ds -" IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE No. SQ 103 of 1982 SCUTHERN DISTRICT IN THE ee ee ee ewe STATE OF QUEENSLAND BANKRUPTCY ACT 1966 APPLICATION UNDER SECTION 135 AND FOR ORDERS re ROBERT WILLIAM VAN HAEFF ae Bankrupt Ex parte: GORDON ERIC LAWSON Applicant ROBERT WILLIAM VAN HAEFF Ea Respondent MORLING J. 15 August 1983 EX TEMPORE JUDGMENT I propose to amend the application by altering paragraph 2 where secondly appearing to read paragraph 3 and paragraph 3 tq read paragraph 4. This is an applacation by Gordon Eric Lawson, trustee of the property of Robert William Van Haeff, a bankrupt. The trustee seeks the following orders: 2. 1. That the trustee have leave to sell by private contract the property of the bankrupt being those lands described as lots 75, 76, 77, 78 and 79 on registered plan number 149387, County of Stanley, Parish of Mackenzie, volume 5422, folios 196, 197, 198, 199 and 200 and situated at Loganholme in the State of Queensland. 2. That the bankrupt within seven days deliver to the trustee the duplicate certificates of title for the lands described as lots 76 and 77 on registered plan number 149387, County of Stanley, Parish of Mackenzie, certificates of title volume 5422 folios 197 and 198. 3. That the trustee do pay out of the property of the bankrupt the costs of and auncidental to this application to be taxed. 4. Such further or other order as to the court may seem meet. In support of the application the trustee has sworn two affidavits. I was unformed from the bar table, without objection, that these affidavits were served on the bankrupt on 18 July 1383. Mr Van Haeff informed me that he first gave notice requiring Mr Lawson to attend for cross- examination on Friday last, 12 August. 3. Without going to the detail of Mr Lawson's affidavits, they set out a good deal of material as to which there would appear to me to be no possibility of real dispute. For instance, he sets out the making of the sequestration order, correspondence with the bankrupt - details of land holding and the like. He also annexes to his affidavits contracts into which he proposes to enter. Mr Van Haeff, who appeared in person, sought to have the affidavits rejected because Mr Lawson was not available to be cross-examined. Apparently Mr Lawson is overseas and will not be back in Australia until some date in October next. In an effort to elicit the Matters upon which Mr Van Haeff desired to cross-examine Mr Lawson, I asked him to state what those matters were. Although he said he had some hundreds of matters to raise the principal matters appear to be matters such as that Mr Lawson is not an fact his trustee; that the valuation of the land which Mr Lawson proposes to sell is "hopelessly low"; that there are no proven 'ebts in his bankrupt's estate; that the sequestration. order was made without legal justification and, in particular, that the judge who made it had no jurisdiction to make it; that the reasons why Mr Lawson wants to sell the land are invalid; and that the bankrupt does not have the title deeds referred to in the affidavit. 4. Rule 135 sub-rules 1 and 2 provide as follows: "135 (1) Where a party to a proceeding has served on another party to the proceeding a copy of an a Fidavit filed by that first-mentioned party in connexion with the proceeding, the second-mentioned party may, a reasonable time before the date fixed for the hearing of the proceeding, serve on the first-mentioned party a notice in writing requiring the production of the deponent for cross— examination on the hearing. 135 (2) Where a notice under sub-rule (1) has been served on a party who filed an affidavit, the affidvit shall not be used as evidence unless the deponent is produced for cross-examination before the Court or the Court gives special leave to use the affidavit. " I should state that, although the application was made on 6 July 1983, the bankrupt has not filed pursuant to rule 106 any notice of opposition to the application, nor has he filed any affidavit in reply. There is no doubt that, normally the affidavit of a deponent who is required to attend for cross-examination will not be admitted in evidence, if he does not present himself for cross- examination. But this is not an invariable rule. Rule 135 sub-rules (1) and (2) make express provision to the contrary in appropriate cases. In my view this is not an appropriate case to require Mr Lawson to attend for cross-examination. In the first place, the bankrupt waited until 12 August to give a notice requiring him to attend. That is to say, he waited 5. until three days before the return date for hearing of this application. In the second place, having regard to the contents of Mr Lawson's affidavit and to the matters upon which Mr Van Haeff desires to question him, I think that it would be proper for me to exercise my discretion under rule 135(2) to permit the applicant to use the affidavits. There is no doubt that I have such a discretion even apart from the existence of rule 135. See re A Debtor (Number 37 of 1976 Liverpool) ex parte Taylor v The Debtor (1980) 1 All E.R. 129. The one matter which has exercised my mind in this respect is the circumstance that Mr Lawson has annexed a valuation to one of his affidavits. Had I thought that the bankrupt would be prejudiced by reliance by Mr Lawson on the valuation, I would have, as a term of permitting Mr Andrews to use the affidavit, required the valuer to attend so that he could be questioned on his valuation. But I do not think it is necessary in the interests of justice that I should impose such a term. There is no suggestion from the bankrupt that he wishes to place any evidence before the court disputing the reasonableness of the valuation. He has had an adequate opportunity to raise the valuation of the property as a matter upon which he 6. relies in opposition to the application. Moreover, it has to be remembered that all that Mr Lawson has done is to annexe the valuer's valuation to his own affidavit. Mr Lawson does not purport to be a valuer himself and therefore I can see no purpose in him being present to be cross~examined on matters of valuation. The applicant also relies upon the affidavit of Mr Tamothy David Ferrier. Again, no notice to attend for cross~examination was given to Mr Ferrier until last Friday. All the considerations to which I have already referred apply a fortiori to Mr Ferrier. It is quite apparent to me that 1f this deponent were permitted to be cross-examined he would be asked questions which could not possibly have any relevance to the application and could only prolong it. Quite apart from that, I am satisfied that Mr Van Haeff does not suffer any prejudice from being unable to cross-examine Mr Ferrier. I should in this respect note that the bankrupt has stated from the bar table that he does not have the certificates of title referred to by Mr Ferrier in the affidavit. I do not think that it would be proper for the court to make an order in respect of the certificates of title until Mr Van Haeff has had full opportunity of placing before the court evidence on oath that he does not have them. Accordingly, although Mr Van Haeff has not filed any evidence, I propose to now offer him 7. the opportunity of going into the witness box and verifying on oath, if he wishes so to do, that he does not have possession of the certificates. Mr Van Haeff you have heard what I said about the certificates of title. If you wish to state on oath that you do not have them, or you do not know where they are, you may do so now. Do you wish to do that? MR VAN HAEFF: YES. REPORTED : NOT TRANSCRIBED HIS HONOUR I have no doubt that this 1s a proper case for the making of orders 1 and 3 as sought in the applicatgon. As to order 2, Mr Van Haeff has sworn in the witness box that he now does not have possession of the certificates of title and that he gave them to the Church of Independent Reality with which he apparently has some association. I am.not at all persuaded at the moment that Mr Van Haeff would not be able to gain possession of those certificates if he took diligent steps to do so. 8. \ccordingly I propose also to make order 2. However should he find after making diligent search that the documents cannot be found, I have little doubt that the trustee would not seek to enforce order 2. If he did and the facts were put before the court, the court would not take any action in respect of non-compliance with order 2 if it were satisfied that Mr Van Haeff did not have the documents and that they were not under his control. In making that statement, I am not to be taken, Mr Van Haeff, as inviting you not to make a diligent search for those documents, because if you do not, then you could be at risk of further proceedings in this court. preceding pages are & true copy of ths f lir. Justice Morling. fi Associate I eevtify that this and the Abvern Ls 2) Reasong for Judgment herein of his Honsuc rr