FEDERAL COURT OF AUSTRALIA
BANKRUPTCY – Application for extension of time nunc pro tunc within which to apply for a review of a Registrar’s decision – Court’s discretion;
Application for annulment of sequestration order; whether debtor had a dwelling-house in Australia; whether debtor ordinarily resident in Australia; time for compliance with a 21 day Bankruptcy Notice expiring at Christmas time.
Acts Interpretation Act 1901 (Cth) s 36
Bankruptcy Act 1966 (Cth) s 33(1)(c), 40(1)(g), 41, 43, 153B, 154, 181A
Bankruptcy Regulations 1996 Reg 4.02(1) and Schedule 1 Form 1
Federal Court of Australia Act 1976 (Cth) s 35A
Federal Court Rules Order 77 Rules 7 and 8, Order 3 Rule 3
Foreign Judgments Act 1991 (Cth) s 6
Re Kwiatek and Kwiatek; Ex parte Big J Limited v Pattison (1989) 21 FCR 374 referred to
Harris v Caladine (1991) 172 CLR 84 referred to
Re R. E. Green (1947) 14 ABC 109 referred to
In re Brauch (A Debtor); Ex parte Britannic Securities & Investments Limited [1978] 1 Ch 316 referred to
In re Hecquard; Ex parte Hecquard (1889) 24 QBD 71 referred to
Re Boles [2000] FCA 1782 referred to
Re Vassis; Ex parte Leung (1986) 9 FCR 518 referred to
Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 cited
Re Ginnane; Ex parte Diner’s Club Limited (1992) FCA 627 referred to
MATHEW KERALAVAKAYIL MATHAI v LOW MOOI KWEE and ANOR
NSD 596 of 2005
GRAHAM J
19 JULY 2005
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 596 OF 2005 |
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BETWEEN: |
MATHEW KERALAVAKAYIL MATHAI APPLICANT
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AND: |
LOW MOOI KWEE FIRST RESPONDENT
LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt SECOND RESPONDENT
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GRAHAM J |
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DATE OF ORDER: |
19 JULY 2005 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The Amended Application filed 26 May 2005 be dismissed.
2. The Applicant pay the First Respondent’s costs of the Application filed 19 April 2005 and of the Amended Application filed 26 May 2005.
3. The costs and expenses of the Second Respondent be costs and expenses in the administration of the bankrupt’s estate.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 596 OF 2005 |
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BETWEEN: |
MATHEW KERALAVAKAYIL MATHAI APPLICANT
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AND: |
LOW MOOI KWEE FIRST RESPONDENT
LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt SECOND RESPONDENT
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JUDGE: |
GRAHAM J |
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DATE: |
19 JULY 2005 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 On 18 May 2004 a sequestration order was made by Registrar Wood in the Victorian District Registry of the Court against the estate of Mathew Keralavakayil Mathai (“Mr Mathai”). This order was made under s 43 of the Bankruptcy Act 1966 (Cth) (“the Act”) which provides as follows:-
“43(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;
(iii) was carrying on business in Australia, either personally or by means of an agent or manager; or
(iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager;
the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.
(2) Upon the making of a sequestration order against the estate of a debtor, the debtor becomes a bankrupt, and continues to be a bankrupt until:
(a) he or she is discharged by force of subsection 149(1); or
(b) his or her bankruptcy is annulled by force of subsection 74(5) or 153A(1) or under section 153B.”
2 This order was made by Registrar Wood in the exercise of a power of the Court in accordance with s 35A(1)(h) of the Federal Court of Australia Act 1976 (Cth) and a direction given under Order 77 Rule 7 of the Federal Court Rules.
3 Section 35A of the Federal Court of Australia Act 1976 (Cth) makes provision for reviews to be undertaken by the Court of the exercise of such powers by Registrars as follows:-
“35A(5) A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.
(6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.”
4 It is common ground between the parties that any review by the Court under s 35A(6) of the Federal Court of Australia Act 1976 (Cth) would involve an exercise of the original jurisdiction of the Court and be a rehearing de novo based upon the evidence before the Registrar supplemented by any evidence the parties may desire to produce (see Re Kwiatek and Kwiatek; Ex parte Big J Limited v Pattison (1989) 21 FCR 374 at 380 – 1 and Harris v Caladine (1991) 172 CLR 84 at 95, 122 and 163 – 4).
5 Order 77 Rule 8 of the Rules empowers the Court or a Judge to review a decision such as that of Registrar Wood on an application under s 35A(5) provided that the application is made within 21 days of the date of the decision. Under Order 3 Rule 3 it is open to the Court or a Judge to extend the 21 day period nunc pro tunc.
6 The Creditor’s Petition on which the sequestration order was made in proceedings No. VID 2 of 2004 in the Victorian District Registry was filed on 2 January 2004. It alleged that Mr. Mathai owed the Applicant Creditor Low Mooi Kwee (also known as Monica Low or Monica Leong) GBP 118,317.11 and that on 12 February 2003 judgment had been entered in proceeding number 8216 of 2002 in the Supreme Court of Victoria for the Applicant Creditor against the Respondent Debtor in the sum of $288,086.46 being the Australian equivalent of GBP 118,317.11 in accordance with s 6 of the Foreign Judgments Act 1991 (Cth).
7 Paragraph 3 of the Creditor’s Petition stated as follows:-
“At the time when the act of bankruptcy was committed, the respondent debtor:
· was personally present or ordinarily resident in Australia
· had a dwelling-house or place of business in Australia”
8 The Creditor’s Petition was signed by the Applicant Creditor in British Columbia, Canada at 1.05 pm on 29 December 2003 (30 December 2003 in Australia). At the same time she swore an affidavit verifying the Creditor’s Petition before a Notary Public in British Columbia. Paragraphs 2 and 3 of her affidavit verifying read as follows:-
“2. I make this affidavit from my own knowledge, except where indicated to the contrary. Where I depose to matters on information and belief, I verily believe such matters to be true.
3. I am able to depose to the fact that each of the statements contained in paragraphs 1, 2 and 3 of the Creditor’s Petition … are true and correct in every respect.”
9 Paragraph 4 of the Creditor’s Petition relevantly provided as follows:-
“4. The following act of bankruptcy was committed by the respondent
debtor within 6 months before the presentation of this petition:
The applicant creditor who has obtained against the respondent debtor
a final judgment, being a judgment the execution of which has not been stayed, served on the respondent debtor in Australia on 6
December 2003, a bankruptcy notice under the Bankruptcy Act 1966
(number VN 1006/03) and the debtor has not within the time specified
in the bankruptcy notice complied with the requirements of the
bankruptcy notice or satisfied the Court that he has a counter-claim,
set-off or cross demand equal to or exceeding the amount of the
judgment debt, being a counter-claim, set-off or cross demand that he
could not have set up in the action or proceeding in which the judgment was obtained. …”
10 Prior to making the sequestration order Registrar Wood granted leave to the Applicant Creditor to amend paragraph 4 of the petition “to substitute (sic) ‘Falling on 20/12/2003 (sic)’ after the word Notice as it appears in line 8 of the paragraph.”
11 As I understand the effect of this amendment to paragraph 4 of the Creditor’s Petition it relevantly became:-
“… and the debtor has not within the time specified in the bankruptcy notice Falling on 20/12/2003 (sic) complied with the requirements of the bankruptcy notice or …”
12 It is difficult to comprehend the reference to the date “20/12/2003”. Query, the intended date may have been 29/12/2003 or 30/12/2003 and there has simply been a typographical error made in the engrossment of the order.
13 In the foregoing context Mr. Mathai has instituted the current proceedings. The Application was filed on 19 April 2005. By his Amended Application filed in Court on 26 May 2005 he seeks, inter alia, an order extending the time within which an application for review of Registrar Wood’s decision of 18 May 2004 may be sought, a review of that decision and in particular an order that it be set aside upon the ground that at the time when the alleged act of bankruptcy described in the Creditor’s Petition was said to have been committed, the Applicant was not a person falling within any of the sub-paragraphs of s 43(1)(b) of the Act and, in the alternative, an order pursuant to s 153B of the Act annulling the bankruptcy.
14 Section 153B of the Act relevantly provides:-
“153B(1) If the Court is satisfied that a sequestration order ought not to have been made … the Court may make an order annulling the bankruptcy.”
15 The First Respondent named in the Amended Application is Low Mooi Kwee and the Second Respondent is Loke Ching Wong as Trustee of the property of Mr. Mathai. Loke Ching Wong is a registered trustee in whom the property of the Applicant vested upon his appointment as trustee under s 181A of the Act on 22 December 2004, he being a replacement for the original trustee, Paul Anthony Pattison.
16 As mentioned above, in her Creditor’s Petition, the First Respondent alleged that the Applicant had committed an act of bankruptcy by virtue of s 40(1)(g) of the Act. That section relevantly provides:-
“40(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 specified in 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.”
17 The Applicant concedes that if it be established that there were other available acts of bankruptcy at the time of presentation of the Creditor’s Petition, then the Court may take such matters into account in determining whether or not it should exercise its discretion under s 153B of the Act favourably to the Applicant.
18 Counsel who appeared for the First Respondent on 26 and 27 May 2005 indicated that on the application presently before the Court his client proposed to rely upon s 40(1)(c)(i) of the Act in addition to s 40(1)(g). Section 40(1)(c) (i) provides as follows:
“40(1)A debtor commits an act of bankruptcy in each of the following cases:
…
(c ) if, with intent to defeat or delay his or her creditors:
(i) he or she departs or remains out of Australia;
…”
19 However, his successor in brief abandoned his client’s reliance upon s 40(1)(c)(i) on 4 July 2005.
20 The Applicant has conceded that the First Respondent had obtained a final judgment or final order against him being a judgment or order the execution of which had not been stayed, that on 6 December 2003 a bankruptcy notice was served personally on him on behalf of the First Respondent at Tullamarine Airport, Melbourne, Victoria upon his arrival from Malaysia via Sydney earlier that day, that this notice had been issued on 3 July 2003 at the request of the First Respondent in reliance upon the judgment obtained by the First Respondent against the Applicant in the Supreme Court of Victoria in accordance with the Foreign Judgments Act 1991 (Cth) on 12 February 2003 and that he did not comply with the requirements of the notice. He has also conceded that there is no issue as to his solvency, i.e. for the purposes of the application he accepts that he is insolvent. He accepts that he knew of the judgment against him in June 2003 and acknowledges that he did nothing to dispute it or pay it.
21 On 28 December 2003 the Applicant left Australia. Thereafter, he returned on 1 April 2005.
22 The Applicant’s case is that he only learnt of the sequestration order having been made in respect of his estate on 10 April 2005 when he attempted to leave the country.
23 In the foregoing circumstances the following substantive issues would appear to arise. At the time when the Applicant committed an act of bankruptcy by failing to comply with the requirements of the Bankruptcy Notice which had been served personally upon him on 6 December 2003:
(a) Was he personally present in Australia?
(b) Was he ordinarily resident in Australia?
(c) Did he have a dwelling-house in Australia?
(d) Did he have a place of business in Australia?
(e) Was he carrying on business in Australia, either personally or by means of an agent or manager?
(f) Was he a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager?
24 In respect of the proposed application for review of Registrar Wood’s decision to make the sequestration order, the preliminary question which arises is whether or not an order should be made nunc pro tunc extending the time fixed by Order 77 Rule 8(2) of the Rules within which an application for review of Registrar Wood’s decision may be brought.
25 The Trustee’s position is that he will submit to the order of the Court in respect of the annulment application. Whether annulment were to be granted or refused the Trustee would simply seek an order that his costs and expenses be costs and expenses in the administration of the bankrupt’s estate. However, the Trustee indicated at the outset that he would wish to be heard if the Court was minded to set aside the sequestration order because that would have different ramifications for the Trustee in relation to the costs and expenses incurred to date in administering the estate (cf s 154 of the Act). Having said that, on 4 July 2005 the Trustee indicated that, due to a lack of funding, he wished to take no further part in the proceedings.
26 In relation to his appreciation of the effect of service upon him of the Bankruptcy Notice the Applicant gave the following evidence:-
“Q. Did you read the notice when it was served on you?
A. Yes, I did, yes.
Q. Did you read it carefully?
A. Yes.
…
Q. … you read each and every paragraph; that’s correct?
A. I read the whole lot, yes.
Q. Did you read it at the airport or at home?
A. At home.
Q. Home being 69 Wellington Road (Kew)?
A. Well, that’s where I was staying there.
Q. So you took it home and you read it as soon as you got home?
A. When I was at the house, yes.
…
Q. It was a fairly significant event on 6 December being served with that notice?
A. Yes, that’s true.
Q. It would have concerned you no doubt?
A. Yes.
Q. That’s correct?
A. Yes.
Q. That you could possibly have been made a bankrupt; that’s correct?
A. Yes.
Q. You were aware that in the event you were made a bankrupt you would have difficulties in undertaking your employment in Malaysia?
A. That’s correct.
Q. And you were aware of that, weren’t you, on 6 December?
A. Well, soon after I read the document.”
27 The Bankruptcy Notice served upon Mr. Mathai on 6 December 2003 showed his address as “69 Wellington Street Kew Victoria 3101”. It bore a prominent note reading:-
“This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to do after you have read it.”
28 The Bankruptcy Notice clearly identified the First Respondent as a creditor claiming that GBP 118,317.11 or $288,086.46, being the Australian currency equivalent thereof, constituted a debt due and payable by Mr. Mathai to the First Respondent. After reading the Bankruptcy Notice Mr. Mathai asked his son Christopher to make contact with John Denton, a solicitor with whom Christopher had had dealings. Mr. Mathai says that he was unable to contact Mr. Denton before he next travelled to Malaysia.
29 Paragraph 5 of the Bankruptcy Notice recorded in bold type that bankruptcy proceedings may be taken against Mr. Mathai if within the time stated in paragraph 3 (21 days after service on him of the Bankruptcy Notice) he did not comply with the requirements of the Bankruptcy Notice.
30 After the Creditor’s Petition, on which the sequestration order was later made, was filed on 2 January 2004, Registrar Mussett made an order for substituted service. This order was entered on 8 April 2004.
31 In accordance with the order for substituted service so made, a copy of the Creditor’s Petition was served on Mr. Mathai on or shortly after 13 April 2004. An envelope addressed to 69 Wellington Street, Kew containing, amongst other things, a copy of the Creditor’s Petition and copies of the affidavits verifying the petition together with a sealed copy of the order for substituted service was posted by ordinary prepaid post by an employee of AJH Lawyers on 13 April 2004. A bundle of documents was also hand delivered to Mr. Gerald Lee Mathai, one of Mr. Mathai’s sons, at 69 Wellington Street, Kew. The Creditor’s Petition clearly identified the First Respondent as the Applicant Creditor and Mr. Mathai as the Respondent Debtor. It detailed the alleged indebtedness of Mr. Mathai to the First Respondent and alleged that an act of bankruptcy had been committed by Mr. Mathai by failing to comply with the Bankruptcy Notice. The Creditor’s Petition also showed Mr. Mathai’s address as “69 Wellington Street, Kew, Victoria 3101”.
32 The Applicant’s evidence is that in early 1977 he made application for migration to Australia which application was approved in December 1977. On 30 January 1978 his family moved to Melbourne with the exception of two sons, namely Gerald and Michael, who were studying in England at the time.
33 Mr. Mathai says that when he first went to Melbourne he lived with his immediate family in his sister-in-law, Lucy Wee’s apartment until 68A Wellington Street, Kew was purchased in the name of his wife, Margaret Lee Mathai, his brother-in-law, Eng Poh Wee and a solicitor, Brian Gill, as trustees of the “Mathai Family Trust”. Mr. Matthai acknowledges that he “provided some assistance in relation to the decision to purchase” this property. The purchase price was met partly from an amount of $40,000 which Mr. Mathai brought to Australia and partly from funds borrowed from a bank in Hong Kong under a loan which Mr. Mathai had arranged and for the repayment of which Mr. Mathai was personally responsible. Mr. Mathai spoke to the solicitor, Mr. Gill, and also inspected the property.
34 Gerald Lee Mathai took a Bachelor of Arts degree from Oxford University in the United Kingdom graduating in about 1983. Later he enrolled for a Doctor of Philosophy degree in Computer Science at Monash University but did not complete same. He works as a Futures Trader from 69 Wellington Street, Kew. His father provided him with $30,000 by way of seed capital for his business as a Futures Trader.
35 Michael Mathai, a Medical Researcher, took a Bachelor of Science degree with honours at the University of Melbourne and later a Doctor of Philosophy degree at the same university. He has lived at 118 Montana Road, Heidelberg since 1999. Before that he lived at Greensborough.
36 Christopher Mathai, another brother, is a Marketing Assistant. In April 2003 he acquired 24/50 Morang Road, Hawthorn in which he has lived since earlier this year.
37 After 68A Wellington Street, Kew was acquired as aforesaid, Michael Lee Mathai, then a student aged 20, became the registered proprietor of 69 Wellington Street, Kew, a two-bedroom house across the road from 68A Wellington Street, for which a purchase price of $210,000 was paid. The relevant transfer was dated 2 August 1983. Michael Mathai says that the money to purchase this property was “given to him by his parents”. At the time his mother was not working and he was unable to say who provided the purchase price. It would appear that Michael Mathai executed a Declaration of Trust in which he declared that he had purchased the property in trust for himself, one of his brothers and his sister. Mr. Mathai says that 69 Wellington Street was paid for with moneys lent to his wife, Margaret Lee Mathai, and his son Michael, by a Mr. Lee from Singapore, a friend of Mr. Mathai. Mr. Mathai arranged that loan. The loan moneys were apparently sent by Mr. Lee to lawyers in Melbourne. Mr. Mathai says that the loan from Mr. Lee was repaid by his wife out of moneys from Tacs Sdn Bhd (“Tacs”). Tacs is a company established by Mr Mathai in which Mrs. Mathai owns 24,998 shares out of 25,000 shares on issue.
38 Gerald Mathai’s evidence was that after he received the bundle of documents on 13 April 2004 he flipped through the bundle of documents, glancing at them. He knew that they related to someone suing his father and he realised that they related to the “judgment from England”.
39 He recognised that the documents had come from AJH Lawyers (the then solicitors for the First Respondent).
40 After glancing at the documents in the bundle Mr. Gerald Mathai telephoned his father informing him that he had received documents from AJH Lawyers. He further informed his father that the process server who gave them to him had said that by giving them to him or to his mother “was like giving it to” Mr. Mathai.
41 Mr. Gerald Mathai told his father that the documents looked like they were “to do with this action that was happening”. In relation to the nature of the documents he had received he told his father “it was a summons to court”.
42 In the course of the conversation which Mr. Gerald Mathai says lasted for about three or four minutes his father instructed him “to return the documents”, which he had received, “to the Court”.
43 Mr. Gerald Mathai says that he received this instruction from his father after he asked him what he should do with the documents. When asked what his father’s actual words of instruction were Mr. Gerald Mathai said they were “… send them back with a cover letter …”. Mr. Gerald Mathai proceeded to do as he was instructed. On 14 April 2004 he wrote a letter to The Registrar of the Court as follows:-
“ 69 Wellington Street
Kew, Victoria 3101
14 April 2004
The Registrar
Federal Court of Australia
Federal Court Building
305 William Street
Melbourne, Victoria 3000
Dear Sir,
RE: LOW MOOI KWEE –V- MATHEW KERALAVAKAYIL MATHAI
FEDERAL COURT PROCEEDING No: V2/2004
The enclosed letter, order and attached documents were left with me on 13 April 2004 at 69 Wellington Street.
However they are addressed to Mathew Mathai who left Australia on 28 December 2003. Therefore, I am returning them to you.
Yours truly,
Gerald Lee Mathai
CC:
AJH Lawyers
Level 3, 140 Queen Street
Melbourne, Victoria 3000”
44 It may be noted that at the time when Gerald Mathai wrote his letter, on the day after he had received the documents, he was conscious of the precise address of the Court, of the names of the parties in the proceedings, of the number of the proceedings and that he was enclosing a letter addressed to his father, an order of the Court (presumably the order for substituted service) and certain “attached documents”. It would also appear that he sent a copy of the letter to the First Respondent’s then solicitors, AJH Lawyers.
45 Mr. Mathai’s instruction to his son Gerald to send the documents back suggests to me that he knew exactly what the documents were all about and simply wanted to distance himself from his responsibilities in relation to them. Had Gerald Mathai chosen to send the documents back to the Court of his own volition, such a course of action may have been somewhat innocuous. However, when that course of action was initiated by Mr. Mathai himself it appears to me to be far from innocuous.
46 When Gerald Mathai asked his father “What’s this all about?”, his father responded, “it was to do with that person suing him”.
47 Gerald Mathai later said “there was only one person suing him, I think, I don’t know”. He said, “I knew that someone was suing him, and I imagined that that was the same person”. He thought that his father’s reference to “that person suing him” was a reference to the First Respondent.
48 Mr. Gerald Mathai gave his father a description of the documents in the bundle but says that he did not read them out to him. He said words to the effect, “The first page looks like a cover letter, the second page looks like a summons …”. He went through the bundle and described the documents to his father essentially relying upon the title of each document.
49 Mr. Mathai acknowledged that his son Gerald had telephoned him on the day that he received the documents but alleges that his son didn’t tell him what the documents were. I do not accept Mr. Mathai’s evidence in that regard. I am satisfied that, as Mr. Gerald Mathai said, he described the documents to his father in the manner indicated above.
50 It would appear that members of the Mathai family lived at 68A Wellington Street, Kew from about 1978. Until he moved to Hawthorn, Christopher Mathai lived there. For a period of time from about 1980 until about 1991 – 1992 Dr. Michael Mathai lived there before moving to 69 Wellington Street, Kew for a brief period of time. He then moved back to 68A Wellington Street before moving to Greensborough. In 1995 – 1996 he spent a post doctoral period in Germany before returning to live in Greensborough and ultimately in Heidelberg. It would appear that after Mr. Gerald Mathai returned from Oxford he resided at 68A Wellington Street until the early 1990s when he moved to 69 Wellington Street.
51 For a period of time Deirdre, who was Christopher, Michael and Gerald’s sister, appears to have also lived at 68A Wellington Street. She now lives in Sydney.
52 Until the early 1990s Mrs. Margaret Lee Mathai, the wife of the Applicant, lived at 68A Wellington Street and, when Mr. Mathai was in Australia he also lived at 68A Wellington Street.
53 In about 1991 Mrs. Margaret Lee Mathai moved from 68A Wellington Street to 69 Wellington Street, living there with her son Gerald Mathai. From that time onwards, when Mr. Mathai was in Australia, he also stayed at 69 Wellington Street, although if he happened to be in Sydney he stayed with his daughter.
54 The Melbourne White Pages telephone directory contains listings for “M. Mathai” at each of 68A Wellington Street, Kew and 69 Wellington Street, Kew. There is also a separate listing for “G. Mathai” at 69 Wellington Street, Kew in respect of another number. Given that each of Mr. And Mrs. Mathai have “M” as their first initial, this evidence is somewhat ambiguous.
55 When at 69 Wellington Street, Kew Mr. Mathai slept in Mrs. Margaret Lee Mathai’s bedroom. They didn’t usually share the same bedroom as Mrs. Mathai had trouble with Mr. Mathai’s snoring. Usually, she would sleep on the lounge.
56 For most of the period since 1991 Mr. Mathai maintained a wardrobe of clothing at 69 Wellington Street, Kew. Whenever he visited Australia he would buy some clothing some of which he might leave behind when he went to Malaysia especially heavy clothing that he would not require overseas. Mr. Mathai maintained a wardrobe of clothing at 69 Wellington Street from the time that Mrs. Mathai moved into that property from across the road. He did not keep his clothing in a separate wardrobe. Rather Mr. Mathai’s clothes were mixed in with those of Mrs. Mathai. That situation has prevailed ever since Mrs. Mathai moved into 69 Wellington Street.
57 Normally, when Mr. Mathai returned to Australia he would telephone his wife to let her know he was coming. Upon arrival he would usually be picked up at the airport and driven to 69 Wellington Street. He never sought permission to stay at 69 Wellington Street, nor was he ever told when to leave. When asked whether he considered that so long as he was alive he had an entitlement to come and go from that property as he chose Mr. Mathai said “I couldn’t say I’ve got entitlement but … I don’t think my children will stop me from staying there”. There has never been any suggestion that Mr. Mathai’s access to or use of 69 Wellington Street was subject to any restrictions.
58 Over a number of years it has been the practice of Mr. Mathai to transfer monies from Malaysia into Mr. Gerald Mathai’s bank account. The purpose of these payments was described by Mr. Gerald Mathai as being “for the upkeep of the household”. Mr. Gerald Mathai said “money comes to my account that’s usually transferred to my mother. I mean it’s really her money”. Such monies were used to pay for, amongst other things, the maintenance of 69 Wellington Street and also for “rates and levies” and renovation costs.
59 When Mr. Mathai first arrived in Melbourne he opened a bank account with a Collins Street, Melbourne branch of Australia and New Zealand Banking Group Limited. Later the Bank moved the account to its High Street, Kew branch. Mr. Mathai says that even though the account was opened by him in his name it “was never operated by me. … My wife always operates it.” Mr. Mathai thought that the address to which bank statements were sent in respect of this account was 68A Wellington Street.
60 The records of the Department of Immigration and Multicultural and Indigenous Affairs reveal that in the period from 1 February 1981 to 31 December 2003 Mr. Mathai lived in Australia for a little over 1,032 days (a total of approximately 2.83 years) and lived overseas for a little under 7,336 days (approximately 20.09 years) i.e. he was in Australia for about 12.5% of the time. He departed from Australia on about 45 occasions and arrived in Australia on about 45 occasions during that period. It would appear that his practice was to travel on return air tickets out of Melbourne rather than out of some overseas city such as Kuala Lumpur. A Melbourne/Kuala Lumpur/Melbourne ticket on Malaysian airlines for travel by Mr. Mathai in 2003 appears to have been purchased for him by his wife from the Kew branch of Flight Centre.
61 When Mr. Mathai was overseas he maintained regular contact with his wife by telephone “Mostly about family matters”. Occasionally, he had telephone contact with his children also.
62 The First Respondent’s case is that Mr. Mathai “travelled to Malaysia to work but his residence is in Australia”. The First Respondent when cross-examined by counsel for the Applicant gave the following evidence:
“Q. You were aware that he spent most of his time in Malaysia working; weren’t you?
A. I am – he spent most of his time working in Malaysia? I am not so sure because I think he travels all over for his business, it is not only Malaysia. My husband and I worked for him before we travelled all over the place.
Q. You were aware in December 2003 that he was not working in Australia?
A. Yes, he was not working in Australia.”
63 It is common ground that Mr. Mathai has not at any material time had a place of business in Australia, that at the time when the act of bankruptcy which is relied upon was committed he was not carrying on business in Australia, either personally or by means of an agent or manager and that he was not a member of a firm or partnership carrying on business in Australia by means of a partner or partners of an agent or manager.
64 Mr. Mathai was born on 21 November 1933. Accordingly, he is now 71 years of age. It would appear that he has worked extensively in various parts of Malaysia including Sabah and also in Hong Kong. In evidence before me he described himself as a retired tax consultant. He also says that his current residential address is 27 Jalan SS 20/23 Damansara Utama, 47400 Petaling Jaya, Selangor, Malaysia. He says that this property is “owned by a company, it is owned by friends of mine”.
65 The First Respondent’s evidence is that “in the London case” Mr. Mathai produced evidence that he applied for PR status (which I understand to mean permanent residency status) in Australia and that when in Vancouver, British Columbia in the 1970’s Mr. Mathai informed the First Respondent that “they (which I understand to have been a reference to the Mathai family) have settled in Australia”. Again in 1980 when the First Respondent met Mr. Mathai in Malaysia he apparently said to the First Respondent that the family was all there, meaning in Australia, and he was there.
66 Mr. Mathai is an expert in the taxation laws of Malaysia. After graduating from the University of Malaya in Singapore with a Bachelor of Arts Economics Honours degree in 1957, Mr. Mathai commenced his career with the Singapore Income Tax Department in or about December 1957. In August 1960 he joined the Malaysian Income Tax Department. In 1968 he left the Malaysian Income Tax Department and joined “Cooper Brothers & Co” (later part of Coopers and Lybrand) in Kuala Lumpur as the firm’s tax consultant for Malaysia and Singapore.
67 Mr. Mathai first met the First Respondent when he joined Cooper Brothers & Co. She was the secretary to one of the partners in the firm at that time and later became Mr. Mathai’s secretary.
68 In due course Mr. Mathai left Cooper Brothers & Co and established Tacs which proceeded to provide tax consultancy services to Cooper Brothers & Co.
69 After migrating to Australia Mr. Mathai continued to work for Tacs spending most of his time out of Australia.
70 Mr. Mathai retired from full time employment in about 2001 but continued to serve as a Director of Tacs. He also serves as a director of two public listed companies in Malaysia on a pro bono basis.
71 Mr. Mathai says that he has never had nor maintained a dwelling house within Australia.
72 He says that he is not an Australian resident for taxation purposes, that he does not have and has never had a Medicare card in Australia and that he is not enrolled on the State or Federal Electoral Rolls. It would appear that he has never lodged taxation returns in Australia. Except for a time when he was in the United States he has lodged his annual taxation returns in Malaysia. When in the United States he “filed in the United States as well”.
73 According to Mr. Mathai, the tax rates in Malaysia are lower than in Australia.
74 Mr. Mathai appears to travel on both Australian and Malaysian passports from time to time. His current Australian passport was issued on 27 December 2001 and his current Malaysian passport was issued on 7 May 2002. Mr. Mathai’s Malaysian passport includes a visa issued on 26 April 2004 authorising him to enter the Republic of India until 25 October 2004 and a further visa issued on 4 November 2004 authorising him to enter the Republic of India until 3 May 2005. It also includes an Australian “ETA visitor (short)” authority to enter Australia apparently issued on 16 March 2005 and in force until 16 March 2006 permitting multiple entries into Australia for periods of stay up to three months.
75 Mr. Mathai’s current Malaysian passport has been endorsed with stamps indicating that during its currency he has visited Singapore on one occasion, India on two occasions and England on one occasion.
76 Mr. Mathai carries a Malaysian identity card and has a Malaysian Driving Licence. He does not have a Victorian driver’s licence. He does drive motor vehicles when in Victoria but does so using an international driving licence.
77 Mr. Mathai has since late 1998 been a member of the parish Finance Committee for the Cathedral of St John in Kuala Lumpur. In addition he has been a member of the Archbishop of Kuala Lumpur’s archdiocesan advisory committee.
78 When Mr. Mathai left Australia on 13 July 2001 he completed an Outgoing passenger card in which he referred to his then current Australian passport. The form permitted him to describe himself as a “Visitor or temporary entrant departing”, an “Australian resident departing temporarily” or an “Australian resident departing permanently”. Mr. Mathai chose to indicate that he was an “Australian resident departing temporarily”. He indicated that he “lived” in Victoria. He nominated Malaysia as the country where he would spend most time abroad and indicated that the length of his stay overseas would be six months. Mr. Mathai indicated that the main reason for his overseas travel was “Employment”.
79 When he returned to Australia on 15 December 2001 he completed an incoming passenger card which referred to his then current Australian passport. The relevant form permitted him to nominate that he was “Migrating permanently to Australia”, a “ Visitor or temporary entrant” or a “Resident returning to Australia”. Mr. Mathai nominated that he was a “Resident returning to Australia” who had spent most of his time abroad in Malaysia. When asked whether he intended to live in Australia for the next twelve months his response was in the negative. On the incoming passenger card Mr. Mathai nominated 69 Wellington Street, Kew in the State of Victoria as his intended address in Australia.
80 When Mr. Mathai departed from Australia on 14 January 2002 he completed his Outgoing passenger card in a similar manner to the one which he completed on 13 July 2001. On this occasion he indicated an expected overseas stay of four months and nominated the main reason for his overseas travel as being “Business”. He also referred to his new Australian passport, which is his current passport.
81 When Mr. Mathai returned to Australia on 12 April 2002 he completed his incoming passenger card in the same manner as he completed the one for 15 December 2001.
82 When Mr. Mathai departed from Australia on 21 April 2002 he completed his Outgoing passenger card in a similar manner to the cards mentioned above except that on this occasion he nominated his intended length of stay overseas as two months.
83 When Mr. Mathai returned to Australia on 22 June 2002 he completed his incoming passenger card in a similar manner to the earlier cards to which reference has been made. On this occasion it would appear that an immigration officer has crossed out that part of the incoming passenger card which Mr. Mathai had completed indicating that he was a “Resident returning to Australia” and completed the “Visitor or temporary entrant” section indicating that Mr. Mathai’s country of residence was Malaysia and that his intended length of stay was 21 days.
84 When Mr. Mathai left Australia on 14 July 2002 his Outgoing passenger card was completed in the same manner as the previous two cards mentioned above. On this occasion he nominated his intended length of stay overseas as six months.
85 When Mr. Mathai returned to Australia on 6 December 2002 he completed his incoming passenger card in the same manner as the earlier cards.
86 When Mr. Mathai left Australia on 12 January 2003 he again completed his Outgoing passenger card in the same manner as his earlier cards. On this occasion he nominated the main reason for his overseas travel as being “Employment” and his intended length of stay overseas as being five months.
87 When he returned to Australia on 13 June 2003 Mr. Mathai again completed his incoming passenger card in the same manner as he had completed the earlier forms referred to above.
88 When he left Australia on 29 June 2003 Mr. Mathai completed his Outgoing passenger card in the same manner as the earlier cards. On this occasion he nominated his intended length of stay overseas as six months and the main reason for his overseas travel as being “Employment”.
89 When Mr. Mathai returned to Australia on 6 December 2003 he again completed his incoming passenger card in the same manner as he had completed his earlier cards.
90 When Mr. Mathai left Australia on 28 December 2003 he once again completed his Outgoing passenger card in the same manner as the earlier cards referred to above. On this occasion he nominated the intended length of his stay overseas as being six months and the main reason for his overseas travel as being “Business”.
91 When cross-examined as to why he constantly described himself as an Australian resident who was departing temporarily, nominating that the State in which he lived was Victoria, and, when returning, that his intended address in Australia was 69 Wellington Street, Kew in the State of Victoria, he said that he was travelling on an Australian passport. On one occasion when he came into Australia he says that he filled in the visitor column. An immigration officer said he was wrong and since then he has followed the course which is apparent in the forms to which reference has been made above. Mr. Mathai also said that he thought that the immigration cards didn’t “give you much of an option”.
92 In his affidavit sworn 24 May 2005 Mr. Mathai said that he had to “compromise” with the selection of the column that he would complete on the Outgoing passenger cards. In relation to the incoming passenger cards he said that he put down “69 Wellington Street Kew Vic” as his intended address in Australia “because I consider this address as the best contact address that anyone could get a hold of me while I was in Australia”.
93 On those occasions when Mr. Mathai has left Australia or returned to Australia since substituted service of the creditor’s petition was effected upon him in April 2004 he appears to have done so utilising his Malaysian passport and the ETA visitor’s visa which he obtained on 16 March 2005.
94 In the light of the above, the important issues for consideration which go to the question of jurisdiction are whether at the time of commission of the relevant act of bankruptcy Mr. Mathai was personally present in Australia, ordinarily resident in Australia or had a dwelling-house in Australia.
95 Before coming to a consideration of those matters there is the preliminary question identified in paragraph 24 above. Mr. Mathai’s case is that an extension of the 21 day period for review of Registrar Wood’s decision should be allowed because he knew nothing about Registrar Wood’s decision until he attempted to leave Australia on 10 April 2005 after having returned here on 1 April 2005.
96 Under Order 3 Rule 3 of the Rules, Order 77 Rule 8(3) and s 35A(5) of the Federal Court of Australia Act the Court has a clear discretion as to whether the 21 day period should be extended.
97 As I see it, Mr. Mathai engaged in an exercise of studied disinterest in relation to what followed after he was served with the Bankruptcy Notice on 6 December 2003, carefully read and considered it and departed for overseas on 28 December 2003. I have no doubt that he understood precisely what the bundle of documents left for him with his son Gerald at 69 Wellington Street, Kew on 13 April 2004 were all about. His instructions to his son Gerald to return the documents to the Court demonstrated a deliberate attempt by him to stay clear of any knowledge of the outcome of the First Respondent’s initiatives based upon his failure to comply with the Bankruptcy Notice according to its terms.
98 In my opinion the Applicant’s application for an order extending the time for the Applicant to review the decision of Registrar Wood, made on 18 May 2004 in proceedings VID 2 of 2004, to make a sequestration order against the estate of the Applicant, should be refused. In these circumstances it is unnecessary and inappropriate to embark on a review of the exercise by Registrar Wood of the powers conferred upon him and which resulted in the making of the sequestration order.
99 This then brings me to the question of whether an order should be made annulling the bankruptcy given the remaining substantive issues mentioned above.
100 Consistent with paragraph 3 of the Creditor’s Petition, the First Respondent’s case is that Registrar Wood had jurisdiction to make a sequestration order against the estate of Mr. Mathai because, at the time when the relevant act of bankruptcy was committed, Mr. Mathai was:
(a) personally present in Australia, or
(b) ordinarily resident in Australia, or
(c) had a dwelling house in Australia.
101 As I understood the First Respondent’s submissions, the primary issue was whether, at the relevant time, Mr. Mathai “had a dwelling-house in Australia”, a secondary issue was whether, at the relevant time, he was “ordinarily resident in Australia” and a tertiary issue, which was not seriously advanced, was whether, at the relevant time, he was “personally present in Australia”.
102 The Bankruptcy Notice upon which the First Respondent relied was served on Mr. Mathai on Saturday 6 December 2003. In accordance with Form 1 of Schedule 1 to the Bankruptcy Regulations 1996 and Regulation 4.02(1) it specified “21 (twenty-one) days after service on you of this Bankruptcy Notice” for compliance with its terms.
103 Under section 41(2) of the Act the Bankruptcy Notice had to be “in accordance with the form prescribed by the regulations”.
104 Within 21 days after 6 December 2003 would take one to midnight on 27 December 2003. At that stage Mr. Mathai was still in Australia. However, 27 December 2003 was a Saturday.
105 In Re R. E. Green (1947) 14 ABC 109, a case under the Bankruptcy Act 1924 – 1947, Clyne J held that a Bankruptcy Notice which was served on a debtor on 17 December 1946 and allowed 7 days from 18 December for compliance, should be construed as allowing until midnight on Monday 30 December 1946 for compliance as the Thursday, Friday and Saturday following Christmas day in that year were days on which the offices of the Court of Bankruptcy were closed.
106 In the light of s 33(1)(c) of the Act in its current form, I do not consider that In Re R E Green or Order 3 Rule 2 of the Federal Court Rules have any application in relation to the Bankruptcy Notice served on Mr. Mathai.
107 However, in my opinion the 21 day period provided for in the Bankruptcy Notice is a period “allowed by an Act for the doing of” the things for which the Bankruptcy Notice provides within the meaning of s 36(2) of the Acts Interpretation Act 1901 (Cth) which relevantly provides:-
“36(2)Where the last day of any period … allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”
108 In the light of s 36(2) of the Acts Interpretation Act the relevant act of bankruptcy would appear to have been committed when the Bankruptcy Notice was not complied with by midnight on Monday 29 December 2003.
109 It would appear that Monday 29 December 2003 was itself a Commonwealth Public Service holiday when the Federal Court office was not open in Victoria. In the circumstances, counsel for Mr. Mathai suggested that non compliance with the relevant Bankruptcy Notice may have only occurred at midnight on Tuesday 30 December 2003 but accepted that “nothing turns on it”. Were it necessary to decide this issue I would incline to the view that the relevant act of bankruptcy was committed at midnight on 29 December.
110 As Mr. Mathai left Australia on 28 December 2003 it is clear that he was not “personally present in Australia” at the time when the act of bankruptcy was committed.
HAVING A DWELLING-HOUSE IN AUSTRALIA
111 It is possible for a debtor to have a dwelling-house in Australia even though he has not in fact been in occupation of it at any time during a given year (per Goff LJ, with whom Buckley and Orr LJJ agreed, in In re Brauch (A Debtor); Ex parte Britannic Securities & Investments Limited (“In re Brauch”) [1978] 1 Ch 316 at 335).
112 To have a dwelling-house in Australia it is not necessary that a debtor has a legal or equitable estate in the property in question. A licence to occupy a dwelling-house may suffice (per Goff LJ in In re Brauch at p 334).
113 A debtor who took five furnished rooms on two floors in a house in Piccadilly Circus, London, for three months and who occupied them together with his wife and a servant was found to “have a dwelling-house” in England. He was not a passing or casual visitor making a journey through the country for the purpose of seeing it. He was not like a person living at rooms in a hotel in the ordinary way (per Lord Esher, MR in In re Hecquard; Ex parte Hecquard (1889) 24 QBD 71 at 74; see also per Lindley LJ at p 75).
114 Where a debtor owns a house in Australia, does not occupy it although he could reoccupy it at any time, but has abandoned its use as a residence, he will not have a dwelling-house in Australia (per Wilcox J at first instance in Re Boles [2000] FCA 1782 at [48]).
115 If a debtor is away from his dwelling-house for a temporary purpose but with an intent to return, he may still have a dwelling-house. The more there is actual occupation, the easier it is to conclude that he has a dwelling-house (per Goff LJ in In re Brauch at p 335).
116 As I see it, a debtor will have a dwelling-house in Australia if there is a house in Australia which he uses or has used and may use as his residence and to which he may repair at his whim at any time.
117 In my opinion, Mr. Mathai has had 69 Wellington Street, Kew, Victoria as a dwelling-house in Australia since 1991. Firstly, he was involved in its purchase and in arranging the finance for its purchase.
118 Secondly, it was invariably nominated as his intended address in Australia when he returned from overseas. Thirdly, when he travelled overseas for his work, he always declared that he “lived” in Victoria and that he intended to return. Fourthly, he maintained a wardrobe of clothing at the house. Fifthly, it was undoubtedly his wife’s “home” and he was in frequent contact with her in relation to family matters. He never sought nor needed to seek permission to return to the house or to dwell in it. Sixthly, he used it as his residence whenever he was in Australia.
119 At the time when the act of bankruptcy was committed, Mr. Mathai had a dwelling-house in Australia.
being ordinarily resident in australia
120 Whether a debtor is ordinarily resident in Australia is a question of fact and degree (per Goff LJ in In re Brauch at 330 and 334; per Burchett J in Re Vassis; Ex parte Leung (“Re Vassis”) (1986) 9 FCR 518 at 525; and, per Lockhart J in Re Taylor; Ex parte Natwest Australia Bank Limited (“Re Taylor”) (1992) 37 FCR 194 at 197 and 198).
121 A debtor can be ordinarily resident in more than one country (per Goff LJ in In re Brauch at p 331 and per Lockhart J in Re Taylor at p 198).
122 A debtor who comes to Australia as a casual or purely transitory visitor will not be ordinarily resident in Australia (per Goff LJ in In re Brauch at p 334 and per Buckley LJ at p 337).
123 Temporary residence overseas will not prevent a finding that a debtor is ordinarily resident in Australia (per Burchett J in Re Vassis at p 525).
124 In Re Taylor Lockhart J said at p 197-8:-
“ ‘Resident’ and ‘ordinarily resident’ are not terms of art in Australian law. Rather, they have been used in the statute law of this country and the United Kingdom for many years. The question of residence arises in many different statutory contexts including legislation concerning bills of sale (Attenborough v Thompson (1857) 2 H & N 559 at 563; 157 ER 230 at 232 per Pollock CB); copyright (Phonographic Performance Ltd v Pontin’s Ltd [1968] Ch 290, per Cross J at 297-298); and income tax (Robertson v Commissioner of Taxation (Cth) 1937) 57 CLR 147; Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241 per Starke J at 246 and Williams J at 249; Commissioners of Inland Revenue v Lysaght [1928] AC 217 per Lord Warrington of Clyffe at 232).
…
I shall not attempt to give any comprehensive definition of the word ‘resident’. It has no technical or special meaning for the purposes of the Act. Nor do the words ‘ordinarily resident’ have any such technical or special meaning. They are ordinary English words. Whether a debtor is ordinarily resident in Australia is a question of fact and degree. …
…
… A person may have two places of residence; for example, a city flat and a country house. He may regularly live in each. He cannot be physically present in both at the same time, but he may be resident (or ordinarily resident) in each at the same time. People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree.
To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word ‘ordinarily’ connotes a comparison, a measure of degree. A person may have more than one residence, but he is not ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of ‘ordinary residence’ for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person’s life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression ‘ordinarily resident in’ connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene (supra) and Lysaght (supra). As Lord Warrington said in Levene (at 232): ‘ ‘Ordinarily resident’ means according to the way a man’s life is actually ordered.’ The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231.
It depends on the facts of each case whether the debtor is ordinarily resident in Australia at the time of the commission of the relevant act of bankruptcy. At first blush it may seem strange to say that a person can be ordinarily resident in more than one country at the same time; but on closer analysis it is not. Plainly you cannot be physically present in more than one place at the same time. But the lifestyles of people vary greatly. Some people in the ordinary pursuit of their lives regularly or customarily live in more than one place, each of which has an element of permanence about it and is not merely a place of casual or intermittent resort.”
(see also per Olney J, at first instance in Re Ginnane; Ex parte Diner’s Club Limited [1992] FCA 627 at p 7)
125 In the era of wide bodied jet aircraft it is not quite so unusual for people to be ordinarily resident in more than one country. One only has to contemplate the position of tennis and golf professionals who travel away from the place or places where they are ordinarily resident so as to pursue their livelihoods and earn their incomes. Much the same can be said in respect of (say) concert pianists on the world stage who may ordinarily reside in Australia but travel extensively overseas to earn their incomes. Much the same could be said in relation to a taxation consultant ordinarily resident in Australia whose business or employment takes him to places such as Hong Kong, Singapore, Kuala Lumpur, India and England so that he may exploit his expertise. One might say of them that they “still call Australia home”.
126 In my opinion having regard to all of the circumstances of this case as set out above, Mr. Mathai was, at the time of the commission of the relevant act of bankruptcy, ordinarily resident in Australia. I reach this conclusion notwithstanding the fact that he held a Malaysian driving licence, a Malaysian identity card, was involved in the affairs of the Cathedral of St John in Kuala Lumpur and spent much of each year living overseas and in particular in accommodation in Kuala Lumpur belonging to a company owned by friends of his, not to overlook the fact that he was a Malaysian taxpayer and served on the boards of companies in Malaysia, that he did not file income tax returns in Australia and did not hold an Australian Medicare card. Mr. Mathai was the holder of a Malaysian passport but also of an Australian passport. Until he was served with the Creditor’s Petition he invariably departed Australia and returned to Australia using his Australian passport. He also had a bank account at the Australian & New Zealand Banking Group Limited in Melbourne. When Mr. Mathai was asked whether he read the Bankruptcy Notice “at the airport or at home” his spontaneous response was “at home”. Whilst he proceeded to back off from a suggestion that 69 Wellington Street, Kew was “home”, I am satisfied that that is how he viewed it. Leaving a wardrobe of clothing at that address is a strong indication, when taken with all the other matters referred to above, that it was a place at which he was ordinarily resident in Australia.
127 In my opinion Registrar Wood had jurisdiction to made the sequestration order against the estate of Mr. Mathai since, at the relevant time, he “had a dwelling-house in Australia” and, in addition, was “ordinarily resident in Australia”.
128 In my opinion, Mr. Mathai has failed to make out a case for annulment of the sequestration order. The Amended Application filed in Court on 26 May 2005 should be dismissed with costs.
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I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham . |
Associate:
Dated: 19 July 2005
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Counsel for the Applicant: |
J T Johnson |
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Solicitor for the Applicant: |
P H Legal |
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Counsel for the First Respondent: |
S Golledge, previously D Gasic |
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Solicitor for the First Respondent: |
Yates Beaggi Lawyers, previously Robinson Legal |
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Counsel for the Second Respondent: |
E K Glover |
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Solicitor for the Second Respondent: |
Douros Lawyers |
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Date of Hearing: |
26 – 27 May and 4 July 2005 |
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Date of Judgment: |
19 July 2005 |
