FEDERAL COURT OF AUSTRALIA

Beaman v Bond [2017] FCAFC 142

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the respondents, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1    I agree with the reasons of and orders proposed by Justice McKerracher.

Associate:

Dated:    1 September 2017

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

2    Ms Beaman appeals from the dismissal of a bankruptcy annulment application (Beaman v Bond & Anor (No 2) [2016] FCCA 3249). Ms Beaman claims that the presentation of the debtor’s Petition should have been annulled, even if Mr Bond was insolvent, because of his abuse of process in presenting the Petition. She submits that the primary judge failed to make a finding concerning the predominant purpose of Mr Bond in presenting the Petition and treated Mr Bond’s insolvency as determinative, despite s 153B(2) of the Bankruptcy Act 1966 (Cth).

3    There were five main issues at first instance and they are all being challenged on appeal.

STATUTORY PROVISIONS

4    Section 55 of the Bankruptcy Act provides as follows:

55    Debtor’s petition

(1)    Subject to this section, a debtor may present to the Official Receiver a petition against himself or herself.

…

(4)    The Official Receiver must accept a debtor’s petition, unless the Official Receiver rejects it under this section or is directed by the Court to reject it.

(4A)    Where the Official Receiver accepts a petition presented under this section:

(a)    he or she shall endorse the petition accordingly; and

(b)    upon the Official Receiver endorsing the petition, the debtor who presented the petition becomes a bankrupt by force of this section and by virtue of presentation of the petition.

(5)    If a registered trustee is the trustee of the estate of a debtor who becomes a bankrupt under this section, the Official Receiver must:

(a)    notify the trustee of the bankruptcy; and

(b)    give the trustee a copy of the statement of affairs that accompanied the debtor’s petition.

…

(8)    A person who becomes a bankrupt by force of this section continues to be a bankrupt until:

(a)    he or she is discharged by force of subsection 149(1); or

(b)    his or her bankruptcy is annulled by force of subsection 74(1) or 153A(1) or under section 153B.

(9)    A person who states in writing that he or she is a creditor of a bankrupt who has become a bankrupt by force of this section may without fee, and any other person may on payment of the fee determined by the Minister by legislative instrument, inspect, personally or by an agent, the statement of affairs that accompanied the petition presented by the bankrupt, and may obtain a copy of, or take extracts from, the statement.

(10)    A bankrupt who has become a bankrupt by force of this section may, without fee and either personally or by an agent:

(a)    inspect the bankrupt’s statement of affairs; and

(b)    obtain a copy of, or make extracts from, the bankrupt’s statement of affairs.

5    Section 153B of the Bankruptcy Act, relevantly to this appeal, provides:

153B    Annulment by Court

(1)    If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor’s petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.

(2)    In the case of a debtor’s petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.

…

BACKGROUND

6    Ms Beaman and Mr Bond commenced living together in September 1999. In April 2006, they entered into a binding financial agreement (BFA) prepared by solicitors, O’Sullivan Davies. In January 2010, Mr Bond served Ms Beaman with a separation notice in accordance with cl 13 of the BFA and Ms Beaman commenced Family Court of Western Australia proceedings no 1379 of 2010 (the property proceeding) under Pt 5A of the Family Court Act 1997 (WA) on 16 March 2010. In that property proceeding, the presiding judge made orders in April 2011 allowing Ms Beaman to enforce the BFA whilst simultaneously applying to have the BFA set aside. A five day trial was set down for February 2012. In July 2011, the Court ordered Mr Bond to pay to Ms Beaman the sum of $79,851.68 by way of maintenance arrears. In January 2012, Mr Bond agreed to have the BFA set aside and the February 2012 hearing was vacated. In July 2012, the Court ordered Mr Bond to pay Ms Beaman’s costs of the vacated trial.

7    In the next month, Ms Beaman filed an amended Form 1 initiating application. She also filed an application for litigation funding in November 2012, which was heard in February 2013 by Justice Crisford. Her Honour ordered Mr Bond to disclose various documents on 25 January 2013 and in February 2013 ordered Mr Bond to pay to Ms Beaman’s solicitors $100,000 for legal and forensic accounting expenses within 30 days (Payment Order).

8    In March 2013, Ms Beaman commenced proceedings to restrain Mr Bond from dealing with a property at 20 Little Chester Street, London, United Kingdom (the London property) and in the same proceedings served an application seeking that Mr Bond answer various questions on oath. Ms Beaman issued subpoenas to Sunland Nominees Pty Ltd as trustee for the Upphall Trust, to Pointdale Pty Ltd, to Primewest Management Ltd and to Ms Susan Park, an employee of Two Tops Pty Ltd. (A further subpoena was also issued to Two Tops in June.) On 9 April 2013, Ms Beaman applied to enforce the Payment Order.

9    Two days after lodging the application to enforce the Payment Order, Mr Bond signed a s 188 Bankruptcy Act authority (the s 188 authority) appointing Mr Williamson and Mr Hurt as his controlling trustees. He provided a statement of financial affairs. On 15 April 2013, being four days after the s 188 authority was signed, objections to the subpoenas were filed by Sunland, as trustee for Upphall, Pointdale, Primewest and Ms Park. Justice Crisford heard the objections to the subpoenas. The hearing was further adjourned to 18 April 2013.

10    In the meantime, counsel for Mr Williamson and Mr Hurt informed the Court that Mr Bond had signed the s 188 authority and on the same day Justice Crisford granted an injunction in respect of dealing with the London property. The injunction over the London property was discharged two days later, with counsel for Messrs Williamson and Hurt submitting that the Family Court had no jurisdiction to deal with matters arising under the Bankruptcy Act. On 13 May 2013, in the property proceeding, Sunland, as trustee for Upphall, Pointdale, Primewest and Ms Park filed an application for stay of the subpoenas which had been issued in March.

11    Ms Beaman then commenced proceedings in this Court, seeking orders releasing Mr Bond’s property from the controlling trustees under Pt X of the Bankruptcy Act (the s 188 proceeding). In this Court, on 31 May 2013, I cross-vested the s 188 proceeding to the Family Court in light of the substantial history of litigation between the parties in that Court.

12    Shortly after, in the property proceeding, Ms Beaman issued further subpoenas. Justice Crisford ordered Mr Bond to provide a list of disclosed documents and ordered compliance with the subpoenas which had been issued. Ms Beaman, in October of that year, filed an amended application in the s 188 proceeding. A trial was conducted in the s 188 proceeding in the Family Court on 25 and 26 November 2013 and 28 January 2014. Mr Bond did not file an affidavit and he was not cross-examined. In the s 188 proceeding, on 4 April 2014, Justice Crisford ordered that the property of Mr Bond be released from the controlling trustees, Messrs Williamson and Hurt.

13    Subsequently, Mr Bond commenced a further proceeding in this Court appealing the orders made by Justice Crisford on 4 April (the Federal Court appeal proceedings). In the meantime Mr Bond applied for a stay of the orders made by Justice Crisford pending the outcome of those Federal Court appeal proceedings. On 30 April 2014, that application was dismissed. Justice Crisford ordered that Mr Bond and Ms Beaman sign an authority authorising Messrs Williamson and Hurt to forthwith pay from the property of Mr Bond the sum of $100,000 into the trust account of solicitors, Carr & Co.

14    In the Federal Court appeal proceedings, Gilmour J made orders that the competency of the appeal be heard and determined by a Full Court of this Court before the hearing of the appeal. In the same month, in the property proceedings, Ms Beaman’s solicitors wrote to Mr Bond’s solicitors requesting that Mr Bond comply with the order of Justice Crisford to pay $100,000 into trust.

15    On 28 May 2014, Mr Bond applied (in the Federal Court appeal proceedings) for a stay of the orders of Justice Crisford made on 4 April 2014 and 30 April 2014 and informed Ms Beaman’s solicitors of the application. Ms Beaman subsequently applied to enforce the 30 April 2014 order.

16    On 3 June 2014, Barker J in this Court dismissed Mr Bond’s application for a stay of the 4 April 2014 and 30 April 2014 orders of Justice Crisford.

17    On 5 June 2014, Justice Crisford ordered a registrar of the Family Court to sign the authority to pay Ms Beaman the $100,000 referred to in the orders of 30 April 2014 in lieu of Mr Bond. On the same day, Mr Bond presented the Petition to the Official Receiver appointing the Trustee as his trustee in bankruptcy.

18    Ms Beaman commenced the proceedings under appeal in the Federal Circuit Court of Australia on 17 June 2014 for the annulment of Mr Bond’s bankruptcy.

19    In the meantime, in the Federal Court appeal proceedings, a notice of discontinuance was filed.

20    Subpoenas were issued in the Federal Circuit Court proceeding to Tambar Pty Ltd, Sunland and Fairoak Pty Ltd, returnable on 2 February 2015 pursuant to consent orders. Ms Beaman contends that the subpoenaed documents reveal that:

    the loan from Tambar as trustee for the Craig Bond Investment Trust to “Craig Bond” was a non-current receivable for the period from 30 June 2003 to 30 June 2007;

    the loan from Tambar as trustee for the Craig Bond Investment Trust to “Craig Bond (2010)” was a non-current receivable for the financial year ended 30 June 2010;

    the loan from Tambar as trustee for the Craig Bond Investment Trust to “Craig Bond (2010)” was a non-current receivable for the period from 30 June 2010 to 30 June 2013;

    the loan from Tambar as trustee for the Craig Bond Investment Trust to “Craig Bond (2011)” was a non-current receivable for the period from 30 June 2011 to 30 June 2013;

    the loan from Tambar as trustee for the Craig Bond Investment Trust to “Craig Bond (2012)” was a non-current receivable for the period from 30 June 2012 to 30 June 2013;

    the loan from Tambar as trustee for the Craig Bond Trading Trust to “Craig Bond” was a non-current receivable for the period from 30 June 2006 to 30 June 2007;

    the loan from Tambar as trustee for the Craig Bond Trading Trust to “Craig Bond (2010)” was a non-current receivable for the period from 30 June 2010 to 30 June 2011;

    the loan from Tambar as trustee for the Craig Bond Trading Trust to “Craig Bond (2011)” was a non-current receivable for the period from 30 June 2011 to 30 June 2013;

    the loan from Tambar as trustee for the Craig Bond Trading Trust to “Craig Bond (2012)” was a non-current receivable for the period from 30 June 2012 to 30 June 2013;

    the loan from Sunland to “Craig Bond” was a negative non-current liability for the period 30 June 2004 to 30 June 2013;

    the loan from Sunland to “Craig Bond (2010)” was a negative non-current liability for the period 30 June 2010 to 30 June 2013; and

    the loan from Fairoak as trustee for the Greenplace Trust was recorded as a non-current receivable for the period 30 June 2009 to 30 June 2011.

THE PRIMARY JUDGMENT

21    In the judgment under appeal, delivered on 23 December 2016, the primary judge recorded that Ms Beaman had sought orders that Mr Bond’s Petition, accepted by the Official Receiver on 5 June 2014, be annulled pursuant to s 153B of the Bankruptcy Act with consequential relief.

22    His Honour recorded (at [2]) the grounds for the application which were set out as he described them in narrative form. The grounds for Ms Beaman’s application were:

1.    Mr Bond became bankrupt (being Administration No WA 562 of 2014/6) pursuant to a debtor’s Petition accepted by the Official Receiver on 5 June 2014 (“Mr Bond’s Petition”).

2.    By reason of some or all of the matters set out below, Mr Bond’s Petition should not have been presented because such presentation constituted an abuse of process as it was not for a purpose provided by s.55 of Bankruptcy Act 1966 (Cth) but for a collateral purpose of frustrating proceeding NO PTW 1379 of 2010 and/or to frustrate the payment to [Ms Beaman] of the sum of $100,000 pursuant to the orders made by Justice Crisford of the Family Court of Western Australia on 26 February 2013.

3.    The 2005 (marriage) and 2008 (de facto) amendments to the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth) overcame the inability of the non-bankrupt spouse to obtain property settlement orders pursuant to section 79 of the Family Law Act 1975 (Cth) in respect of the property of the bankrupt spouse vested in that spouse’s trustee in bankruptcy.

4.    In Western Australia, unlike other States, de facto property disputes are not subject to the Family Law Act 1975 (Cth) because the Western Australian Parliament has not referred the requisite powers to the Commonwealth. Instead, such disputes are governed by Part 5A of the Family Court Act 1997 (WA). The concept of “vested bankruptcy property” has not yet been incorporated into the Family Court Act 1997 (WA). The Family Legislation Amendment Act 2006 (WA) has received the Royal Assent, but Part 4 thereof (which deals with “vested bankruptcy property”) has not yet been proclaimed.

5.    Ms Beaman and Mr Bond were in a de facto relationship in respect of which they had each executed a binding financial agreement (“BFA”). The BFA provides for Mr Bond to pay maintenance to Ms Beaman.

6.    On 16 March 2010 Ms Beaman (as applicant) commenced Proceeding No PTW 1379 of 2010 (“Property Proceeding”) in the Family Court of Western Australia (“WA Family Court”) against Mr Bond (as respondent) under Part 5A of the Family Court Act 1997 (WA).

7.    In the Property Proceeding Ms Beaman inter alia seeks:

(1)    an order setting aside the BFA;

(2)    property settlement orders against Mr Bond; and

(3)    relief which will impact on Bond family related entities.

8.    The WA Family Court has determined that Mr Bond has at no time complied with his obligation in the Property Proceeding to make a full and frank disclosure of his financial situation.

9.    On 26 February 2013 the Honourable Justice Crisford made an order in the Property Proceeding which required Mr Bond to pay Ms Beaman $100,000 in respect of legal and forensic accounting fees to be incurred by Ms Beaman in the Property Proceeding so as to discover Mr Bond’s assets and financial resources.

10.    Mr Bond currently owes Ms Beaman about $90,000 in arrears of maintenance under the BFA.

11.    The order referred to in paragraph 9 above required compliance within 30 days of the date of the order. Mr Bond has not complied with that order.

12.    On 9 April 2013 Ms Beaman made an application in the Property Proceeding for payment of the $100,000 referred to in paragraph 9 above.

13.    On 11 April 2013 Mr Bond signed an authority (“Section 188 Authority”) under section 188 of the Bankruptcy Act 1966 (Cth) in favour of Christopher Michael Williamson and David Ashley Norman Hurt (“Messrs Williamson & Hurt”).

14.    On 11 April 2013 Mr Bond signed a statement of affairs (“Mr Bond’s Section 188 SofA”) in support of the Section 188 Authority.

15.    Mr Bond’s Section 188 SofA listed a number of creditors, including the following creditors conceded by Mr Bond to be “related party creditors”:

(1)    Fairoak Pty Ltd as trustee for the Greenplace Trust: Loan of $2.85M incurred in September 2006.

(2)    Tambar Pty Ltd as trustee for the Craig Bond Investment Trust: Beneficiary loan of $567,580.

(3)    Tambar as trustee for the Craig Bond Trading Trust: Beneficiary loan of $761,346.

(4)    Sunland Nominees Pty Ltd as trustee for the Upp Hall [sic] Trust: Beneficiary loan of $245,081.

16    Mr Bond has never produced any demands made on him by any Bond family related parties listed in Mr Bond’s Section 188 SofA.

17.    The other liabilities listed in Mr Bond’s Section 188 SofA are of a small magnitude and were not such as to pressure Mr Bond into an arrangement under Part X of the Bankruptcy Act 1966 (Cth).

18.    At all material times Ms Beaman was Mr Bond’s only pressing creditor.

19.    At all material times Mr Bond has enjoyed, and still enjoys, a lavish lifestyle well beyond the means of a person genuinely in need of protection under the Bankruptcy Act 1966 (Cth).

20.    Bond family related parties have in the past provided Mr Bond with the financial resources necessary to fund the lavish lifestyle referred to in paragraph 19 above.

21.    The Section 188 Authority had the effect of preventing property settlement orders under Part 5A of the Family Court Act 1997 (WA) being made in the Property Proceeding.

22.    The Section 188 Authority had the effect of:

(1)    hampering the progress of the Property Proceeding to Mr Bond’s advantage and Ms Beaman’s detriment; and

(2)    frustrating Ms Beaman’s attempts in the Property Proceeding to obtain a full and accurate picture of Mr Bond’s financial circumstances.

23.    On 15 May 2013 Ms Beaman (as applicant) commenced Proceeding No WAD 147 of 2013 in the Western Australia District Registry of the Federal Court of Australia (“Section 188 Proceeding”) against Mr Bond (as first respondent) and Messrs Williamson & Hurt (as second respondents).

24.    On 31 May 2013 the Federal Court of Australia made an order cross vesting the Section 188 Proceeding to the WA Family Court where it became Proceeding No PTW 3223 of 2013.

25.    In the Section 188 Proceeding Ms Beaman sought inter alia an order pursuant to section 208 of the Bankruptcy Act 1966 (Cth) releasing the property of Mr Bond from control under Division 2 of Part X of the Bankruptcy Act 1966 (Cth).

26.    On 4 April 2014 the Honourable Justice Crisford made an order in the Section 188 Proceeding whereby, pursuant to section 208 of the Bankruptcy Act 1966 (Cth), the property of Mr Bond was released from control under Division 2 of Part X of the Bankruptcy Act 1966 (Cth).

27.    The order referred to in paragraph 26 above had the effect of permitting property settlement orders under Part 5A of the Family Court Act 1997 (WA) being made in the Property Proceeding.

28.    The order referred to in paragraph 26 above had the effect that the Section 188 Authority no longer:

(1)    hampered the progress of the Property Proceeding to Mr Bond’s advantage and Ms Beaman’s detriment; and

(2)    frustrated Ms Beaman’s attempts in the Property Proceeding to obtain a full and accurate picture of Mr Bond’s financial circumstances.

29.    On 22 April 2014 Mr Bond (as appellant) commenced Proceeding No WAD 93 of 2014 in the Western Australia District Registry of the Federal Court of Australia (“Federal Court Appeal”) against Ms Beaman (as first respondent) and Messrs Williamson & Hurt (as second respondents).

30.    The Federal Court Appeal purports to appeal to the Full Court of the Federal Court of Australia the order referred to in paragraph 26 above.

31.    On 30 April 2014 the Honourable Justice Crisford dismissed an application by Mr Bond in the Section 188 Proceeding for a stay of the order referred to in paragraph 26 above pending the outcome of the Federal Court Appeal.

32.    On 30 April 2014 the Honourable Justice Crisford also made an order in the Section 188 Proceeding whereby Ms Beaman and Mr Bond were ordered to forthwith authorise and direct Messrs Williamson & Hurt to pay $100,000 into the trust account of Ms Beaman’s solicitors in accordance with the orders referred to in paragraph 9 above. Mr Bond did not comply with that order.

33.    By a letter dated 21 May 2014 from Ms Beaman’s solicitors to Mr Bond’s solicitors, Ms Beaman asked Mr Bond whether he had complied with the orders referred to in paragraph 32 above.

34.    There was no response on behalf of Mr Bond to the letter referred to in paragraph 33 above until the letter referred to in paragraph 36 below.

35.    On 28 May 2014 Mr Bond filed an application in the Federal Court Appeal seeking a stay of the orders referred to in paragraphs 26 and 32 above.

36.    By a letter dated 28 May 2014 from Mr Bond’s solicitors to Ms Beaman’s solicitors, Mr Bond responded to the letter referred to in paragraph 33 above by stating that an application had been made in the Federal Court Appeal for a stay of the orders referred to in paragraphs 26 & 32 above.

37.    On 29 May 2014 Ms Beaman filed an application in the Section 188 Proceeding seeking orders enforcing the orders referred to in paragraph 32 above. The return day of that application was 5 June 2014.

38.    On 3 June 2014 the stay application referred to in paragraph 35 above was heard by the Honourable Justice Barker.

39.    On 3 June 2014 the Honourable Justice Barker made an order in the Federal Court Appeal dismissing the stay application referred to in paragraph 35 above.

41.    At no time before Mr Bond’s Petition was presented to the Official Receiver did Mr Bond or his solicitors give notice to Ms Beaman or her solicitors that Mr Bond intended to present a debtor’s Petition.

42.    Had Ms Beaman received adequate notice of Mr Bond’s intention to present a debtor’s Petition, Ms Beaman would have applied for an injunction restraining Mr Bond from presenting a debtor’s Petition.

43.    Had Ms Beaman applied for an injunction restraining Mr Bond from presenting a debtor’s Petition it is probable that Ms Beaman would have obtained such an injunction.

44.    Mr Bond’s Petition was presented to the Official Receiver on 5 June 2014 – ie the return day of the application referred to in paragraph 37 above.

45.    Upon the Official Receiver’s acceptance of Mr Bond’s Petition, the Trustee became the trustee of Mr Bond’s bankrupt estate.

46.    On 5 June 2014 the Honourable Justice Crisford made orders in the Section 188 Proceeding (on the application referred to in paragraph 37 above) whereby a Registrar of the Family Court of Western Australia was directed to sign on behalf of Mr Bond the direction and authority the subject of the orders referred to in paragraph 32 above.

47.    On 5 June 2014, after the Honourable Justice Crisford had pronounced the orders referred to in paragraph 46 above, the Trustee gave written notice to Messrs Williamson & Hurt and Ms Beaman’s solicitors of the matters referred to in paragraphs 44 and 45 above.

48.    If Mr Bond’s bankruptcy pursuant to the acceptance of Mr Bond’s Petition is not annulled, then Ms Beaman will be unable to obtain property settlement orders against Mr Bond under Part 5A of the Family Court Act 1997 (WA) in the Property Proceeding.

49.    Ms Beaman has incurred very large amounts of legal fees (“Ms Beaman’s Legal Fees”) in respect of the:

(1)    Property Proceeding;

(2)    Section 188 Proceeding; and

(3)    Federal Court Appeal.

50.    By reason of the matters referred to in paragraph 48 above, if Mr Bond’s bankruptcy pursuant to the acceptance of Mr Bond’s Petition is not annulled, then Ms Beaman’s Legal Fees will have been wasted.

51.    Messrs Williamson & Hurt have incurred costs (including legal fees), charges and remuneration well in excess of $100,000 arising out of the:

(1)    Section 188 Authority;

(2)    Section 188 Proceeding; and

(3)    Federal Court Appeal.

52.    Very large amounts of legal fees (“Mr Bond’s Legal Fees”) have been incurred in respect of Mr Bond’s:

(1)    defence of the Section 188 Proceeding;

(2)    prosecution of the stay applications referred to in paragraphs 31 and 35 above; and

(3)    prosecution of the Federal Court Appeal.

53.    Bond family related parties have funded Mr Bond’s Legal Fees.

54.    Mr Bond’s Legal Fees exceed the total of the obligations referred to in paragraphs 9 and 10 above.

55.    By reason of the matters referred to above, Mr Bond has evinced a purpose to frustrate the Property Proceedings, being a purpose foreign to the purpose of section 55 of the Bankruptcy Act 1966 (Cth).

23    His Honour explained that Mr Bond did not give evidence in the proceeding, but a considerable volume of evidence was adduced by Ms Beaman and the Trustee in bankruptcy. His Honour referred to the detail of that extensive evidence and other evidence which was exhibited, including correspondence from the Australian Tax Office (ATO) and from the Trustee.

The Trustee’s affidavit

24    His Honour confirmed that at the hearing (which occurred over several days, from 9, 10 and 11 March 2014) the Trustee had been cross-examined. There had been an issue raised as to the admissibility of the Trustee’s affidavit due to an objection advanced by Ms Beaman, which was pursued again on this appeal. Ms Beaman’s submissions and objections on this point were:

(a)    there is longstanding authority that in bankruptcy proceedings the rules of evidence must be followed, including the rule against hearsay: Burwell Technologies Pty Ltd v Hayward [2007] FMCA 615 per Burnett FM (at [5]), referring to Re Riggs; Ex parte Commissioner of Taxation (WA) (1986) 9 FCR 149 per Toohey J (at 150-151);

(b)    section 59(1) of the Evidence Act 1995 (Cth) provides that the evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation;

(c)    various parts of the Trustee’s affidavit are couched in terms of “Mr Bond said”;

(d)    further, some of that hearsay evidence is “second hand hearsay”;

(e)    there is no signed record of examination under s 81 of the Bankruptcy Act which might arguably be admissible for the purposes of s 69 of the Evidence Act;

(f)    Ms Beaman objects to the Trustee’s reliance on matters mentioned by Mr Bond who has chosen not to file an affidavit and should not be allowed to “give evidence through” the Trustee. Further:

(i)    the exception in s 63 of the Evidence Act to the hearsay rule does not apply because there is no suggestion that Mr Bond is not available to be called as a witness by the Trustee; and

(ii)    the Trustee has not given the notice required by s 67 of the Evidence Act;

(g)    the Trustee’s affidavit purports to express opinions (under s 79 of the Evidence Act) on matters; but the opinions are speculation and not based on specialised knowledge. Accordingly, those statements are inadmissible under s 76 of the Evidence Act;

(h)    section 135 of the Evidence Act relevantly provides that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party; and

(i)    even if Mr Bond is otherwise entitled to “give evidence through” the Trustee (which he is not), such evidence should be excluded under s 135(a) of the Evidence Act: Ferella v Otvosi (2006) 197 FLR 451 per Barnes FM (at [44] and [45]).

25    His Honour noted that the Trustee had been ordered to file and serve a report verified by affidavit in accordance with r 7.04 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth). After referring to the content of the Rule and the duties of the Trustee under s 19 of the Bankruptcy Act, his Honour noted that in Re Gore [1942] QWN 6 the Federal Court of Bankruptcy had refused to strike out hearsay in a report by the Official Receiver and also cited Re Maher (1985) 7 FCR 240 for the general proposition that a trustee’s report is not subject to the rules of evidence. His Honour cited observations from the Full Court (Northrop, Wilcox and Cooper JJ) in Adsett v Berlouis (1992) 37 FCR 201 (at 208) and Drummond J in Re Ayre; Ex Parte Deputy Commissioner of Taxation (1995) 130 ALR 648 (at [26]) that a trustee in bankruptcy has historically been regarded as an officer of the Court and that service on the trustee is part of a process designed to provide assistance to the Court. His Honour also considered Lukic v Official Trustee in Bankruptcy (1996) 21 Fam LR 48 in support of the conclusion that a trustee may express an opinion about the general financial situation of the bankrupt and as to the bankrupt’s solvency. This was supported further by Quick v Stoland Pty Ltd (1998) 87 FCR 371 (at 383) (although, as noted by his Honour, this was in relation to the evidence of an accountant and auditor).

26    His Honour also made reference to the extra curial observations of Young PW, Fiduciary Obligations and Trustees in Bankruptcy (2009) 83 ALJ 263 (at 264-266), concluding that the Trustee had reviewed the information provided to him and applied his specialist knowledge to the information to express an opinion concerning Mr Bond’s solvency. That was a high level decision which only the Trustee could make. He could not be expected to make that decision on the basis of information gathered personally by him, particularly in complex cases. Thus his Honour considered that it must be the case that hearsay objections to the material in the Trustee’s affidavit would fall away because:

(a)    it was necessary to enable the Trustee to form his opinion as to Mr Bond’s solvency; and

(b)    the vast bulk of it is not material which the Trustee could reasonably be expected to garner personally.

27    The primary judge held that the Trustee’s affidavit, and the conclusion with respect to Mr Bond’s solvency, was admissible pursuant to s 60, 76, 79 and 80 of the Evidence Act. In any event, the Trustee was an independent officer of the Court whose evidence was simply of assistance to the Court and admissible on that basis.

28    The Trustee’s affidavit was therefore allowed into evidence in relation to the narrow issue, namely, the expression of the opinion as to solvency, but also generally in relation to the information it contained. This was because, in addition to informing the Trustee, it was information which allowed the Court to conduct the necessary inquiry that must be undertaken to arrive at its judgment.

29    The fact that the Trustee presented an opinion as to solvency, which did not assist Ms Beaman’s case, did not render the Trustee’s affidavit prejudicial, either to Ms Beaman or to any other creditors who had lodged proofs of debt with the Trustee. His Honour concluded that it was clear that the affidavit was comprehensive, impartial and disclosed the basis on which he had formed his view that Mr Bond was insolvent and therefore, in those circumstances, the Court could properly have regard to it.

Inter-action with the Family Court proceeding

30    The primary judge noted that in Western Australia de facto property disputes are not subject to the Family Law Act 1975 (Cth) because the Western Australian Parliament has not referred the requisite power to the Commonwealth. Rather, de facto property disputes in Western Australia are governed by Pt 5A of the Family Court Act, which had not yet incorporated the concept of “vested bankruptcy property”. This concept had been addressed by the Family Legislation Amendment Act 2006 (WA), which had received the Royal Assent, but Pt 4 thereof dealing with “vested bankruptcy property” had not been proclaimed at the time of his Honour’s judgment.

31    His Honour noted that if Mr Bond’s bankruptcy was not annulled, Ms Beaman would be:

(a)    unable to obtain effective property settlement orders against Mr Bond under Pt 5A of the Family Court Act in the property proceeding; and

(b)    deprived of the benefit of her success in the s 208 proceeding.

32    The primary judge then turned to explain a little further the consequence of the s 208 proceeding, as his Honour defined it, and which referred to the decision of 4 April 2014 by which Justice Crisford released the property of Mr Bond from control under Div 2 of Pt X of the Bankruptcy Act. This in turn had the effect of permitting property settlement orders under Pt 5A of the Family Court Act to be made in the property proceedings.

33    Reference was made to the s 208 proceeding in which Justice Crisford had not been satisfied that Mr Bond was solvent. His Honour noted that Justice Crisford had recorded (Beaman v Bond [2014] FCWA 21):

71    When one winnows the objective evidence from the analysis put forward by Ms Beaman it is apparent that Mr Bond is reliant on the availability of loan funds and discretionary or voluntary payments being made to him. These two facts do not enhance his solvency.

…

74    I am not satisfied that, in accordance with the requirements of the [Bankruptcy Act], Mr Bond is solvent.

(emphasis added)

Other factors

34    His Honour then noted the following matters which he considered were relevant to the factual context:

(a)    creditors lodged proofs of debt in the Pt X administration, thereby informing Mr Bond of the extent of debts claimed from him and that they sought to share in the estate. Relevantly:

(i)    Ms Beaman claimed to be owed $2,514,193;

(ii)    Fairoak claimed to be owed $2,850,000;

(iii)    Sunland claimed to be owed $245,081; and

(iv)    Tambar claimed to be owed two sums, being $567,580 and $761,346 respectively;

(The loans due to Fairoak, Sunland and Tambar are referred to collectively as the Family Loans);

(b)    Ms Beaman’s proof of debt was admitted for voting purposes at a meeting of creditors on 21 May 2013 in the amount of $764,195;

(c)    Mr Williamson as controlling trustee indicated in May 2013 that Mr Bond had ordinary unsecured creditors with claims in the sum of $5,478,526;

(d)    since at least November 2012, and in the months prior to signing the Pt X authority, demands had been made on Mr Bond by the ATO that Mr Bond did not meet (ATO Debt);

(e)    on 7 March 2013 Ms Beaman sought to restrain Mr Bond from dealing with the London property;

(f)    by the time of the acceptance of the Petition, whilst Mr Bond received financial support to meet day-to-day expenses (at the payer’s discretion), no payments had been forthcoming from third parties to meet his debts, including not only the debt owed to Ms Beaman but also certain legal fees and the ATO Debt; and

(g)    by the time of the acceptance of the Petition, the only relevant available asset (the London property) had been sold and funds were held on trust and not accessible by Mr Bond.

35    On that basis, the primary judge was satisfied that at the time of filing the Petition Mr Bond:

(a)    was on notice from creditors claiming to be owed $5,478,526 and seeking to share in his estate;

(b)    had no access to the London property or its realisation proceeds;

(c)    had no access to other relevant realisable assets;

(d)    had been denied a stay of the Payment Order pending appeal;

(e)    was dependant on third parties to pay his day-to-day expenses at their discretion;

(f)    was not able to pay, or have paid, certain debts; and

(g)    had been found by the Family Court to be insolvent.

Analysis by the primary judge

36    It was noted that the case advanced by Ms Beaman was to the effect that the Petition “ought not to have been presented”, adopting the words used in subs (1) of s 153B. Ms Beaman asserted before his Honour, as she did on appeal, that the presentation of the Petition was an abuse of process because:

(a)    Mr Bond was “not under any financial pressure” when the Petition was filed;

(b)    she had been stymied in the s 208 proceeding; and

(c)    the purpose in presenting the Petition was to frustrate the s 208 proceeding, being a purpose foreign to the purpose of s 55 of the Bankruptcy Act.

37    Those contentions were resisted in the argument advanced before his Honour on the following bases:

(a)    it had not been made out that Mr Bond was not under any financial pressure;

(b)    to the extent that the s 208 proceedings have been stymied, that is an inevitable outcome of the operation of the Bankruptcy Act common to many successful litigants, and is not an abuse of process;

(c)    Mr Bond is insolvent, and therefore entitled to present the Petition, as he has done; and

(d)    even if the Court considered the Petition ought not have been presented, the Court’s discretion to annul ought not be exercised.

38    His Honour referred to what was, in effect, a two-step process, namely, first, the need to determine whether the Petition “ought not to have been presented” and, secondly, whether the Court should exercise its discretion to annul the bankruptcy, being the approach alluded to by the Full Court of this Court in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 per Carr, Finn and Sundberg JJ (at [20]) where their Honours said:

The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396; Stankiewicz v Plata [2000] FCA 1185 at [19]; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law.

39    It was common ground that the onus of proving an abuse of process rested on Ms Beaman. His Honour took the view that the circumstances in which a bankruptcy could be annulled on the basis that a Petition ought not to have been presented were “limited”, citing Drake v Jones [2009] FMCA 298 per Barnes FM (at [30]).

40    His Honour turned to examine the question of solvency, which had been the topic of submissions both in the Federal Circuit Court and on appeal. It arose, particularly in the context of the admissibility of the Trustee’s affidavit, but nonetheless, and significantly, Ms Beaman does not seek to assert that Mr Bond was in fact solvent when he presented his Petition. That concession has been made on a number of occasions before the primary judge and on appeal by counsel for Ms Beaman.

41    It was also common ground that due to the later addition of subs (2) of s 153B the insolvency of the bankrupt now does not preclude an order being made under subs (1) of s 153B of the Bankruptcy Act. Nonetheless his Honour did examine the question of solvency, which is undoubtedly relevant, and referred to some of the earlier cases which pre-date subs (2) as well as the cases which post-date subs (2). His Honour said that generally (referring apparently to the pre-amendment position), it will not be possible to establish that the debtor’s bankruptcy should be annulled on the ground that the Petition ought not to have been presented when it was clear that at that time the bankrupt was insolvent: Re Coyle (1993) 42 FCR 72 per Drummond J (at 77-78). Although, as discussed, the Court now has the power to annul a bankruptcy whether or not the bankrupt was insolvent when the Petition was presented (Bankruptcy Act s 153B(2)), his Honour considered that insolvency weighs heavily against the exercise of the discretion under s 153B of the Bankruptcy Act: Layton v Westpac Banking Corporation (2000) 181 ALR 603 per Cooper J (at [17]-[18]) and Suncorp Metway Insurance Ltd v Piccone [2005] FMCA 73 per Rimmer FM (at [20]-[21]) (post the 2002 insertion of s 153B(2) of the Bankruptcy Act).

42    Turning to the s 208 proceeding, the primary judge noted that Ms Beaman sought a declaration that Mr Bond was solvent but was unsuccessful in that regard. In her application, Ms Beaman claimed that Mr Bond was “not under any financial pressure” at the time the Petition was presented and accepted by the Official Receiver. His Honour said that although financial pressure and bankruptcy might be seen to go hand in hand, the issue of solvency was not to be resolved by reference to whether or not a person is under financial pressure, but whether or not the person is able to pay his or her debts falling due in the reasonably immediate future, having regard to existing obligations. Ms Beaman had contended that the state of Mr Bond’s affairs should not take into account his liability for the Family Loans. Her contention was that there was a complete absence of evidence of anyone seeking repayment of such loans, the Family Loans themselves emanating from entities which either Mr Bond or his family connections effectively controlled. However, the primary judge noted that the Trustee had gathered information about the Family Loans and assessed their veracity. There were no formal loan agreements in place apart from the acknowledgement of debt referred to in the Trustee’s affidavit. His Honour recorded (at [68]) that Ms Beaman bore the onus of proving that the Family Loans were not payable, relying on Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 164 FLR 630 where Palmer J (at [54]) noted the following matters, albeit in the context of a company liquidation that:

a)    commercial realities were relevant in considering what resources are available in meeting liabilities as they fall due, and whether resources other than cash are realisable by sale or borrowing upon security, and when such realisations are achievable;

b)    it is proper to have regard to the commercial reality that, in normal circumstances, creditors will not always insist on payment strictly in accordance with their terms of trade, but that does not result in there thereby being a casual credit resource which can be taken into account in determining solvency;

c)    the commercial reality that creditors will normally allow some latitude in time for payment of the debts does not, in itself, warrant a conclusion that debts are not payable at the times contractually stipulated and had become debts payable only upon demand; and

d)    it is for the party asserting that a contract debt is not payable at the times contractually stipulated to make good that assertion by satisfactory evidence.

43    His Honour noted that there was no evidence of any binding agreement by any related parties or any company associated with them that suggests the debts would not be required to be repaid or that such parties would fund Mr Bond for any purpose whatsoever for which he might want to use money. There was no evidence of any waiver, forgiveness or ongoing promise of forbearance by any of the related parties in relation to the Family Loans. His Honour also noted there was no evidence which could properly support any such inference being drawn as:

(a)    the Pt X process revealed that the related parties had kept records of the Family Loans, treated them as receivables, sought recovery of them and sought to share in the proceeds of Mr Bond’s estate; and

(b)    the related parties had lodged proofs of debt with the Trustee in relation to the Family Loans and maintained those proofs of debt.

44    On this basis, his Honour concluded that no inference ought be drawn that Mr Bond was not liable for the Family Loans or that any liability that he had would be waived or forgiven. He noted the Family Loans were “on demand” liabilities which must be taken into account in assessing solvency.

45    His Honour also considered that Ms Beaman’s assertion that Mr Bond was not under any financial pressure ignored the demands made by both the ATO in relation to the ATO debt and by Ms Beaman herself prior to the Pt X authority and the other proofs of debt lodged in the Pt X regime. Putting aside the Family Loans, the proofs of debt lodged in the Pt X regime showed significant debts. Mr Bond’s statement of affairs shows creditors other than the parties to the Family Loans are owed very significant debts. Proofs of debts submitted to the Trustee in the bankruptcy regime showed, other than in respect of the Family Loans and from non-related parties, claims for debts exceeding $811,000. These included debts from:

a)    Sporting Bet Pty Ltd for $49,922 for unsettled bets;

b)    American Express/David Jones Australia for $2,457.05 being a credit card debt;

c)    Ms Beaman for the payment of the Payment Order, court costs and spousal maintenance in the amount of $388,728.34;

d)    David Deakin Davies trading as David Deakin Davies & Co for legal fees in the amount of $4,290.32;

e)    the Deputy Commissioner of Taxation for income tax and Business Activity Statement amounts deficit debts in the sum of $356,401.02;

f)    Dr Richard Ingleby for legal fees in the sum of $8,200; and

g)    Pitcher Partners (WA) Pty Ltd for professional taxation services in the sum of $1,358.50.

46    The primary judge considered that on any approach to the evidence, the inescapable conclusion was that irrespective of the Family Loans, Mr Bond was substantially in debt and had no means to pay those debts as they fell due and was thus insolvent. At its highest the evidence showed that, at their discretion, third parties had funded Mr Bond’s day-to-day living expenses but, leaving aside a Westpac credit card debt, had chosen not to pay his outstanding debts. The ATO debt had not been paid; Ms Beaman had not been paid; other legal fees had not been paid; American Express and a sports betting obligation had not been paid.

47    As to the contention advanced below and before this Court that Mr Bond was living a “lavish” lifestyle, or was a “kept man”, his Honour said this was not relevant to whether or not the Petition ought to have been presented. His Honour said that the test was a legal one, not a lifestyle one. Even if he was living a “lavish” lifestyle there was no evidence that Mr Bond was able to dictate or enforce payments to him. His Honour concluded that the payers make such payments in their discretion and have indicated by their conduct an intention that they will not pay very substantial debts now owed by Mr Bond. His Honour said (at [75]):

Mr Bond was therefore, in the Court’s view insolvent at the time he presented the Petition, and it cannot be said, on that basis, that the Petition ought not to have been presented.

48    His Honour also rejected a submission that there should be reliance on AASB101, being inferences which should be drawn from the Australian Accounting Standards, his Honour concluded that pursuant to s 292(1) of the Corporations Act 2001 (Cth), those standards do not apply to the trusts. That conclusion has not been appealed.

49    Turning then to the question of whether the purpose of the Petition was to “stymie” the s 208 proceeding, his Honour cited BWK Elders (Australia) Pty Ltd v White [2004] FCA 1611, Re Moncada (1986) 11 FCR 205 and Lukic, being three cases in which annulments were granted essentially on this ground. His Honour took the view that the circumstances surrounding Ms Beaman’s application were significantly different, however, due to the fact that there were multiple creditors (including Ms Beaman) who were owed significant sums of money by Mr Bond who was not able to personally repay them and who and which were not being paid by third or related parties. Furthermore, his Honour concluded that it could not be said that the filing of the Petition might “stymie” only proceedings being advanced by Ms Beaman. His Honour said (at [82]):

… Even disregarding the [Family] Loans, it also cannot be said that there are not otherwise credible and substantial debts owed to persons other than the related parties and Ms Beaman. Finally, the debts owed to Ms Beaman are themselves substantial, and seemingly beyond the means of Mr Bond to repay within any reasonable period of time. In this case, Ms Beaman is entitled to share in Mr Bond’s estate and is entitled to all the rights of creditors under the Bankruptcy Act (including, for example, the right to appeal against the acceptance of the proofs of debt lodged by other creditors). …

50    His Honour said that the effect on Ms Beaman was the result of a proper and ordinary application of the Bankruptcy Act which affected not only Ms Beaman, but also multiple external creditors.

51    Ms Beaman also complained that she had received no notice of the filing of the Petition. She asserted that had she been given that notice, she would have sought an order restraining this from occurring. His Honour concluded that there was no obligation on Mr Bond to give notice of his intention to present the Petition. His Honour observed that what Ms Beaman says she would have done had she been given such notice was therefore entirely speculative. He said that against the full background, the fact that the Petition was presented to the Official Receiver on the same day as the application for orders enforcing the Payment Order, does not lead, without more, to the conclusion that the purpose of that presentation was to frustrate any other proceedings.

52    In relation to the “foreign purpose” ground, his Honour accepted that it was a purpose foreign to the bankruptcy laws and an abuse of process for a debtor to present a petition for the purpose of making it impossible for a creditor to obtain a sequestration order on a pending petition and with the further purpose of shortening the period of relation back, possibly placing him beyond the reach of the Trustee property, which would otherwise vest in the Trustee. His Honour cited authority, but also observed that a petitioner was entitled to use the machinery of the Bankruptcy Act for his own purposes so as to shield himself from further liability or harassment and it is not an abuse of the machinery to take advantage of a recognised exemption from liability. His Honour cited a passage from French J (as his Honour then was) in Re Heenan; Ex parte Collins (t/a Hertz Carnarvon Auto Rentals) v Official Receiver (1992) 39 FCR 428 (at 434):

… the Act as it stands reflects a strong legislative policy in favour of the exemption. It cannot be said, in the light of that policy, that an insolvent debtor who takes advantage of that exemption by filing a debtor’s petition does so for a purpose which is foreign to the bankruptcy law.

53    His Honour was satisfied there was nothing in Mr Bond’s conduct seeking to achieve some advantage for which the law was not designed or beyond that which the law offered. Further:

(a)    Ms Beaman has not been excluded from his estate;

(b)    Mr Bond’s assets and liabilities could be dealt with entirely in accordance with the provisions and intent of the Bankruptcy Act;

(c)    Mr Bond obtained no special advantage; and

(d)    all creditors were treated in accordance with the Bankruptcy Act regime.

54    Overall, his Honour considered that Mr Bond’s actions were consistent with, and not foreign to, the Bankruptcy Act purpose.

55    His Honour concluded there were no grounds shown on which the annulment order should be made.

GROUNDS OF APPEAL

56    Ms Beaman pressed on the hearing of the appeal the argument that the Full Court was in as good a position as the primary judge to infer, and therefore find, that the presentation of the Petition in all the circumstances was an abuse of process. This may be accepted. There is more scope for the drawing of inferences on appeal when there is no doubt as to the facts: see Devers v Kindilan Society (2010) 269 ALR 404 per Ryan, Mansfield and McKerracher JJ (at [49]). An appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from undisputed facts. The principle that the Court's role on an appeal by way of rehearing is the correction of errors (see Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 per Griffiths, Kerr and Farrell JJ (at [41]-[44])) does not prevent this Court, in deciding what is the proper inference to be drawn, to shrink from giving effect to its own conclusion: see Warren v Coombes (1979) 142 CLR 531 (at 551); Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd (2010) 273 ALR 696 per Besanko J (with whom Moore and Gordon JJ relevantly agreed) (at [80]-[86]); Madden v Seafolly Pty Ltd (2014) 313 ALR 1 per Rares and Robertson JJ (at [66]); cf Construction, Forestry, Mining and Energy Union v Alfred (2011) 203 IR 78 per Flick J (at [94]). This principle has particular application where (as in this case) the case below was a "paper trial". In such cases, the appeal court is in as good a position as the trial judge to make findings of fact and thus need not defer to the trial judge when considering the facts: see Australian Capital Territory v Crowley (2012) 273 FLR 370 per Lander, Besanko and Katzmann JJ (at [63]) and note Tex Services Ltd v Shibani Knitting Co Ltd [2016] UKPC 31 per Lord Mance (for Privy Council) (at [8]) in the context of delay.

57    Counsel for Ms Beaman accepted that there are three strains of argument on appeal. One is that the approach of the Evidence Act and the usage of the Trustee’s affidavit was wrong at law.

58    The next concerns the delay in the delivery of the judgment.

59    The third area on the appeal concerns the abuse of process argument. The abuse of process turns on the point that Mr Bond was living a lavish lifestyle, and that there was no pressure for payment from creditors, such that the only possible inference is that the primary purpose of the bankruptcy was to defeat proceedings in the Family Court, having regard to the timing of the lodging of the Petition and the urgency of the lodging of the Petition as reflected in surrounding emails which have since been discovered.

60    Having shortly stated the topics of appeal, the written form of the grounds was substantially more complex. For completeness, the grounds of appeal in full are set out as follows:

1.    The learned Judge erred in law in rejecting Ms Beaman's objection to the admissibility of parts of the affidavit referred to in Reasons at para 6 (the [Trustee's] Affidavit) by holding that the rules of evidence (including the rule against hearsay) did not apply to a report prepared by a trustee in bankruptcy. See Reasons paras 13, 23, 24, 25, 26 & 30.

2.    Alternatively to ground 1 above, the learned Judge erred in law in failing to conclude that [the Trustee's] Affidavit was admissible only as an opinion concerning Mr Bond's solvency and for no other purpose. See Reasons at paras 26, 29 & 30.

3.    The learned Judge erred in law in failing to properly address Ms Beaman's application under section 135(a) of the Evidence Act 1995 (Cth) to exclude those parts of [the Trustee's] Affidavit which repeated what Mr Bond had told [the Trustee] and [the Trustee's] subordinates concerning Mr Bond's affairs. See Reasons at paras 9 (c), (d), (e), (h) & (i), 27 & 28.

4.    The learned Judge erred in law in failing to uphold Ms Beaman's application under section 135(a) of the Evidence Act 1995 (Cth) to exclude those parts of [the Trustee's] Affidavit which repeated what Mr Bond had told [the Trustee] and [the Trustee's] subordinates concerning Mr Bond's affairs. See Reasons at paras 9 (c), (d), (e), (h) & (i), 27 & 28.

5.    The learned Judge erred in failing to provide adequate findings and reasons to enable a proper understanding of the basis upon which he dismissed the annulment application and in particular failed to demonstrate that all the arguments presented on behalf of Ms Beaman had been carefully assessed. It should be inferred from the inadequacy of the Reasons and the lengthy delay in handing down a decision that the learned Judge overlooked parts of the argument in the case and that his findings were unsafe, resulting in a substantial miscarriage of justice.

Particulars

(a)    Aside from matters relating to non-compliance with rule 7.03 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), the hearing of the annulment application was concluded on 11 March 2015. See Reasons at page 3 & Beaman v Bond (No 1) [2015] FCCA 2311 (28 August 2015).

(b)    Aside from some brief cross-examination and re-examination of [the Trustee], the evidence adduced at the hearing of the annulment application was in the form of:

(i)    affidavits which were read into evidence; and

(ii)    a small number of documents which were tendered.

See Reasons at paras 3 - 8.

(c)    Ms Beaman relies on the following correspondence between 11 March 2015 (being the date referred to in particular (a) above) and 16 December 2016 (being the date referred to in particular (d) below) concerning the delivery of judgment in respect of the annulment application:

(i)    Letter dated 13 July 2016 from Solomon Brothers (Ms Beaman’s then solicitors) to the Associate to [the primary judge].

(ii)    E-mail dated 27 October 2016 from the Deputy Associate to [the primary judge] to Solomon Brothers in reply to the letter referred to in paragraph (i) above. That e-mail (omitting formal parts) stated: "Chambers cannot give an indication when judgment delivery will be. As soon as it is listed you will be notified."

(iii)    Letter dated 18 November 2016 from Ms Beaman to the Chief Judge of the Federal Circuit Court.

(iv)    Letter dated 21 November 2016 from the President of the Western Australian Bar Association to the Judicial Coordinator to the Chief Judge of the Federal Circuit Court.

(v)    Letter dated 24 November 2016 from the Associate to [the primary judge] to the solicitors for the parties stating that judgment would be delivered on 16 December 2016.

(d)    Ms Beaman will seek leave of this Court under section 27 of the Federal Court of Australia Act 1976 (Cth) to tender copies of the correspondence listed in particular (c) above in evidence appeal.

(e)    The learned Judge pronounced orders on 16 December 2016 without delivering oral or written reasons for decision. See Reasons at page 3.

(f)    The Reasons are dated 23 December 2016. See Reasons at page 3.

(g)    Ms Beaman relies on the matters referred to in ground 3 above.

(h)    Ms Beaman relies on the matters referred to in grounds 6, 8, 12, 13, 4, 17 and 18 below.

6.    The learned Judge erred in law in failing to address:

(1)    the plea in paras 2 & 55 of the schedule to Ms Beaman's amended application (Schedule), quoted in Reasons at para 2; and

(2)    paras 13, 36 - 40 & 83 of the written submissions filed by Ms Beaman's counsel (Ms Beaman's Written Submissions), which were relied on at the hearing,

by reference to each of the matters referred to in paras 3 - 54 of the Schedule, both individually and in combination with each other.

7.    The learned Judge erred in fact and/or law by failing to find that, in combination, the matters referred to in paras 3 - 54 of the Schedule, rendered Mr Bond's presentation of a debtor's petition an abuse of process. See Reasons at paras 84 & 88.

8.    Alternatively to grounds 6 and 7 above, the learned Judge erred in law in failing to address:

(1)    the plea in paras 2 & 55 of the Schedule; and

(2)    paras 13, 36 - 40 & 83 of Ms Beaman's Written Submissions, which were relied on at the hearing,

by reference to the timing of each of the matters referred to in paras 9, 12, 13, 26, 29, 31, 32, 35, 37, 39, 44, 46 & 47 of the Schedule, both individually and in combination with each other.

9.    The learned Judge erred in fact and/or law by failing to find that, in combination, the timing of each of the matters referred to in paras 9, 12, 13, 26, 29, 31, 32, 35, 37, 39, 44, 46 & 47 of the Schedule rendered Mr Bond's presentation of a debtor's petition an abuse of process. See Reasons at paras 84 & 88.

10.    The learned Judge erred in law in rejecting Ms Beaman's submission that:

(1)    the objective of the Section 208 Proceeding (as defined in Reasons at para 37); and

(2)    the effect of the success of the Section 208 Proceeding,

of themselves thereby rendered Mr Bond's subsequent presentation of debtor's petition an abuse of process. See Reasons at paras 53, 78, 82, 83, 84, 87 & 88.

11.    The learned Judge erred in law by effectively treating Mr Bond's insolvency as determinative against an annulment of Mr Bond's bankruptcy under section 153B(1) of the Bankruptcy Act 1966 (Cth) notwithstanding section 153B(2) of the Bankruptcy Act 1966 (Cth). See Reasons at paras 58 & 75.

12.    The learned Judge erred in law in failing to consider the contention of Ms Beaman's counsel that the presentation of a debtor's petition could still be annulled on an application under section 153B(1) of the Bankruptcy Act 1966 (Cth) even where the bankrupt is insolvent if there has been abuse of process. See Reasons at paras 59-74.

13.    The learned Judge erred in law in failing to make any findings as to Mr Bond's "predominant purpose" in presenting a debtor's petition notwithstanding:

(1)    paras 22, 24 & 25 of Ms Beaman's Written Submissions, which were relied on at the hearing;

(2)    the reliance on Williams v Spautz (1992) 174 CLR 509 by Ms Beaman's counsel during oral submissions; and

(3)    the reliance on the discussion of English cases such as In re a Debtor [1967] Ch 590 by Gibbs CJ, Murphy, Brennan & Dawson JJ in Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 by Ms Beaman’s counsel during oral submissions.

14.    The learned Judge erred in law in failing to consider the impact of section 153B(2) of the Bankruptcy Act 1966 (Cth), in the exercise of the discretion whether or not to annul Mr Bond's bankruptcy, in the context of each of the matters referred to in paras 3 - 54 of the Schedule, both individually and in combination with each other.

15.    The learned Judge erred in fact and/or law by failing to find that, having regard to section 153B(2) of the Bankruptcy Act 1966 (Cth) and the combined effect of the matters referred to in paras 3 - 54 of the Schedule, a proper exercise of discretion under section 153B(1) of the Bankruptcy Act 1966 (Cth) required Mr Bond's bankruptcy to be annulled.

16.    The learned Judge erred in fact in failing to find that Mr Bond was under no pressure to repay the loans from Fairoak Pty Ltd, Sunland Nominees Pty Ltd and Tambar Pty Ltd (Bond Companies), having regard to the:

(1)    financial statements of the Bond Companies, which suggested that those loans had been in existence for many years;

(2)    notes to the financial statements of the Bond Companies AASB 101 at paras 70 - 77, which suggested those loans were repayable within 12 months;

(3)    absence of any written demand for payment from any of the Bond Companies being adduced into evidence; and

(4)    failure of Mr Bond to give evidence.

See Reasons at paras 66 - 70 and Schedule at para 16.

17.    The learned Judge misconstrued Ms Beaman's reliance on Mr Bond's lavish lifestyle as a contention that Mr Bond was solvent. Such reliance was directed to the:

(1)    contention that Mr Bond would not have presented a debtor's petition but for the matters referred to in paras 9, 12, 13, 26, 29, 31, 32, 35, 37, 39, 44, 46 & 47 of the Schedule; and

(2)    exercise of discretion under section 153B(1) of the Bankruptcy Act 1966 (Cth) as to whether or not to annul a bankruptcy having regard to section 153B(2) of the Bankruptcy Act 1966 (Cth).

See Reasons at para 74.

18.    The learned Judge misconstrued Ms Beaman's submissions concerning the loans from the Bond Companies as a contention that Mr Bond was solvent. Those submissions were directed to the:

(1)    contention that Mr Bond would not have presented a debtor's petition but for the matters referred to in paras 9, 12, 13, 26, 29, 31, 32, 35, 37, 39, 44, 46 & 47 of the Schedule; and

(2)    exercise of discretion under section 153B(1) of the Bankruptcy Act 1966 (Cth) as to whether or not to annul a bankruptcy having regard to section 153B(2) of the Bankruptcy Act 1966 (Cth).

See Reasons at paras 66 - 70.

19.    The learned Judge erred in fact in failing to draw the inference that Mr Bond would not have presented a debtor's petition based on the debts referred to in Reasons at paras 71 (a), (b), (d), (e) & (f) but for the matters referred to in paras 9, 12, 13, 26, 29, 31, 32, 35, 37, 39, 44, 46 & 47 of the Schedule. The learned Judge should have found that, having regard to the matters set out in the Schedule, Mr Bond could have and would have obtained assistance from members of the Bond family and/or Bond related entities to pay debts other than those owing to Ms Beaman and the Bond Companies. See Reasons at 71 - 74.

THE ADMISSIBILITY OF THE TRUSTEE’S AFFIDAVITS/REPORT

61    Grounds 1, 2, 3 and 4 pertain to this ground of appeal. Little focus was placed upon this ground on oral presentation of the argument. Reliance was placed on the written submissions which are substantially to the following effect:

(a)    the rules of evidence apply in bankruptcy: see Re Riggs (at 150-151) per Toohey J. The Evidence Act contains no exception. Rule 7.04 of the Bankruptcy Rules does deal with evidence. In any event, the rules cannot operate inconsistently with the Evidence Act;

(b)    an opinion must be based on admissible facts: see Australian Securities & Investments Commission v Rich (2005) 190 FLR 242 per Austin J (at [323]-[329]). The Trustee’s affidavit was not in any real sense a "trustee affidavit/report" given its use at trial. The Trustee should bring to the Court's attention any matters of which he or she has become aware that might bear upon the grant or refusal of the annulment. The Trustee is entitled to support or oppose the application: see Re Ayre per Drummond J (at 655). The Trustee’s counsel made no submissions for or against annulment of Mr Bond's bankruptcy;

(c)    the Trustee's affidavit did not take account of the material in Ms Beaman's affidavit;

(d)    the primary judge did not "engage with" the way in which Ms Beaman relied on s 135(a) of the Evidence Act; and

(e)    the inability to test the truth of the representation is a legitimate ground for rejecting or limiting the use of evidence which is covered by an exception to the hearsay rule. Where the maker of the representation is available or is not shown to be unavailable and the party tendering the evidence does not call the person, that is a legitimate consideration in favour of a finding of unfair prejudice.

Consideration

62    The approach taken by the primary judge to the Trustee’s affidavit was correct. The approach taken by his Honour has been outlined in detail and to repeat the reasoning would not enhance the analysis. It is clear, however, as also stressed in oral argument on the appeal, that s 59(1) of the Evidence Act does not apply to evidence of a representation contained in a certificate or other document given or made under the regulations of an Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect. This exception is provided by s 59(3) of the Evidence Act. A report of the nature contemplated by r 7.04 of the Bankruptcy Rules is intended to have evidentiary effect. The Rule, therefore, operates consistently with the totality of s 59 of the Evidence Act.

63    That is not to say that questions of weight are not to be taken into account and his Honour was expressly mindful that weight was a different issue from admissibility. Ms Beaman’s further submission that the fact that the Trustee in his affidavit and report did not take into account certain material in Ms Beaman’s affidavit does not go to the question of the admissibility of the affidavit, but may affect its weight. So also the fact that Mr Bond was not cross-examined.

64    These complaints cannot succeed.

THE DELAY GROUND

65    Ms Beaman also relied on her written submissions in relation to the delay ground. Relevantly, those submissions (as ultimately presented) were substantially to the following effect and may be accepted for their correctness:

(a)    Error may exist where the judge fails to refer to evidence of particular significance: see Alfred per Flick J (at [96]).

(b)    A delay of 12 months, although not as extreme as in some reported cases, is nonetheless substantial: see National Australia Bank Ltd v Dionys as Trustee for the Angel Family Trust [2016] NSWCA 242 per Sackville AJA (with whom Macfarlan JA and White J agreed) (at [109]). The general trend of authority is to the effect that a delay of 12 months or more is excessive and likely to result in prejudice to a losing party: see Bride v Commonwealth Bank of Australia (No 2) [2007] WASCA 225 per Wheeler and Miller JJA (at [47]) and note, however, NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 per Flick, Murphy and Griffiths JJ (at [139]-[141]).

(c)    The Court should be more disposed to find error when there has been "operative delay": see Expectation Pty Ltd v PRD Realty Pty Ltd (2014) 140 FCR 17 per Carr, Emmett and Gyles JJ (at [74]-[80]). Although delay by itself does not amount to error, it does permit an appellate court more readily to infer the judicial function has miscarried: see Monie v Commonwealth of Australia (2005) 63 NSWLR 729 per Hunt AJA (with whom Bryson JA agreed) (at [43(8)]); Terry v Leventeris (2011) 109 SASR 358 (at [15]).

(d)    Appellate courts should take the delay into account when reviewing the trial judge's factual findings and when considering the adequacy of the judge's reasons: see Terry v Leventeris per Gray J (with whom Sulan and Vanstone JJ agreed) (at [15]).

(e)    In "operative delay" cases it cannot be assumed that the mere failure to refer to evidence did not mean the judge had overlooked that evidence: see Expectation Pty Ltd per Carr, Emmett and Gyles JJ (at [71]-[72] and [80]-[83]). Where there is a significant delay, it is incumbent on the appellate court to look with special care at any challenged factual findings: see Clavel v Savage [2015] NSWCA 61 per Sackville AJA (with whom Macfarlan and Emmett JJA agreed) (at [87]). This principle applies even to credit based findings: see Dionys per Sackville AJA (with whom Macfarlan JA and White J agreed) (at [109]). Operative delay requires the judge to give a clear and rational expression of her/his reasoning so as not to give rise to a reasonable apprehension that the judge did not grapple with issues or took the easy path: see Monie per Hunt AJA (with whom Bryson JA agreed) (at [43(9)]); NRM per Flick, Murphy and Griffiths JJ (at [132]-[136]).

66    The delay ground was connected to certain aspects of the reasoning where Ms Beaman asserted the primary judge had failed to grapple with the argument as presented. The clearest example, it was said, was in connection with [83] of the judgment on the topic of the timing of the lodging of the Petition. Ms Beaman complains that there is no explanation as to why all the factors she relied upon, including contemporaneous emails, would not point clearly to such urgent haste to file the Petition that an abuse was the only explanation. Paragraph [83] provided:

There was no obligation on Mr Bond to give notice to Ms Beaman of his intention to present the Petition. What Ms Beaman says she would have done if she had been given such notice is therefore irrelevant, and, in any event, entirely speculative. Against the above background, the fact that the Petition was presented to the Official Receiver on the same day as the application for orders enforcing the Payment Order does not lead, without more, to the conclusion that the purpose of that presentation was to frustrate any other proceedings.

67    Mr Penglis for Mr Bond, against his client’s interest, but in discharge of his duty to the Court, drew the Court’s attention to the fact that portions of the judgment had been replicated from the written submissions below on the part of Mr Bond. This might also be a relevant consideration on a delay complaint, suggesting pressure to complete the reasons. Mr Penglis took the view, in light of the remarks appearing in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2017) 203 FCR 166 (at [41]-[42]) that it was his duty to draw this feature of the reasons to the attention of this Court (even though those remarks were made of a model litigant). Ms Beaman had not raised the replication complaint amongst her grounds of appeal (notwithstanding her counsel being aware of it).

68    It is unnecessary to say anything discretely on this topic as there is no ground of appeal. While being grateful for the openness of Mr Penglis on this topic, I, for my part at least, do not consider that LVR should be understood in quite so restrictive a fashion. In this instance, much of what was adopted from Mr Bond’s submissions was a summary of the pertinent law which was not seriously in dispute and also the application of uncontested facts. But it is important that the parties be satisfied that an independent mind has been brought to bear on the debate. This confidence may be displaced if one is left with an impression that arguments have been embraced without serious consideration either to the contrary point of view or the application of an independent point of view. However, Ms Beaman was right not to raise such a complaint in her appeal (despite raising numerous concerns with the reasons for judgment) as the reasons which have been deliberately set out at length do not give the impression of an absence of independent engagement with the issues.

Consideration

69    On the delay questions generally, there is a well-recognised distinction between those cases in which there are credit based findings of fact and those which do not depend upon any credit finding. Ms Beaman accepts this distinction. Ms Beaman has not pointed to any credit based findings of fact which could be affected by the delay.

70    In Tattsbet Ltd v Morrow (2015) 233 FCR 46, the Full Court dealt with a complaint about delay in delivery of reasons for judgment. Jessup J, in considering the submission, said the following (at [131]-[134]) (Allsop CJ and White J agreeing):

131.    The principles which inform the decision of an appellate court to hold that excessive delay in the delivery of judgment at first instance in the case concerned has rendered that judgment unsafe were discussed at length by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, 32-35 [66]-[83]. I would accept that, particularly where a transcript of the evidence at trial exists, mere delay need not justify a conclusion that the fact-finding process has miscarried. There are, however, additional circumstances which give rise to concern in the present case.

132.    In Expectation, the Full Court said (at [74]):

The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure - whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction.

In the present case, I can see no sign that the primary Judge sought to take the easiest path to the resolution of the disputes that were before him. To the contrary: his Honour gave careful attention to the appellant’s reasons for having taken adverse action against the respondent, notwithstanding that, on his findings, her case failed at an anterior stage. Nonetheless, the pressures to which the Full Court referred in Expectation appear to have been present here. The circumstances which surrounded the delivery of judgment bespeak an environment in which his Honour felt under considerable pressure to complete his reasons at the last minute.

133.    Additionally, the omissions to which I have referred above, taken cumulatively, suggest that his Honour may not have given some issues in the case the attention which they deserved, notwithstanding the very long period during which he was reserved. Those arising under s 357 of the FW Act are an instance. His Honour’s failure to make the findings of fact that would be necessary for a proper determination of so much of the respondent’s case as relied on s 340(1)(a)(iii) and (b) of the FW Act are another. On the cross-appeal, our attention was also drawn to a number of minor errors – typographical and proofing errors, for example – in his Honour’s reasons. While nothing would normally turn on such matters, in the circumstances of the present case it must be accepted that they provide some support for the respondent’s second ground.

134.    The critical finding with respect to the appellant’s reason or reasons for taking adverse action turned substantially upon the credit which the primary Judge assigned to the evidence of Mr Fletton. Notwithstanding the existence of transcript, that finding was inevitably based upon his Honour’s observation of Mr Fletton as a witness, and upon the advantage which a trial Judge conventionally has in such a setting. In my view, there is a real risk that his Honour compromised his ability to use that advantage in the determination of Mr Fletton’s reasons for acting when he allowed such an inordinate period to elapse between the giving of the evidence and the making of the determination. When considered together with the matters referred to in paras 106-109 above, the result is that his Honour’s disposition of the respondent’s case under s 340(1)(a)(iii) and (b), linked to s 341(1)(b) and (c)(i), of the FW Act cannot stand.

(emphasis added)

71    Allsop CJ agreed with Jessup J, also emphasising the difficulties under which busy judges may have to perform. His Honour said (at [2]):

I wish only to add the following additional comments. First, the delay in the production of the decision was, with respect to the judge, unfortunate: over 20 months from final submissions. The practical realities of life as a judge may mean, sometimes, a degree of delay in decision-making. Pressure and volume of other judicial work, complexity and size of the particular decision-making task at hand, a lack, sometimes, of useful assistance from litigants or the profession, and illness or incapacity are but examples of reasons for delay. Some of the reasons may rest in point of fault; some in point of technique. The burdens on judges in a busy trial court can be enormous. Some reasons may be the responsibility of the Court itself, if too much work is given to a judicial officer without any, or adequate, time or facility to undertake reserved judgments. But systems must be made to cope. Whatever the cause of any particular delay (and there was no explanation available here), its consequences must be examined with an eye to the fair administration of justice. I agree with Jessup J that it has been demonstrated here that the delay affected, or can be seen as apparently affecting, the decision-making in question. Generally, some apparent operative effect of the delay is required for appellable error to be shown: Monie v Commonwealth (2005) 63 NSWLR 729 as discussed in MM Constructions (Aust) Pty Ltd v Port Stephens Council (2012) 191 LGERA 292 at [11]. The conclusion as to the true reason for Ms Morrow’s termination was sparsely put. After such a long period, without any evidence in the judgment that the consideration and conclusion were made at a time reasonably proximate to the hearing, and without expressed careful consideration of all the evidence, the conclusion should be seen as flawed. It also had the effect of being, on its face in terms of expression, a contingent finding with the problems involved with such: Wade v Burns (1966) 115 CLR 537 at 555; and see Tarabay v Leite [2008] NSWCA 259 at [34]-[35].

(emphasis added)

White J agreed.

72    In the present instance, there were also attempts by Ms Beaman to press for delivery of the judgment, all of which might lead to an inference that the primary judge was under some pressure for any one of the reasons adverted to in Tattsbet by the Chief Justice, including a need for more resources. It may be fair to describe the period between completion of the case (by the provision of written submissions) and the publication of the primary judge’s reasons for decision as being considerable and more than would be ideal.

73    But the case was one in which a significant amount of paperwork was adduced in evidence on Ms Beaman’s case and by the Trustee. The transactions and records were complex. This is not a case where there are credit based findings of fact: Ms Beaman’s own description of the case below is of it being a "paper trial". Further, having regard to the whole of the evidence and the primary judge’s reasons for decision "with special care" or being “more readily to infer the judicial function has miscarried”, the ultimate finding that the Petition was not an abuse of process was an evaluative decision having regard to numerous arguments advanced. It has not been demonstrated that delay in arriving at that decision impaired the process of evaluation.

74    As noted, the only point of real substance that Ms Beaman emphasises in terms of a suggested omission is the manner of addressing the timing issue. But the issue was addressed (at [83]) and as will be seen below, also elsewhere. Ms Beaman does not like the conclusion, but that does not mean the issue was not addressed. As to whether the correct answer was given, that is relevant to the primary argument on appeal, namely, that the filing of the Petition was clearly an abuse. The timing of the filing will be considered in more detail in the context of that argument.

75    The delay grounds cannot succeed.

THE ABUSE OF PROCESS GROUND

76    Ms Beaman relies upon ground 7 and grounds 9-15 inclusive in relation to the abuse of process argument. In support of the abuse of process ground, Ms Beaman made the following submissions.

Ground 13

77    Ms Beaman's "abuse contention" was pleaded in a schedule to Ms Beaman’s amended originating application, (at [2] and [55] by reference to [3]-[54] of that schedule). Ms Beaman's counsel relied on Williams v Spautz (1992) 174 CLR 509 and Clyne v Deputy Commissioner of Taxation (No 3) (1984) 154 CLR 589.

78    The primary judge did not refer to Williams v Spautz. Clyne was only cited in the written reasons, with no analysis of the aspects of Clyne referred to by Ms Beaman in her written submissions. Ms Beaman submits that it was especially incumbent upon the primary judge to refer to Williams v Spautz and Clyne, given s 153B(2) Bankruptcy Act.

79    In exercising the discretion to annul, the Court must have regard both to the interests of the various parties and to the interests of the public. Neither is paramount over the other: see Orix Australia Corporation Ltd v McCormick (2005) 145 FCR 244 per Graham J (at [86]).

Grounds 11, 12, 14 and 15

80    Ms Beaman noted that s 153B(2) was inserted by Item 129 of Sch 1 to the Bankruptcy Legislation Amendment Act 2002 (Cth). When drafting the amendments, Parliament had in mind "[h]igh-income debtors who are maintaining an expensive lifestyle": see the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 2001 (at [65]).

81    The primary judge referred to Drake v Jones per Barnes FM (at [32]) and Suncorp Metway per Rimmer FM (at [20]) when suggesting that insolvency weighs heavily against the exercise of the discretion under s 153B of the Bankruptcy Act. However, those cases relied on the decision of Layton v Westpac per Cooper J (at [18](a)]), which was decided before the 2002 amendment.

Grounds 7, 9 and 10

82    Ms Beaman submits that her case as pleaded in those grounds, although inferential, was compelling. In light of Williams v Spautz (at 526–529) and Clyne (at 598-600), the principles in United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 (at [70]-[76]) (concerning the reliance on inference), applied to the evidence, support those grounds: see also Rafaraci v Pearce & Heers [2003] FCA 1307 per Tamberlin J (at [27]); Edelsten v Deputy Commissioner of Taxation (Cth) (1989) 86 ALR 257 per Lockhart, Wilcox and Pincus JJ (at 260-261 and 265).

83    Although not strictly part of the abuse of process grounds, but rather pertaining more to grounds 16-19 and grounds 5, 6 and 8, Ms Beaman also (relevantly) made the following submissions:

52.    Grounds 16 & 19: The Judge should have applied the principles in United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; (2011) 198 FCR 514 at 540[70]- 542[76] per McKerracher J and drawn inferences as per Grounds 16 & 19, regardless of Grounds 1-4. If any of Grounds 1-4 are made out, then those inferences are even stronger.

53.    Grounds 17 & 18:

(1)    Ms Beaman's counsel was clear in opening that Ms Beaman was NOT contending Mr Bond was solvent. See paras 21 - 24 above.

(2)    Having regard to sec 153B(2) Bankruptcy Act 1966 (Cth): (a) Mr Bond's lifestyle; & (b) the Bond Companies' loan terms; were relevant to the exercise of the discretion under sec 153B(1). See Rafaraci v Pearce & Heers [2003] FCA 1307 at [27] per Tamberlin J.

(3)    The Judge did not "engage with" the submissions pleaded in Grounds 17 & 18. See Part A, Tab 5, paras 52, 58, 66, 71 - 75, pages24, 26 - 28 & 30 - 32. See cases in paras 32, 33 & 50 (2) above.

…

…

56.    Grounds 6 & 8 support Ground 5: See particular (h) to Ground 5 at Part A, Tab 8, page 4. Each of Grounds 6 & 8 also "stand alone":

(1)    A judge is obliged to provide reasons for judgment. See Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2002] VSCA 189 at [99] per Charles, Buchanan & Chernov JJA.

(2)    See Schedule paras 2 - 55 at Part A, Tab 1and paras 13, 36 - 40 & 32 of written submissions dated 17 February 2015 at Part A, Tab 2.

(3)    A failure to respond to a clearly articulated submission is an error of law. See Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 50 AAR 267; (2009) 111 ALD 579 at [59] - [64] per Flick J; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2002] VSCA 189 at [154] & [166].

84    In oral submissions, as noted, there was particular focus on the timing of the presentation of the Petition, having regard to the orders that had just been made against Mr Bond the day before in the Family Court. The haste to present the Petition became evident from internal emails between the relevant solicitors and the proposed Trustee around the time of lodging the Petition.

85    What was stressed in the oral hearing was that Ms Beaman, having obtained an order in her favour in the Family Court in Perth to compel Mr Bond’s payment of $100,000 despite earlier frustrations, discovered that the Petition had been accepted for filing only a few hours before in Melbourne. The filing was without notice, seemingly, she says, with a view to targeting Ms Beaman’s entitlement to the payment of $100,000. In essence, the factors stressed in support of the abuse of process, notwithstanding the insolvency, were that Mr Bond was a “kept man”, there were no pressing creditors and there was no need to spend over $100,000 to resist paying $100,000 to Ms Beaman unless there was some other motive.

86    In oral submissions, particular emphasis was also placed on the surrounding emails, in particular an email sent on Saturday, 17 May 2014 at 4.17 pm from a member of the firm of accountants of which the Trustee was a member, saying:

The lawyer acting for the debtor called me today. (Saturday) and said that its [sic] on hold at present as they are deciding which direction to take.

All of it depends on actions that they may or may not take in the family Court and it appears that there is a divided opinion on which way to go.

So watch this space I guess.

87    There is a further email on 4 June 2014 at 7.30 pm from the same source to the Trustee saying:

See attached.

This must be lodged by 9 am Melb time tomorrow so they can say in Court at 9.30 perth time it was done.

Please reply to all here when lodged …

88    At 7.35 am the next morning there was such a reply to Mr Bond’s solicitors, and apparently Mr Bond, which effectively says that the Petition which was signed on 4 June was processed on 5 June. On 5 June there was a court hearing in the Family Court as earlier discussed. It was submitted for Ms Beaman that if notice had been given of the intention to file the Petition, then Ms Beaman:

could then have made applications and … as night follows day, Crisford J would have granted an injunction to stop the undoing of all the work which … [had] been done by everyone including her Honour on the section 208 proceedings.

89    It was suggested for Ms Beaman that the likely course would be that the matter would remain on hold, with the injunction in place, pending the outcome on an expedited basis of the property settlement proceedings.

90    This is an important consideration because, even if the presentation of the Petition was an abuse of process, in the exercise of discretion, the Petition would only be annulled if, to do so, served some practical purpose. The suggestion of injunctions raised for Ms Beaman was, in the absence of some other evidence, speculative. It is and was the case, after all, that there are other creditors, including unrelated creditors, who had been waiting for some considerable period of time to be paid. It is not immediately apparent why Ms Beaman should have precedence, in effect, over those creditors.

91    In Western Australia the Family Law Act does not apply to de facto relationships. For the purpose of this appeal, it might be assumed in favour of Ms Beaman’s arguments that Mr Bond considered he would, in a general sense, be better off in bankruptcy than in the Family Court. That point was not directly argued and in light of the content of the alleged abuse (see [36] above), may not be strictly relevant. But Mr Bond defended the abuse argument on the basis that given his accepted insolvency, there was no reason why Ms Beaman should be placed in a preferential position to other creditors when such was not provided for under the Bankruptcy Act. In other words, his predominant purpose should be inferred as being consistent with, not foreign to, the Bankruptcy Act.

92    Substantially lying at the heart of Ms Beaman’s submissions was that Mr Bond was, in practical terms, a man of means, if not in the sense of having assets in his own name, then having access to substantial payments. There was, it is argued, no real need for him to be bankrupt and but for the Family Court order, he would not have presented the Petition.

93    In the context of the discretionary factors which should be taken into account in light of the unchallenged insolvency of Mr Bond, Ms Beaman drew on [65] of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 2001 (the 2001 Bill) which provides that:

High-income debtors who are maintaining an expensive lifestyle and petition for bankruptcy with the aim of avoiding paying a particular creditor (eg, the ATO) will be among those targeted by this proposed amendment. If the Court believes that the debtor could make arrangements to pay the creditor, it could annul the bankruptcy as an abuse of process.

(emphasis added)

94    This is fleshed out further in [182] to [184] of the Explanatory Memorandum to the Bankruptcy Legislation Amendment Bill 2002 which indicates that insertion of the new subsection under subs 153B gives the Court the power to annul the bankruptcy:

182    … There is, at present, no test for insolvency in relation to a debtor’s petition filed under the Act. It is not proposed in the ordinary course that there be one. However, the amendment will enable the Court to annul a bankruptcy, even if the debtor is insolvent.

183    Some debtors who petition for bankruptcy may be technically insolvent, but could make arrangements to pay their debts. They choose not to while maintaining an expensive lifestyle. Section 153B, that is proposed to be amended, would make it clear that the Court can find that their petition is an abuse of process.

184    A person, for example, might have an income of $400,000, no assets and owe one creditor [eg, the ATO] $500,000. The creditor in such a situation will be able to argue that the bankruptcy should be annulled because the debtor has the capacity to pay the debt within a reasonable time, but appears to have chosen not to pay it while continuing to a lifestyle which absorbs all of his or her (often) very substantial income. The Court will not be able to rely on the person’s technical insolvency (inability to pay the debts as they become due and payable) to dismiss the application.

(emphasis added)

95    Ms Beaman argues with some force, that the present case is tailor made for the amendment as described in the Explanatory Memorandum to the 2001 Bill.

96    Ms Beaman submits that she clearly established that Mr Bond was a high lifestyle debtor and could get access to money when he wanted it. Also in the course of oral argument, particular focus developed on the nature of Mr Bond’s personal expenditure as revealed from records which show that he was able to fund private school fees for a child, overseas travel and other reasonably substantial expenses. The Full Court was taken to evidence of such payments in bank records, revealing not insubstantial payments. These payments may not have been lavish by any means to a solvent person earning a good income, but to an insolvent person earning no income (which was Mr Bond’s position), the payments were considerable. This expenditure had been possible, the Court was told, as a result of distributions from one or more of the trusts, discussed in more detail below.

97    Ms Beaman says that Mr Bond:

    was a “kept man”;

    lived a lavish lifestyle;

    had no pressing creditors; and

    lodged the Petition with great haste, immediately after the order of the Family Court.

98    Ms Beaman contends that the Family Court would probably have granted an injunction had she received notice of the presentation of the Petition. She also poses a “but for” question, in other words, would Mr Bond really have presented the Petition but for the orders of the Family Court? She points (correctly) to similar conduct in presentation of the s 188 authority following similar Family Court orders.

Consideration

99    In Williams v Spautz, the majority stressed that if the dominant purpose of using a legitimately available legal proceeding was foreign to that proceeding, then that was sufficient to constitute an abuse. For the minority, the fact that there may be some ulterior purpose would not render an otherwise legitimate action illegitimate. It is helpful to repeat the passage from the majority (at 526 and 529) (footnotes and citations omitted):

The observations of the Privy Council in King v. Henderson and those of Isaacs J. in Dowling, to which we referred earlier, represent an attempt to achieve a formulation which keeps the concept of abuse of process within reasonable bounds. To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.

…

It has been suggested that the criterion for abuse of process is whether the improper purpose is the sole purpose of the moving party. However, in more recent times it has been said, in our view correctly, that the predominant purpose is the criterion. That was the test applied by Lord Denning in Goldsmith v. Sperrings Ltd. and by the English Court of Appeal in Metall & Rohstoff v. Donaldson Inc. In giving the judgment of the Court in the latter case, Slade L.J. observed:

“[A] person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed.”

It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is “a heavy one”, to use the words of Scarman L.J. in Goldsmith v. Sperrings Ltd. and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.

(emphasis added)

100    In Clyne (at 598-600) the Court said (footnotes and citations omitted) :

If the presentation of a petition amounted to an abuse of the process provided by s. 55 of the Act, it can rightly be said that the petition ought not to have been presented and in those circumstances power exists to annul the bankruptcy resulting from its acceptance. It has been consistently held in England that the court has power to annul an adjudication and rescind a receiving order based on a debtor's own petition if the presentation of the petition was an abuse of the process of the court, and that this is so even though s. 6 of the Bankruptcy Act 1914 (U.K.), and the predecessors of that section, are mandatory in form and provide that the court “shall” make a receiving order on a debtor's petition which alleges that the debtor is unable to pay his debts: see In re Bond; Ex parte Painter; In re Painter; In re Betts; Ex parte Official Receiver; In re Hancock; In re Dunn; In re a Debtor. (The English legislation gave power to annul an adjudication, but not a receiving order, and it was therefore necessary to rescind the latter.) The principle of those decisions applies equally, in our opinion, when there is an abuse of the process provided by s. 55, notwithstanding that it cannot be said that there has been an abuse of the process of the court because no judicial order is made when a registrar accepts the petition under s. 55. We agree with the conclusion stated in In re Mottee that a bankruptcy resulting from the acceptance of a debtor's petition may be annulled if the presentation of the petition was an abuse of the procedure provided by s. 55.

In the present case the debtor submitted that he had not been guilty of any abuse of process, and that he was entitled to present his own petition for the purpose, which he frankly admitted, of preventing the making of a sequestration order and thereby preventing his bankruptcy relating back to a time since when he has disposed of moneys to which the trustee's title may relate back. He relied on a dictum of Lord Evershed M.R. in In re Dunn:

“The circumstance that the debtor has filed his petition in order to protect himself from evils which he might otherwise suffer, and not with any benevolent intention of benefiting his creditors by securing a fair distribution of assets among them, is no reason why an order should not be made.”

…

In our opinion, a distinction must be drawn between the pursuit of “an ulterior private purpose” - which may not necessarily amount to an abuse of process - and a purpose foreign to the nature of the process in question: see the discussion in Dowling v. Colonial Mutual Life Assurance Society Ltd. It is a purpose foreign to the bankruptcy laws, and an abuse of process, for a debtor to present a petition for the purpose of making it impossible for a creditor to obtain a sequestration order on a pending petition and with the further purpose of shortening the period of relation back, possibly placing beyond the reach of the trustee property which would otherwise vest in him.

101    And then in Edelsten (at 261 and 265) the Court (Lockhart, Wilcox and Pincus JJ said):

… In our view, the ratio decidendi of Clyne is that a petition will constitute an abuse of process if it is presented for a purpose, whatever that purpose may be, which is foreign to the bankruptcy laws.

…

… The trustee concerned has had no opportunity to answer the allegation. But we do comment that the appellant’s statement that he was influenced in presenting his petition by a desire to have a particular person as trustee of his estate, who would be “fair”, may constitute an independent ground for regarding that petition as being an abuse of process.

(emphasis added)

102    Insofar as the timing of the filing of the Petition is concerned, Mr Bond says all issues were correctly examined by the primary judge’s reasoning in [41]-[43] and [82]-[83], which are as follows:

41.    On 5 June 2014, Mr Bond became bankrupt pursuant to the Petition which was accepted by the Official Receiver, and the Trustee was appointed trustee in bankruptcy of the estate of Mr Bond.

42.    On 5 June 2014, the WA Family Court made orders in the Section 208 Proceeding whereby a Registrar of the WA Family Court was directed to sign the Payment Authorisation Order on behalf of Mr Bond (“Registrar’s Authorisation Orders”).

43.    On 5 June 2014, after the WA Family Court had pronounced the Registrar’s Authorisation Orders, the Trustee gave notice to Messrs Williamson & Hurt and Ms Beaman’s solicitors of the Petition.

…

82.    This is a case in which there are multiple creditors, including Ms Beaman, who are owed significant sums of money by Mr Bond, who is not able to personally repay them, and which are not being paid by third or related parties. For reasons set out above this is not a case where Mr Bond was solvent at the time the Petition was presented. Nor is it a case where it can be said that the Petition might stymie Ms Beaman alone. Even disregarding the [Family] Loans, it also cannot be said that there are not otherwise credible and substantial debts owed to persons other than the related parties and Ms Beaman. Finally, the debts owed to Ms Beaman are themselves substantial, and seemingly beyond the means of Mr Bond to repay within any reasonable period of time. In this case, Ms Beaman is entitled to share in Mr Bond’s estate and is entitled to all the rights of creditors under the Bankruptcy Act (including, for example, the right to appeal against the acceptance of the proofs of debt lodged by other creditors). Ms Beaman is still entitled to pursue proceedings in the WA Family Court. The effect on Ms Beaman is a result of the proper and ordinary application of the Bankruptcy Act. Further, it affects not only Ms Beaman, but all creditors, including the multiple external creditors.

83.    There was no obligation on Mr Bond to give notice to Ms Beaman of his intention to present the Petition. What Ms Beaman says she would have done if she had been given such notice is therefore irrelevant, and, in any event, entirely speculative. Against the above background, the fact that the Petition was presented to the Official Receiver on the same day as the application for orders enforcing the Payment Order does not lead, without more, to the conclusion that the purpose of that presentation was to frustrate any other proceedings.

103    On this application it was not asserted that there were various purposes and that the predominant purpose was improper, but rather it was asserted there was only one purpose, namely a purpose not provided for by s 55 of the Bankruptcy Act. The proper approach to s 153B is to ascertain the predominant purpose.

104    Although Ms Beaman relies on Lukic, particularly at [27], when examined in context, it is clear from [32] of that case that it is quite distinguishable from this case. Paragraph [27] explains:

It has been held in a number of cases that an insolvent debtor may file a petition in bankruptcy although his purpose in so doing is to shield himself from particular proceedings or from a particular liability : Clyne v DCT (1984) 154 CLR 589; 55 ALR 143. Two cases which exemplify this principle are Re Mottee (1977) 16 ALR 129; 29 FLR 406; and Re Heenan (1992) 39 FCR 428; 116 ALR 146. Clyne is also authority for the proposition that a bankruptcy resulting from the acceptance of a debtor’s petition may be annulled if the presentation of the petition was an abuse of the procedure provided by s 55.

105    But at [32] of Lukic the facts were quite different. The facts of those disclosed were:

In the circumstances of this case I am unable to place any reliance on the bankrupt's claims as to his liabilities or as to his interest in the company or, for that matter, as to his involvement with the cattle-feeding and cartage business referred to above. This state of affairs together with the evidence adduced on behalf of the applicant leads me to be satisfied that the bankrupt was not insolvent on the date he presented his petition nor did he believe himself to be so insolvent. Further, I am satisfied that his purpose in presenting the petition was to set at nought the s 79 proceedings of the applicant which were then pending. It follows that in this case there has been an abuse of the relevant procedure and in the exercise of my discretion I propose to annul the sequestration order.

(emphasis added)

The trusts

106    An important feature of the abuse claim was that the predominant purpose should be inferred as, despite his insolvency, Mr Bond was not under any financial pressure and was living in comfort.

107    Even if the proper assessment is confined to the pleaded abuse, this requires consideration of the payments Mr Bond was, in fact, receiving by way of distributions from trusts, but also, perhaps more importantly, the question of whether he had capacity to control those trusts making the distribution. This is because the claim was that Mr Bond “was not under any financial pressure” (despite being insolvent).

108    Ms Beaman, in effect, says that Mr Bond was able to get funds whenever he wanted them. The Court invited additional evidence and submissions on this topic because, taken with the stage at which the Family Court proceedings had only very recently reached and taken against the context and history of those proceedings, it may have been that these matters were not taken into account in deliberating on the abuse question. In making that point, it is not suggested that his Honour was taken to those issues in the same manner as this Court was addressed.

Control of the trusts

109    Relevantly, the parties agreed the following facts.

Tambar trusts

110    Tambar is the trustee of the Craig Bond Investment Trust and the trustee of the Craig Bond Trading Trust (the Tambar Trusts).

111    Prior to 20 June 2014, Tambar had two directors as follows:

(1)    Mr Bond from 27 March 1981 - 4 June 2014.

(2)    Mr Stephen Ronald De San Miguel from 1 November 2009 - 20 June 2014.

112    Mr Bond is currently the:

(1)    sole shareholder of Tambar; and

(2)    registered holder of all 22 shares in Tambar.

Craig Bond Investment Trust instruments

113    The Craig Bond Investment Trust is constituted by the following documents:

(1)    Deed of trust (Original Craig Bond Investment Trust Deed) dated 1981 (stamped 27 March 1981) made between Mr John Bryan Bond (as settlor) and Tambar (as trustee).

(2)    Deed of variation (1st Craig Bond Investment Trust Variation) dated 1984 (stamped 29 August 1984) made between Tambar (as trustee) and Mr Bond (as guardian).

(3)    Deed of variation (2nd Craig Bond Investment Trust Variation) dated 20 August 1998 (stamped 2 September 1998) made between Tambar (as trustee) and Mr Bond (as guardian).

(4)    Deed of variation (3rd Craig Bond Investment Trust Variation) dated 30 May 2005 (stamped 10 June 2005) made between Tambar (as trustee) and Ms Eileen Teresa Bond, Ms Jody Louise Fewster and Mr Bond (as guardians).

Craig Bond Trading Trust instruments

114    The Craig Bond Trading Trust is constituted by the following documents:

(1)    Deed of trust (Original Craig Bond Trading Trust Deed) dated 1981 (date of stamping unclear but probably 27 March 1981) made between Mr Robert Ashley Pearce (as settlor) and Tambar (as trustee).

(2)    Deed of variation (1st Craig Bond Trading Trust Variation) dated 1984 (stamped 29 August 1984) made between Tambar (as trustee) and Mr Bond (as guardian).

(3)    Deed of variation (2nd Craig Bond Trading Trust Variation) dated 20 August 1998 (stamped 2 September 1998) made between Tambar (as trustee) and Mr Bond (as guardian).

(4)    Deed of variation (3rd Craig Bond Trading Trust Variation) dated 30 May 2005 (stamped 10 June 2005) made between Tambar (as trustee) and Ms Eileen Teresa Bond, Ms Jody Louise Fewster and Mr Bond (as guardians).

115    Copies of the 1st Craig Bond Trading Trust Variation, the 2nd Craig Bond Trading Trust Variation and the 3rd Craig Bond Trading Trust Variation were not in evidence in the Court below. The original Trust Deeds were in evidence.

Craig Bond Investment Trust - summary

116    Tambar is and was at all material times the trustee of the Craig Bond Investment Trust.

117    Mr Bond is one of the primary beneficiaries of the Craig Bond Investment Trust.

118    Prior to his bankruptcy, Mr Bond was a guardian of the Craig Bond Investment Trust.

119    By virtue of cl 15.3 of the Original Craig Bond Investment Trust Deed, if the guardian becomes bankrupt, then that person ceases to be guardian.

120    Prior to his bankruptcy, Mr Bond was the appointor of the Craig Bond Investment Trust.

121    By virtue of cl 15.3 of the Original Craig Bond Investment Trust Deed, if the appointor becomes bankrupt, then that person ceases to be appointor.

122    By cl 3.1(a) of the Original Craig Bond Investment Trust Deed, the trustee may pay to any beneficiary any part of the net income earned by the Craig Bond Investment Trust in a financial year.

123    By cl 5.1 of the Original Craig Bond Investment Trust Deed, the trustee may pay to any beneficiary any part of the capital of the Craig Bond Investment Trust. By virtue of cl 13.2 of the Original Craig Bond Investment Trust Deed, however, the trustee may only make such a payment with the consent of the guardian. (emphasis added)

124    By cl 16.1 of the Original Craig Bond Investment Trust Deed, the appointor may remove the trustee and replace that trustee with another trustee.

Craig Bond Trading Trust - summary

125    Tambar is and was at all material times the trustee of the Craig Bond Trading Trust.

126    Mr Bond is one of the primary beneficiaries of the Craig Bond Trading Trust.

127    Prior to his bankruptcy, Mr Bond was a guardian of the Craig Bond Trading Trust.

128    By virtue of cl 15.3 of the Original Craig Bond Trading Trust Deed, if the guardian becomes bankrupt, then that person ceases to be guardian.

129    Prior to his bankruptcy, Mr Bond was the appointor of the Craig Bond Trading Trust.

130    By virtue of cl 15.3 of the Original Craig Bond Trading Trust Deed, if the appointor becomes bankrupt, then that person ceases to be appointor.

131    By cl 3.1(a) of the Original Craig Bond Trading Trust Deed, the trustee may pay to any beneficiary any part of the net income earned by the Craig Bond Trading Trust in a financial year.

132    By cl 5.1 of the Original Craig Bond Trading Trust Deed, the trustee may pay to any beneficiary any part of the capital of the Craig Bond Trading Trust. By virtue of cl 13.2 of the Original Craig Bond Trading Trust Deed, however, the trustee may only make such a payment with the consent of the guardian. (emphasis added)

133    By cl 16.1 of the Original Craig Bond Trading Trust Deed, the appointor may remove the trustee and replace that trustee with another trustee.

134    By reason of those facts, Ms Beaman argues that until his bankruptcy Mr Bond controlled the Tambar Trusts because of the following matters:

(a)    Mr Bond was the guardian and appointor under the instruments constituting the Tambar Trusts; and

(b)    Mr Bond held all shares in Tambar (the trustee of the two relevant Trusts (being the Craig Bond Investment Trust and the Craig Bond Trading Trust)).

135    By virtue of this “control”, Ms Beaman argues, Mr Bond had the ability to compel Tambar to pay income and capital from the Tambar Trusts to him as a primary beneficiary of the Tambar Trusts. Ms Beaman says that the effect of an annulment is that the bankruptcy, except for some very special circumstances, none of which are presently relevant, is treated as never having taken place for any purpose: MacDonald v Raupach [2011] NSWCA 320 (at [18]) per Young JA, with whom Bathurst CJ and Sackville AJA agreed. It is said, therefore, that upon annulment of Mr Bond’s bankruptcy:

(a)    Mr Bond will retake the offices of one of the guardians and appointor of the Tambar Trusts;

(b)    shares in Tambar (the trustee of the Tambar Trusts) will revest in Mr Bond; and

(c)    Mr Bond will again be able to compel Tambar to pay income and capital of the Tambar Trusts to him as a primary beneficiary of the Tambar Trusts.

136    Mr Bond strongly takes issue with these assertions and, in my view, correctly. In the case of the Craig Bond Investment Trust, by the 2nd Craig Bond Investment Trust Variation (dated 20 August 1998), Mr Bond ceased being the sole guardian and appointor of the Trust as Ms Eileen Teresa Bond and Ms Jody Louise Fewster were added as guardians and appointors. The Deed provides that the guardians and appointors are to act jointly by way of a majority decision in exercising the power of those positions. Similarly, in the case of the Craig Bond Trading Trust, by the 2nd Craig Bond Trading Trust Variation (dated 20 August 1998), Mr Bond ceased being the sole guardian and appointor of the Trust as Mr John Bryan Bond and Ms Jody Louise Fewster were added as guardians and appointors. This Deed also provides that the guardians and appointors act jointly by way of a majority decision in exercising the powers of those positions. These changes were made 19 years ago, not recently.

137    It follows, therefore, that from 20 August 1998, and immediately prior to Mr Bond’s bankruptcy, Mr Bond:

(a)    did control Tambar through his majority shareholding;

(b)    was one of two directors of Tambar; but

(c)    did not control either of the Tambar Trusts. Rather, he was one of three people (guardians) who had to approve any income disposal decision by majority decision. The Trustee could not make payment of income without consent of the majority of the guardians.

138    As one of the directors of the trustee, Mr Bond, but only with the concurrence of the other director, could exercise the discretions to be found in the respective Deeds of Trust to distribute income under their terms, which also required approval of the guardians.

139    Secondly, it was only income that could be distributed as capital that could not be vested in any beneficiary under cl 5 of the Deeds (or prior to the “Vesting Date” by cl 1.7 of the Trust Deeds). In any event, it could not be vested without consent of the guardians. Additionally, by cl 16 of the Deeds, there was power for the Trustee to be changed for each of the Tambar Trusts without the concurrence of Mr Bond.

140    Therefore, contrary to Ms Beaman’s submissions, even without bankruptcy Mr Bond did not have the power to compel the distribution of capital or income from the Tambar Trusts. He would retake the office of guardian and appointor and the shares owned by him in Tambar will revest in him, if there is to be an annulment. But, as will be seen, this is academic as even then, he would not be able to compel the Trustee to pay income or capital from the Trusts to himself or any of the primary or other beneficiaries.

141    Finally, in any event, even if Mr Bond could exercise the control asserted by Ms Beaman (and it is clear that he cannot, at law), there is no evidence that either of the Trusts have any or sufficient income resources to alter Mr Bond’s accepted insolvent state.

142    No doubt Ms Beaman will be cynical as to this conclusion given that the evidence shows the other two guardians of each of the Tambar Trusts are family members who do not appear in the past to have stood in the way of distributions being made to Mr Bond. Be that as it may, as a question of law, Mr Bond does not have the power to compel either Trust to make distributions and is necessarily dependent upon the goodwill, predictable or otherwise (there is no evidence), of those close family members. It is not open to ignore the legal position simply because there has not been a difficulty in the past for Mr Bond to receive distributions. It cannot, therefore be said that at the time of the presentation of the Petition, Mr Bond was necessarily in a position, notwithstanding his insolvency, to compel ongoing Trust distributions which would enable him to continue to satisfy creditors (to the extent he had) and enjoy the relatively comfortable lifestyle he had enjoyed to the time of presentation of his Petition.

143    By reference to the history set out in the application grounds set out above (at [22]) it is said that the purpose of filing the petition was for a collateral purpose of frustrating the Family Court proceeding and/or to frustrate the payment to [Ms Beaman] of the sum of $100,000 pursuant to the orders made by Justice Crisford of the Family Court on 26 February 2013. In this case the factors said to give rise to the inference are all objective factors. As to whether Mr Bond may have held other expectations or hopes is not relevant in this case. But in any event there is, objectively, no evidence as to the standing of the relationships with the other guardians of the Trusts given that other family members were also major creditors. There was no evidence that Mr Bond fully expected the distributions to continue. There are insufficient foundational facts (such as the views of the other guardians as to the competing interests of other major family creditors) from which it would be permissible to draw the inference as to Mr Bond’s actual expectations even if it were a pleaded factor which in those terms it was not. Ms Beaman argues that Mr Bond’s failure to go into evidence should permit an inference to be drawn adversely to him. This principle is correct but it is a discretionary consideration and assuming that contention was relied upon before the primary judge, it has not been shown that the discretion miscarried in circumstances where another inference favourable to the entitlement of other creditors was at least equally open. In those circumstances, a serious finding of abuse ought not be made.

144    Even if that were not so, I would dismiss the appeal on the secondary basis discussed above, namely that the Court, in its discretion, should not annul the bankruptcy because of the existence of and interests of the other arms-length creditors, having regard also to Ms Beaman’s rights as one creditor to challenge the proofs of debt relating to the Family Loans and her ongoing rights to pursue relief in the Family Court.

Australian Tax Office

145    The Court also sought additional information and submissions from the parties concerning an arrangement reached between Mr Bond and the ATO concerning certain tax liabilities. The parties have agreed that by an amended proof of debt filed by the Deputy Commissioner of Taxation in relation to Mr Bond’s tax liabilities, the Commissioner claimed the sum of $356,401. That indebtedness had been the subject of previous correspondence in that on about 1 March 2013 an instalment arrangement was entered into between the ATO and Mr Bond. As at that date, the running account balance was $7,818 in respect of Mr Bond’s personal liabilities. On 10 April 2013, the ATO issued a notice of assessment to Mr Bond. By that notice of assessment, the Commissioner disallowed Mr Bond a tax credit in the amount of $90,619.05, which was included in the amended proof of debt. There had also been an arrangement entered into between Mr Bond and the ATO in November 2012, but that arrangement was made by Mr Bond on behalf of Tambar, rather than on his own personal behalf.

146    Ms Beaman says that if Mr Bond’s bankruptcy is annulled, he will have the financial capacity to reinstate the “very modest” instalment arrangement he had reached with the ATO. Mr Bond, however, submits that it was clear that his indebtedness to the ATO did nothing, other than increase after April 2013. The Trustee has correctly pointed out that this was further evidence of Mr Bond’s insolvency. It is not the case, Mr Bond argues, that on an annulment he may be able to make another instalment agreement in respect of the modest debt, namely, $7,818. Mr Bond will need to deal with the ATO in respect of the total debt, including, if any, those debts which have accrued since he signed the authority under s 188 of the Bankruptcy Act. To enter into an instalment agreement with the ATO at a time when Mr Bond was insolvent (a situation not cured by an annulment), exposes such agreement and payments to being later set aside as a preference under s 122 of the Bankruptcy Act if Mr Bond were to be made bankrupt within six months. Indeed, by entering into such an arrangement, he would be committing a further act of bankruptcy pursuant to s 40(1)(b) of the Bankruptcy Act on which any creditor could then rely to seek to file a petition to once again bankrupt him.

147    Importantly, therefore, there is no evidence that Mr Bond has the capacity to pay his debts, whether utilising resources of the Tambar Trusts or otherwise. His insolvency has been accepted and he remains insolvent.

CONCLUSION

148    An abuse of process should not lightly be inferred. Indeed, when the bankrupt, himself or herself, seeks to rely on an abuse, the onus of proving it is heavy: Davidova v Murphy [2009] FCA 601 (at [44]). A possible purpose was to frustrate the Family Court proceedings or frustrate the payment of the sum of $100,000 pursuant to the orders in those proceedings. But given that his major creditors were family members, a predominant purpose which was entirely compatible with the Bankruptcy Act was to ensure that Ms Beaman was treated equally as a creditor with other creditors within the meaning of the provisions of the Bankruptcy Act. It is commonly the case that some final act, event or circumstance triggers a petition for bankruptcy. That does not render the decision to present a petition as being foreign to bankruptcy laws and the Bankruptcy Act and an abuse of process.

149    For these reasons, in my view, the decision of the primary judge was correct and the appeal must be dismissed with costs.

Associate:

Dated:    1 September 2017

REASONS FOR JUDGMENT

CHARLESWORTH J:

150    I have had the benefit of reading the judgment of McKerracher J. I agree with the reasons of his Honour and the orders proposed.

Associate:

Dated:    1 September 2017