to the $10,000 owed to Mr. Wilson and Miss Williams which they were required to pay from their own pocket, they are entitled to and should be given the same interest that was agreed to in the Bill of Sale, that being 12% reducible, until day of bankruptcy.

   5.During 1985 Mr. Austin Wiggins had been ill which led to him having a stroke shortly after the bankruptcy.  He was admitted to a nursing home for some time until he passed away.

   6.As his son, Mr. Kevin Wiggins assumed Power of Attorney and subsequently became the executor of his estate.  In this role Mr. Kevin Wiggins was privy to his fathers papers and bank records.  It was seen that Mr. Austin Wiggins was aware at the time of the judgment that Mr Wilson had paid him a substantial amount of money toward the Bill of Sale and that the $10,000 had never been returned to Wilson.

   7.The family felt that the petition was lodged under false pretences and the family wished to withdraw their Proof of Debt.  Mr. Kevin Wiggins as executor and on behalf of his brother, Mr. Don Wiggins and brother in law Mr. Kevin Wiggins instructed Mr. Jim Garrett as trustee to withdraw the claim against Mr. E.A. Wilson and Miss P.L. Williams arising from the Bill of Sale.

   8.Mr. Garrett as trustee advised that the petition and Proof of Debt could not be withdrawn.  Believing this to be correct we allowed whatever course the bankruptcy had to take.  In mid 1989, Mr. Kevin Wiggins on behalf of the family agreed to the new amount calculated by the trustee after the $10,000 was deducted from the Proof of debt.  The amount remaining was approximately $18,0000 [sic].  It is believed we may have received a first dividend in 1991.

   9.It is believed that Mr. Kevin Wiggins (Executor), Mr. Kevin Robinson and Mr. Don Wiggins do not have a justified claim against Mr. Wilson and Miss Williams and again demand the Official Receiver to take steps to have the petition and sequestration order annulled.”

3. The document is signed by Mr Robinson and Mr Donald Wiggins.  It is not signed by Kevin Wiggins and it is common ground that such a document has never been signed by Mr Kevin Wiggins.   There were no further communications between Ms Williams and Mr Wilson on the one hand and the petitioners on the other.  However, on 11 November 1999 Marriott & Oliver wrote to Mr Cruickshanks saying, inter alia, as follows:

   “Kevin Wiggins has consulted the writer and has produced a copy of the letter addressed to you and signed on 25 October 1999 by Kevin Robinson and Don Wiggins.  Our client is concerned about the ambiguities that are set forth in that letter and our client has asked us to clarify his position with you and we adopt the paragraph numbering of the letter signed by Kevin Robinson and Don Wiggins.”

4. There are then set out comments in relation to paragraphs 1 to 8 of the document.  The letter then continues:

   “Our client believes that the position of Don Wiggins and Kevin Robinson is more accurately reflected in the letter of Mr Pottenger dated 25 October 1999.  In fact, Mr Kevin Wiggins' position is the same in that all the parties are prepared to forgo any moneys which might be owed to them.  This  matter reached the stage quite some years ago where the paramount concern of the Wiggins family was simply to put this matter behind them.  Our client believes that when Mr Robinson and Mr Wiggins sent the letter of 25 October 1999 this paramount concern dominated their interpretation of the statements in the letter and that they may not have appreciate [sic] the ambiguity or the hearsay nature of some of the statements. 

   A copy of this letter was presented to Kevin Robinson and Don Wiggins prior to being forwarded to you and they have indicated that they concur with the comments.  Mr Kevin Wiggins would like to meet with you at the earliest opportunity to discuss how this matter can be finalised at the earliest opportunity so that the significant stress and anxiety currently being imposed upon Mr Kevin Wiggins and his wife can be alleviated.”

5. In this proceeding it is clear that the petitioners maintain that the proof as admitted should stand.  As I have said, there can be no suggestion that the proof has actually been withdrawn.  The question is whether the communications to which I have referred constitute an agreement.  In my opinion they do not.  Mr Kevin Wiggins, while he had discussions of a tentative nature in September, could not be said to have reached any firm agreement with Mr Wilson or Ms Williams in the course of those discussions.

6. It is quite apparent from the material that the petitioners have evinced at various stages a desire to be rid of this proceeding.  There is some evidence that in 1989 or 1990 an approach was made to the Official Trustee with a view to withdrawing the proof of debt.  Whatever the circumstances surrounding that approach might have been it is clear that the proof of debt was not in fact withdrawn.  Whether it was because the approach to the Official Trustee was not a firm request or whether it was because the Official Trustee advised the petitioners that the proof could not be withdrawn is not a matter that I need to decide.

7. Any agreement involving the petitioners must be made by or on behalf of all four petitioners.  In substance that means Donald Wiggins and Kevin Robinson and Kevin Wiggins as executor of his parents' estates.  While there was some suggestion in September that Kevin Wiggins might have been prepared to enter into arrangements, it is clear that the conversations that took place at that time did not constitute an enforceable agreement.  There has been no other discussion involving Kevin Wiggins and the former bankrupts that could constitute an agreement.

8. I consider that the evidence leads to no other conclusion but that there has been no enforceable agreement entered into with respect to the proof of debt.  Accordingly, in my view, the application for expungement of proof of debt should fail.

9. I propose to order that the application be dismissed, with costs. 

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmettt.

Associate:

Dated:            31 July 2000

The second applicant appeared in person on her behalf and as the legal personal representative of the estate of the first applicant.
Solicitor for the First Respondent:	Mr M Murray for the Australian Government Solicitor
Counsel for the Second Respondents:	Mr A J L Ogborne
Solicitor for the Second Respondents:	Sally Nash & Co
Date of Hearing:	18 July 2000
Date of Judgment:	18 July 2000