Jonson K.M. v Westpac Banking Corporation [1994] FCA 1073

IN THE FEDERAL COURT OF AUSTRALIA ) BANKRUPTCY DISTRICT OF THE STATE ) No. NP 1468 of 1994 OF NEW SOUTH WALES )

Res KEITH MICHAEL JONSON Debtor RECEIVED 22 MAR 1995 Ex partes WESTPAC BANKING CORPORATION FEDERAL COURT OF Creditor

AUSTRALIA PRINCIPAL, REGISTRY

REASONS FOR JUDGMENT

EINFELD_J SYDNEY 2_ DECEMBER _ 1994

A petition for a sequestration order has been presented by the creditor (Westpac) against the debtor (Jonson) based upon Jonson's failure to comply with a 14 day bankruptcy notice seeking payment of $3,101,688.70 pursuant to a judgment of Justice Giles in the Commercial Division of the Supreme Court of

New South Wales. The decision of his Honour, given on 17 June 1993 after a hearing of evidence for 7 days and submissions for 2 days, has been appealed to the Court of Appeal. The appeal is not expected to be heard until some time in 1996, and Jonson has sought an adjournment of the petition to await the appeal result. Westpac opposes the adjournment, submitting that Jonson's prospects of success in the appeal are too insubstantial. The

petition will expire at the latest on 20 May 1995.

In the hearing in the Supreme Court, Westpac claimed under a joint and several guarantee signed by Jonson and one Peters as

co-directors of Vapozi Pty Limited to secure that company's

| JUDGMENT NO, m3, 9 TY

-2- borrowings from the bank. According to the judgment, the claim turned on whether the guarantee was explained to and signed by Jonson on 8 or 9 December 1988 as asserted by Westpac's Mr Lazevski, or unwittingly and. by a trick on 14 March 1989 as stated by Jonson. His Honour accepted Lazevski's evidence over Jonson's which he said "should be viewed with considerable caution". He found that the objective probabilities rendered the truth of Jonson's account unlikely, and made a detailed examination of these objective facts, including of contemporaneous bank documents and a letter from his solicitor by whom Jonson alleged but the Judge rejected he was overborne. Because both Lazevski and Jonson were cross examined at considerable length, Justice Giles had an inestimably more powerful opportunity to assess their respective credibilities than anyone else. The possibility that his Honour's findings in this regard could be overturned must be regarded as quite remote: Abalos_v_ Australian Postal Commission [1990] 171 CLR 167 per