"FA ¢ IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION ~ ~ QLD E894 of 1986 BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND ~ ~~ RE: ELFRIEDE RUTH CHRISTODOULOU EX PARTE: ELFRIEDE RUTH CHRISTODOULOU MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 3 NOVEMBER 1986 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The sequestration order made against the estate of Elfriede Ruth Christodoulou on 6 October 1986 be set aside. 2. The costs of the applicant, Mrs. Christodoulou, of and incidental to the hearing today, including the affidavits, be taxed and paid by the petitioning creditor to the said applicant. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. A¥ISID3H "Wwdlonidd yinveisny HO Lynoo Wwu3d34 9861 AON 8 | Gai woe"g ee ee wee Ce oye meme, wegen IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) QLD £894 of 1986 BANKRUPECY DISTRICT OF THE SOUTHERN } DISTRICT OF THE STATE OF QUEENSLAND ) PINCUS J. Christodoulou for an order that a sequestration order made by me against her estate on 6 October 1986 be set aside. Among the materials upon which I acted in making that order was an affidavit RE: ELFRIEDE RUTH CHRISTODOULOU EX PARTE: ELFRIEDE RUTH CHRISTODOULOU 3 NOVEMBER 1986 EX TEMPORE REASONS FOR JUDGMENT This is an application made by Mrs. | Elfriede Ruth of Mr. John Andrew Gibbison as follows: "On Monday the eighth day of September 1986 at 11.10 o'clock in the forenoon, I served Elfriede Christodoulou with an official copy of the petition of Budget Shopfitters Pty. Ltd. together witha copy of the affidavit of Philip Francis Richards sworn the twenty-eighth day of July 1986, verifying paragraphs 1, 2 and 3 of the petition, a copy of the affidavit of Tracy Leigh Robins sworn the thirtieth day of July 1986, verifying paragraph 4 of the petition, anda copy of the affidavit of Philip Francis Richards sworn the 2lst day of August 1986 filed herein by delivering them to her personally at 594 Stanley Street, South Brisbane in the said State." ' vias —---ee rere pr eer wanted to see The expression "delivering to her personally" does not, to me, mean leaving ona table for her. Paragraph 2 follows: "I identified the person I served by: virtue of the fact that at the time of service the said Elfriede Christodoulou admitted to me that she was the person referred to herein as the Debtor." The evidence in that affidavit has been challenged by the three witnesses who have made affidavits and were called before me, namely Mrs. Christodoulou herself, Tracey-Jayne Osborne, and Mrs. Christodoulou''s son, Peter John Wolff. The affidavits of these three persons are not entirely consistent with one another. The inconsistencies, however, do not greatly concern me. They seem to be the sort of variation one would expect to find between the versions of people trying to recall events which were not, at the time, of any great significance to then. Their stories are, however, at one, in that they all say the papers were not handed to Mrs. Christodoulou. For example, Mrs. Christodoulou's version of events is that she had gone to the toilet at the time when the papers were left; that is, she was absent from the room. Peter John Wolff's version of events is that he saw the man who is apparently Mr. Gibbison about 10 or 15 yards away from his mother and heard him call out; she did not respond and left the factory, and the man shortly thereafter left the papers on a table. The account of events given by Mr. Gibbison includes the following, that he spoke to Mrs. Christodoulou, told her that he her and had some documents to hand to her, that he reads as eee ee ee rene ne te STE ET . 7 ™ 2 een - aT pe ee cee en ne = .eunm ttle followed her to the rear door where, as she walked through the door, she attempted to slam it in his face and he prevented that, that she walked through a small ante-room. He then goes on: "IT entered also and as the Defendant was walking out of this room, I informed her 'Mrs. Christodoulou, I have a Creditor's Petition for service on you. I have already served Chris with a copy and he informed me you would be here this morning. Are you the person named in the document as_ the Judgment Debtor, Elfriede Christodoulou?' I was holding the Creditor''s Petition out in front of me. She looked back, appeared to see the Creditor's Petition and said 'Yes' or 'Yeah'. I said to her 'T''1l leave the document on this table for you'. I indicated towards the only table in the ante-room. She looked around and appeared to see where I had indicated. She did not respond, she continued to walk towards the toilet room on the rear landing section of the building. I left the premises again by the rear stairway." My experience of professional process servers is such as to make me rather doubtful about this account. I would have thought that Mr. Gibbison would have attempted more firmly than he did to give the papers to Mrs. Christodoulou. Mr. Ambrose, who appears for the creditor, points out that if Mr. Gibbison's account of events is correct, that would have constituted due service, and I agree with what he says. However, the real point I have to decide is: why were the papers left on the table? Were they left on the table, as Mr. Gibbison says, because Mrs. Christodoulou was moving away, or were they left on the table because she was gone? It seems to me a little more probable they were left on the table because she was gone. I think that the suggestion that a process server would leave documents on the table, as opposed to handing them to the person FRR Se me ae were + 7 vont ate ~ 4 ae bo ME, ety rr yess fi ey oe to be served, where there was analternative open, is not attractive, and I am also influenced somewhat by the fact that the version of events now given, as it seems to me, is difficult to reconcile with that on which I acted when I made the sequestration order. It is true that one may find an excuse for the swearing of the latter version in that a printed form was being followed. Nevertheless, the printed form was extensively amended. It seems to me that Mr. Gibbison should have said, if that was the fact, "I did not deliver them to her personally. I left them on a table near her and told her what the documents were." I also agree with the suggestion made by Mr. Lee of counsei, for Mrs. Christodoulou, that the statement in paragraph 2 of the affidavit of September which I have quoted is not easy to reconcile with Mr. Gibbison''s present evidence. However, I hesitate to reject Mr. Gibbison's evidence. He was an impressive witness and the task of determining who to accept is not an easy one. There are legitimate points to be made, and they have been made by Mr. Ambrose, against the evidence of Mr. Wolff, Miss Osborne, and Mrs. Christodoulou, but in the end I prefer their evidence to that of Mr. Gibbison and propose to act on that basis. It will therefore be ordered that the sequestration order made against the estate of Elfriede Ruth Christodoulou on 6 October 1986 be set aside. sae ere — I will order that the costs of the applicant, Mrs. Christodoulou, of and incidental to the hearing today, including the affidavits, be taxed and paid by the petitioning creditor respondent to the said applicant. i certify that this and the % preceding Pages are a true copy of the reasons for Judgment herein of His Honour Mr. Justice Pincus get Syme ; Associate Dated 3 Plnrcer riser 1986 ero meen ee Dts =o ' ate Re a per eas pain See co een ee pee