NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF _ AUSTRALIA GENERAL DIVISION THE STATE OF NEW SOUTH WALES AND ) ) ) ) BANKRUPTCY DISTRICT OF ) No. W.569 of 1985 ) ) ) ) THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ROBYN MARGARET GUYMER Applicant AND: EF & F VELLA LIMITED Respondent CORAM: WILCOX J PLACE: SYDNEY DATE: 15 MAY 1986 MINUTES OF ORDER THE COURT ORDERS THAT: l. The application for annullment of the sequestration order made against the applicant on 24 June 1985 be dismissed. A j= ; arr PS eaieaee —a— Soot oe eqn etme NOTE: The applicant, Robyn Margaret Guymer, pay to the respondent, EF & F Vella Limited, its costs of the application. Settlement and entry of orders is dealt with by Bankruptcy Rule 124. okt Oe ea re ee ere aT he come ee oan rea meses oe TY . hove weep eernne woe acre mre wee peo 8 ' IN THE FEDERAL COURT OF AUSTRALIA NOT FOR DISTRIBUTION GENERAL DIVISION BANKRUPTCY DISTRICT OF No. W.569 of 1985 THE STATE OF NEW SOUTH WALES AND wee Se THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ROBYN MARGARET GUYMER Pry Applicant AND: EF & F VELLA LIMITED Respondent CORAM : WILCOX J PLACE: SYDNEY DATE: 15 MAY 1986 EXTEMPORE REASONS FOR JUDGMENT This is an application by a bankrupt, Robyn Margaret Guymer, against whom a sequestration order was made on 24 June 1985, pursuant to s.151(1)(a) of the Bankruptcy Act 1966. The application is that the sequestration order be annulled on the ground that the order ought not to have been made. "0 weep Cee a The case presented on behalf of Mrs Guymer is that the sequestration should not have been made because she was not in fact served with a sealed copy of the bankruptcy petition and copies of the various supporting affidavits as was claimed in an affidavit of service sworn by Timothy Tierney on 6 May 1985, which affidavit was read at the hearing of the petition. There is conflicting evidence as to the events which occurred on the date of the alleged service, namely, Friday 19 April, 1985. It appears to be the position, beyond any doubt, that at about 2 pm on that day Mrs Guymer and her partner Mr Paul Ezzy arrived in Young in order that Mr Ezzy might obtain dental treatment from a dentist, Peter Smith. Mr Ezzy says that he had that day arrived back from a trip to Newcastle to which city he had delivered a load of bulk oats and from which he returned with a load of bulk fertiliser. He says that he arrived at the property owned by Mrs Guymer and her husband, and at which he resided, namely, "Bonnie Doon", Wirrimah, at about 12 noon that day. The property is situate some 18 miles from the town of Young. In support of his evidence Mr Ezzy referred to the driver's log book kept by him setting out the times when he was driving his sem-trailer and also showing rest periods. The relevant entry for 19 April shows that he travelled from Newcastle, leaving Newcastle at midnight on the night of 18/19 April and that he stopped at Dunedoo at about 4 am. He recommenced his journey at about 7 am and, according oe te ee are een are ! ?, eras aa es armries er oo, A reeenne ' — to the log book, arrived at Wirrimah at about 12 noon. The legal position, as understood by Mr Ezzy, is that he was bound to have a rest period after any period of five hours' continuous driving. Mr Ezzy said in evidence that, after he arrived back at "Bonnie Doon", he had a wash in the kitchen sink and a cup of coffee and that he then went to the dentist with Mrs Guymer. Both Mrs Guymer and Mr Ezzy claim a recollection that as they were en route to Young a vehicle passed them _ travelling in the opposite direction, that is to say towards Wirrimah. This vehicle they thought to be similar to the vehicle normally driven by Mr Tierney, namely a red Holden utility. Mr Tierney says that, on 19 April, he did not drive his usual vehicle. He drove his wife's vehicle, which was a yellow Toyota Corona motor car. He had spoken to a friend, Joseph Duffy, the previous day and invited Mr Duffy to accompany him to Wirrimah on 19 April. Apparently the two men are old friends and as Mr Duffy is not employed all the time they have formed the practice that Mr Duffy often goes with Mr Tierney, "for the ride", when he has to travel to the country. ae te — Mr Tierney picked up Mr Duffy in the main street of Young; he says at about 10 am. Apparently one of the tyres had a slow leak and the vehicle was then driven to a tyre repair station. After repair of the tyre, the two men called into a sandwich shop and then went out to Wirrimah. There are some discrepancies in the times given by Mr Tierney and Mr Duffy respectively, but the two witnesses agree in putting the time of arrival at Wirrimah at about 1 pm. Each of these witnesses was cross-examined in detail about the events which occurred when they arrived at Wirrimah, including questions such as where the vehicle was parked; what Mr Tierney then did; what papers he had, etc. There was no discrepancy between their evidence on those matters. I am left with the situation that either there was a high degree of collusion between them on matters which they did not set out in their affidavits, or alternatively each of the men has an independent and fairly accurate recollection of what occurred at the time. If this matter depended in some way upon recollection of a relevant time, or even date, I would have some hesitation in placing much faith in Mr Duffy''s evidence. I say that without any criticism of him. He had no reason to note either the time or the date; he was simply going along as a friend. But I think that his recollection in those matters might not be very reliable. mene con es he. Pe en \ ry 2 Pa an wee tet nee eee - ot « at ay Le get epee ee Poms) ee. ow On the other hand there is no reason to doubt the accuracy of his recollection on things that he could see as he was sitting in the car and observing what happened. I was impressed with the high degree of correlation between his recollection and that of Mr Tierney on such matters and I see no reason to doubt the accuracy of what they say. Mr Tierney, of course, has some interest in maintaining the claim that he made a few days later to those who had instructed him to serve the process, namely that he had, in fact, properly served the process. I approach his evidence in that light. Mr Duffy is an old friend of Mr Tierney and might be persuadable to assist him with false evidence. However, I see no reason to doubt the veracity of either man. As I say, in matters about which it would have been very difficult for them to have colluded successfully, their evidence coincided. So far as Mr Ezzy's evidence is concerned, I have no reason to doubt his intrinsic honesty. I think it is highly improbable that he saw Mr Tierney at the property on that date, if in fact he was there. There are two possible explanations of the situation. One is that he in fact arrived back at "Bonnie Doon" later than 12 noon and that he showed the hour of arrival as being 12 noon in order to avoid showing a period of more than five hours' continuous driving. Another en ere caer eens Gee eg at ot -. w peri me eg re re 7 . my pee oeroace arene eee ane epee eee ee possibility, although I think rather less likely, is that he had in fact arrived at the time of the service but that he did not see Mr Tierney drive up or come to the back door. So far as Mrs Guymer's evidence is concerned, I regret to say that I have little confidence in her reliability. I thought that she was evasive on a number of matters and she has an obvious interest to deny receipt of the petition. In a situation where one has two witnesses on each side deposing to evidence which is mutually contradictory, it is helpful to consider such evidence as is common ground. In this case there was evidence from Mr Frederick Vella, who is the managing director of the petitioning creditor, that he had a telephone call from Mrs Guymer on a date which he believed to be 4 May 1985. The petition claimed to have been served by Mr Tierney had been adjourned from time to time and the document which was annexed to the affidavit of service had a notation that the date for the hearing of the petition had been amended to Tuesday, 7 May, 1985. Mr Vella said that Mrs Guymer on the telephone said to him words to the effect: "I have to come to court on Monday. I can't possibly make it because my car won't get there". Mr Vella then had a conversation with her in which he suggested that she get a bus or train and there was some discussion about her husband, who was apparently in Sydney, coming to the Court on her behalf. Mrs Guymer is said to have Ye Porcrces oe mye "ee ant sen eg re en ee am Ty = responded that she could not get her husband to come to Court because "once he shows his face in court they will probably grab him for other debts". Mr Vella has not been cross-examined on any part of this conversation and I therefore have no hesitation in accepting its accuracy. Acceptance is reinforced by the fact that Mrs Guymer herself admitted that she had a conversation with Mr Vella at about that time. The day of the week referred to -- according to Mr Vella -~- by Mrs Guymer was Monday; whereas 7 May 1985 was a Tuesday. However, the significant matter which emerges from the conversation is that Mrs Guymer realised that the matter would be in Court early the following week. No satsifactory explanation has been given as to how she could have known of that fact if she had not been served with the petition. The suggestion was put by her counsel that she may have learned of the adjourned hearing date from the solicitor acting on behalf of the petitioning creditor, Mr Ian Thompson of Strong, Brown and Associates. Mr Thompson had acted in the matter for some time and his name had been shown on the bankruptcy notice which had been served by another Process server upon Mrs Guymer as long ago as 6 March 1984. However, so far as the evidence indicates, there had been no contact between Mr Thompson and Mrs Guymer between that time and the date of receipt by Mrs Guymer of a letter from Mr ww pren= — yee ne Pa Lotaye ones Thompson, dated 9 May 1985, in which he advised her of the adjournment of the hearing of the matter from 7 May 1985 to 28 May 1985. It seems to me extremely improbable that Mrs Guymer would have telephoned Mr Thompson "out of the blue" and thereby discovered that the hearing of the petition was imminent. It must be borne in mind that the petition had been issued as early as 19 September 1984. Mrs Guymer did not claim any recollection of any such telephone call. Mr Thompson was cross-examined on the matter. He said that he had no recollection of such a call and he thought that there was no such call. Mr Thompson gave evidence that it was his custom to keep diary notes of significant telephone conversations and he said that he would have recorded any conversation in which it was alleged that the petition had not been served. This is an allegation which Mrs Guymer said that she subsequently made. I think that it is consistent with Mr Thompson's practice that, if he had received a telephone call from Mrs Guymer, being the first communication for some time, he would have made some note of that fact. I was impressed with Mr Thompson's evidence and the fact that he does apparently have a careful system of making notes. I regard the absence of any note of a conversation such as that suggested as being significant. The probable explanation of Mrs Guymer's exer; it ee er ee A, Tore knowledge of the fact that the matter would be listed for hearing on 7 May 1985 is that she had learnt this from reading the notation on the petition. Having considered the whole of the evidence, both in affidavit form and cross-examination, I am satisfied that in fact the petition was served as claimed by Mr Tierney. It follows that I reject the submission that the sequestration order should not have been made. Consequently the application must be dismissed with costs. I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr dustice Wilcox. Associate: Uronne a He ttorw Date: 29 May 1986 Counsel for the applicant: Mr $ E Torrington Solicitors for the applicant: Messrs David G Francis & Co Counsel for the respondent: Mr J Wilson Solicitors for the respondent: Messrs David Brown & Partners Date(s) of hearing: 15 May 1986 = wee vo seems ele 7 wesw ae ee a mrs wepeere eo eee aye ae <p ter