Federal Court of Australia

Mangano v Bullen [2025] FCAFC 42

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    This is an appeal brought by Silvana Mangano from orders which, among other things, sequestrated Ms Mangano’s estate: Bullen v Mangano [2024] FCA 1199 (PJ). The petitioning creditor, Rosemary Bullen, is the respondent to the appeal. This appeal turns on its own facts and the course taken before the primary judge. Ms Mangano does not raise any error of principle. The appeal concerns the application of well-established principles to the facts in issue on the basis of the evidence led before the primary judge.

2    The primary judge was satisfied that the requirements as to jurisdiction under s 43 of the Bankruptcy Act 1966 (Cth) were met and that the petitioning creditor had established each of the matters specified in s 52(1)(a) to (c) of the Act. Ms Mangano did not contend otherwise. The only issue arising for determination before the primary judge was whether Ms Mangano had discharged her onus in proving to the Court’s satisfaction that she was able to pay her debts in accordance with s 52(2)(a) of the Act and if so, whether the Court should dismiss the petition. The primary judge was not satisfied that Ms Mangano discharged her onus in this regard. The primary judge was further satisfied that it was appropriate to exercise the discretion arising under s 52(1) of the Act to make a sequestration order: PJ[21].

3    Ms Mangano was represented by counsel before the primary judge, and by different counsel on this appeal. Ms Bullen was represented by her solicitor before the primary judge and on this appeal.

4    Ms Mangano raises two related grounds of appeal, namely that the primary judge erred in not finding that she “was solvent” and in not dismissing the creditor’s petition with costs. These highly generalised grounds were filed before Ms Mangano retained her current solicitors and counsel.

5    As her counsel developed the submissions in writing and at the hearing of the appeal, Ms Mangano submitted in support of Ground 1 that the primary judge’s error was occasioned by four specific errors. The first substratum was that the primary judge afforded weight to historical documents that were not relevant to the issue of solvency. The second substratum was that the primary judge rejected “unchallenged” evidence given by Ms Mangano as to her financial position. The third substratum was that the primary judge drew inferences from Ms Mangano’s production (and relevantly, non-production) of documents in response to a notice to produce and further erred in relation to the weight afforded to those inferential findings of fact.

6    The fourth substratum in Ms Mangano’s submissions in support of Ground 1 is that the primary judge erred in relation to his conclusion as to solvency by misapprehending a submission made by her then counsel as amounting to an abandonment of any reliance on a line of credit which Ms Mangano maintained was available to her. Ms Mangano contends that this resulted in the primary judge determining the issue of solvency without having regard to the evidence she led in relation to the line of credit, which was relevant to the issue of solvency.

7    This contention was the subject of both written submissions and oral address. The evidence led in relation to the availability of the line of credit was one of the central planks of Ms Mangano’s evidence on solvency and the overarching basis of Ms Mangano’s appeal is that the primary judge erred in not finding that she was solvent.

CONCLUSION IN SUMMARY FORM

8    For the reasons which follow, I am satisfied that, subject to the line of credit issue, the appellant has not established error in relation to the primary judge’s conclusion that she did not discharge her onus to establish that she was able to pay her debts under s 52(2)(a) of the Act.

9    However, I have concluded that the primary judge erred in concluding that the line of credit issue had been abandoned. That being the case, it falls to this Court, being as well placed as the primary judge in this instance, to decide whether Ms Mangano has discharged her onus arising under s 52(2)(a) of the Act on the basis that the line of credit is in play given that it is, in my view, squarely within the broad parameters of Ground 1.

10    This Court is thus required to make its own findings on the whole of the evidence that was before the primary judge. Having undertaken that task, I am not satisfied that Ms Mangano discharged her onus to prove that she was able to pay her debts as at the date of the hearing before the primary judge. In short, applying the civil standard, the whole of the evidence led by Ms Mangano assessed in the context of the totality of the evidence did not rise to the level where I felt an actual persuasion that Ms Mangano was able to pay her debts as at the date of the hearing. The whole of the evidence does not satisfy me of the affirmative on this issue. In the end, Ms Mangano has not proved that she is able to pay her debts. Accordingly, the discretion as to whether to make a sequestration order under s 52(1) arises in circumstances where Ms Mangano has not proved her solvency so as to enliven the discretion in s 52(2).

11    In these circumstances, I am further satisfied that it is appropriate to exercise the discretion conferred by s 52(1) of the Act to order that Ms Mangano’s estate be sequestrated. That is the position at which the primary judge arrived, notwithstanding the error in not considering the evidence in relation to the line of credit. In these circumstances, I see no reason to disturb the primary judge’s orders.

12    Although my reasons for doing so diverge from those of Shariff and Needham JJ as to the ambit of the appeal ground, the assessment of the evidence and what is required of this Court on the hearing of the appeal, I agree that the appeal must be dismissed with costs. My reasons are as follows.

BACKGROUND

13    This appeal is the continuation of a long running dispute between the parties following the death of Rosario (John) Mangano. Mr Mangano was Ms Mangano’s father and Ms Bullen’s partner. The broader procedural history spans about eight years.

14    The basal dispute was a claim brought by Ms Mangano asserting that her father and Ms Bullen obtained their interests in a property in Glebe by fraud. Ms Mangano sought orders to set aside the transfer of the property. Ms Mangano also sought to set aside a further transfer which converted the interests of the deceased and the respondent from tenants in common to joint tenants. In her capacity as the executor of her father’s estate, Ms Mangano ultimately sought orders for the estate to regain a one-half interest in the Glebe property. Ms Mangano’s claim was dismissed at first instance: Mangano v Bullen [2019] NSWSC 1704 (Slattery J) and on appeal: Mangano v Bullen [2020] NSWCA 283 (Bathurst CJ, Meagher and Payne JJA).

15    On 15 May 2024, Ms Bullen filed a creditor’s petition in respect of the judgment debts. Ms Bullen sought to recover costs orders made in her favour by engaging in costs assessments in relation to the separate proceedings, each of which was resolved in favour of Ms Bullen. Subsequent review applications brought by Ms Mangano were unsuccessful.

16    Ms Mangano appealed the review applications to the District Court of New South Wales. On 11 July 2024, the appeal was dismissed and a lump sum costs order in the sum of $7,000 was made in favour of Ms Bullen: Mangano v Bullen [2024] NSWDC 294 (Newlinds SC DCJ).

17    On 22 February 2024, three judgments were entered in favour of Ms Bullen in the Local Court of New South Wales for the cumulative sum of $160,993.32 (PJ[1]), which supported the bankruptcy notice BN263728 issued by the Official Receiver on 8 March 2024. The existence of this debt was not in dispute before the primary judge: PJ[1].

18    On 19 April 2024, the bankruptcy notice was personally served on Ms Mangano: PJ[3]. Ms Mangano failed to comply with the bankruptcy notice by the designated date and accordingly committed an act of bankruptcy which is relied on for the purpose of the creditor’s petition which is the subject of this appeal: PJ[3].

THE PRIMARY JUDGMENT IN THE STATUTORY CONTEXT

19    Notwithstanding that the appeal did not involve any issue of principle, an exposition of the statutory framework and applicable principles is required to properly understand the manner in which the primary judge approached the statutory task and ultimately exercised the Court’s discretion to sequestrate Ms Mangano’s estate. In setting out the statutory context and applicable principles, I will cross-refer as necessary to the relevant parts of the primary judgment. I will also identify which issues were contested before the primary judge and the underlying thesis which informed Ms Mangano’s opposition to the petition, both before the primary judge and on this appeal.

20    Section 40(1) of the Act sets out an exhaustive list of circumstances which constitute an act of bankruptcy. In this proceeding, the act of bankruptcy relied upon was that specified in s 40(1)(g), which relevantly provides:

(1)     A debtor commits an act of bankruptcy in each of the following cases:

…

(g)     if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia … a bankruptcy notice under this Act and the debtor does not:

(i)     where the notice was served in Australia—within the time fixed for compliance with the notice; …

…

comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

21    The primary judge was satisfied that Ms Mangano had committed an act of bankruptcy under s 40(1)(g) of the Act: PJ[3]. Ms Mangano did not contest this issue.

22    The Court’s jurisdiction to make sequestration orders is enlivened according to the criteria in s 43 of the Act, which relevantly provides:

(1)     Subject to this Act, where:

(a)     a debtor has committed an act of bankruptcy; and

(b)     at the time when the act of bankruptcy was committed, the debtor:

(i)     was personally present or ordinarily resident in Australia;

(ii)     had a dwelling‑house or place of business in Australia;

…

the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.

23    It was common ground before the primary judge and on this appeal that s 43(1)(a) and (b) were established: PJ[4].

24    Section 52(1) provides:

(1)     At the hearing of a creditor’s petition, the Court shall require proof of:

(a)     the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)     service of the petition; and

(c)     the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

25    The onus is on the creditor to establish that the criteria in s 52(1) are met. It was common ground before the primary judge and on this appeal that each of the matters specified in s 52(1)(a) to (c) of the Act were established: PJ[6]. The primary judge was satisfied that each of the remaining requirements necessary to enliven the Court’s discretion to make a sequestration order were established: PJ[6].

26    The sole ground of opposition and principal matter for determination before the primary judge was Ms Mangano’s assertion that she was able to pay her debts within the meaning of s 52(2)(a) of the Act: PJ[6].

27    Section 52(2) provides:

(2)     If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

(a)     that he or she is able to pay his or her debts; or

(b)     that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition

28    I interpolate to note that, as mentioned, the principal overarching issue on this appeal is whether his Honour erred in “not finding that [Ms Mangano] was solvent”: Ground 1. The silent premise in Ground 1 is that the primary judge erred in finding that Ms Mangano had not discharged her onus to establish the state of affairs required by s 52(2)(a) — that she was able to pay her debts — as at the date of the hearing.

29    It is well established, and it was not contested before the primary judge or on this appeal, that Ms Mangano bore the onus of proving on the civil standard that she was able to pay her debts: PJ[9] and authorities cited therein. The primary judge correctly observed that the nature of the evidence necessary to discharge the onus will vary from case to case and that a debtor resisting a creditor’s petition on the basis that they are solvent would ordinarily be expected to adduce the most cogent evidence available to them, which evidence would then fall to be assessed in accordance with the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 (Lord Mansfield): PJ[9].

30    The primary judge resisted being drawn into an arid controversy as to whether, as a general proposition of principle, solvency may be proven by evidence which falls short of the “fullest and best” available evidence: PJ[10]-[14]. In doing so, the primary judge agreed with the observation made by Robertson J that the requirement for the “fullest and best” evidence of the financial position is “a tool to be used, where appropriate, by the finder of fact to evaluate the balance of probabilities”: Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; 127 ALD 64 at [61]. The primary judge’s approach was consistent with the weight of authority, including the decision from which the phrase “fullest and best” evidence in this context derived: see Commonwealth Bank of Australia v Begonia (1993) 11 ACSR 609 at 617; 11 ACLC 1075 at 1081 (Hayne J), as expounded by White J in Coates Hire Operations Pty Ltd v D-Link Homes Pty Ltd [2011] NSWSC 1279 at [60]-[61] and Robertson J in Bayconnection at [61].

31    By analogy with the authorities concerning the question of whether a company is solvent, the parties proceeded on the basis that solvency is a question of fact: Hall & Ors v Poolman & Ors [2007] NSWSC 1330; 65 ACSR 123 at [203] (Palmer J); Stone v Melrose Cranes & Rigging Pty Ltd, in the matter of Cardinal Project Services Pty Ltd (in liq) (No 2) [2018] FCA 530; 125 ACSR 406 at [146] (Markovic J) and authorities cited therein. In other particular statutory settings, insolvency may be a mixed question of law and fact: Deputy Commissioner of Taxation v De Simone Consulting Pty Ltd [2007] FCA 548 at [11] (Finkelstein J).

32    It is convenient to now turn to the critical part of the primary judge’s reasons relevant to Ground 1.

33    The primary judge addressed the evidence led by Ms Mangano at PJ[15]-[20]. For present purposes, the critical passage of the primary judgment is PJ[21]:

The state of the evidence described above is such that I do not accept the respondent’s evidence concerning her debt position and I am not satisfied as to the nature or scale of the debts that the respondent has. It follows that I am not satisfied that she is able to pay her debts within the meaning of s 52(2)(a) of the Act and I am satisfied that the sequestration order should be made.

34    Pausing here, the primary judge’s conclusion in relation to s 52(2)(a) of the Act is a conclusion directed to the issue of onus — the primary judge was not satisfied as to the state of affairs that Ms Mangano was required to prove, namely that she was able to pay her debts within the meaning of s 52(2)(a) of the Act.

35    It is trite but nonetheless important to emphasise that when the law requires proof of any fact, the Court must “feel an actual persuasion” of the occurrence or existence of that fact before it can be found: Axon v Axon [1937] HCA 80; 59 CLR 395 at 403 (Dixon J); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 (Dixon J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [31]-[32] (Weinberg, Bennett and Rares JJ).

36    Section 52(2) relevantly requires the Court to be “satisfied by the debtor … that he or she is able to pay his or her debts”. As to what is required to attain a state of satisfaction in relation to, relevantly, a state of affairs, the observations of Dixon CJ (with whom Taylor J agreed) in Murray v Murray (1960) 33ALJR 521 at 524, are apposite:

What the civil standard of proof requires is that the tribunal of fact, in this case the judge, shall be “satisfied” or “reasonably satisfied”. … But the point is that the tribunal must be satisfied of the affirmative of the issue. The law goes on to say that he is at liberty to be satisfied upon a balance of probabilities. It does not say that he is to balance probabilities and say which way they incline. If in the end he has no opinion as to what happened, well it is unfortunate but he is not “satisfied” and his speculative reactions to the imaginary behaviour of the metaphorical scales will not enable him to find the issue mechanically.

(Emphasis added.)

37    Before moving to consider the grounds of appeal, it is important to stress that the primary judge did not make a positive finding that the relevant state of affairs did not exist — that is, the primary judge did not find that as a matter of fact that Ms Mangano was not able to pay her debts. Similarly, the primary judge did not find that Ms Mangano in fact had extant liabilities in relation to the payment of tax. Rather, the primary judge in the end could not, on the basis of the evidence led, be satisfied that she did not. The primary judge was left in the position, described by Dixon CJ as “unfortunate”, of in the end not being able to be satisfied — of having, to borrow from Dixon CJ, “no opinion” on the topic.

38    To the extent that Ms Mangano’s submissions were addressed to the primary judge having erred by making positive findings as to the underlying state of affairs as opposed to making findings that Ms Mangano had not discharged her onus in relation to proving the underlying state of affairs, I reject the submissions. They are predicated on a misstatement or misapprehension of the primary judge’s reasons.

39    The final feature of the primary judgment which I will briefly note was that Ms Mangano requested the operation of the sequestration order be stayed for 48 hours to enable her the opportunity to pay the debt. The primary judge concluded that there was no power to do so under s 37(2)(a), citing Endresz v Australian Securities and Investments Commission [2014] FCA 1139 at [8]-[11] (Beach J); Mehajer v Weston (Trustee), in the matter of Mehajer [2018] FCA 608 at [8] (Lee J) and Ritson v Commissioner of Police (NSW) [2021] FCAFC 208 at [63]-[64] (Allsop CJ, Lee and Downes JJ): PJ[24]-[26]. No issue is raised on this appeal in relation to this aspect of the primary proceeding.

40    The primary judge noted that the Court has power under s 52(3) of the Act to “stay all proceedings under a sequestration order” once such an order is made. The primary judge declined to make such an order in circumstances where to do so to provide the debtor an opportunity to pay the debt upon which the petition was based would not be a proper exercise of the power: PJ[27] citing Day, in the matter of Gould v Gould [2000] FCA 1377 at [7] (Emmett J). Again, no issue is raised on this appeal in relation to this aspect of the primary proceeding.

41    I interpolate to note that Ms Mangano’s opposition to the petition was in essence to assert that she was able, but unwilling, to pay her debts and in these circumstances it is well-established that the discretion to make a sequestration order will not usually be exercised to make a sequestration order: PJ[22] citing Sarina v Council of the Shire of Wollondilly [1980] FCA 175; 48 FLR 372 at 375-376 (Bowen CJ, CA Sweeney and Lockhart JJ); Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [50]-[51] (Rares, Flick and Bromberg JJ); Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; 343 ALR 632 at [40]-[44] (Allsop CJ, Dowsett and Besanko JJ); and Shaw v Yarranova Pty Ltd [2017] FCAFC 88; 252 FCR 267 at 290-291 [105]-[109] (North, Perry and Charlesworth JJ). The primary judge recognised that in accordance with established principle as a matter of construction, it remained open to the Court to make such an order. In doing so, the primary judge referred to the observations of the Full Court in Culleton in which the circumstances in which a court would make a sequestration order against a solvent debtor were described by as “difficult to imagine” (at [43]): PJ[22]. Ms Mangano sought to emphasise on this appeal that the primary judge indicated that had his Honour been persuaded that she was able to pay her debts, then the primary judge would have dismissed the petition: PJ[22].

42    Ms Mangano’s submissions on the appeal similarly pursued this line of argument — that she was able, but unwilling, to pay her debts. The necessary predicate before the issue of whether the discretion to make a sequestration order should be exercised in favour of making such an order in these circumstances, is that the debtor has established an ability to pay her debts to the satisfaction of the Court.

CONSIDERATION

43    The starting point is that notwithstanding that s 37(2)(a) of the Act relevantly provides that the Court does not have power to rescind or discharge or to suspend the operation of a sequestration order, the appellate powers of this Court pursuant to s 28 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) enable the Court to set aside a judgment in which a sequestration order is made: see Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143; 286 FCR 494 at [27] (Allsop CJ, Markovic and Derrington JJ agreeing); De Robillard v Carver [2007] FCAFC 73; 159 FCR 38 at [149]-[151] (Buchanan J, Moore and Conti JJ agreeing).

44    I bear in mind that this is an appeal by way of rehearing. In this regard, it is convenient to extract an oft-cited passage from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [45] (Jagot, Yates and Bromwich JJ):

Appeals to this Court are by way of a rehearing (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]). An appeal by way of rehearing requires this Court to decide the case for itself as to both facts and law and give effect to its own judgment (Warren v Coombes (1979) 142 CLR 531 at 552). However, this does not remove the need to find error on appeal before intervening (Branir at 435 [21]). In practice, the application of these principles may involve accepting the findings of the trial judge, especially factual findings, including as to the reliability and credit of witnesses and the weight that should be given to competing evidence, unless shown to be wrong (Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311 at [223]-[224], quoted with approval in Branir at [23]). However it should be observed that as there was no oral evidence in this case and all the representations were before this Court in documentary form, this Court is under no disadvantage compared to the primary judge in relation to consideration of the facts and evidence. The requirement for error to be established nevertheless remains.

45    In this appeal, if error is established, then given the nature of the evidence, this Court is in as good a position as the primary judge to assess the evidence, and accordingly should proceed to make such findings and evaluative conclusions and formulate its own reasoning, in order to address the error of the primary judge: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).

46    After some equivocation, the parties ultimately adopted the position that Ground 1 fell to be determined according to the correctness standard of appellate review, and by contrast did not require Ms Mangano to establish House v R error, at least as to the overarching error. In the circumstances of this appeal, as will become apparent, I do not think the outcome differs depending on which standard of appellate review is applicable. As this issue was not fully developed in argument, and in the circumstances of this appeal is not determinative, it is not necessary to decide.

47    As noted at the outset, this appeal turns on its own facts and the course taken before the primary judge. I will first address a number of salient aspects about the way in which the hearing was conducted before addressing each of Ms Mangano’s arguments in support of the grounds of appeal.

The course taken before the primary judge

48    The primary judge promptly delivered judgment two days after the hearing. The hearing before the primary judge was short, completing in about an hour, punctuated by a minor interruption occasioned by the primary judge being the Commercial & Corporations duty judge at the relevant time. The evidence comprised affidavits and documentary tender. The only witness who was cross-examined was Ms Mangano. The cross-examination of Ms Mangano was very short. She was re-examined on topics that did not strictly arise from her cross-examination. She introduced evidence that she had not given in her affidavit or in chief. She was not subjected to further cross-examination, the solicitor appearing for Ms Bullen indicating that he would address that evidence in submissions. Consistently, with the way in which the parties conducted the hearing, no point was taken in closing submissions as to the absence of cross-examination.

49    A review of the whole of the transcript makes it plain that the proceeding was conducted on the basis that the central issue was proof of solvency and the adequacy of Ms Mangano’s evidence to discharge her onus on that issue. Ms Bullen contended that: (1) Ms Mangano’s evidence was inadequate; (2) her capacity to test Ms Mangano’s evidence was hampered by the non-production of relevant documents; and (3) the primary judge should take into account the non-production of documents when assessing the sufficiency of the evidence. Ms Mangano’s position was that the documents which were not produced were not relevant — a proposition which the primary judge rejected. A review of the whole transcript makes plain that the parties proceeded from the outset on the basis that the matters in issue were sufficiently delineated and the case would be won or lost in submissions.

Ms Mangano’s evidence as to solvency

50    The principal source of Ms Mangano’s evidence as to her financial position was her affidavit, which was supplemented by her oral evidence. Relevantly for present purposes, Ms Mangano asserted in her affidavit that she had no liabilities other than the three Local Court orders the subject of the creditor’s petition (totalling $160,993.32) and $7,000 in respect of a lump sum costs order made against her and in favour of the applicant by the District Court of New South Wales on 11 July 2024: PJ[15(6)] and [16]. She did not disclose in her affidavit that she had credit card debts, which by 14 October 2024 were in the order of $5,000. That emerged in her oral evidence after she produced the National Australia Bank (NAB) account summary that became part of Exhibit R1. The bank statements and banking records that Ms Mangano annexed to her affidavit were missing pages and only covered limited periods. Ms Mangano’s evidence did not establish that the limited banking records that she had produced covered all of her bank accounts, and if not, whether other bank accounts existed and whether they were in credit or debit balance.

51    Further, it was not possible to discern Ms Mangano’s regular living expenses from a review of the documents that she placed in evidence.

52    The notice to produce issued to Ms Mangano was directed, amongst other things, to eliciting evidence concerning her liabilities; ascertaining if she had extant tax liabilities; and ascertaining whether she held bank accounts other than those in respect of which she had produced limited incomplete statements. Evidence going to her liabilities was clearly relevant to whether Ms Mangano could pay her debts within the meaning of s 52(2)(a) of the Act, and in any event, Ms Mangano had put that in issue by asserting that she had no liabilities other than those associated with the court orders identified above and unquantified recurrent outgoings of generic description.

Ms Mangano’s response to the notice to produce

53    The hearing commenced with the petitioning creditor’s solicitor calling on a notice to produce directed to Ms Mangano. The notice to produce became Exhibit A2 on the application. By the time of the hearing, the notice to produce had already been returned before a Registrar on two occasions. The notice to produce was again called on at the commencement of the hearing. At the time the call was made, Ms Bullen’s solicitor indicated that he understood that Ms Mangano intended to apply to have the notice to produce set aside. The primary judge said that he would first deal with the application to set aside the notice to produce. Before addressing the application to set aside, Ms Mangano’s then counsel produced some additional material in answer to the call which became Exhibit R1. It is necessary to divert temporarily to explain an anomaly in relation to this exhibit.

54    Exhibit R1 was described as comprising a “four-page bundle of documents which appears to comprise a wage slip together with statements from Bendigo Bank, National Australia Bank and ING”. Only three pages of Exhibit R1 are included in the Appeal Book. They are:

(a)    a wage slip showing Ms Mangano’s earnings for the period 16 September 2024 to 29 September 2024;

(b)    an account summary (not a bank statement) from the NAB, listing the account details and balances for four bank accounts and two credit cards as at 14 October 2024. It does not reveal any transactional history. It appears to be a print out generated by Ms Mangano utilising her internet banking access on the day before the hearing (the NAB Account Summary); and

(c)    a single page account summary from ING Bank, which appears on its face to be a print out generated by Ms Mangano utilising her internet banking access on the day before the hearing (not a bank statement). This document shows an available credit balance on one ING account, described as a “HOME DEPOSIT” account as at 14 October 2024. It does not reveal any transaction history.

55    The document described as a Bendigo Bank bank statement when Exhibit R1 was marked is not included in the Appeal Book. I infer that this document was a single page that constituted one of the four pages of Exhibit R1. In Ms Mangano’s written submissions on the appeal, counsel noted that the materials available as at the date of submissions did not include the “Bendigo Bank statement”. It appears that the copy of Exhibit R1 on the Court file is similarly missing a page, which I infer was the equivalent one page from Bendigo. Ms Mangano’s counsel noted that “[t]he total of the Annexure B statements was $275,033.75; the total of Exhibit R1 credit balances (ie net of the two credit card accounts) is $267,911.14; the judgment records a cash position of $276,014.10 – which may take into account the potentially missing Bendigo Statements from R1.” The reference in the judgment to $276,014.10 is at PJ[15(2)] — “she has cash at bank of $276,014.10 as at 14 October 2024 across numerous accounts with ING Bank, Bendigo Bank and the National Australia Bank”. In these circumstances, I would readily infer in accordance with the analysis proffered by counsel for Ms Mangano that the Bendigo account summary showed a credit balance of $8,102.96. For the purpose of my consideration which follows, I have taken the primary judge’s finding that Ms Mangano had cash at bank of $276,014.10 as at 14 October 2024 across numerous accounts with ING, Bendigo and the NAB to be correct. Ms Bullen did not submit to the contrary.

56    Returning to the course of the hearing, counsel for Ms Mangano then said that:

MR HANARAHAN: Yes, your Honour. There are some matters in the notice to produce which we say are not relevant to this application as to whether or not the defendant is solvent. I appreciate my friend is saying that he wants to test some of the questions that arise that we produce some material but not all….

57    After a brief exchange between the primary judge and the parties’ legal representatives, the application to set aside the notice to produce was not pressed:

HIS HONOUR: Can I just raise this with you?

MR HANARAHAN: Yes.

HIS HONOUR: So as I understand it, there are no further bank statements produced, and there are no income tax statements - - -

MR HANARAHAN: Correct.

HIS HONOUR: - - - produced. Does that not – okay. So if the answer is that there is nothing, that is a matter that can be tested in cross-examination. Is there anything you wish to say at this stage?

MR BALASUBRAMANIAN: Yes. I think your Honour has identified the issue about whether it’s satisfactory. And I think, ultimately, that is a matter for submissions. So if the notice to produce is not being sought to be set aside as a partial answer, we would say I think that is a matter for submission, ultimately, your Honour.

HIS HONOUR: Yes. And your submission will be that one would expect, in the normal course, that there would have been other, or later, bank statements and tax returns at least for some of those years.

MR BALASUBRAMANIAN: Yes.

HIS HONOUR: And on the basis that the assessment may well show a liability to the tax office.

MR BALASUBRAMANIAN: Potentially.

HIS HONOUR: Yes. Okay. All right. If there is nothing else either of you wish to say about the notice to produce, let’s proceed.

58    The primary judge then moved to consider the notice to produce and moved through each of the categories of production in response to the notice to produce. The categories of production in the notice to produce and Ms Mangano’s responses, including by reference to documents that she annexed to her affidavit, are set out in the table below. Of the six categories of production, no documents were produced in response to categories three to six. I will return below to the manner in which the production of documents in answer to the notice to produce was on its face inadequate and incomplete.

59    Ms Mangano’s response to the notice to produce was one factor that informed the primary judge’s conclusion that Ms Mangano had not discharged her onus to prove that she was able to pay her debts: PJ[19]. Before moving to the primary judge’s reasons, I will address the documents that she produced in relation to her various bank accounts for the purpose of contextualising the primary judge’s conclusion that he could not reach the requisite state of satisfaction having regard to the paucity of the evidence led by Ms Mangano.

60    The bank-related documents in evidence relevantly relate to seven bank accounts:

(1)    ING account number ending 994;

(2)    Bendigo account number ending 670;

(3)    Bendigo account number ending 746;

(4)    NAB account number ending 128;

(5)    NAB account number ending 761;

(6)    NAB account number ending 264; and

(7)    NAB account number ending 101.

I will address each account separately.

ING account number ending 994 — ING Savings Maximiser Home deposit account

61    Ms Mangano produced one bank statement for the ING account number ending 994 for the period 1 January 2024 to 30 June 2024. The last page of the statement is missing. Having regard to the form of the statement, the last page appears unlikely to contain detail that is relevant for present purposes. The closing balance was $16,851.62.

62    Ms Mangano also produced two ING account summaries, the first was dated 23 July 2024 and the second, which I have addressed above, was dated 14 October 2024. These summaries appear to be printed by Ms Mangano using her online internet access to this account. The documents appear to be in the same form, but are both are incomplete.

63    ING Summary printed on 23 July 2024 at 10:37am: This summary in its original form comprised five pages, only three pages were annexed to Ms Mangano’s affidavit — pages which on their face appear to be “1/5”, “3/5” and “5/5”. Pages “2/5” and “4/5” were not put in evidence by Ms Mangano. Having regard to the form of the summary, I infer that the pages which are missing record part of the transaction history on this account. Based on the limited transaction history in evidence, Ms Mangano transfers funds from this account to her NAB Cash Manager Account ending 761, which is the account into which her pay slip identifies her wages are paid. This summary was printed on 23 July 2024 10:37am at which time the credit balance available was $11,751.62.

64    ING Summary printed on 14 October 2024 at 1:19pm: This summary comprises one page. The page number on the printout is obscured but appears to be page one of four. This document does not include the details of any transactions. I infer that the missing pages would have revealed transaction history on this account and given the proximity to the date of the hearing was likely to provide material relevant to Ms Mangano’s recurrent expenses and liabilities. This summary shows the total balance available was $12,468.54.

65    I interpolate to note that in the absence of any information about the activity on this account in the period between 23 July 2024 (the date of the first summary) and 14 October 2024 (the date of the second summary), Ms Mangano has done little more than establish that there was a net increase of about $716 when one compares the two points in time. There is an absence of evidence upon which it could be inferred what the position was in the period between the two accounts and even whether the account was consistently in credit during this period. These are matters that were readily demonstrable by Ms Mangano by reference to her banking records. She did not lead evidence to support her assertions as to solvency given in her affidavit and oral evidence. Indeed, she resisted the potential for such evidence to be tendered by not complying with the notice to produce.

Bendigo account number ending 670 — Bendigo Bank Ultimate Account

66    Ms Mangano produced one bank statement for the Bendigo account number ending 670 for the period 2 October 2023 to 1 April 2024. There were no withdrawals during this period. The only transactions were fortnightly deposits described as “savings”. There were no other bank statements or financial records tendered in relation to this account number. The closing balance was $7,053.06.

Bendigo account number ending 746 — Bendigo Bank EasySaver Account

67    Ms Mangano produced one bank statement for the Bendigo account number ending 746 for the period 2 April 2024 to 1 July 2024. Only three transactions were recorded in the statement. They were monthly interest deposits of around $500 each. There were no withdrawals recorded in this statement. The closing balance was $164,715.72.

68    For the reasons I have given at [55] above, I infer that by 14 October 2024, the amount available to Ms Mangano from her Bendigo accounts was in the order of $8,102.96. That represents a significant diminution in Ms Mangano’s cash at bank in a relatively short period of time, and in respect of which there is no explanation in the evidence. Based on the documentary evidence, there appears to have been a substantial increase in the credit balance of one of the NAB accounts at around this time, with the credit balance of NAB account number ending 761 increasing from $2,481.09 (28 June 2024) to $241,036.78 (14 October 2024) – see [71]-[75] below. It may be that the funds were transferred from the Bendigo account to the NAB account. This is a matter which Ms Mangano could have addressed, but did not. Another possibility is that the funds disbursed from the Bendigo account were not transferred to the NAB Account, but were otherwise dissipated. It may be that the increase in the credit balance of the NAB account reflects Ms Mangano drawing on the line of credit for the purpose of inflating the apparent balance of her cash at bank immediately before the hearing. On the evidence led by Ms Mangano, the position is left uncertain. In these circumstances, the issue of onus looms large.

69    I now turn to Ms Mangano’s NAB accounts. As at 14 October 2024, the NAB Account Summary indicated that the net amount available to Ms Mangano from her NAB accounts was $250,717.68.

NAB account number ending 128 — NAB iSaver

70    Ms Mangano produced one bank statement for the NAB account number ending 128 for the period 1 December 2023 to 31 May 2024. Page one of two was annexed to Ms Mangano’s affidavit. Page two is not in evidence. Based on the form of the statement I would infer that second page did not contain information relevant for the purpose of the proceeding. The closing balance was $8,749.02. The only transactions recorded in this statement were nominal monthly interest payments.

NAB account number ending 761 — NAB Cash Manager Account

71    Ms Mangano produced one bank statement for the NAB account number ending 761 for the period 1 June 2024 to 28 June 2024. “Page 1 of 3” and “Page 3 of 3” were attached to Ms Mangano’s affidavit. “Page 2 of 3” is not in evidence. The closing balance was $2,481.09.

72    This statement records some of what may be regarded as Ms Mangano’s regular living expenses such as groceries and pharmacy transactions. The account balance summary on page one recorded that the total debits during this period amounted to over $6,600, however the pages put in evidence by Ms Mangano only revealed debit transactions of approximately $2,200. By inference that leaves approximately $4,400 debit transactions between 7 June 2024 and 28 June 2024, the detail of which is not in evidence. These debits may represent funds being transferred between accounts, payments made in satisfaction of other liabilities, or recurrent expenses. The evidence led by Ms Mangano does not enable any conclusion to be drawn in this regard.

73    One of the debits that is listed in the page of transactions that was put in evidence from this bank statement records a payment described as “Tax Office Payments”. Ms Mangano gave oral evidence that she did not owe any money to the Australian Tax Office.

74    Again, I pause to observe that it may be that Ms Mangano does not have any outstanding tax liabilities, however, beyond her bare assertion, the evidence which she relied upon did not establish that was so. By reference to the bank accounts that she annexed to her affidavit it was not possible to ascertain whether the payment described as “Tax Office Payments” that was disclosed was a one-off payment or an instalment payment. She did not adduce any tax assessment notices that may have thrown light on the issue.

75    As I have noted above, there was a substantial and unexplained increase in the credit balance of this account between 28 June 2024 and 14 October 2024 increasing from $2,481.09 to $241,036.78.

NAB account number ending 264 — NAB Classic Banking Account

76    Ms Mangano produced one bank statement for the NAB account number ending 264 for the period 30 December 2023 to 28 June 2024. The only transactions recorded in the statement were two nominal monthly interest payments. The closing balance was $3,233.83.

NAB account number ending 101— NAB iSaver

77    Ms Mangano produced one bank statement for the NAB account number ending 101 for the period 1 December 2023 to 31 May 2024. It is a two-page document, however only the first page has been put in evidence. Based on the form of the statement I would infer that the second page is unlikely to contain information that is relevant for present purposes. The bank statement records payments from Ms Mangano’s linked account and monthly interest payments. There were no withdrawals recorded in the bank statement. The closing balance was $77,049.41.

78    I will return to these documents and the conclusions drawn by the primary judge in relation to them when considering Ms Mangano’s submissions on the topics of the relevance of historical documents and of the fact of non-production of documents in response to the notice to produce.

The line of credit

79    The next issue that arises from the course of the hearing before the primary judge is in relation to whether Ms Mangano abandoned any reliance on the availability of a line of credit as part of her evidence directed to proving that she could pay her debts.

80    I will address the substance of the line of credit deed in the context of considering Ms Mangano’s submissions on this appeal. For present purposes, my focus is on whether Ms Mangano’s then counsel abandoned reliance on the line of credit before the primary judge. In the primary judge’s reasons, the primary judge noted that Ms Mangano gave evidence as to the existence of a line of credit but said that her counsel indicated that no reliance was placed upon this evidence: PJ[20]. Before moving to the particular submission in issue, it is necessary to provide some context given that the primary judge did not address this evidence.

81    In her affidavit of 23 July 2023, Ms Mangano deposed as follows:

29.     Annexed hereto and marked F is a copy of a Deed dated 1 March 2024 which provides me with a line of credit upto $200,000.00 which have not drawn down on, but is available should I wish to drawn down on it.

82    Ms Mangano did not give any additional evidence on this topic, including in relation to the status of the line of credit as at the date of the hearing in October 2024, in her examination in chief or in re-examination. She was not cross-examined on this issue. The topic was instead addressed in closing submissions. No point was taken as to the absence of cross-examination on this issue.

83    That is entirely consistent with the way in which the primary proceeding was conducted — there was no obligation to cross-examine in circumstances where it is perfectly clear that Ms Mangano was on notice that Ms Bullen was challenging the significance of the line of credit to the principal matter in issue. Ms Mangano had ample opportunity of adducing evidence on this topic, including by adducing evidence from Mr Coshott who had provided an affidavit which Ms Mangano had served in the proceeding (discussed below) and or tendering a comprehensive collation of all of her bank accounts postdating the execution of the deed on 1 March 2024.

84    The deed which Ms Mangano annexed to her affidavit comprises a single page which on its face was between Ms Mangano and “LITIGATION FUND WCX PTY LTD”. It is dated 1 March 2024. The deed is executed by Ms Mangano and bears a signature of what appears to read “Robert G Coshott”, designated as “Director” of WCX.

85    The entirety of Ms Mangano’s evidence on this issue was comprised by the single paragraph in her affidavit (extracted at [81] above) and the tender of the one-page deed.

86    Ms Mangano did not tender a company search in relation to WCX. She did however file and serve an affidavit of Robert Gilbert Coshott on 5 September 2024 (the Coshott Affidavit), which was not read before the primary judge. Counsel appearing for Ms Mangano on the appeal confirmed in written submissions that the Coshott Affidavit was included in the court book in the proceeding before the primary judge and that it related to the line of credit, but that it was not read.

87    After Ms Mangano served the Coshott Affidavit, Ms Bullen’s solicitors caused a subpoena to be issued to WCX. The subpoena was filed on 2 October 2024. The last date for service was 3 October 2024. The subpoena included the following information in relation to WCX:

WCX means Litigation Fund WCX Pty Ltd (ACN 636 310 195) of Suite 6, 79-85 Oxford Street, Bondi Junction NSW 2022, being a company identified in the Affidavit of Robert Gilbert Coshott dated 5 September 2024 who entered into a deed extending a line of credit to the Respondent on or around 1 March 2024.

88    The subpoena required WCX to produce documents which relevantly included:

(1)    a copy of the following documents for WCX for the Relevant Period (being defined as the period 1 January 2020 to date):

(a)    profit and loss statements;

(b)    balance sheets;

(c)    cash flow statements;

(d)    details of any assets owned, including equity in those assets, including without limitation to any real property;

(e)    any statements for financial institution account(s) held in the name of WCX or within the control of WCX, identifying the name of the financial institution, the BSB, the account number and the account balance; and

(f)    copies of any business activity statements, tax returns or accounts lodged with the Australian Taxation Office;

(2)    any product disclosure statements issued by WCX;

(3)    a copy of any Australian Financial Services License held by WCX; and

(4)    a copy of “any litigation funding agreements entered into between WCX and any other person, entity and/or corporation” (category eight).

89    WCX did not apply to set aside the subpoena. The subpoena was called on before a Registrar and there was no production by WCX in response to the subpoena.

90    Ms Bullen made submissions on the line of credit in closing submissions before the primary judge, the effect of which was to challenge the bare assertion in Ms Mangano’s affidavit that the line of credit had not been drawn. Ms Bullen complained that her attempts to test Ms Mangano’s evidence on this issue were thwarted by the fact that WCX had not produced any documents in answer to the subpoena issued to it. By implication, Ms Bullen’s complaint in this regard necessarily extends to the inadequate production of all of Ms Mangano’s banking records in the period following the date of the deed in answer to the notice to produce.

91    The relevant submission made by Ms Mangano’s then counsel in closing submissions which the primary judge understood to be an abandonment of reliance on the line of credit was as follows:

MR HANARAHAN: … your Honour, with respect to the section 52(2)(a) criteria, we would say that the old test used to be considering how the debts are payable when they fall due, and it needs to be out of the respondent’s own money.

HIS HONOUR: Yes.

MR HANARAHAN: So that so far as any submissions about the W[C]X loan is concerned, I haven’t relied upon that. It would be a debt that we would call upon perhaps in the future anyway. It’s not her money. The money that she has is very limited, as my friend pointed out, so that the cash that’s in her bank account, at the present time – it would be available through the ordinary means to these – to her creditors, and, in our submission, this court should not be used as a debt collection agency. Basically, the thrust of section 52(2)(a) – I don’t disagree with my friend’s submission about the authorities that are relevant here.

It couldn’t have been – it couldn’t be plainer, in my submission, that it would be wrong to make a person bankrupt who does have the ability to pay her debts. …

(Emphasis added.)

92    The submission is difficult to follow. I have considerable sympathy for the primary judge’s reaction to the submission having regard to the compressed manner in which the whole of the closing submissions were advanced. However, despite the ambiguity with which the submission was expressed, on balance and having regard to the seriousness of the consequence of shutting Ms Mangano out from relying on this evidence, I am not satisfied that it is properly understood as an abandonment of reliance on the availability of the line of credit as evidence in support of her being able to pay her debts.

93    When read in the context of what immediately preceded and followed from it, it was not an abandonment of Ms Mangano’s reliance on the line of credit but rather a submission which sought to emphasise that the significance of the line of credit to the determination of solvency was not constrained by the “old test” by which a debtor had to demonstrate an ability to pay debts from the debtor’s own resources. The best I can make of the submission is that in effect Ms Mangano is saying the “old test” does not apply in relation to the line of credit because impliedly it has been overtaken by the established line of authority that recognises that a debtor’s own monies are not limited to his or her cash resources immediately available, but extend to monies which may be procured and “such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due”: see Sandell v Porter [1966] HCA 28; 115 CLR 666 at 670 (Barwick CJ). Further, and again by implication, the submission appears to be to the effect that such resources include the availability of a line of credit: see Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 at [44] (Weinberg J).

94    Although what was meant by the submission is by no means clear, given the ambiguity of what was said, coupled with the seriousness of shutting out Ms Mangano from reliance on the line of credit evidence (whatever it may be worth) I incline towards caution. Accordingly, I do not think it is correct to conclude that Ms Mangano abandoned her reliance on the evidence in relation to the line of credit. It is thus necessary for this Court, in an appeal by rehearing, to reach its own view on whether Ms Mangano has discharged her onus taking into account the totality of the evidence before the primary judge, including that relating to the line of credit.

95    I now turn to Ms Mangano’s submissions in support of Ground 1.

Ms Mangano’s submissions on this appeal

96    The first three themes in Ms Mangano’s submissions overlapped. Underlying them all was the contention, although not expressed so baldly, that the primary judge was compelled to accept Ms Mangano’s contentions as to her ability to pay her debts in a mechanistic and uncritical manner and ignore the absence of a coherent body of evidence that one would usually expect to be available and relied on by a debtor to support bare assertions of the type made by her.

Weight given to historical documents that were not relevant to the issue of solvency

97    The first theme in Ms Mangano’s submissions is that the primary judge afforded weight to historical documents that were not relevant to the issue of solvency.

98    The gravamen of Ms Mangano’s argument is that historical documents (whether banking records or tax returns) do not prove the present solvency of a debtor. That may be accepted. But it does not follow that such documents were not relevant to the Court being satisfied that Ms Mangano had proved on the balance of probabilities that she was able to pay her debts at the date of the hearing. In this case, Ms Mangano put her liabilities in issue by asserting in her affidavit that she essentially had no liabilities other than those connected to her curial campaign against Ms Bullen and unspecified expenses associated with her mother’s home in which she lived, and also unspecified personal expenses. She did this in the context where she annexed to her affidavit banking records that were for limited periods of time and were missing some pages that were likely to include material information.

99    The account summaries that Ms Mangano tendered at the hearing revealed two credit card accounts. She did not refer in her affidavit to having any credit cards and did not annex any credit card statements. She said in re-examination that the amount outstanding on her credit cards was approximately $5,000, and that was broadly in line with the NAB Account Summary that was tendered, production having been triggered by the notice to produce. On the basis of Ms Mangano’s evidence it was not possible to ascertain the extent and nature of Ms Mangano’s expenses in so far as they were paid for using her credit cards. The same applies in relation to the limited production of her bank records. This was another aspect of Ms Mangano’s evidence that undermined the primary judge’s ability to be satisfied in accordance with s 52(2) of the Act on the basis of Ms Mangano’s limited and incomplete evidence.

100    Ms Mangano also contends that the primary judge was wrong to conclude that she had not produced bank statements. I reject that submission. The primary judge’s finding read in context was that Ms Mangano had not given adequate production of her bank statements, not that she had not produced any bank statements. The primary judge rejected Ms Mangano’s submission that the bank statements she had not produced were not relevant. Ms Mangano has not established error in that regard. To the contrary, the primary judge was correct in reaching that conclusion.

101    The primary judge was required to reach an actual persuasion as to Ms Mangano’s current solvency applying a cashflow test. In order to be satisfied on the cashflow test, it is necessary to have clear evidence of the volume and timing of both inflows and outflows, including where relevant the debtor’s ability to liquidate assets or raise credit against assets within the time required. In the absence of reliable, complete and persuasive evidence as to Ms Mangano’s regular expenses and liabilities, the primary judge was not satisfied that she was able to pay her debts by reason of the cumulative amount standing in credit in her bank accounts.

102    I discern no error in the primary judge’s reasons in terms of his Honour’s determination of relevance or in the manner in which his Honour took into account the paucity of records as one factor in reaching a conclusion that Ms Mangano had not discharged her onus.

103    Ms Mangano has not established error in relation to this first theme which she relies on in support of Ground 1.

Error in rejecting “unchallenged” evidence given by Ms Mangano as to her financial position

104    The second theme in Ms Mangano’s submissions is that the primary judge rejected “unchallenged” evidence given by Ms Mangano as to her financial position.

105    A court is not necessarily obliged to accept evidence that was “not challenged”. An example of this principle is when evidence is not cross-examined on: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 at 404-405 [105] (Campbell JA, Allsop P and Basten JA agreeing). This is particularly so in circumstances where the evidence is inconsistent with other evidence which the court accepts or where the evidence is “inherently incredible”: Masterton Homes at [105]. Justice Perram expressed the point made in Masterton Homes in another way when his Honour observed that the rule in Browne v Dunn (1893) 6 R 67 does not require every aspect of a witness’s evidence to be put to them if the cross-examiner has successfully demonstrated that the witness’s evidence is otherwise unreliable: Youssef v Commissioner of Taxation (Appeal) [2024] FCA 1154 at [23].

106    For the reasons I have given at [49], I do not accept that the evidence given by Ms Mangano, taken in the context of the way in which the hearing was conducted, was unchallenged. Based on a review of the transcript and materials before the primary judge, it is plain that the issue as to the adequacy of Ms Mangano’s evidence of solvency was clearly identified as a significant concern. That there was no express cross-examination of Ms Mangano in this context did not give rise to any claim for procedural unfairness. The fact that Ms Mangano’s evidence was not challenged in cross-examination must be seen in the context of Ms Bullen’s unsuccessful attempts to obtain, by compulsory process, documents with which to challenge Ms Mangano’s own evidence. The statutory task of the primary judge in relation to s 52(2) of the Act was to assess whether he could be satisfied that Ms Mangano had discharged her onus. That required the primary judge to be actually persuaded. To suggest that here the primary judge should have deferred to the “unchallenged evidence” of Ms Mangano, regardless of whether on the whole of the evidence the primary judge had attained the requisite satisfaction, would be to subvert the statutory task.

107    As a final point I should address Ms Mangano’s reliance on Do (Trustee), in the matter of Andrew Superannuation Fund v Sijabat [2023] FCAFC 6; 295 FCR 584 (Markovic, Halley and Goodman JJ) which she submits supports her contention that the primary judge erred in not accepting what she characterises as her unchallenged evidence. The relevant issue in Do was whether the debtor had rebutted the presumption of insolvency for the purpose of s 128B(5) of the Act in relation to superannuation contributions which were allegedly made to defeat the interest of creditors. The factual circumstances and findings in Do are readily distinguishable from the present circumstances.

108    The debtor in Do relied on contemporaneous records and gave affidavit evidence which comprehensively detailed the debtor’s financial status, including whether the debtor had any liabilities and the total amount held in their bank account, at each point in time directly prior to and at the time of each relevant impugned transfer of funds: Do at [151]. Ms Mangano has not provided an equivalent evidentiary basis to support her “unchallenged” assertions of solvency in either her written or oral evidence. In Do, the debtor also provided contemporaneous bank statements, upon which the debtor was cross-examined: Do at [159]. Notwithstanding that the only documents produced by the debtor in relation to any of the transactions were the debtor’s bank statements, there was no suggestion that the documents tendered in Do were incomplete or that there were any gaps in the time period covered by the bank statements: Do at [48]. By contrast, the relevant lacunae in Ms Mangano’s evidence are that only a small subset of documents have been put in evidence by Ms Mangano and the financial documents that have been provided contain scant detail, are on their face materially incomplete and do not provide a comprehensive picture of her Ms Mangano’s financial history from which the Court could obtain a satisfaction about her ability to pay her debts as at the date of the hearing.

109    Ms Mangano has not established error in relation to this second theme which she relies on in support of Ground 1.

Error in drawing inferences from response to the notice to produce and in placing weight on those inferential findings of fact.

110    The third theme in Ms Mangano’s submissions is the primary judge erred in drawing inferences from Ms Mangano’s production (and relevantly, non-production) of documents in response to a notice to produce and further erred in relation to the weight afforded to those inferential findings of fact. This theme substantially overlapped with the first theme. It is predicated on Ms Mangano’s contention that the documents which were not produced were not relevant. For reasons already given, I do not accept that the documents which were not produced were not relevant. Ms Mangano has not demonstrated any error in relation to the primary judge taking into account Ms Mangano’s non-production of banking and tax records when assessing whether Ms Mangano had discharged her onus under s 52(2) of the Act. I repeat what I have earlier said in relation to the primary judge’s ultimate conclusion, which was that the primary judge could not be satisfied by Ms Mangano’s evidence. To the extent that Ms Mangano’s submissions are premised on the assertion that the primary judge positively found that Ms Mangano had extant tax liabilities because she did not produce her tax records, I reject that submission. As I have already explained, that is not what the primary judge did.

111    Ms Mangano has not established error in relation to this third theme which she relies on in support of Ground 1.

Failure to have regard to the line of credit

112    The fourth and final theme that Ms Mangano relies on in support of Ground 1 is that the primary judge erred in failing to have regard to the evidence in relation to the line of credit.

113    I refer to the authorities addressed above as to nature of this Court’s role in an appeal by way of rehearing. For the reasons I have given above, I am satisfied that Ms Mangano has established error in the primary judge’s conclusion that she had abandoned reliance on the line of credit. The primary judge did not enjoy any relevant advantage over this Court in relation to the assessment of the evidence on this point. Accordingly, I will proceed to assess this evidence in the context in which it was relied on for the purpose of determining whether Ms Mangano has discharged her onus of establishing that she was able to pay her debts in accordance with s 52(2) of the Act: Robinson Helicopter at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).

114    The potential availability of a line of credit up to $200,000 (depending on whether it was drawn in whole or in part) is a matter which could rationally affect whether the Court can be satisfied on the civil standard as to whether Ms Mangano had discharged her onus. That is particularly so in circumstances where the relative significance of the missing evidence that one would expect to see in relation to the quantum and timing of Ms Mangano’s other liabilities and recurrent expenses may proportionately reduce. Ms Mangano’s known debts were less than $170,000. Her annual gross income was approximately $68,000 and any outstanding tax liability is likely to be commensurate with that of a PAYG taxpayer earning a relatively modest wage. Her unquantified expenses were in relation to personal expenses and her contribution to household expenses. Taking all of this into account, and not diminishing the fact that there were gaps in Ms Mangano’s evidence, the fact that Ms Mangano was able to demonstrate cash at bank as at the date of the hearing of $276,014 and point to a line of credit with potentially $200,000 available which was not considered by the primary judge, requires this Court in an appeal by way of rehearing to consider afresh whether Ms Mangano has proved on a cashflow basis that she could pay her debts.

115    I will first consider the deed which Ms Mangano annexed to her affidavit. It comprises a single page in plain typeface with no form of branding or other stylistic enhancement. It is drafted in language that eschews plain English and uses a pastiche of ostensibly formal legalese. As mentioned, on its face it is between Ms Mangano and “LITIGATION FUND WCX PTY LTD”. It is dated 1 March 2024. Although the deed is styled as a “deed” and purports to be “signed sealed and delivered”, it includes consideration in the sum of $1.00, receipt of which is acknowledged, even though by its terms it provides in any event for reciprocal obligations in terms of the advance of finance and the payment of interest on any funds so advanced.

116    As mentioned, the deed is executed by Ms Mangano and bears a signature of what appears to read “Robert G Coshott”, designated as “Director” of WCX. There was no company search of WCX in evidence.

117    The deed describes WCX as agreeing to extend to Ms Mangano “a line of credit” in the sum of $200,000. The term of the deed is two years. The line of credit is secured by the grant of a charge over all of Ms Mangano’s assets, including real property and personal property. There is no evidence of the security interest referred to in the deed being registered on the Personal Property Securities Register.

118    Clause 3 of the deed provides for interest to be paid monthly on the amount advanced at the rate of six percent per annum, payable on the first day of the month.

119    The deed is silent as to the purpose for which the funds advanced may be used. Notwithstanding that WCX has the description “LITIGATION FUND” embedded in its name, the deed makes no reference to litigation or litigation funding.

120    As mentioned above, WCX was subpoenaed, the subpoena was called on before a Registrar and WCX did not produce any documents. The schedule to the subpoena was undeniably broad, but WCX did not apply to set aside the subpoena. The fact that Ms Bullen caused the subpoena to be issued and that there was no production is relevant when considering the capacity of Ms Bullen to adduce evidence challenging the availability of the line of credit for the purposes of assessing Ms Mangano’s solvency: see Blatch v Archer at 65 (Lord Mansfield).

121    As further mentioned above, the Coshott Affidavit, which is referred to in the subpoena, formed part of the court book but was not read before the primary judge. Ms Mangano’s counsel confirmed that the affidavit related to the line of credit.

122    If necessary, I would infer that having obtained an affidavit from Mr Coshott and served it, it was within Ms Mangano’s power to lead evidence from Mr Coshott if she chose to do so, whether by use of a subpoena to attend or otherwise. I infer that a decision was made by Ms Mangano not to call Mr Coshott. No attempt to explain the decision not to call Mr Coshott was made by Ms Mangano. It is not necessary to determine whether the decision not to call Mr Coshott was for the reason that Ms Mangano did not wish to expose Mr Coshott to cross-examination or for some other reason. In circumstances where Ms Mangano bore the onus and was relying on the line of credit as a central plank in her demonstration of her ability to pay her debts, I draw the inference that Mr Coshott’s evidence would not have assisted Ms Mangano’s case.

123    Counsel for Ms Mangano submitted that the fact that the deed was not produced in answer to the WCX subpoena was explicable by the fact that the subpoena (category eight) was confined to “litigation funding agreements” and there is no indication on the face of the deed that it is a litigation funding agreement. That may well be so – I accept that on its face the deed may not have been captured by category eight of the subpoena – but that was not the limit of the reach of the WCX subpoena. The subpoena called for documents which would have demonstrated WCX’s financial position, the nature and scale of its business activities in relation to the provision of financial services and whether any funds had been advanced to Ms Mangano by WCX or paid by Ms Mangano to WCX by way of interest payments.

124    I make the following observations based on the totality of the evidence in relation to the line of credit. In doing so, I bear steadily in mind that: Ms Mangano bears the onus under s 52(2) of the Act; the mere assertion of solvency will not be sufficient to discharge that onus; the assessment is fact dependent; and to the extent that the issue of solvency involves a question of fact, I must feel an actual persuasion that Ms Mangano is able to pay her debts in order to attain the requisite satisfaction for the purpose of s 52(2)(a) of the Act.

125    Ms Mangano asserted that the line of credit was not drawn as at the date of her affidavit sworn on 23 July 2024. Ms Mangano did not give evidence of the position in relation to the line of credit as at the date she gave oral evidence at the hearing on 15 October 2024.

126    Ms Mangano tendered in evidence a limited and incomplete selection of her banking records notwithstanding that she was required by a notice to produce to provide a comprehensive selection of such records for the period from 30 June 2023 to 30 September 2024. She foreshadowed, but did not press, an application to set aside the notice to produce on the basis of relevance. The limited bank records that Ms Mangano placed in evidence were comprised of some bank account statements (some of which were materially incomplete) and internet banking transaction summaries at two different points in time. These documents, taken in combination, did not expose the detail of the transactional history of Ms Mangano’s accounts. The bank statements were only for part of the period specified as the relevant period in the notice to produce and in any event the statements were in some cases missing pages, including pages which would have included the entries for a relatively significant withdrawal or withdrawals from the accounts. I make that inference from the summary which gives the total of withdrawals during the statement period compared to a manual tally of the withdrawals shown on the pages that were produced. The internet banking summaries that formed Exhibit R1 showed only the current balances with no transactional history. That Ms Mangano was not willing to adduce a complete compilation of her bank records in order to corroborate her assertion that the line of credit was not drawn as at 23 July 2024 and to demonstrate that the line of credit continued to be undrawn as at the date of the hearing is significant in assessing whether she has discharged her onus to establish she was able to pay her debts.

127    In the absence of a company search, there is no evidence as to the corporate details and status of WCX, the relevant financier. There is no evidence as to the financial position of WCX. That is so notwithstanding that Ms Bullen attempted to secure relevant information on this topic by the service of a subpoena on WCX. Similarly, there is no evidence as to the nature and scale of WCX’s business, particularly in relation to its provision of financial services including lines of credit. If I assume for the purpose of argument that Ms Mangano has not yet drawn on the line of credit, information of this type is relevant to WCX’s ability to meet any drawdown on the line of credit in the event that Ms Mangano sought to use those funds to meet her debts. This is in turn relevant to whether the line of credit enhances Ms Mangano’s ability to pay her debts as a matter of fact.

128    If I adopt the contrary assumption — that the line of credit was drawn, in whole or in part as at the date of the hearing given that Ms Mangano’s evidence was silent on this point — then this would similarly impact Ms Mangano’s ability to pay her debts for two reasons. First, she would have an increased liability to service the amount drawn by making monthly interest payments on the amount drawn. Secondly, the principal sum available would reduce commensurately as the credit available was drawn. Both these things would reduce the significance of the line of credit to Ms Mangano’s ability to pay her debts. Relatedly, to the extent any part of the credit was drawn, the proportion of Ms Mangano’s assets that were unencumbered (other than as a contingent liability) would reduce.

129    Even if one assumes that Mr Coshott is a, or potentially the, director of WCX, the unexplained failure to call him gives rise to an inference that Mr Coshott’s evidence would not have assisted Ms Mangano’s position in relation to the line of credit, and more generally, in relation to her ability to pay her debts.

130    Even allowing for the existence of the line of credit as embodied in the deed, there is a dearth of information from which I could infer that WCX had the capacity to fulfil its obligations under the deed or to ascertain whether the line of credit was in fact fully or substantially drawn. In these circumstances, I attach little weight to the deed and Ms Mangano’s reliance on the line of credit does not cause me to feel an actual persuasion that Ms Mangano was, as a matter of fact, able to pay her debts in accordance with s 52(2) of the Act. The line of credit deed, although relied on and not abandoned, does not satisfy me that Ms Mangano has discharged her onus.

The totality of the evidence

131    Although I have addressed the relevant strands of Ms Mangano’s evidence as to solvency serially and by topic, I have also considered all of the strands of Ms Mangano’s evidence in relation to solvency wholistically. Having done so, the sum of the evidence is not greater than its component parts. Taken cumulatively it does not rise to the level where I feel an actual persuasion that Ms Mangano has proved that she is able to pay her debts within the meaning of s 52(2) of the Act. Although it may be unfortunate, the state of the evidence is such that I cannot conclude on the civil standard that Ms Mangano has discharged her onus on this issue.

CONCLUSION

132    For these reasons, I conclude as follows.

133    The primary judge erred in failing to take into account the evidence relating to the line of credit on the basis that Ms Mangano had abandoned reliance on it. This is an appeal by rehearing, in which Ms Mangano has established error on the part of the primary judge in this respect. This Court is as well placed as the primary judge to determine the issue of solvency having regard to the nature of the evidence led by Ms Mangano. In doing so, this Court must take into account the whole of the evidence before the primary judge including the evidence in relation to the line of credit that his Honour erroneously put to one side. Further, it is necessary for this Court in deciding whether Ground 1 is established to determine afresh the issue of whether Ms Mangano has discharged her onus under s 52(2)(a) of the Act.

134    Having undertaken that task, for the reasons given, I am satisfied that Ms Mangano failed to discharge her onus. It was common ground that the discretion to make a sequestration order under s 52(1) of the Act was otherwise enlivened. Having concluded that Ms Mangano did not discharge her onus to establish the positive fact — that she is able to pay her debts — and having regard to the totality of the evidence, I am satisfied that it would be appropriate if necessary to exercise the discretion in favour of making a sequestration order.

135    In these circumstances, the primary judge’s orders should not be disturbed. Accordingly, the appeal should be dismissed. I see no reason why costs should not follow the event for although Ms Mangano has succeeded on one issue, she has not succeeded in setting aside the primary judge’s orders.

Associate:

Dated:    2 April 2025

REASONS FOR JUDGMENT

SHARIFF AND NEEDHAM JJ:

INTRODUCTION

136    This is an appeal from the orders and judgment of the primary judge in Bullen v Mangano [2024] FCA 1199 (PJ).

137    The primary judge ordered that the appellant’s estate be sequestrated under s 43 of the Bankruptcy Act 1966 (Cth) (Act). The sequestration order was made on the petition of the respondent in respect of a debt of $160,993.32 owed by the appellant to the respondent. The existence of that debt was not in dispute. The only issue before the primary judge was whether the appellant was able to pay her debts within the meaning of s 52(2)(a) of the Act. The primary judge was not satisfied that the appellant had discharged her onus of establishing this to be the case.

138    The sole issue raised by the appellant’s Notice of Appeal filed on 4 November 2024 is whether the primary judge erred by not finding that the appellant was solvent and able to pay her debts. For the reasons that follow, we are not satisfied that the appellant has established her case in this regard, and the appeal should be dismissed.

THE PROCEEDINGS BELOW

139    In the proceedings below, the appellant filed an affidavit dated 23 July 2024 in which she set out her financial circumstances. The appellant’s evidence in the proceedings below has been examined in detail in the separate reasons of Cheeseman J. We too have examined that evidence in detail and what follows is our summary of the key aspects of that evidence. The totality of the appellant’s evidence in her affidavit as to her financial circumstances was as follows:

19.     I say that I am solvent and as a consequence, I say that the Plaintiff is not entitled to seek the relief that she claims against me in these proceedings.

20.     I seek to explain my financial circumstances as following.

21.     I presently live at 39 Empire Street, Haberfield, which is a property owned by my Mother, Josie Mangano.

22.     I do not pay rent.

23.     I receive an income of $68,062.96 gross per annum from my employment as a clerk.

24.     I have no liabilities other than the judgments that are the subject of these proceedings and a lump sum costs order in the amount of $7,000.00 made upon the dismissal of my costs appeal in the District Court on 11 July 2024.

25.     I have bank accounts in my name with ING Bank, Bendigo Bank, and National Australia Bank totalling $275,033.75. Copies of the bank statements for each of these accounts are annexed hereto and marked B.

26.     I own a 2006 Honda Accord Euro worth $6,350.00. Annexed hereto and marked C is a Valuation Certificate obtained yesterday.

…

29.     Annexed hereto and marked F is a copy of a Deed dated 1 March 2024 which provides me with a line of credit up to $200,000 .00 which have not drawn down on, but is available should I wish to drawn down on it.

(Emphasis added.)

140    As we return to below, the appellant’s evidence that she had no liabilities other than the debts the subject of the creditor’s petition was a point of significance in the primary judge’s reasons. It will also be evident that the body of the appellant’s affidavit did not address or disclose any of her living or other expenses.

141    The bank records that were attached to the appellant’s affidavit were limited and incomplete. These consisted of a bank statement and/or transaction summary for:

(a)    an ING account for the period:

(i)    1 January 2024 to 30 June 2024; and

(ii)    15 January 2024 to 23 July 2024;

(b)    a Bendigo Bank “Ultimate” account for the period 2 October 2023 to 1 April 2024;

(c)    a Bendigo Bank “EasySaver” account for the period 2 April 2024 to 1 July 2024;

(d)    a NAB “iSaver” account for the period 1 December 2023 to 31 May 2024;

(e)    a NAB “Cash Manager” account for the period 1 June 2024 to 28 June 2024;

(f)    a NAB “Classic Banking” account for the period 30 December 2023 to 28 June 2024; and

(g)    a different NAB “iSaver” account for the period 1 December 2023 to 31 May 2024.

142    The only bank statement that demonstrated any debits for living and other expenses was the NAB Cash Manager account. However, this bank statement was incomplete in that the second page of the three-page document was missing. The statement disclosed a $965.25 debit out of the account which was described as “Tax Office Payments”. There were other debits to the sum of approximately $4,000 that were not disclosed because the statement was incomplete. The transaction summary for the ING account between 15 January 2024 to 29 July 2024 was also incomplete, with every second page missing.

143    More generally, the bank statements recorded transfers as between “linked” accounts but these were not explained. Further, none of the bank statements that were attached to the appellant’s affidavit records her receipt of income from her employment as a clerk.

144    The appellant’s affidavit also attached a deed between her and Litigation Fund WCX Pty Ltd dated 1 March 2024, which was a single-page document. The deed did not specify the purpose for which the line of credit was being made available. We agree with Cheeseman J’s analysis of the paucity of detail relating to this deed.

145    In advance of the hearing before the primary judge (which was listed and heard on 15 October 2024), and as Cheeseman J has set out, the respondent served a notice to produce on the appellant which sought production of documents including, among other things, (a) complete bank statements for the period from 30 June 2023 to the date of the hearing, (b) income tax returns and tax assessment notices for the previous three financial years and (c) any documents recording any assets held by the appellant.

146    The appellant did not produce any documents in response to the notice to produce, other than a single payslip, a single-page document (styled as “Account Summary”) which displayed the account balances of her accounts held with the National Australia Bank at that time and another single-page document which similarly displayed the balance of the account the appellant held with ING Bank. Counsel who appeared for the appellant in the proceedings below informed the primary judge that there were no further bank statements to produce and that the category seeking production of income tax returns and income tax assessments was considered irrelevant, but no application was made to set aside the paragraph of the notice to produce that required production of these documents: T3.24-4.5.

147    The respondent also served a subpoena on Litigation Fund WCX Pty Ltd. The subpoena was not sought to be set aside and no documents were produced in answer to it.

148    The hearing before the primary judge was short. There was limited cross-examination of the appellant. During that cross-examination, the appellant confirmed that she lived with her mother as her full-time carer, and that her mother did not work and did not earn any income: T12.21-23. The appellant said that she was responsible for some of the expenses of the household she shared with her mother: T12.25-26. And, she further accepted that she had her own personal expenses to pay for: T12.28-29. However, she accepted that she did not set out in her affidavit any of the expenses which she incurred: T13.15-16.

149    In re-examination, and over the objection of the respondent, the appellant gave evidence that she did not owe anything to the “tax department”: T13.28-14.8. The appellant gave further evidence in re-examination (and, again, over objection) that she owed approximately $5,000 in debts incurred on credit cards: T14.10-36.

150    During the course of closing submissions, Counsel then appearing for the appellant submitted that the evidence established that the appellant was able to pay her debts. Specifically, Counsel for the appellant submitted as follows:

MR HANARAHAN: - - - …your Honour, with respect to the section 52(2)(a) criteria, we would say that the old test used to be considering how the debts are payable when they fall due, and it needs to be out of the respondent’s own money.

HIS HONOUR: Yes.

MR HANARAHAN: So that so far as any submissions about the WX loan is concerned, I haven’t relied upon that. It would be a debt that we would call upon perhaps in the future anyway. It’s not her money. The money that she has is very limited, as my friend pointed out, so that the cash that’s in her bank account, at the present time – it would be available through the ordinary means to these – to her creditors, and, in our submission, this court should not be used as a debt collection agency. Basically, the thrust of section 52(2)(a) – I don’t disagree with my friend’s submission about the authorities that are relevant here.

(Emphasis added.)

151    As further explained below, the primary judge took this submission to mean that, in effect, the appellant was not placing reliance upon the line of credit pursuant to the deed with Litigation Fund WCX Pty Ltd.

152    In making the sequestration order sought by the respondent, the primary judge held that the appellant bore the onus of establishing that she was able to pay her debts: PJ [9] citing Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632 at [44] (Allsop CJ, Dowsett and Besanko JJ).

153    The primary judge had regard to the appellant’s evidence and accepted that evidence in part including as to the appellant’s income (PJ [15(1)]) and the total amount of cash held across numerous bank accounts (PJ [15(2)]). However, his Honour was not satisfied as to the appellant’s evidence that she had “no liabilities” which his Honour characterised as a “bare assertion” that was “directly contradicted” by other evidence: PJ [16]. Namely, that the appellant had made a payment to the Australian Taxation Office in the amount of $965.25 (as identified above at [142]) and had credit card debts in the order of $5,000 (as noted above at [149]). And, as the primary judge further observed, there was an absence of evidence as to the appellant’s regular living expenses.

154    The primary judge considered that the “inadequacy” and conclusory nature of the appellant’s evidence as to her liabilities was “compounded” by the appellant’s failure to produce documents in answer to the notice to produce served on her, which would have provided information as to the extent of her bank accounts and debt position including by way of complete bank statements, income tax returns and tax assessments: PJ [17]-[19], [21]. The primary judge reasoned that the production of documents would have “thrown light upon” (a) whether the accounts described in her affidavit were her only accounts or whether there were other accounts that may have been in debit and (b) the existence of other liabilities, if any: PJ [18]. Further in this respect, the primary judge did not accept the appellant’s evidence, given by her for the first time in re-examination, that she did not owe a debt to the Australian Taxation Office as it was a “bare assertion”: PJ [19].

155    Ultimately, the primary judge did not accept the appellant’s evidence as to her debt position: PJ [21]. It followed that his Honour was not satisfied that the appellant was able to pay her debts within the meaning of s 52(2)(a) of the Act: PJ [21]. In rejecting the appellant’s case, the primary judge recorded for completeness that the appellant had given evidence as to the existence of a line of credit but that her Counsel had not placed any reliance upon that evidence: PJ [20].

CONSIDERATION

156    The sole issue raised by the appeal is whether the primary judge erred by not finding that the appellant was able to pay her debts. In support of her position, the appellant submitted that the correctness standard applied to the appeal because solvency is a question of fact: citing Hall & Ors v Poolman & Ors [2007] NSWSC 1330; (2007) 65 ACSR 123 at [203] (Palmer J); Stone v Melrose Cranes & Rigging Pty Ltd, in the matter of Cardinal Project Services Pty Ltd (in liq) (No 2) [2018] FCA 530; (2018) 125 ACSR 406 at [146] (Markovic J).

157    The appellant submitted that, on the evidence before the primary judge, the correct conclusion was that the appellant was able to pay her debts within the meaning of s 52(2)(a) of the Act and that we should so find. It was contended that the primary judge erred by failing to reach this conclusion by making findings that were wrong: citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [45] (Jagot, Yates and Bromwich JJ).

158    The respondent did not dispute that the correctness standard applied to the ultimate question of fact as to whether the appellant was solvent, but submitted that the primary judge correctly found that the appellant had not discharged her onus of establishing that she was solvent based on the inadequacy of her evidence.

159    This Court’s appellate jurisdiction involves an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20] (Allsop J; Drummond and Mansfield JJ agreeing). The task of the Court on appeal remains to correct error: Branir at [22]. In assessing whether the primary judge erred as alleged by the appellant, we accept that we are required to conduct a “real review” of the evidence. Having conducted such a review of the evidence, we are not satisfied the primary judge erred as alleged by the appellant. In this regard, it is important to observe that the primary judge was not satisfied as to the adequacy or sufficiency of the evidence adduced by the appellant to discharge her onus of establishing her solvency as at the date of the hearing (ie that she was able to pay her debts as at that time). The primary judge’s finding in this regard is to be distinguished from a positive finding of fact that the appellant was in fact unable to pay her debts. The primary judge’s reasons need to be considered by reference to the statutory context.

160    It is uncontroversial that a petitioning creditor has a prima facie right to a sequestration order once proof of the matters required by s 52(1) have been satisfied, but that there is a discretion to refuse such an order if the debtor is able to pay his or her debts (s 52(2)(a)) or for other sufficient cause (s 52(2)(b)): Liang v LV Property Investments Pty Ltd [2015] FCA 1057 at [50] (Beach J) and the authorities there cited.

161    Relevantly, s 52(2)(a) of the Act provides as follows:

(2)    If the Court … is satisfied by the debtor:

(a)    that he or she is able to pay his or her debts;

...

    it may dismiss the petition.

162    The test for solvency is a cash flow test: Do (Trustee), Andrew Superannuation Fund v Sijabat [2023] FCAFC 6; (2023) 295 FCR 584 at [148] (Markovic, Halley and Goodman JJ). The onus of proving the sufficiency of the debtor’s assets and/or income to pay his or her debts lies on the debtor: see, eg, Australia & New Zealand Banking Group Ltd v Foyster [2000] FCA 400 at [17] (Hely J). It is an onus which rests upon the debtor to “satisfy the court”: Trojan v Corporation of Hindmarsh (1987) 16 FCR 37 at 47-48 (Northrop, Jenkinson and Burchett JJ). The primary judge correctly identified that the appellant carried this onus in the present case: PJ [9].

163    The question as to whether the evidence is sufficient to reasonably “satisfy” the Court that a debtor is able to pay his or her debts is fact dependent: see generally Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 403 (Dixon J). When the law requires proof of any fact, the tribunal of fact “must feel an actual persuasion” as to its existence before it can be found: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 (Dixon J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [31]-[32] (Weinberg, Bennett and Rares JJ). Perhaps for this reason, it has been observed that it not sufficient to simply establish that one’s assets exceed one’s liabilities in value: Foyster at [17] (Hely J). As the primary judge canvassed at PJ [10]-[14], some authorities have suggested that a debtor must adduce the “fullest and best” evidence to establish the fact of solvency: referring to the judgment of Hayne J in Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081; cf Deputy Commissioner of Taxation v De Simone Consulting Pty Ltd [2007] FCA 548 at [10]-[14] (Finkelstein J); Coates Hire Operations Pty Ltd v D-Link Homes Pty Ltd [2011] NSWSC 1279 at [60]-[61] (White J); Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; (2012) 127 ALD 64 at [60]-[61] (Robertson J); Xu v Megaward Pty Ltd [2018] NSWCA 232; (2018) 130 ACSR 412 at [30]-[32] (McColl, Meagher and Leeming JJA). The primary judge concluded that, “There is no universal rule that a debtor whose evidence is less than the “fullest and best” available evidence thereby fails to discharge their onus of establishing their solvency”: PJ [10]. The appellant did not contend that the primary judge erred in this respect and we have proceeded on that basis.

164    Regardless of whether the evidence is the “fullest and best”, it must be evidence that is sufficient to satisfy the court of the relevant fact that is asserted. And, the nature, content and quality of the evidence required to establish that fact need not adhere to the application of “some inflexible rule” and will depend on the case at hand: see Megaward at [30]. Whether that evidence is accepted as being sufficient in a given case is a matter that falls within the province of the trial judge, subject to the correction of error on an appeal. In De Simone, in a passage that has been cited with approval in Megaward at [30] and Vanguard 2017 Pty Ltd, Re Modena Properties Pty Ltd v Modena Properties Pty Ltd (No 2) [2018] FCA 1461 at [69] (Thawley J), Finklestein J explained at [12] that:

A company that wishes to establish the fact of solvency in accordance with the meaning laid down by the judge must tender evidence for that purpose. Then the following steps will occur. First, the judge will decide whether the evidence is relevant. The judge will then determine whether the evidence is admissible, for not all relevant evidence finds its way into court. Next, the judge will assess the probative value of the evidence. That assessment is inductive. Finally the judge will decide whether the claimed solvency is probable or more probable than not.

165    The same may be said as to the solvency of a debtor for the purposes of s 52(2)(a) of the Act.

166    In the present case, the primary judge was not satisfied that that the appellant had discharged her onus of adducing sufficient evidence to satisfy his Honour that she was able to pay her debts. The primary judge’s approach to the question of whether the appellant had discharged her onus in this respect involved an orthodox application of principle to the state of the evidence that was before the primary judge.

167    The primary judge accepted the appellant’s evidence in some respects, but not in relation to others. In view of the paucity of evidence before the primary judge, we discern no error in the primary judge’s finding at PJ [16] that the appellant’s evidence that she had no liabilities was little more than a bare assertion. Nor do we consider that the primary judge erred by finding that the inadequacy of this evidence was compounded by the appellant’s failure to produce documents in answer to the notice to produce: PJ [17]-[19].

168    It is important to reiterate that the primary judge’s findings were as to the inadequacy of the appellant’s evidence in discharging her onus. They were not tantamount to a positive finding that the appellant in fact had liabilities or debts, or that she was unable to pay her debts. Rather, by reason of the inadequacy, the primary judge was not satisfied that the appellant had discharged her onus. This reasoning was made plain at PJ [21] where the primary judge stated that the “state of the evidence” was such that his Honour did not accept the appellant’s evidence concerning her debt position. As his Honour was not satisfied of the appellant’s debt position, it followed that his Honour was not satisfied that the appellant was able to pay her debts within the meaning of s 52(2)(a) of the Act. The primary judge’s reasons involved an orthodox assessment of the evidence which did not ultimately persuade his Honour to be satisfied that the appellant had discharged her onus.

169    It will be apparent from the foregoing that in assessing whether the primary judge erred, we have examined the evidence that was before the primary judge and have conducted a real review of it (which we have summarised above at [141] ff). Having examined that evidence, we are not satisfied that the primary judge erred as alleged by the appellant.

170    In the oral argument before us, the appellant submitted that the evidence before the primary judge amply established that the appellant was earning an income and had sufficient savings so as to meet her ongoing living expenses, and that her total income and savings were more than sufficient to meet her only debt (being the one that was the subject of the creditor’s petition). The appellant submitted that in circumstances where her evidence was uncontradicted by other evidence, and there was no cross-examination of the appellant that challenged her evidence in this regard, there was a very good reason for accepting her evidence: citing Samm Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633 at [140] (McColl JA, Gleeson JA and Sackville AJA agreeing); Ashby v Slipper [2014] FCAFC 15 at [77]-[78] (Mansfield and Gilmour JJ). The appellant further submitted that she was not required to adduce any further evidence or produce documents to prove the negative fact that she did not have any further expenses or liabilities.

171    The appellant’s submissions missed the point that the appellant’s evidence was incomplete and in critical respects amounted to bare assertions when viewed in the context of the paucity of evidence before the primary judge. For example, the appellant’s affidavit had asserted that she had no liabilities, which was contradicted by later acceptance that she had credit card debts of at least $5,000. Further, the appellant’s affidavit did not address any of her living or other expenses, but she later accepted in cross-examination that she did pay for her own personal expenses and some of those relating to the household in which she lived with her mother. The bank account statements and transaction summaries that the appellant provided were incomplete and missing pages. And, the appellant had produced no further bank statements despite being served with a notice to produce calling for their production.

172    It was no answer to the state of the evidence that the appellant’s evidence was uncontradicted or that she did not need to prove a negative fact or was not required to adduce the “fullest and best evidence”. The appellant’s submissions in this regard failed to grapple with the fact that the appellant bore the onus of establishing to the reasonable satisfaction of the primary judge that she was able to pay her debts and, in respect of which, evidence as to existence and extent of her expenses and liabilities was clearly relevant. As we have pointed out, the appellant’s evidence as to her expenses and liabilities lacked detail and, to the extent that documents had been attached to her affidavit or otherwise produced, they were incomplete in relation to important information that would have disclosed the extent or regularity of those expenses or liabilities. It was not to the point that the appellant had approximately $276,014.10 in cash if there was not sufficient evidence before the Court as to the extent of her expenses and liabilities and the primary judge could not be satisfied as to her debt position.

173    Ultimately, having examined the evidence for ourselves, we are not satisfied that the primary judge erred in concluding that the appellant had failed to discharge her onus.

174    The appellant further submitted that the primary judge placed undue emphasis on the non-production of historical bank statements and tax returns, which it was contended were not relevant to the question of the appellant’s solvency as at the date of the hearing. This submission also missed the point. The primary judge did not rely upon the fact of non-production of these documents as being determinative as to whether the appellant was solvent as at the date of the hearing. Rather, as is plain from his Honour’s reasons, the primary judge reasoned that the failure by the appellant to produce such documents compounded the absence of evidence adduced by the appellant as to her debt position and as to her ongoing living and other expenses.

175    We do not consider that the decision of the Full Court in Do (which the appellant relied upon) assists the appellant. The decision in Do was specific to the particular facts. There, as the Full Court pointed out at [162], the adverse findings made by the primary judge about Mr Do’s lack of recollection about the amounts flowing through his bank accounts did not undermine his evidence as to his personal liabilities “which was borne out by the contemporaneous documents”. In other words, Do was a case where the debtor’s evidence was supported by the contemporaneous documents that were before the Court. There appears to have been no issue taken in Do as to whether the contemporaneous documents were complete. By contrast, in the present case the primary judge’s reasons disclose a well-founded concern that the contemporaneous documents were incomplete and were not consistent with the appellant’s evidence in some respects.

176    Nor do we consider the primary judge erred at PJ [19] by stating that he did not accept the evidence given by the respondent for the first time in re-examination that she did not owe a debt to the Australian Taxation Office. The primary judge did not make a positive finding that the appellant did in fact have such a debt, but that he was not satisfied that he should accept the appellant’s assertion that she did not have such a debt in circumstances where she had produced no income tax returns and income tax assessments despite being required to do so under the notice to produce. In our view, the primary judge was correct to regard this evidence as a “bare assertion” in these circumstances. We discern no error in his Honour’s rejection of the evidence in this regard.

177    The appellant submitted that the primary judge should have had regard to the availability of the line of credit of $200,000 from Litigation Fund WCX Pty Ltd. The primary judge observed at PJ [20] for “completeness” that “the respondent indicated that no reliance was placed upon this evidence”. His Honour’s reference here was to the submission made by Counsel then appearing for the appellant that reliance had not been placed on the line of credit: see [150] above. In oral argument before us, the appellant submitted that the concession was a confined one in that Counsel in the proceedings below was saying no more than, if one applied the “old test” (which confined consideration to debts being able to be paid from a debtor’s own money), it would be accepted that the line of credit was not the appellant’s “money”. The appellant submitted that this did not amount to an overall concession made by Counsel that the appellant was not relying upon the availability of the line of credit. We agree with the appellant’s submission in this regard. The fact that a complete concession had not been made is consistent with the further submission made by Counsel for the appellant in the proceedings below that “It would be a debt that we would call upon perhaps in the future…”. In our view, the primary judge erred by concluding that no reliance had been placed on the line of credit.

178    Whilst we consider that the primary judge erred by proceeding on the basis that no reliance was placed on the line of credit, this was not the ground of appeal advanced in the Notice of Appeal. Rather, as we have mentioned, the ground of appeal advanced was that the primary judge should have found that the appellant was able to pay her debts. The difficulty with this ground of appeal, and the appellant’s contentions before us, is that even if the primary judge had proceeded on the basis that the line of credit was relied upon, this would not bear upon the primary judge’s separate findings that due to the paucity of evidence, the appellant had not established the extent of her liabilities and debts, and, therefore, had not discharged her onus of establishing that she was able to pay her debts.

179    To explain our conclusion in relation to the line of credit, it is necessary to return to the primary judge’s finding at PJ [21] that the “state of the evidence” was such that his Honour “did not accept” the appellant’s evidence as to “her debt position”. This was a critical conclusion as to an absence of satisfaction as to the fundamental issue before the primary judge – whether the appellant had satisfied the court that she was able to pay her debts. In circumstances where the primary judge was not satisfied by the appellant’s evidence as to her debt position due to the paucity of evidence, the availability and quantum of the line of credit could not be brought to account as against the unproved debt position. In our view, it follows that the primary judge’s non-satisfaction as to the appellant’s debt position was unaffected by whether the appellant continued to place reliance upon the line of credit, or not.

DISPOSITION

180    For the above reasons, we are not satisfied that the primary judge erred in finding that the appellant had failed to discharge her onus of establishing that she was able to pay her debts for the purpose of s 52(2)(a) of the Act. Nor are we satisfied that the primary judge erred by failing to find that the appellant was in fact able to pay her debts as alleged by the appellant.

181    The appeal should be dismissed. The appellant should pay the respondent’s costs of the appeal as agreed or taxed.

Associate:

Dated:    2 April 2025