| JUDGMENT Mo. 222. Baow LIMITED DISTRIBUTION F_AUS ) ) GENERAL DIVISION ) ) I ISDICATTON ) No. P26 of 1988 ) IN BANKRUPTCY ) B R 7 DISTRICT OF THE STATE OF VICTORIA A Debtor Patitisoning Creditor ORDERS RINGIPAL REGISTRY : WOODWARD J. MELBOURNE DATE _OF ORDER : 26 MAY 19383 OUR $ i L. Aa Sequestration Order be made against the estate of the Debtor. 2. Costs, including reserved costs, be in accordance with the statute. Date of Commission of Act of Bankruptcy: i+ July 1937. Note: This order is to he settled and filed in accordance with rule 124 of the Bankruptcy Rules. LIMITED DISTRIBUTION r Ci F_AU: ) ) GENERAL DIVISION ) ) EXERCISING FEDERAL JURISDICATION ) No. P26 of 1988 ) IN BANKRUPTCY ) ¥ 3st. Vv OR Re: BRUCE. THOMAS FASHAM A Debtor Ex Parte: GENERAL CREDITS CIMITED Petitioning Creditor c : WOODWARD J DATE: 26 MAT 1388 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT This is a contested bankruptcy petition. The sole ground of the contest is as to whether or not there was proper personal service of the bankruptcy notice on the debtor. It is never easy in a case of conflicting avidence for a judge to be sure of what actually happened om the day in question. We do not have any magical power which enables us to tell truth from fiction. We can only do the best that we are able to , relying upon our impression of the people who have given evidence and of the surrounding circumstances of the case. ts In this matter the process server gave his evidence firmly. His account was circumstantial and convincing. There would be no reason to doubt him were it not for the conflicting evidence which has been led. In favour of his account is the fact that I find it inherently unlikely that an axperienced process server would have acted as he 15 alleged to have acted - serving the document on the wrong premises to a person who had not identified himself as the debtor and was in fact a different person, and then swearing an affidavit which recorded the correct pramiseas, and set out questions and answers which identified the person served as the debtor. An account has heen given by Mr Wilson as to how the document was served on him. That account was set out in his affidavit and he supported it on sath in Ehe witness box. There was nothing I could see in his demeanour to lead me to doubt his avidence. There are, however, a number of surrounding circumstances which must cause me, and do cause me, to have such doubts. In the first place, the explanation given as ta what happened to the document, after it was allegedly served in error on Mr Wilson, depends very heavily upon the conduct of the person called Vicki Askew, who is supposed to have received the document directly or indirectly from Mr Wilson, and then to have taken it upon herself to send it to Mr Pasham's solicitors without previously making any contact Wreded, with Mr Fasham - although she knew his place of residence tin Sydney and was regularly in contact with him about mattdrs affecting the company with which they were both connecta. Mr Fasham says she only told him about the bankruptcy notice after sending it to his solicitors. In spite of that rather strange conduct, Miss Askew has not been called to provide the missing link in the account as to how the document 15 supposed to have got from Mr Wilson to Mr Fasham's solicitors; and no explanation has been given as to why she was not called. Her evidence would have been most significant. Similarly, although perhaps of less importance, Mr Ford (Mr Fasham's solicitor) was alleged to have received * : these documents from Miss Askew and to have t himself contacted Mr Fasham, drawing them to his attention: It would have been significant if that had in fact happened, and evidence of it had been put before me, but no attempt was made to call Mr Ford or to explain why he was not called. It seems that the alleged defective service was mot noticed by Me Ford in the circumstances inwhich the document was received by him, nor was it reported to him when he then contacted Mr Fasham. I find it strange that, when that first contact was made, it did not become immediately apparent to both of them that this document had found its way to Mr Ford without ever having been served on Mr Fasham; but apparently that is the situation. Following telephone discussions between them, nothing was said about the defective nature of the service - and no action was taken to bring 1t to the notice of the petitioner or his solicitors; indeed, a series ? : of negotiations took Place over some period of time about the bankruptcy petition, without any mention being made of any allegation of defective service. Another missing piece of evidence which could have been significant was the diary, which allegedly enables Mr Fasham to say that he was in Geelong on the day on which service was supposed to have been made upon him. I find it strange that it did not occur to him that 1t would be helpful to have the diary in court. I appreciate that 1t is not his own diary, but it is apparently a company diary in which a number of entries are made which serve to indicate where he was at the time. I find it equally strange that, 1f that was brought to the notice of his legal advisers, they aia ngé : § take steps to see that the diary was in court. 4 Mr Fasham was unable to explain the alleged fact that documents posted to him at his admitted address in Sydney were returned marked "not known at this address". It 1s also of some significance that, on the other occasion in which documents were attempted to be served upon him in this Matter - I refer to the bankruptcy petition - he refused to accept service of them. That is at least consistent with an attitude that he does not believe in accepting, or admitting acceptance of, legal documents which are attempted to he served upon him. Finally, there is evidence about the drafting of Mr Wilson's very important affidavit in this matter. It is clear that the drafting by hand of that affidavit was done by Mr Fasham. Varying accounts have been given by Mr Fasham and Mr Wilson as to the circumstances in which that came about. They are mutually inconsistent, because Mr Fasham's evidence is that the discussions giving rise to the material in the affidavit took place, for the most part, in telephone conversations between Melbourne and Sydney, and that the affidavit was drawn by him in Sydney and delivered to his counsel, and through the counsel to his solicitors, as soon as he arrived in Melbourne on the morning of the day on which it was sworn. Mr Wilson, on the other hand, says that the document was drafted following discussions over lunch some days before it was sworn; that it was drafted in Melbourne and was brought to him soon afterwards at the Magistrates' Court in Melbourne which he was attending, so that he would be able to check the accuracy of it. Neither of those accounts 1s consistent with the independent evidence, because they both involve the affidavit being drafted over a period of days before it was sworn; whereas the evidence from a solicitor, Mr Stevens, an employee of Mr Fasham's solicitors, and the production of the solicitor's file, show that, on the day before the affidavit was sworn, Mr Fasham was still saying that he was not aware who had received the document: and it is clear that it was only the following morning that the affidavit drafted by Mr Fasham was sworn by Mr Wilson. On that basis there simply was not time for the discussions, which either of them swore to, to have occurred. For all these reasons I have reached the clear conclusion that I should accept the evidence of the process server. All the other matters of which I am required ta he satisfied have been proved to my satisfaction. I am satisfied that an act of bankruptcy was committed; that it was committed on 24 July 1987; I am satisfied with the proof of the matters set out in section 52 sub-section (1) of the Act. There will he an order of sequestration against the estate of the debtor, the act of bankruptcy being the failure of the debtor to comply with the provisions of a bankruptcy notice on or before 24 July 1987. Costs, including reserved costs, will be in accordance with the statute. Sera SE ee SE we eee CO =H foarciy tree tas aie ite five Ores Pages Qe a vu> cicy of me ' PAIN ee aa that a of ihe Honour. fie Mr fusuqa 3 "A . Soo zat Fi