429 - EXTEMPORE JUDGEMENT fA) - on ner oo uh ~| Youre wot nae! 4 rd - 7 By WILCOX J Matter No P1247 of 1 er Y-- wos vs re CREDITOR'S PETITION -~ DAVID ROBINSON Net wry HIS HONOUR: This is a hearzng of a petition by~a judgment creditor for the making of a sequestration order. The matter came before me on 15 October 1984. On that day the petitioning creditor put before the court all of the usual evidence necessary to satisfy the requirements of section 52 of the Bankruptcy Act. However, the judgment debtor appeared in person and contended that he did not in fact owe the money, the subject of the judgment debt . In support of that statement he tendered a document exhibit A, which is part of a letter from DML Engineering Pty Limited to a company called D and C Robinson Nominees Pty Limited, in relation to the account of that latter company with DML for work done by that latter company on behalf of pm. Mr Robinson informed me that D and C Robinson Nominees Pty Limited had a subcontract with DML Engineering Pty Limited in relation to works required for the Drayton coal-mine and he pointed out that the goods supplied, the account for which was the foundation of the judgment debt, were goods supplied in respect of that subcontract. -- 1 . It seemed to me that the evidence which had been tendered warranted further inquiry by the court and that it was appropriate to make direction to ensure that the factual issue as to whether there was a debt owed by the debtor to the petitioning creditor in a sum exceeding $1000, should be determined in this court. Accordingly on that day I directed the debtor on or before 18 October 1984 to fale and serve notice of opposition in accordance with the rules. Such a notice was filed and served, the grounds taken in the notice being as follows: (1) The judgment recovered in the District Court at Muswellbrook referred to in paragraph 2 of the petition was obtained by default in respect of concrete supplied and delivered to and at the request of D and C Robinson Nominees Pty Limited, not the debtcr. (2) The debt upon which the said judgment 1s based is not a debt of the debtor but a debt of D and C Robinson Nominees Pty Limited. I further directed that on or before 26 Octcber 1984 the debtor file and serve copies of all affidavits on which he proposed to rely in opposing the making of the sequestration order and I made consequential directions for affidavits to be filed by the petitioning creditor and, if necessary, in reply by the debtor. In fact, no affidavits have been filed by the debtor at all. There appears to have been some problem in his obtaining the funds necessary to further retain the solicitors who had previously advised him and I am told by Mr Robinson that this was the reason why no affidavits have been filed. The petitioning creditor has filed two affidavits since the last hearing date. One of those affidavits is that of Mr PWA Gilderdale who is a solicitor at Muswellbrook and who has been the solicitor having carr1age of the claim on behalf of the petitioning creditors. It appears that the judgment was signed on 22 November 1983; thereafter an examination summons was issued returnable at Albury where the debtor now lives; the debtor failed to appear and a warrant was issued but that shortly thereafter on 30 August 1983 Mr Robinson filed a notice of motion with an affidavit in support seeking that the judgment be set aside. This motion came before Judge Goran at the Muswellbrook District Court on 16 November 1983 when Mr Robinson appeared and gave oral evidence in relation to the matter, but the application was ae cael ideak ab ited el Rte retain CS refused and the motion dismissed. Subsequently the judgment debtcr: was examined and on 18 June 1984 he made an application to pay the judgment debt by instalments of $100 a week. Order to that effect was made by the registrar but after objection by the creditor Judge Stein in the Muswellbrook District Court on 20 August 1984 dismissed the application to pay by instalments. There is therefore no subsisting order in respect of instalments. It_appears that a company called D andc Robinson Nominees Pty Limited was incorporated on 20 August 1975. Mr Robinson and his wife were initially directors of the company. Although the, Matter is not formally proved, Mr Robinson has informed me that he ceased to be a director of the company on 2 July 1980 apparently as a result of a previous sequestration being made against him at about that time. Thereafter the company has been managed by other persons but Mr Robinson has remained a guiding spirit in its activities. He is himself an engineer and the company is engaged in engineering contracts. It would appear for practical purposes he has been a principal of the company even though no longer a director. It was he who ordered from the petitioning creditor the supplies of concrete which have given rise to this claim. The claim relates to delivery of concrete in the months of June, July and August 1982. Apparently the job at the Drayton coal-mine was proceeding during that period but as at 17 July 1982 D and C Robinson Naninees Pty Limited, in whose name the concrete had been purchased, was in default in payments due to the creditor. Mr GF Donnelly in his affidavit of 26 October 1984 says that on that day his firm agreed to supply further concrete if the debtor agreed to ~ sign a document which is annexed to his affidavit. That document, after correction of the mis-stated name in the first line, reads: I, David Robinson, hereby assume responsibility of purchases mdde by me in the name of D and C Robinson Nominees and I hereby guarantee that payment will be made for those purchases before 30 August 1982 and 1£ payment is paid by cheque then I will ensure that sufficient funds will be available to meet the full payment of the amount of the cheque. Thereafter it appears that further supplies of conerete were delivered and the petitioning creditor subsequently sued Mr Robinson for the whole of concrete delivered whether before or after the date of the document. Although Mr Robinson has not filed an affidavit setting out his side of the matter, he has from the bar table indicated what happened. He acknowledges that he signed the document. He says that it was : bade =o pene te fie etal eto eget ois tied gh kes igs tas signed at a time of great difficulty in that he Was required to sign the document in order to ensure further supplies of concrete and, as he has graphically indicated, he was waist high in mud at the time that the matter was posed for his consideration. I can understand that under those circumstances he may have assumed the responsibility which he now regrets and which indeed may have been unwise. However, it seems to me that he clearly did assume responsibility and from the creditor's point of view it is understandable that the creditor would have wished to have had Mr Robinson's personal guarantee if it was to supply further concrete. Whatever the exigencies of the making of the agreement, an agreement was made under which the responsibility for payment of deliveries, whether before or after that date, was assumed ky Mr Robinson. It seems to me that under those circumstances the judgment creditor was acting correctly from the legal point of view in taking the position that the proper debtor to whom it should look for payment was Mr Robinson personally rather than the company. The judgment was therefore properly obtained. I do not know the reason why Judge Goran rejected the motion to set aside the judgment. It may have been delay rather than his Honour having reached a positive conclusion along the lines I have set out. 1 ater el tee ble ete entle nes Oe Re Warne Tren tue Y NanerrriiY DOVER SEW VW CBOE TT OCT OD Ot OY -evidence is not inconsistent with the view I have Certainly the view that he took after hearing reached. Under those circumstances it seems to me that the court should find that the money claimed by the petitioning creditor and evidenced by the judgment debtor is properly payable by the debtor personally and should determine the issues raised by the' notice of opposition adversely to the debtir. No other reasons being suggested for holding the making of a sequestration order, I therefore think ' CE beeen Ree it appropriate to procéed to do so. I am satisfied that the debtor committed the ot act of bankruptcy alleged in the petition, namely, that he failed on or before the fifteenth day of June 1984 either to comply with the requirements of the bankruptcy notice served on him on 25 May 1984 or to satisfy the court that he had a counter-claim, set-off or cross-demand equal to exceeding the sum specified in paragraph (a) of the bankruptcy notice. I am satisfied with the proof of the other matters of which section 52{1) requires proof. I note that Stanley Lionel Walter, a registered trustee, has consented to act as the trustee of the estate of the debtor. I make a sequestration order against the estate of the debtor. I order the costs, including reserved costs, be taxed and paid according to the act. I _ _ - direct that a draft copy of order be delivered to the registrar within seven days in accordance with rule 124(2). I certify that this and the seven..(7) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Associate aciid MOLALLA _ ral vate mee fia [eq