CATCHWORDS Bankruptcy - whether memorandum of transfer by the bankrupt is void against the Official Trustee as a transfer to defeat creditors - factual issues only involved Bankruptcy Act 1966 (Cth), s 121 Matter No. SB 739 of 1995 RE: IN THE ESTATE OF ROMA BIVONE Ex Parte: THE OFFICIAL TRUSTEE IN BANKRUPTCY and DOMENIC CHRISTOPHER BARBARO and ANTONIA BIVONE and RE: IN THE ESTATE OF ROMA BIVONE Ex Parte: DOMENIC CHRISTOPHER BARBARO and ANTONIA BIVONE and THE OFFICIAL TRUSTEE IN BANKRUPTCY von Doussa J Adelaide 30 May 1997 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA No. SB 739 of 1995 DISTRICT REGISTRY GENERAL DIVISION Re: IN THE ESTATE OF ROMA BIVONE Ex Parte: THE OFFICIAL TRUSTEE IN BANKRUPTCY Applicant And: DOMENIC CHRISTOPHER BARBARO and ANTONIA BIVONE Respondents MINUTES OF ORDER JUDGE MAKING ORDER : VON DOUSSA J WHERE MADE : ADELAIDE DATE ORDER MADE : 30 MAY 1997 THE COURT ORDERS THAT: 1. Declaration that the memorandum of transfer dated 15 March 1995 between the bankrupt Roma Bivone as transferor and Domenic Christopher Barbaro and Antonia Bivone as transferees is void as against the Official Trustee in Bankruptcy. 2. Declaration that the Official Trustee in Bankruptcy is entitled to the sum of $22,190.87 being the proceeds of sale of the bankrupt's one third interest in the house property at 20 Corcoran Avenue, Goolwa Beach in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume 2642 Folio 144. 3. The respondents pay the costs of the Official Trustee in Bankruptcy of and incidental to this application. Note: Settlement and orders are dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA No. SB 739 of 1995 DISTRICT REGISTRY GENERAL DIVISION Re: IN THE ESTATE OF ROMA BIVONE A Bankrupt Ex Parte: DOMENIC CHRISTOPHER BARBARO and ANTONIA BIVONE Applicants And: THE OFFICIAL TRUSTEE IN BANKRUPTCY Respondent MINUTES OF ORDER JUDGE MAKING ORDER : VON DOUSSA J WHERE MADE : ADELAIDE DATE ORDER MADE : 30 MAY 1997 THE COURT ORDERS THAT: 1. The application dated 20 September 1996 be dismissed. 2. The applicants pay the respondent's costs of and incidental to this application. Note: Settlement and orders are dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA No. SB 739 of 1995 DISTRICT REGISTRY GENERAL DIVISION Re: IN THE ESTATE OF ROMA BIVONE A Bankrupt Ex Parte: THE OFFICIAL TRUSTEE IN BANKRUPTCY Applicant And: DOMENIC CHRISTOPHER BARBARO and ANTONIA BIVONE Respondents AND: Re: IN THE ESTATE OF ROMA BIVONE Ex Parte: DOMENIC CHRISTOPHER BARBARO and ANTONIA BIVONE Applicants And: THE OFFICIAL TRUSTEE IN BANKRUPTCY Respondent REASONS FOR JUDGMENT Coram : von Doussa J Place : Adelaide Date : 30 May 1997 There are two interrelated applications before the Court. The Official Trustee in Bankruptcy ("the Official Trustee") is the trustee of the estate of Roma Bivone ("the bankrupt") against whom a sequestration order was made on 23 May 1995 on her own petition. The first application is by the Official Trustee seeking declarations to the effect that on 23 May 1995 the bankrupt was the registered owner beneficially entitled to one undivided third interest in a house property at 20 Corcoran Avenue, Goolwa Beach ("the property") and that the Official Trustee is entitled to one third of the proceeds of sale of the property, namely $22,190.87. The respondents Domenic Christopher Barbaro ("Mr Barbaro") and Antonia Bivone ("Mrs Bivone") claim to be the beneficial owners as at 23 May 1995 of the property, and the parties entitled to the proceeds of sale. The second application is for declarations by the respondents in the first application that they are entitled to the said sum of $22,190.87. Mr Barbaro and Mrs Bivone are respectively the brother and sister of the bankrupt. It is common ground that at the date of the sequestration order the bankrupt, Mr Barbaro and Mrs Bivone were the three registered proprietors of the property. The statement of affairs filed by the bankrupt did not disclose an interest in the property as an asset of her estate. When the Official Trustee questioned whether the property of the bankrupt included an interest as joint tenant in the property the bankrupt and the respondents alleged that in 1991, pursuant to an oral contract for sale and purchase, the respondents had purchased the bankrupt's interest in the property for the sum of $5,000. They alleged that although that sum was paid at the time, the formal requirement of a transfer was overlooked until much later. Pursuant to that oral agreement the bankrupt had executed a memorandum of transfer of her interest in the property to the respondents dated 15 March 1995. The respondents claim that they have been the beneficial owners of the property from 1991. The Official Trustee disputes the allegations of the respondents. The parties are agreed that the issue for determination is whether there was an oral contract and payment in 1991 as alleged by the respondents. If so, the Official Trustee acknowledges that the respondents are entitled to judgment declaring them entitled to the proceeds of sale. On the other hand, if the Official Trustee satisfies the Court that there was no such contract and no payment of the purchase price, the respondents acknowledge that the Official Trustee is entitled to an order under s.121 of the Bankruptcy Act 1966 declaring the memorandum of transfer dated 15 March 1995 to be void against the Official Trustee, and a further declaration that the Official Trustee is entitled to the sum of $22,190.87. Although these are, in effect, cross-applications I approach the resolution of the dispute on the basis that the Official Trustee carries the burden of establishing on the balance of probabilities that the main purpose of the memorandum of transfer dated 15 March 1995 was to prevent the property from becoming divisible among the bankrupt's creditors. To succeed, the Official Trustee must therefore establish on the balance of probabilities that there was no oral contract for sale and purchase and no payment in 1991 as alleged by the respondents. The case of the Official Trustee rests on circumstantial evidence from which the Court is invited to draw inferences which negative the respondents' assertions, and, on the contrary, establish as a matter of probability that the memorandum of transfer was a deliberate attempt by the bankrupt and the respondents to keep the bankrupt's share of the property out of her bankruptcy. The evidence relied on by the Official Trustee is as follows. From late 1993 Moody Rossi and Co., solicitors, acted for the bankrupt in proceedings brought by her in the Supreme Court of South Australia against the liquidator of a company by whom she had earlier been employed. In the Supreme Court proceedings the bankrupt appealed from a decision of the liquidator to reject her proof of debt dated 1 October 1993 for arrears of wages and other employee's entitlements. On 21 February 1994 the bankrupt terminated the solicitor's instructions and subsequently a dispute over their fees arose. The bankrupt requested that the solicitor's costs be taxed. This was done. On 30 August 1994 at the conclusion of a disputed taxation Judge Kelly allowed the costs at $5,595.93 but stayed execution for 28 days. A copy of the allocatur was served. A demand for payment was made on 7 October 1994 coupled with a threat to issue a bankruptcy notice if the costs were not paid. On 9 December 1994 Moody Rossi & Co. issued a bankruptcy notice addressed to the bankrupt, and in late December 1994 attempts were made to serve that notice on her at 222 Philip Highway, Elizabeth Vale where she resided with her father. On 17 January 1995 process servers reported that they had found the bankrupt's father to be uncooperative in assisting with service, and on 3 January 1995 a male person had telephoned the process servers saying he was the bankrupt's brother. He told them to stop harassing his parents. The bankruptcy notice was eventually served on the bankrupt elsewhere on 10 March 1995. The Official Trustee contends that it should be inferred that the bankrupt and her family were in early 1995 aware that steps were being taken under the Bankruptcy Act to enforce payment of the allocatur. Although the property was not disclosed by the bankrupt as an asset in her statement of affairs, the Official Trustee, presumably as a result of routine searches, ascertained that the bankrupt was one of the registered proprietors of the property, and had the transmission of that interest to the Official Trustee registered on the title on 5 June 1995. On 7 June 1995 the respondents lodged the memorandum of transfer at the Land Titles Office for registration. It was rejected as inconsistent with the interest of the Official Trustee. On 21 June 1995 the bankrupt attended the office of the Official Trustee and was interviewed about her affairs generally. She said that the property had been purchased by her, with her brother and sister, in 1984. (A transfer to them was registered on the title on 4 December 1984). The bankrupt said that she had sold her interest in the property to the respondents in November 1991 for $5,000. In 1993 a house was partly erected on the property but was not yet completed. The property had been on the market for some time. The bankrupt said she could not recall signing a building application and maintained that none of her funds went into the building. By letter dated 26 June 1995 the bankrupt sent to the Official Trustee a copy of a bank statement relating to a mortgage loan on the home in which she then resided, showing that on 2 December 1991 the sum of $5,000 had been credited to the account. She said that she believed that this was the amount received from her brother and sister for her share in the property "as stated in my statutory declaration to the State Taxation Department dated 27 February 1995". This statutory declaration, along with statutory declarations also made by each of the respondents on the same date and a letter dated 24 February 1995 from Mr Barbaro to the State Taxation Office came into the possession of the Official Trustee. The letter requested the State Taxation Office to assess stamp duty in respect of the sale of a one third interest in the property from the bankrupt to the respondents. The letter went on to say: "The sale was the result of a property settlement in the Family Court, Adelaide, between Roma and Antonio Bivone in 1990 whereby Roma's brother and sister purchased her one-third share in 1991 for $5,000, being the market value of her interest in the property, less valuation fee. The attached Statutory Declarations confirm that the land was vacant at the time and had a market value of around $15,500 cash. It appears that no instructions were ever given by any of the proprietors to transfer the land at the time, with the matter coming to the notice of the two remaining proprietors as the result of a recent application to the Council to build on the property. In light of the genuine oversight it is requested that a minimal penalty be applied to the amount of $5,000 declared for taxation." The statutory declaration from the bankrupt read, relevantly: "... as a result of a property settlement in the Family Court between myself and my former husband, I requested the other two proprietors being my sister Antonia and brother Domenic purchase my interest in the property. My brother arranged a valuation of the property and I received an amount of $5,000 in November 1991 representing my one-third interest less valuation fee and rate adjustments. This amount was applied to reduce an outstanding mortgage on the family home which was awarded to myself as part of my property settlement." Mr Barbaro in his statutory declaration said: "I made arrangements to have the land valued in accordance with the Family Court order and subsequently paid [the bankrupt] an amount of $5,000 in November 1991, being one-third of the valued amount of $15,000 less cost of valuation on behalf of Antonia and myself, and later received an amount of $2,500 from Antonia." Mrs Bivone in her statutory declaration confirmed that she paid her brother an amount an amount of $2,500 in December 1991 and became a 50 per cent owner of the property, the bankrupt having received "around $5,000 in full settlement" for her one third share. The Official Trustee was not persuaded by this information, and continued to assert an entitlement to a one third interest in the property. In November 1995 the respondents requested the Official Trustee to join in the sale of the property and agreed that one third of the proceeds of sale would be held by the Official Trustee pending agreement, or failing agreement, decision of this Court as to the disposal of that share of the proceeds. On 10 January 1996 the solicitor acting for the respondents, Mr Isaachsen, arranged for an officer from the Official Trustee's office to confer with him so that he could show documents to support the respondents' contention that the bankrupt had sold her interest in the property to the respondents some five years previously. A meeting occurred on 11 January 1996. Mr Isaachsen produced a copy of the bankrupt's bank statement for her mortgage loan showing the credit of $5,000 on 2 December 1991 which was again said to represent the payment of the bankrupt's interest in the property. Mr Isaachsen also produced a copy of a valuation of the property prepared by Mason Gray Strange. That valuation was addressed to Bonnins, barristers and solicitors, and was dated 13 March 1990. The property was valued at $16,000. Documents relating to the application for building approval, and the early stages of construction of a house on the property were also produced. The building application had been lodged on 7 December 1992, and the District Council approval was dated 20 January 1993. The building application was in the names of "Nat Bivone Domenic Barbaro". Mr Nat Bivone was never a registered proprietor of the property. He is the husband of the respondent Mrs Bivone. It was surprising that it should have been asserted on behalf of the respondents on 11 January 1996 that the deposit recorded in the bankrupt's bank statement for 2 December 1991 was the deposit of the purchase price paid by the respondents. The Official Trustee had pointed out to another solicitor who had earlier acted for Mr Barbaro that the bankrupt's own banking records established that she had gradually accumulated $5,000 in another bank account, and had withdrawn that sum on the same day as the credit on her mortgage loan statement appeared. Further, no other credit could be found in the bankrupt's banking records for an amount in that order which could indicate the payment of funds by the respondents. The former solicitor had responded to the Official Trustee saying: "Mr Barbaro has referred to his personal financial records. Mr Barbaro advises that he transferred the sum of $4,000.00 by cheque (Commonwealth Bank Cheque No. 000139, dated 15/2/91) to Bonnins Solicitors for and on behalf of Roma Bivone, together with a further $1,000.00 in cash, in full discharge of the interest of Roma Bivone in issue." The Official Trustee made enquiries with Bonnins. That firm had acted for the bankrupt in matrimonial proceedings against her husband from whom she had separated on 8 January 1989. The Family Court proceedings concluded with a judgment delivered by Baker J on 9 April 1990 following a hearing on 22 and 23 March 1990. Bonnins advised the Official Trustee that on 15 February 1991 they had received a cheque for $4,000 drawn by Mr Barbaro on account of the bankrupt's legal fees. This information was drawn to the attention of Mr Isaachsen who on 14 February 1996 wrote to the Official Trustee saying: "It now appears that [the bankrupt] was somewhat confused about the matter. However Mr. Barbaro has now supplied us with his relevant cheque heel which is enclosed herewith and numbered 00139 dated 15th February 1991. We are instructed by Mr. Barbaro that the original writing on the cheque heel is his, and that the words 'gift to sister' are in the hand writing of his accountant. You will note also that at [the bankrupt's] request, the cheque was made payable to Messrs. Bonnins. You will also note that on the back of that cheque heel Mr. Barbaro has written 'paid $1,000 in cash'. We believe that in the light of the cheque heel there can be no doubt that [the bankrupt] was paid $5,000.00 for her interest in the land and that accordingly at the time of her bankruptcy she had no interest in the land, and therefore Mr. Barbaro is entitled to the funds held by you from the sale of the property." The cheque heel contains the following hand written information in black biro, shown in italics, with the additional printed words so as to read: "15 - 2 - 1991 To Bonnins Solicitors For Roma for her share Goolwa block ... This cheque 4,000.00" In black felt pen in a plainly different hand appear the words "Gift to sister". The words "Gift to" lie in the same location on the form as the words "her share" and "block", but it is not possible to tell which words have been superimposed on the other words, i.e. it is not possible to tell whether "Gift to sister" were written before or after the words "for her share Goolwa block". On the reverse side of the cheque butt heel, with no further explanation, in black biro Mr Barbaro has written "Paid $1,000-00 cash". The Official Trustee then issued the application now before the Court. The above information was set forth in affidavits, and the Official Trustee contended that the evidence showed, contrary to the representations of the bankrupt and the respondents that: · The valuation addressed to Bonnins was obtained for the purposes of the matrimonial proceedings, not for the purpose stated in the statutory declarations, and, further, the valued amount differed from that stated by Mr Barbaro. · The valuation was obtained before any order in the Family Court, and not "valued in accordance with the Family Court order" as stated by Mr Barbaro. · The Family Court order did not in any way require the bankrupt to realise her interest in the property. · There was no payment of cash by the respondents in the sum of $5,000 to the bankrupt in November 1991. The deposit entry of 2 December 1991 was otherwise explained. · No explanation had been offered for the apparent inconsistency between the endorsements on the cheque butt heel, nor had any suggestion been made on Mr Barbaro's behalf that the endorsement "Gift to sister" was made otherwise in accordance with his instructions. · There was no evidence to support Mr Barbaro's assertion that the notation "paid $1,000.00 cash" related to a payment made to the bankrupt, nor was the source of funds identified. · The alleged contract for sale and purchase in 1991 was verbal and not in any way reduced to writing. · If, as asserted in the statutory declarations, the need for a formal transfer of the property was overlooked until the application to build was made, there still followed a surprising interval of time between that application in December 1992 and the letter to the State Taxation Office on 24 February 1995. · The coincidence between the attempts by Moody Rossi & Co. to enforce the allocatur, the letter to the State Taxation Office, and the execution of the memorandum of transfer strongly supported the inference that the latter events were an attempt to remove the only asset of the bankrupt available to creditors from the reach of the recovery proceedings. At trial, the affidavit material filed on behalf of the Official Trustee was tendered without objection or cross-examination from the respondents. The case was answered by an affidavit from the bankrupt filed on behalf of the respondents, and an affidavit from Mr Barbaro. Both deponents were cross-examined. In her affidavit the bankrupt said that in 1991 Bonnins acted for her in her divorce proceedings, and in February 1991 told her that they required her to pay the sum of $4,000 towards their costs. She had no funds at the time and accordingly she approached the respondents and requested that they buy her share of the property. After discussion they agreed to buy her share for $5,000. At her direction her brother drew his personal cheque for $4,000 payable to Bonnins, and gave her an additional sum of $1,000 in cash which she needed for living expenses for herself and her two daughters. She denied that these payments were gifts to her. She said that in 1991 she was in considerable financial difficulty, and various relatives gave her substantial sums of money, one of which she believes accounted for the deposit of $5,000 in her bank account in November 1991. Later she became aware that her brother was proceeding to arrange for a building of a house on the land but she took no interest in that as she had no interest in the land, and she was not asked to contribute to the cost of the house. She said that over the last three or four years she had suffered a variety of serious illnesses which at times had seriously affected her memory. Her poor memory was the explanation for her statement in the statutory declaration to the State Taxation Office and to the Official Trustee that she had applied the proceeds of the sale received from Mr Barbaro to her outstanding mortgage account. She exhibited a medical report from Dr G R Barbaro, her general practitioner, who confirmed that the bankrupt had suffered several illnesses, including anxiety and depression (but the report makes no reference to a memory defect). Mr Barbaro deposed that in 1991 the bankrupt said she needed money in connection with her matrimonial proceedings, and asked for the respondents to purchase her share in the property. He said that he was aware that a valuation had been made of the land in the matrimonial proceedings, but he also spoke to a local land agent before arriving at the figure of $5,000 as the purchase price. He then drew his personal cheque for $4,000 payable to "Bonnins Solicitors" and gave that cheque to the bankrupt. He also gave her $1,000 in cash at about that time and made a note on the back of the cheque butt heel to record the payment. He said that his sister Mrs Bivone subsequently paid him the sum of $2,500 "by set off". He again gave the explanation for the delay in preparing the transfer that it had been overlooked at the time and came to light when the building application was made. No part of the cost of the house construction on the property was met by the bankrupt. As to the notation on the cheque butt heel "Gift to sister" Mr Barbaro deposed that the notation "was not made in accordance with any instruction of myself", and denied that the money was paid by way of gift. Each counsel in shortly opening their respective cases said that the issue for determination would turn on the Court's impression of the bankrupt and Mr Barbaro as witnesses, and on their credit. Their cross-examination therefore assumed particular significance. The bankrupt was emphatic that she was not a liar, and that there had been an oral contract for sale and purchase in 1991. She was in desperate financial circumstances at that time, and needed funds to pay Bonnins in relation to the matrimonial proceedings. She said that on other occasions she had got support from her family, and in particular from her father and her brother who between them had made substantial payments on her behalf, perhaps as much as $20,000.00. She had no details of payments made by them. She emphasised the close and generous nature of her family as the reason why loans and other transactions would not be noted, or treated with the formality that might usually be expected where large loans or property sales are involved. She was unable to provide detail on most questions that were asked of her about her financial affairs, saying that her memory had failed her and she could not remember. She said that following the divorce Mr Barbaro took over the management of her financial affairs, including the sale of her home in 1993, and implied that whilst she could not provide the information requested from her, he should be able to do so. She also said that in about February 1995 she realised that her Supreme Court proceedings would fail, and return no money to her. I found the bankrupt's evidence to be very unsatisfactory, and not such that it could be relied upon. Her lack of memory about relevant transactions stood in marked contrast to the positive assertions made earlier in communications to the Official Trustee and the State Taxation Office. Mr Barbaro in his cross-examination also emphasised the close and generous nature of the family, agreeing that he and his father had provided something in the order of $20,000 on behalf of the bankrupt in respect of her matrimonial proceedings. He said that no records were kept by him or anyone else in the family of the payments. The payments were not by way of formal loan. The family policy was that if on later occasions one of them was in need that person would look to other members of the family. If someone to whom assistance had been provided later was able to make repayment that might occur. In light of this evidence, and also that of the bankrupt, about the close nature of the family I find their respective denials that they were unaware that attempts were being made in late 1994 and early 1995 to enforce payment of the allocatur for Moody Rossi & Co.'s fees unbelievable. Mr Barbaro was not able to provide information about the financial affairs of the bankrupt as anticipated by her in her evidence. He said that he kept no records of the transactions, and indeed it seems that he kept few records at all. No credible explanation for the source of the alleged payment of $1,000 was given by him, nor did I find credible his attempt to explain inconsistencies between the assertions in the statutory declarations and his later evidence about the date on which the purchase price was paid. Similarly, I did not find his evidence about the "set off" said to account for Mrs Bivone's contribution to the purchase price, his explanation about valuation fees (which he says was a mistake made in the statutory declarations), or his explanation for the endorsement of "Gift to sister" on the cheque butt credible. In relation to the cheque butt, Mr Barbaro conceded that the writing "Gift to sister" was made by his accountant Mr Robins. He said that the usual procedure was for him to sit down with Mr Robins and go through his records for each year for tax purposes. Mr Robins would make notations indicating how particular payments were to be treated. Such a procedure sounds entirely probable. However the assertion then made by Mr Barbaro that "Gift to sister" was written contrary to his authority, defies belief. Furthermore, if the accountant were following the procedure outlined, and making notes in respect of entries that required explanation, it is, to say the least, surprising that no notation was made by him in relation to the record on the reverse of the cheque butt heel: "paid $1,000.00 cash". Mr Barbaro gave yet another account of how the alleged sale and purchase of the property came about. He said that after the matrimonial proceedeings were complete the respondents wanted to build on the property, but as the bankrupt could not afford to contribute, they came up with the idea that the respondents would buy out the bankrupt. I was most unimpressed with the evidence of Mr Barbaro. He left me with a clear impression that the allegation about an oral contract for sale and purchase in 1991, and the events surrounding it, were made up in early 1995 in an attempt to defeat Moody Rossi & Co. in their endeavour to recover their costs. The substantial inconsistencies between varying accounts that were given from time to time as additional evidence was uncovered by the Official Trustee in my opinion lends weight to this conclusion. I am unable to accept the evidence of the bankrupt and Mr Barbaro except where it is independently supported by other evidence. I reject their evidence that there was an oral contract for sale and purchase reached in 1991 between the bankrupt and the respondents. As a matter of probability I find that the payment of $4,000 made by Mr Barbaro to Bonnins on 15 February 1991 was a gift, and not a part payment of the purchase price of the property. In my opinion the strong inference that arises from the coincidence between the endeavours of Moody Rossi & Co. to recover the amount due under the allocatur with the correspondence to the State Taxation Office and the memorandum of transfer indicates that these latter events were an attempt to prevent the property from becoming available to the bankrupt's creditors. In my opinion the Official Trustee has discharged the burden of establishing that the memorandum of transfer is void as against the Official Trustee. There should be a declaration to that effect together with a declaration that the Official Trustee is entitled to the sum of $22,190.87 being one third of the net sale price received for the property. The associated application for a declaration that the respondents are entitled to the proceeds of sale should be dismissed. The respondents should pay the costs of the Official Trustee. It was not part of the respondent's case that there should be any adjustment in the distribution of the proceeds of sale to reflect unequal contributions to the cost of erecting the house on the property. The common position of the parties at trial was that the Official Trustee would be entitled to the full sum of $22,190.87, if it were established that there was no contract for sale and purchase and no payment of the purchase price as alleged by the respondents in 1991. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice von Doussa Associate: Dated: Counsel for the applicant : Mr M A Crawley Solicitors for the applicant : Moody Rossi & Co. Counsel for the respondent : Mr O C Isaachsen Solicitors for the respondent : Murray & Cudmore Date of hearing : 20 May 1997