Welch, Re R.A. & Anor Knight, Ex Parte D.W. [1986] FCA 301

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RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) ) )

BANKRUPTCY DISTRICT OF THE SOUTHERN Nos. X55 & x56 of 1985

DISTRICT OF THE STATE OF QUEENSLAND

ROBERT ALLEN WELCH and : DENISE WELCH

Debtors

EX PARTE:

DESMOND WILLIAM KNIGHT as trustee of the estates of ROBERT

ALLEN WELCH and DENISE

WELCH

Applicant

DATE: 2 July 1986

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

These are applications by a trustee under s.222(4)(b) of

the Bankruptcy Act 1966 for a declaration that a deed of

assignment by each of a husband and his wife is void, and for a

sequestration order against each of the husband and the wife.

Basically the same evidence was relied on in each case,

though from several points of view the case is stronger in respect of the husband; therefore I shall consider his case

first, and if the case fails against him, I shall reject both.

Before discussing the basis upon which the case has been

put, I think I should draw attention to what was said by Toohey

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dg. in Re Doukidis, an unreported decision delivered on 26 June

1986. His Honour said of the evidentiary situation in that case:

"In support of the application to set aside the composition, there was filed an affidavit by the applicant's solicitor. The affidavit makes a number of assertions of which the solicitor cannot have first hand knowledge and it makes a number of other assertions on the basis of information and belief without disclosing the source of that information. I deprecate this practice, particularly where allegations are made concerning the conduct of another. Counsel for Mr. Doukidis rightly took exception to much of the affidavit and I received it in evidence on the clear understanding that I would attach no importance to matters of hearsay. Quite serious allegations were made of failure by Mr. Doukidis to disclose the full extent of his assets to the creditors' meeting. Those allegations should have been supported by affidavits of persons in a position to speak to relevant matters or by the oral evidence of such persons or by a combination of both."