JUDGMENT is, Ale / 54 Svecrooeoovesesce! cenacesaseen IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE No. W208X of 1982 OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY RE: NOEL WYNVARD HeDDITCH EX PARTE: R.G. DUNN CORAM: Lockhart J. DATE: 8 March 1984 REASONS FOR JUDGMENT LOCKHART J. This is an application to set aside a deed of assignment pursuant to sub-s. 222(4) of the Bankruptcv Act, the applicant being the trustee of the estate of the debtor under the deed. The matter has been listed today at the request of both parties. for the purpose of obtaining, in effect, preliminary rulings on evidence. because the result of those rulings will fashion the future course of the application to have the deed set aside. The matter is obviously complex, the assets in the estate are many, and serious questions of value may arise. The course that the parties have adopted, in requesting preliminary rulings, is perhaps an unusual one, but it is, I think, sensible. The rulings given today are preliminary only. [It must follow that the court cannot be treated as bound by them in future when the evidence is sought to be adduced at the hearing of the application. It is merely a statement of the Court's present view on the material presented to it today. During. the hearing before me today, I was directed to certain parts of the affidavit of Gregory Robert Lloyd, sworn on 12 October 1983, and the many annexures to it, and was asked by both parties to give a preliminary indication or ruling as to the admissability or otherwise of the evidence contained in those parts. I was asked to give the rulings as if today's hearing were the final hearing of the application. The rulings are as follows. and, of course, it is implicit in what I say that objections have been taken to all the paragraphs and annexures to which I refer. 1) Objection is taken to sub-para. 3(d) of the affidavit insofar as it purports to relate to conversations between Mr. Lloyd and Mr. Hughes, on the one hand, and Mr. Lloyd and Mr. Jones on the other, but not as to conversations between Mr. Lloyd and Mr. Packer. The objection is taken as to the truth of the contents of the conversations there recorded. I uphold those objections. 2) Objection is taken to annexure P to the affidavit referred to in that part of the affidavit. If it is sought to tender the annexure as truth of the contents of the conversation therein referred to, I uphold that objection. 3) Objection is taken to the truth of the contents in _.. sub-para. 3(h) of the affidavit. If the evidence is tendered as the truth of the contents of the conversation there recorded between Mr. Lloyd and Mr. Willoughby, again I uphold that objection. 4) Objection is taken to sub-pra. 3(i) of the affidavit. If it is tendered as truth of the contents of the conversation between Mr. Lloyd and Mr. Wade, I uphold that objection also. 5) Objection is also taken to annexure X referred to in that part of the affidavit, and again on the same basis. On the same basis I uphold the objection. 6) Objection is taken to sub-para. 3(m) of the affidavit on the basis that they should not be admitted as proving the truth of the conversation therein mentioned between Mr. Lloyd and Mr. Robins. Again I uphold that objection. 7) Objection is taken to annexure AI of the affidavit of Mr. Lloyd. That annexure consists of minutes and copies of minutes of a meeting of creditors of the debtor on 6 October 1982, being, as I understand it, the critical meeting for present purposes. The objection does not extend to so much of the minutes as purport to record the conversation between Mr. Lang and Mr. Millar, but otherwise the whole of the annexure is objected to - on the grounds of relevance. It is of course most difficult to rule on any question of relevance at this stage when I know very little about the case. But as at present advised, I would be disposed to overrule that objection and admit the annexure into evidence. Whether I would continue that attitude on the final hearing would be a matter to be assessed in the light of events as they then unfold. 8B) Objection is taken to annexures AJ and AK, again on the basis that they should not be admitted as truth of the contents of the documents. I would uphold that objection. 9) Objection is taken to para. 4 of the affidavit. Counsel for the applicant does not read so much of that paragraph as states: "which either were or may have been preferences"; otherwise he presses the paragraph. The ground of this objection, to the paragraph asa 5. whole, is that, since it and the documents referred to relate to the question whether any preferences may have been given by the debtor before he concluded the deed of assignment under challenge, those are irrelevant considerations to an application of this nature, that is, irrelevant to an application grounded upon paras. 222(4)(a) and (b) of the Bankruptcy Act. It is also submitted that the pragraph is irrelevant to the a question of discretion. I do not think it appropriate to rule on those matters at this stage except to say that I have a prima facie view that such matters, assuming they are properly proved, would be admissible on the question of discretion at least. but I have no final view on that matter. 10) Objection is taken to specific parts of para. 4 on specific grounds. Sub-para 4(a) is objected to, especially, as I understand it, on the basis that it goes to irrelevant matters. This is specifically the same objection as to the one to which I have just referred as bearing on the pragraph as a whole. As at present advised, I would be disposed to overrule the objection. Then objection is taken on similar grounds to sub-paras. 4(b), (c), (d) and (e), and I would take the same course. However, other objections are taken to sub-para. 4(b) and 4(c), mamely that the documents referred to in sub-para. 4(b) should not be admitted as truth of the matters therein stated. I would be disposed to admit those documents, but not as evidence of the truth of the contents. As to sub-para 4(c), there is the additional objection that two letters of 6 December 1982 and 8 December 1982 should not be admitted as proving the . truth of the contents of the letters. As at present advised, I would be disposed to admit the documents, but not as evidence of the truth of their contents. } 11) Then objection is taken to sub-para. 5(a) of the affidavit. In short, this subparagraph purports to state opinions and conclusions of a Mr. Davies. who is apparently a registered valuer, as to his assessment of the value of certain properties and related matters. Objection, in my opinion, is well taken, and if the applicant seeks to rely upon evidence of valuations of Mr. Davies. then he must take the usual course of putting his oath to his valuations. I would uphold that objection. 12) Objection is taken to sub-para. 5(c) ona similar ground, that it really is hearsay evidence. It purports to draw conclusions from statements received from people described as mortgagees or their solicitors. Again I would take the same course and, as at present advised, I would reject that subparagraph. 13) Objection is taken to certain portions of para. 6 of the affidavit. Counsel for the applicant does not read the subject sentence of the first paragraph - commencing with the words "I am concerned ..." and concluding with the words "... for himself". Objection | is taken to the admissibility of annexures BP, BT and BY: referred to in sub-para. 6(a). Counsel for the applicant does not press annexures BT and BP, and objection to annexure BY is now withdrawn. Objection is FE taken by counsel for the debtor to the first sentence of sub-para. 6(e). That sentence in my opinion is not admissible; it is essentially a conclusion of mixed fact and law drawn by the witness which in my view he is not entitled to do. Objection was taken to the last sentence of that subparagraph but it is no longer pressed by counsel for the applicant. 14) Objection is taken to annexure CH also referred to in that subparagraph insofar as it is tendered as being probative of the truth of the contents of the annexure, and annexure CG likewise is objected to on the same grounds. I would be disposed to admit those but not as evidence of the truth of their contents. 15) Annexure CK, which is referred to in para. 7 of the affidavit, is objected to on the grounds that it should not be admitted as truth of its contents. That annexure is, it seems to me, ina special category; it purports to confirm a telephone conversation between the debtor and some other unspecified person. 'I think the letter is admissible, assuming it does go to the relevant issue which can be determined in due course, but what weight I would give it, insofar as it is sought to prove the - truth of the telephone conversation, even though it is- addressed to the debtor, is an entirely different question. Indeed, as at present advised, if it would be only evidence of that conversation I would pay no regard to it. ~— preceding pages are < Reasons for Judgmer Mr. Justice Lockn "five Ak Acscciate So (UHH th