FEDERAL COURT OF AUSTRALIA

Ghosh v Miller [2016] FCA 1293

ORDERS

UPON THE APPLICANT UNDERTAKING TO THE COURT THAT:

1.    She will cooperate with her Trustee in bankruptcy and comply with her obligations under the Bankruptcy Act 1966 (Cth) as he may request or direct.

THE COURT ORDERS THAT:

2.    The operation of the sequestration order made against the estate of the applicant on 30 September 2016 be suspended pending the determination of the applicant’s appeal to this Court.

3.    The amended interlocutory application filed on 24 October 2016 be otherwise dismissed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 30 September 2016 a sequestration order was made by a judge of the Federal Circuit Court of Australia (Federal Circuit Court) against the estate of the applicant, Dr Ghosh, and Mr Scott Anthony Newton (the Trustee) was appointed trustee of her estate: see Miller v Ghosh (No 3) [2016] FCCA 2491 (Miller v Ghosh (No 3)).

2    On 7 October 2016 Dr Ghosh filed a notice of appeal from the judgment in Miller v Ghosh (No 3) and an interlocutory application seeking, among other orders, a stay of the sequestration order made on 30 September 2016.

3    The interlocutory application first came before Farrell J as duty judge on 7 October 2010. At that time Dr Ghosh sought an urgent temporary stay of the sequestration order so that she could continue to prosecute a proceeding in the Supreme Court of New South Wales (the Supreme Court) against seven defendants, including Mr Miller, the petitioning creditor in the court below and the respondent to the appeal filed in this Court. In that proceeding Dr Ghosh alleges that she has been defamed and seeks damages (the Defamation Proceeding). The urgency arose because the Defamation Proceeding was listed before the Supreme Court at 2 pm on that day. It was subsequently adjourned by Rothman J to 28 October 2016.

4    Farrell J refused an order for a temporary stay of the sequestration order. Her Honour set the interlocutory application down for hearing before the duty judge at the earliest available opportunity.

5    The proceeding was listed before me on 12 October 2016. On that occasion Dr Ghosh was represented by counsel. I made orders granting leave to Dr Ghosh to file an amended notice of appeal and an amended interlocutory application, which she has now done, and for steps to be undertaken preparatory to a hearing of the amended interlocutory application.

6    There was some urgency to the hearing of the amended interlocutory application because on 4 October 2016 Mr Miller and his wife served a notice on the Trustee requiring him to provide notice pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth) (the Act) within 28 days as to whether he would prosecute or discontinue the Defamation Proceeding. However, on 24 October 2016 the Trustee notified Mr Miller and his wife, through their solicitors, that in his view the Defamation Proceeding is not property that vests in the bankrupt estate but remains with Dr Ghosh because it is an action for personal injury or a wrong within the meaning of ss 60(4) and 116(2)(g) of the Act. Accordingly the Trustee noted that he was not in a position to continue or to make an election pursuant to s 60(2) of the Act. In light of the Trustee indicating his position the urgency caused by the imminent date by which he would otherwise have been required to make his election pursuant to s 60(2) of the Act was removed.

7    The Trustee was granted leave to file evidence and submissions and to be heard on the amended interlocutory application. He appeared, by counsel, at the hearing of the amended interlocutory application to assist the Court.

the amended interlocutory application

8    In her amended interlocutory application Dr Ghosh sought three orders but because of the Trustee’s position in relation to the Defamation Proceeding she only pressed two of those orders namely orders that:

(1)    the operation of the sequestration order made on 30 September 2016 be suspended pending the determination of her appeal;

(2)    further or in the alternative that her bankruptcy be annulled pursuant to s 153B of the Act.

the facts

9    Dr Ghosh’s amended interlocutory application is supported by an affidavit affirmed by her on 18 October 2016. She was also examined and cross examined at the hearing. Relevantly her evidence is that:

(1)    she is separated from her husband, although not divorced. There is one child of the marriage who is 11 years old, is autistic and is cared for by and resides with her;

(2)    in 2013 her husband commenced a proceeding in the Family Court of Australia for property orders in respect of their marriage (the Family Court Proceeding). That proceeding is dormant. No orders have been made in it and it has not been listed for hearing;

(3)    Dr Ghosh and her husband are the registered proprietors as joint tenants of two properties: one at 167 Lytton St, East Brisbane, Queensland (the East Brisbane Property) and the other at 56 Antoine St, Rydalmere, New South Wales (the Rydalmere Property). The East Brisbane Property is currently vacant and is managed by Dr Ghosh’s husband. The Rydalmere Property is occupied by Dr Ghosh’s husband. The East Brisbane Property and Rydalmere Property are subject to mortgages in favour of the Commonwealth Bank securing an amount of $488,000. A comparative market analysis prepared for the East Brisbane Property dated 21 October 2016 values it at between $900,000 to $1.2 m and a marketing appraisal dated 21 October 2016 for the Rydalmere Property says that its potential sale price is in the range of $940,000 to $1 m;

(4)    in response to a question about her options for realising her share in the East Brisbane Property Dr Ghosh said that prior to the making of the sequestration order she had a loan approved by the Commonwealth Bank, that was pending from June to September 2016, to increase her debt by $250,000. Its purpose was to pay off her debts. Dr Ghosh would rather not sell that property but she indicated that sale was a possibility and that the property could be sold readily. She also said that she could sell her half share in the property to her husband and that he would be more likely to agree to that than an outright sale;

(5)    Dr Ghosh understands that when the Family Court Proceeding is finally concluded she is likely to receive more than 50% of the matrimonial property because she has the primary care of their son;

(6)    Dr Ghosh is a medical practitioner employed by Ghoband Pty Ltd (Ghoband) trading as Charlestown Surgery. In the financial year ended 30 June 2016, Dr Ghosh received approximately $80,000 from her employment. She holds one of the two issued shares in Ghoband with the other being held by her husband. As at 30 June 2016 Ghoband had negative equity of $346.78;

(7)    on 6 August 2013 Dr Ghosh commenced the Defamation Proceeding in the District Court of New South Wales (the District Court). On 21 March 2016, on Dr Ghosh’s application, the Defamation Proceeding was transferred to the Supreme Court because Dr Ghosh’s claim for damages exceeds the jurisdictional limit of the District Court;

(8)    in the Defamation Proceeding and in related proceedings in the District Court and the Local Court of New South Wales (the Local Court) there have been a number of costs orders made at various times both against and in favour of Dr Ghosh in relation to Mr Miller and the other defendants in the Defamation Proceeding. Some of those costs orders have been assessed and are the subject of judgments and some of those costs orders and/or judgments in respect thereof are subject to appeal. The largest of these is an order for costs made against Dr Ghosh by Fagan J in the Supreme Court for $12,000;

(9)    the Defamation Proceeding is next listed before Rothman J on 28 October 2016 at which time Dr Ghosh understands his Honour will likely deliver his reserved judgment in relation to various strike out applications heard by him on 12 August 2016. Dependent upon his Honour’s orders it is possible that the Defamation Proceeding may then be set down for hearing;

(10)    Dr Ghosh believes that she is able to pay her debts, that her assets exceed her liabilities and that she is solvent.

Dr Ghosh’s statement of affairs

10    Dr Ghosh has prepared a statement of affairs which she has provided to the Trustee. In it Dr Ghosh discloses that:

    she received gross income of $80,000 for the financial year ended 30 June 2016;

    her expected income for the current financial year is $100,000;

    she jointly owns with her husband the East Brisbane Property which is security for a loan of $488,000. She also has a half share in the Rydalmere Property which is currently in her husband’s possession;

    she holds one share valued at $1.00 in Ghoband;

    she has three debtors, including Mr Miller, who owe her a total of $27,628.40 all of which she says is recoverable;

    since 2014 she has sold three properties for a total of $3,176,054.65;

    there is a superannuation policy in the name of Ghoband Pty Ltd Superannuation;

    in January 2016 she paid $11,265 to Baycorp Collections PDL (Australia) Pty Ltd (Baycorp);

    she has another asset, the Defamation Proceeding, which she values at $750,000;

    the combined estimated resale of the East Brisbane Property and the Rydalmere Property is $2.4 m;

    she has two unsecured creditors, the first, collectively NineMSN Pty Limited, NBN Limited and Katie Gregory (the NBN Parties), and the second, Mr Miller, who have costs orders in their favour for $16,000 and $12,000 respectively.

11    The Trustee has sworn an affidavit in which he provides his observations, having considered the statement of affairs. In relation to the assets disclosed by Dr Ghosh in her statement of affairs, the Trustee notes that:

(1)    Dr Ghosh disclosed a superannuation policy in the name of Ghoband Pty Limited Superannuation but provided no balance of the funds in the policy. He further notes that, subject to certain exceptions, superannuation is generally an excluded asset from a bankrupt estate;

(2)    the Trustee has not yet engaged valuers to value the East Brisbane Property and the Rydalmere Property, of which Dr Ghosh is a joint owner, nor has he, in accordance with his usual practice, lodged caveats over those properties to secure the bankrupt estate’s interest in any equity in them. He notes that the Commonwealth Bank has confirmed that the amount owing to it that is secured over the properties is $488,066.83 and that the loan is not in default;

(3)    given the existence of the Family Court Proceeding, the East Brisbane Property and the Rydalmere Property may become subject to that proceeding which may affect the ability to sell them in the short to medium term and/or may lead to an amendment in the ownership interests in those properties;

(4)    Dr Ghosh disclosed that she holds one share in Ghoband. The Trustee understands that Ghoband may act as trustee of Dr Ghosh’s superannuation fund. The Trustee is aware through searches that he has undertaken that Ghoband is the registered owner of an unencumbered property located at 49 Patricia Avenue, Charlestown, NSW (the Charlestown Property) although he was unable to ascertain from the search whether Ghoband owns the Charlestown Property in its capacity as trustee of the Ghoband Pty Ltd Superannuation Fund or whether it is beneficially owned by Ghoband in its own right. He notes that the Charlestown property does not appear in the balance sheet of Ghoband;

(5)    there are three debtors disclosed in the statement of affairs, one of whom is Mr Miller for the sum of $3,300 arising from a fixed sum costs order in District Court proceedings 2014/247046. The Trustee understands that an order was also made that a certificate pursuant to the Suitors’ Fund Act 1951 (NSW) be issued and that, despite the Department of Justice’s advice that the certificate should not have been issued, that Department agreed to an ex gratia payment of $3,300 to Mr Miller of which $1,980 was to be paid to Dr Ghosh. Accordingly, the Trustee expects that the sum of $1,980 would be recoverable. However, on the basis that the creditor’s petition was based on total debts owed by Dr Ghosh to Mr Miller of $15,234.32 and further costs orders are now claimed by Mr Miller against the estate, the Trustee is of the opinion that Mr Miller would appear to be a net creditor of the estate and, as such, no further amounts are likely to be recoverable from him. The Trustee is not in possession of any documentation evidencing the two other debtors’ financial ability to pay the debts owing to Dr Ghosh;

(6)    based on his review of Ghoband’s profit and loss statement for the financial year ended 30 June 2016, of the $80,000 in income received by Dr Ghosh, $70,000 appears to be in the form of superannuation and $10,000 in the form of wages and salaries. He also notes that the profit and loss statement provides, as comparative figures, a profit and loss statement for the year ended 30 June 2015 and that this shows that Dr Ghosh was paid $71,027.71 in superannuation and $45,761.38 in wages and salaries in that financial year.

12    The Trustee identified the following discrepancies in the statement of affairs:

(1)    in question 9 of part A of the statement of affairs, which requires the disclosure of a summary of income for the past 12 months, Dr Ghosh failed to record any income received from rent payable by tenants of her two known investment properties. The Trustee believes that these properties are currently vacant but, from his review of bank statements for an account held jointly in Dr Ghosh’s name with her former husband, it appears that she received regular rental income deposits from real estate property managers;

(2)    in question 12 of part A of the statement of affairs, which requires disclosure of current employment, the trustee notes that an amount of $7,600 is paid annually by Dr Ghosh’s employer in superannuation. However Dr Ghosh has responded to question 15, which asks whether any party makes a superannuation contribution on behalf of the bankrupt, in the negative;

(3)    Dr Ghosh has not listed any bank accounts in response to question 23 which asks the bankrupt to list all accounts held, including any joint or overdrawn accounts, with any banks, building societies, credit unions or other financial institutions in the last 12 months. However, the Trustee has been provided with statements of account by the Newcastle Permanent Building Society for an account in the name of Dr Ghosh and her husband as trustee for the Bandy Family Trust for the period 30 September 2015 to 11 October 2016;

(4)    in response to question 33, which asks the bankrupt whether he or she has sold transferred or given away any assets worth more than $1,000 in the last five years, Dr Ghosh lists three properties but does not include the transfer by her of a 1% share in the Charlestown Property to her husband on 15 October 2014 nor the transfer of that property on 8 December 2014 to Ghoband for nil consideration.

13    The Trustee also set out his understanding of Dr Ghosh’s creditors, none of which he has verified. They are:

(1)    Baycorp in the sum of $68,840.24 for various judgments and costs orders. In addition, Baycorp has provided an estimate of $25,000 for costs that are yet to be assessed;

(2)    Blue Ribbon Legal in the sum of $2,915 plus interest for work performed as a costs assessor;

(3)    jointly with her husband, the Commonwealth Bank in the sum of $488,066.83. That debt is secured by way of first registered mortgages over the East Brisbane Property and the Rydalmere Property;

(4)    Mr Miller in the sum of $54,317.87 for costs, including interest and enforcement costs, that have either been assessed or were gross sum orders and a further sum of $135,448.63 for costs orders in respect of which quantum has not been assessed or agreed;

(5)    The NBN Parties in the sum of $20,934.59 for judgments in their favour. There are also other outstanding costs orders in favour of the NBN parties which have not been the subject of an assessment. Their solicitors estimate that those costs are in the range of $80,000 to $100,000.

14    It is clear based on the Trustee’s evidence and Dr Ghosh’s evidence in cross examination that she has not included all of her creditors or the full amount for which those listed are creditors in her statement of affairs. Dr Ghosh agreed in cross examination that she is also known by another name, Ros Bandi, a matter not disclosed in her statement of affairs.

Proceedings between Dr Ghosh and Mr Miller and the costs orders

15    In response to the interlocutory application Mr Miller relies on two affidavits sworn by his solicitor, Anthony Patrick Maher, on 12 October 2016 and 21 October 2016 respectively. Among other things, Mr Maher sets out the lengthy history and status of various proceedings between Dr Ghosh and Mr Miller which have given rise to costs orders.

16    The first relevant proceeding is no. 2013/235153 in the Supreme Court between Dr Ghosh as plaintiff and Mr John Bee and others as defendants:

(1)    on 23 April 2014 orders were made that the proceeding be withdrawn with no order as to costs;

(2)    on 25 July 2016 Dr Ghosh filed a notice of motion in the proceeding seeking orders against Mr Miller that a costs order made by Magistrate Cheetham in the Newcastle Registry of the Local Court be stayed and that the judgment of Magistrate Cheetham be set aside. The orders of Magistrate Cheetham, which had been made in Local Court proceeding no 76771 on 11 July 2013, are set out below;

(3)    the notice of motion was listed for hearing on 1 August 2016 before Fagan J. On 3 August 2016 his Honour relevantly made orders dismissing the notice of motion and that Dr Ghosh pay Mr Miller’s costs on an indemnity basis in the sum of $12,000 with the costs order being made as a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). The Supreme Court’s records show that this proceeding is now closed.

17    A summary of other proceedings between Dr Ghosh and Mr Miller, in so far as they are relevant to the grounds of appeal, is as follows :

18    In addition to the above proceedings, Mr Miller, his wife and five others are defendants to the Defamation Proceeding. On 12 May 2016 Dr Ghosh filed a notice of motion seeking orders, among others, that the defences of all defendants be struck out and for an award of damages. On 1 July 2016 Mr Miller and his wife filed a notice of motion seeking that the Defamation Proceeding be dismissed against them on the basis of Dr Ghosh’s failure to comply with orders of the Court for discovery with the first such order having been made on 20 November 2015. The notices of motion were heard by Rothman J on 12 August 2016 and his Honour’s judgment is reserved. If the Defamation Proceeding is not concluded as a result of the notices of motion heard by Rothman J then Mr Maher believes that it is unlikely that they will be heard until 2018. Dr Ghosh currently has a notice of motion listed for determination by Rothman J in the Defamation Proceeding seeking to join as defendants to those proceedings the NBN Parties. Another issue in the Defamation Proceeding is whether that proceeding is stayed pursuant to s 60(2) of the Act.

19    On 1 November 2013 in the Defamation Proceeding Mr Miller, along with all other defendants, was ordered to pay costs to Dr Ghosh. In a hearing before Gibson DCJ on 16 September 2015 Dr Ghosh sought an order that the costs order of 1 November 2013 be made as a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 and that the costs be payable forthwith. On 22 September 2015 Gibson DCJ dismissed that application and made an order that Dr Ghosh pay the costs of all defendants of that application.

legal framework

20    Dr Ghosh seeks a stay or an order that the operation of the sequestration order be suspended until determination of her appeal. Accordingly, she is not assisted by s 52(3) of the Act which limits the period of any stay to 21 days. However, pursuant to s 29 of Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) where an appeal to the Court from another court has been instituted, the Court has power to order, on such conditions as it thinks fit, a stay of all or any proceedings under the judgment appealed from and to suspend the operation of any order to which the appeal relates.

21    Rule 36.08 of the Federal Court Rules 2011 (the Rules) relevantly provides:

36.08     Stay of execution or proceedings under judgment appealed from

(1)     An appeal does not:

(a)     operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

(b)     invalidate any proceedings already taken.

(2)     However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined.

22    The power to grant a stay under r 36.08(2) is not limited as to time in bankruptcy proceedings where there is an appeal against the sequestration order, notwithstanding s 52(3) of the Act: see Evans v Heather Thiedeke Pty Ltd (1990) 95 ALR 424 at 425.

23    In Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 Kenny J summarised the principles applicable to the granting of a stay of a sequestration order at [24]:

Rule 36.08 of the Rules confers a broad discretion to order a stay notwithstanding that an appeal shall not operate as a stay of execution or of proceedings under the judgment appealed from. In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65, a Full Court of this Court held that the appropriate test for a stay under the equivalent of Rule 36.08 of the current Rules was that set down in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, namely, whether the applicant for a stay showed a reason or an appropriate case to warrant the exercise of discretion in his favour. More specifically, with respect to an application for a stay of a sequestration order, the question is whether there is an arguable point on the proposed appeal and whether the balance of convenience favours the granting of a stay: see Freeman at [3]-[4]; Coleman at 303; Beames v Rigby [2002] FCA 806 at [2]; Kellow v Dudzinski [2003] FCA 238 (“Dudzinski”) at [8]; and Shirreff v Beck Legal Pty Ltd [2010] FCA 1407 at [67], (2010) 119 ALD 284 at 293-294 [67]. The test for a stay under s 52(3) of the Act is not materially different.

(emphasis added)

24    In James v Commonwealth Bank of Australia [2015] FCA 582 (James v Commonwealth Bank) Katzmann J said at [8] that:

The Court’s discretion is broad, limited only by the subject matter, scope and purpose of the legislation. As Beach J observed in Endresz v Australian Securities and Investment Commission [2014] FCA 1139 at [14]-[16], generally, all that is required is that the applicant show that there is “a reason or an appropriate case” to warrant the exercise of the discretion in his or her favour (Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 at 66), which in turn requires the consideration of two questions: first, whether there is an arguable point in the appeal (Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 (“Nolten”) per Kenny J at [24]) or some “rational prospect of success” on any of the grounds of appeal (Burns v AMP Finance Ltd [2005] FCA 761 per Emmett J at [5]); and secondly, whether the balance of convenience favours the grant of a stay (Nolten at [24]).

the proceedings in the Federal Circuit Court

25    An understanding of the history of the proceeding, which is set out at [1]-[21] of Miller v Ghosh (No 3), is relevant to a consideration of the grounds of appeal in the context of the application for a suspension of the operation of the sequestration order.

26    The act of bankruptcy on which Mr Miller relied was Dr Ghosh’s failure to comply with a bankruptcy notice issued on 28 October 2014 by Baycorp demanding payment of $11,265.01. The relevant act of bankruptcy occurred on 18 November 2014.

27    On 2 February 2015 Baycorp filed a creditor’s petition against Dr Ghosh which was served on 18 September 2015. On 29 January 2016 the primary judge ordered that the creditor’s petition be extended for a further 24 months and that Dr Ghosh pay to Baycorp the sum of $11,265.01, which amount was paid.

28    On 19 April 2016 Mr Miller applied to be substituted as petitioning creditor. On 11 May 2016, pursuant to s 49 of the Act, the primary judge ordered that Mr Miller be substituted for Baycorp as the petitioning creditor and granted leave to Mr Miller to file and rely on an amended creditor’s petition which was filed in court on that date and was based on a judgment obtained by him against Dr Ghosh for $7,000 in the District Court on 17 September 2014. The primary judge then made a sequestration order against the estate of Dr Ghosh.

29    On 17 May 2016 the primary judge set aside the first sequestration order: see Miller v Ghosh (No 2) [2016] FCCA 1192 (Miller v Ghosh (No 2)). His Honour did so because he made the sequestration order in the absence of Dr Ghosh and without addressing what he found to be an arguable ground of opposition, namely that Dr Ghosh was the beneficiary of a costs order for $3,300 made against Mr Miller and that this order was arguably available as a set off to the debt of $7,000 owed to Mr Miller by Dr Ghosh. If that was the case the amount of Mr Miller’s debt would be reduced to less than $5,000, the statutory minimum required under s 44(1)(a) of the Act to found a creditor’s petition.

30    In Miller v Ghosh (No 2) the primary judge noted at [16] that, if he were to set aside the orders he made on 11 May 2016, it was quite likely that Mr Miller would seek to again amend his creditor’s petition to include three Local Court judgments for $1,444.48, $956 and $5,833.84 (the Local Court Judgments) and that if he was given leave to do that the sum of the debts would exceed the $5,000 specified in s 44 of the Act, even if the $3,300 costs order against Mr Miller is set off, and that it was therefore inevitable that a sequestration order would be made. His Honour identified two matters to note and said at [17]:

First, the current amended creditor’s petition does not include the Local Court debts. It would be irregular for the Court to allow a sequestration order made on the basis of a debt specified in the creditor’s petition to stand because the debtor may owe the creditor debts not included in the creditor’s petition. Second, the evidence is unclear about the extent to which the Local Court debts are currently due and payable. As I have already noted, at the hearing of 11 May 2016 counsel for Mr Miller said that the Local Court judgments were stayed at the time the amended creditor’s petition was prepared. Although there is evidence that suggests the amended creditor’s petition was prepared by 13 April 2016, there is no evidence about when the stay orders were made, or the basis on which they were made or, if made, whether the stay has been lifted and, if so, when the stay was lifted. Given the serious consequences of a sequestration order being made against a person, the Court may not be prepared to make a sequestration order on the basis of the Local Court judgments unless evidence of these matters are before the Court.

31    On 26 May 2016 the primary judge granted leave to Mr Miller to file a further amended creditor’s petition. At that time the primary judge also set down the further amended creditor’s petition for hearing on 20 July 2016 and made directions for the purpose of that hearing. On 30 May 2016 Mr Miller filed the further amended creditor’s petition. In it he claimed that Dr Ghosh owed him $15,234.32 which was the sum of the judgment for $7,000 entered in the District Court and the Local Court Judgments.

32    The hearing of the further amended creditor’s petition proceeded on 20 July 2016. Dr Ghosh relied on a notice stating grounds of opposition which raised 15 grounds and an affidavit in support affirmed on 19 July 2016. His Honour made orders and delivered judgment in Miller v Ghosh (No 3) on 30 September 2016. In his judgment:

(1)    the primary Judge found that he was satisfied that the creditor’s petition filed by Baycorp was in the prescribed form and that it was served on Dr Ghosh together with the required affidavits, that the further amended creditor’s petition had been served on Dr Ghosh, that in the affidavit of search the deponent had deposed to the matters required by r 4.06(3) of the Bankruptcy Rules and that Mr Miller had filed an affidavit of debt in relation to all four judgements as required by r 4.06 of the Bankruptcy Rules. Accordingly, the primary judge was satisfied that a sequestration order should be made unless, for any one of the grounds on which Dr Ghosh relied for opposing the making of the order, he was satisfied that there was sufficient cause that a sequestration order should not be made: [20]-[21];

(2)    in relation to the issue raised by Dr Ghosh as to whether the debts were payable, the primary judge noted that Dr Ghosh accepted that the judgment of $7,000 was payable but claimed a cross claim of $3,300 against Mr Miller for a costs order in her favour against Mr Miller which was not disputed by Mr Miller. Accordingly, for the purposes of his reasons, the primary judge assumed that the costs order for $3,300 was available as a set off to the four judgments on which Mr Miller relied: at [23];

(3)    the primary judge noted that orders had been made by Garling J in the Supreme Court in proceeding 2014/333115 staying, among other things, “execution of all costs orders made by the Local Court at Newcastle in proceeding 2014/247066 including the costs orders made on 8/12/14”. The primary judge was satisfied that this included the Local Court Judgments. However, the primary judge also noted that the order made by Garling J on 9 February 2015 had been lifted by Fullerton J on 27 May 2016. The primary judge held that, given the lifting of the stay of execution, he was satisfied that there was no impediment to Mr Miller enforcing the Local Court Judgments upon which he relied in the further amended creditor’s petition: at [28];

(4)    at [51] of his judgment the primary judge referred to Dr Ghosh’s assertion in her affidavit in support of her notice of grounds of opposition that she also needed “the time to sell my share of asset to pay any remaining debts”. In relation to that assertion, and others set out at [51], the primary judge held at [52] that:

These matters do not afford a reason for not making a sequestration order. If anything, they demonstrate Dr Ghosh is not in a position to pay her debts as and when they fall due.

(5)    the primary judge concluded that he was satisfied that Dr Ghosh owed Mr Miller debts totalling more than $5,000 and that Dr Ghosh was liable to pay those debts on 18 November 2014 when she committed an act of bankruptcy by failing to comply with the requirements of the bankruptcy notice issued by Baycorp by that date. His Honour was satisfied that Mr Miller had otherwise complied with the requirements of the Act and of the Bankruptcy Rules and that the requirements for the making of a sequestration order had been met. His Honour was not satisfied that any of the grounds raised by Dr Ghosh constituted sufficient cause for the court not to make a sequestration order: at [53].

The amended Notice of appeal

33    By her amended notice of appeal Dr Ghosh alleges that:

(1)    the primary judge erred on each of 11, 17 and 26 May 2016 by permitting the Local Court Judgments to be aggregated with the balance of the District Court judgment so as to satisfy the jurisdictional minimum in s 44(1)(a) of the Act of $5,000 at a time when the Local Court Judgments were stayed thus failing to satisfy the requirements of s 44(1)(b) of the Act that the debts be both due at law and payable either immediately or at a certain future time and allowing Mr Miller to file a further amended creditor’s petition instead of dismissing his amended creditor’s petition (grounds 1 and 2 of the amended notice of appeal);

(2)    she was able to pay her debts within the meaning of s 52(2)(a) as at 30 September 2016 (ground 3 of the amended notice of appeal);

(3)    there was “other sufficient cause” within the meaning of s 52(2)(b) for a sequestration order not to be made against her estate on 30 September 2016, namely the existence and quantum of Dr Ghosh’s claim against Mr Miller in the Defamation Proceeding, being the very proceeding in which the costs orders which gave rise to Mr Miller’s judgments against Dr Ghosh were made, by reason of which the further amended creditor’s petition ought to have been dismissed or, alternatively, adjourned until after determination of the Defamation Proceeding (grounds 4, 5 and 6 of the amended notice of appeal).

34    Dr Ghosh submitted that her appeal has been instituted “bona fide” and has at least arguable prospects of success on each of the above grounds.

is there an arguable case on appeal?

The first ground – the effect of the Local Court Judgments

35    The Local Court Judgments were the subject of a stay order made by Garling J on 9 February 2015. That order remained in effect until 27 May 2016. Dr Ghosh submitted that it follows that as at each of 11 May, 17 May and 26 May 2016 the Local Court Judgments were stayed and that therefore they could not satisfy the requirements of s 44(1)(b) of the Act that they are debts both due at law or in equity and payable either immediately or at a certain future time.

36    Dr Ghosh submitted that the primary judge, in finding at [25] of Ghosh v Miller (No 3), that there was evidence which satisfied him that Mr Miller was entitled to enforce the Local Court Judgments fell into appealable error. She further submitted that on 17 May 2016, when the primary judge set aside the sequestration order initially made by him on 11 May 2016 but permitted the substitution order made by him on the same day to stand, the requirements of s 44(1)(b) were not satisfied and that the amended creditor’s petition ought to have been dismissed on that date as the balance due and owing under Mr Miller’s District Court judgment was then less than $5,000. She contended that the same position pertained on 26 May 2016 when leave was granted to file the further amended creditor’s petition.

37    Mr Miller submitted that this ground of appeal is misconceived because:

    the amended creditor’s petition that he moved upon on 11 May 2016 did not seek to rely on the Local Court Judgments;

    on 26 May 2016 when the proceeding was listed for directions leave was granted to file a further amended creditor’s petition; and

    the Local Court Judgments were relied upon by presentation of the further amended creditor’s petition on 30 May 2016, a date after Fullerton J had lifted the stay on those judgments.

38    Mr Miller further submitted that there was no finding by the primary judge of set off and that the primary judge’s finding, at its highest, was that Dr Ghosh had an arguable case that the costs order in her favour was available to set off against the $7,000 debt claimed in the amended creditor’s petition. He contended that upon the filing of the further amended creditor’s petition the issue of set off became, in effect, otiose because the order in Dr Ghosh’s favour of $3,300 could not be set off against the four judgments the subject of the amended creditor’s petition to reduce the aggregated debt to below the statutory minimum.

39    Section 44(1)(b) of the Act provides that a creditor’s petition should not be presented against a debtor unless:

(b)     that debt, or each of those debts, as the case may be:

(i)     is a liquidated sum due at law or in equity or partly at law and partly in equity; and

(ii)     is payable either immediately or at a certain future time; and

40    In James v Commonwealth Bank the applicant sought a suspension of the operation of a sequestration order to permit him to prosecute certain proceedings. Relevantly, the applicant had filed a summons seeking leave to appeal in the New South Wales Court of Appeal from a default judgment entered against him in the District Court. That default judgment was the basis of the bankruptcy notice issued against him. From the time of its entry there was a stay of the default judgment in place. The applicant argued that the primary judge’s discretion had miscarried in not adjourning the hearing of the creditor’s petition including because of his failure to consider the applicant’s argument that, as the default judgment had been stayed, it was not a debt which is “payable immediately or at a certain future time” within the meaning of s 44(1)(b) of the Act. In relation to that issue Katzmann J commented at [53] that the point struck her as a very strong one. At [54] her Honour continued:

The primary judge did not even mention the stay granted in the District Court and continued with the CBA’s consent by the Court of Appeal. Yet, the effect of the stay was to suspend any requirement for payment of the judgment debt. The CBA’s petition was presented when the debt on which the bankruptcy notice (and therefore the petition) was founded was not payable immediately or at a certain future time. In those circumstances, it is very hard to see why his Honour considered there was any justification for proceeding to hear the petition, let alone to make the sequestration order.

41    On 11 May 2016 when the substitution order and first sequestration order were made, Mr Miller relied on his judgment for $7,000 but there was at that date a judgment in Dr Ghosh’s favour which was arguably able to be set off to reduce the amount owing to Mr Miller to less than the statutory minimum and, based on which, the first sequestration order was set aside. As a result, in my opinion, no issue can be raised in relation to the first sequestration order – it was set aside.

42    It seems that on 17 May 2016, when the primary judge quite properly set aside the first sequestration order but permitted the substitution order previously made by him to stand, the requirements of s 44(1)(b) were arguably not satisfied. Mr Miller could not as at that date rely on the Local Court Judgments because of the operation of the stay. An issue may have arisen at that date as to whether the creditor’s petition ought to have been dismissed because the amount owing was less than $5,000, although Dr Ghosh did not seek an order to that effect: see Miller v Ghosh (No 2) at [4]. Rather the relief sought, an order to set aside the sequestration order, was granted. Mr Miller’s contention that no finding of set off had been made by the primary judge such that it could be said the debt upon which the amended creditor’s petition was based fell below the statutory minimum may have borne upon the ultimate outcome of that issue had it been raised and considered. But critically Dr Ghosh did not appeal from the orders made by the primary judge in Miller v Ghosh (No 2) and does not do so now. While she alleges that on 17 May 2016 the primary judge fell into appealable error I do not think that issue arises in the context of an appeal of the orders made on 30 September 2016.

43    On 26 May 2016 the primary judge granted Mr Miller leave to file a further amended creditor’s petition to include the Local Court Judgments which would then take the aggregate of the debts above the statutory minimum, even taking into account any set off. At the time the leave was granted the stay of the Local Court Judgments remained in place. It was not lifted until the following day. I do not find Mr Miller’s submission that, upon the dismissal of Dr Ghosh’s amended summons on 14 April 2016, the stay was automatically discharged to be persuasive. Dr Ghosh submitted that even though the further amended creditor’s petition was filed on 30 May 2016, after discharge of the stay, the operative date was the date that the leave was granted as the further amended creditor’s petition was filed pursuant to that leave. In other words she says that the primary judge erred in granting the leave at a time when the Local Court Judgments were stayed. Technical though that argument is, in my opinion the question of whether leave could be given raises an arguable ground of appeal. If it could not, because at the time the stay was in place and the debt owing was less than the statutory minimum, then an issue arises as to whether the further amended creditor’s petition should have been dismissed. Of course by the time of the presentation of the further amended creditor’s petition, 30 May 2016, being the date when the Court issued an e-lodgement receipt for it (see Investec Australia Finance Pty Limited v Naude [2016] FCA 731 at [32] per Farrell J) the stay had been lifted.

The second ground – solvency

44    Section 52 of the Act operates to permit the Court to make a sequestration order if it is satisfied of proof of the matters required by subs (1). Namely, the matters stated in the petition, service of the petition and that the debts on which the petitioning creditor relies are still owing. However, if the Court is not satisfied of proof of any of those matters or is satisfied by the debtor that he or she is able to pay his or her debts or that for other sufficient cause the sequestration order should not be made, the Court may, pursuant to subs (2), dismiss the petition.

45    Dr Ghosh submitted that she is clearly solvent and able to pay her debts. She submitted that the issue of solvency was raised before the primary judge. In support of that submission she refers to [14] of her notice stating grounds of opposition and [22] of her affidavit in support affirmed 19 July 2016. At [14] of her notice stating grounds of opposition Dr Ghosh included the following:

I therefore request this case be dismissed, and an order for costs be made in my favour.

In the alternative, I request the case be STAYED for 12 months pursuant to Section 60 of the BANKRUPTCY ACT 1966, pending determination of my litigation against all remaining parties, and to allow me to sell my share of an asset to pay my debts.

(emphasis added)

At [22] of her affidavit Dr Ghosh said:

I also need the time to sell my share of an asset to pay any remaining debts.

46    Dr Ghosh submitted that in considering this issue at [52] of his judgment the primary judge fell into appealable error. Further, Dr Ghosh submitted that the primary judge failed to take the Defamation Proceeding and any amounts she was likely to receive from it, into account when considering solvency under s 52(2)(a) of the Act.

47    Dr Ghosh contended that, based on the evidence before this Court, Mr Miller was aware from searches conducted by his solicitors in November 2014, that Dr Ghosh had a half share in the Rydalmere Property. She submitted that the issue of solvency had been raised by her and that there was material in Mr Miller’s possession which was relevant to that issue which it does not appear was brought to the attention of the court by him although she conceded that such material was not brought to the attention of the primary judge by her. She submitted that on an appeal she would need to seek leave to adduce fresh evidence to demonstrate her position and to explain why that material was not provided to the court by her at the relevant time.

48    Dr Ghosh submitted that the evidence that is now before the Court is evidence of her assets as at the relevant date, which would comfortably satisfy the Court that she is solvent and able to pay her debts within the meaning of s 52(2)(a) of the Act, being that:

(1)    she had a half share in the East Brisbane Property and the Rydalmere Property;

(2)    the market appraisal of the East Brisbane Property puts its value in the range of $900,000 to $1.2 million and the market appraisal of the Rydalmere Property puts its value in the range of $940,000 to $1 million;

(3)    there is a mortgage to the Commonwealth Bank secured over both titles for approximately $488,000;

(4)    Dr Ghosh had three methods of realising her share in the East Brisbane Property:

(a)    apply for a loan secured over the title of that property for an amount sufficient to pay out her creditors; or

(b)    sell her half share in the property to her husband; or

(c)    sell the property, which is vacant, outright;

(5)    assuming the East Brisbane Property and the Rydalmere Property were valued at the lower end of the ranges provided, the value of her half share in those properties was at least $675,000;

(6)    while the Family Court Proceeding is on foot, it is inactive. Dr Ghosh submitted that the Court would infer that, given she has the care of the child of the marriage, the Family Court would be unlikely to make an order that the applicant’s share of the matrimonial property would be less than 50%;

(7)    her taxable income for the financial year ended 30 June 2015 was $106,982, her income for the financial year ended 30 June 2016 was approximately $80,000 and she expects that her income this year will be roughly commensurate with that amount; and

(8)    as at 24 October 2016 she had no debt owing to the Deputy Commissioner of Taxation.

49    Mr Miller submitted that [14] of the notice of grounds of opposition and [22] of Dr Ghosh’s affidavit affirmed 19 July 2016 did not put the issue of solvency before the primary judge but, even if that were the case, there was no evidence led by Dr Ghosh that was capable of establishing that she was solvent as at 20 July 2016, the date of the hearing and the relevant date at which the issue was to be considered. Mr Miller further submitted that Dr Ghosh’s incapacity to pay her debts at that time was in fact demonstrated to the primary judge by Dr Ghosh’s evidence at [22] of her affidavit that she needed “time to sell [her] share of assets to pay any remaining debts”. Mr Miller contended that rather than there being a failure on the part of the primary judge properly to consider the issue of solvency under s 52(2)(a), the primary judge’s finding at [52] of Ghosh v Miller (No 3) shows that the evidence given by Dr Ghosh at [22] of her affidavit caused him to conclude that she was not able to pay her debts.

50    Mr Miller further submitted that it was not for him to bring to the court’s attention possible evidence of assets that Dr Ghosh might have had at her disposal to satisfy her debts. Rather, the language of s 52(2)(a) requires the Court to be satisfied by the debtor that he or she is able to pay his or her debts. Finally, Mr Miller submitted that the Court could not be satisfied as to the state of Dr Ghosh’s financial affairs.

51    In order to succeed on this ground Dr Ghosh must overcome some not insignificant hurdles including that the issue of solvency was in fact raised, obtaining this Court’s leave to adduce fresh evidence on the appeal and, if that leave is granted, then by that evidence establishing that, as at the date of the hearing of the creditor’s petition, which is the relevant date, Dr Ghosh was able to pay all of her debts.

52    In my opinion it is not clear from the terms of [14] of the notice of grounds of opposition and [22] of Dr Ghosh’s affidavit in support that she raised the issue of her solvency. That conclusion is only available by drawing an inference that the statement that she needed time to sell her share of an asset so that she could pay her debts meant that she had an asset to sell which in turn raised the issue of her ability to pay her debts. But as Mr Miller submitted the opposite inference is also open. Even if the inference contended for by Dr Ghosh was available, it is for the debtor to satisfy the court that he or she is able to pay his or her debts. As Dr Ghosh conceded there was no evidence put before the primary judge on the issue of solvency let alone sufficient evidence to satisfy him that Dr Ghosh was, as at the date of the hearing, able to pay her debts.

53    Further on the assumption that the issue of solvency was raised in the Court below, it is open to infer that the primary judge’s conclusion at [52] of his judgment that “these reasons”, demonstrate that Dr Ghosh is not in a position to pay her debts as and when they fall due shows that the primary judge did consider the application of s 52(2)(a). But, because of the complete lack of evidence from Dr Ghosh about her financial affairs, his Honour was not able to be satisfied that she was able to pay her debts. If the Defamation Proceeding was a factor that should have been taken into account it is not clear whether the primary judge had before him sufficient material to assess the value of that proceeding.

54    However, there does seem to be evidence that might support the conclusion that Dr Ghosh was able to pay her debts although it is not overwhelming and raises issues. A court would be reluctant to make a sequestration order where a debtor is in a position to pay all of his or her debts: see Lane Rowin Pty Ltd v Perovich [2007] FMCA 1429 at [16] and Re Ronald Grafton Sarina v Council of the Shire of Wollondilly (1980) 32 ALR 596 at 599 where a Full Court of this Court (Bowen CJ, Sweeney and Lockhart JJ), after noting that bankruptcy involves a change of status and quasi penal consequences, observed that:

These considerations negate the existence of any policy underlying the Act that a debtor should be made bankrupt if he is able to pay his debts but is unwilling to do so. If a debtor is able to pay his debts but is recalcitrant, his creditors may resort to the remedies otherwise afforded by the law such as execution against his property and garnishee proceedings. The words “able to pay his debts” in s. 52(2) of the Act do not mean “willing and able” to do so.

55    While Dr Ghosh has hurdles to overcome I am on balance satisfied that there is an arguable case on appeal based on this ground.

The third ground – other sufficient reasons

56    Dr Ghosh submitted that if a debtor satisfies the Court that he or she has a real claim against the petitioning creditor that is likely to succeed for an amount that is equal to or in excess of the amount owing to the creditor then the Court may decline to make the sequestration order and may make an order adjourning or dismissing the creditor’s petition. She further submitted that if the claim relied upon by the debtor as providing sufficient cause to adjourn or dismiss the petition is for unliquidated damages then it will usually be appropriate to consider whether the claim has sufficient merit to justify either the adjournment or the dismissal of the creditor’s petition relying on Clapham v Commonwealth Bank of Australia [2013] FCAFC 84 (Clapham) at [54], citing Re Schmidt; ex parte Anglewood Pty Limited (1968) 13 FLR 111 at 115-116 per Gibbs J.

57    Dr Ghosh also submitted that given the costs orders relied upon by Mr Miller were made in the same defamation proceeding, which constituted a major asset of the applicant, or had a nexus to it, there was “other sufficient reason” within s 52(2)(b) of the Act to either dismiss the further amended creditor’s petition or at least adjourn it until after the determination of the Defamation Proceeding. She contended that by not doing so the primary judge fell into appealable error. Dr Ghosh submitted that the value of the Defamation Proceeding is evident from the fact that it was transferred from the District Court to the Supreme Court because of the jurisdictional limit of $750,000 of the District Court meaning that there is a possibility that her damages will exceed that amount.

58    Finally, Dr Ghosh submitted that a sequestration of her estate would impact upon her ability to maintain the Defamation Proceeding as she does not have recourse to her assets against which she can borrow, not only to pay creditors, but to fund the proceeding. Thus she submitted another sufficient reason which should have been taken into account for the purposes of s 52(2)(b) of the Act is that the making of a sequestration order would have the effect of stultifying her claims in the Defamation Proceeding, particularly in circumstances where there were other remedies available to Mr Miller to recover the monies owing to him, for example, a writ for levy of property. Dr Ghosh submitted that I would infer that Mr Miller sought a sequestration order of her estate for the sole purpose of stultifying the Defamation Proceeding given that the order was made on 30 September 2016 and an election notice pursuant to s 60 of the Act was given to the Trustee on 4 October 2016.

59    I do not find this ground of appeal to be arguable or to have some rational prospect of success.

60    First, in my view the Local Court Judgments do not arise from the Defamation Proceeding as currently constituted. The costs orders that are the subject of the Local Court Judgments were made in a proceeding which was commenced by Dr Ghosh in the Local Court against a number of parties including Mr Miller. Mr Miller was successful in having the statement of claim struck out against him with costs. It was the costs of that application that were then assessed and registered as a judgment. The costs of the costs assessment, which were awarded in Mr Miller’s favour, were also registered as a judgment. The third component of the Local Court judgments was a costs order arising out of the review of the assessment proceeding. The assessment was confirmed on review and Dr Ghosh was ordered to pay Mr Miller’s costs of the review. That costs order was also registered as a judgment in the Local Court. Those orders are not interlocutory. They were made in proceedings that are complete. The Defamation Proceeding is a separate proceeding.

61    Secondly, Dr Ghosh’s submission that the Local Court judgments and the Defamation Proceeding are part of the same factual nexus is not persuasive. There is no evidence before me to demonstrate that fact nor does it appear that evidence of that nature was before the primary judge.

62    In Clapham a Full Court of this Court (North, Barker and Nicholas JJ) concluded at [57]:

While we are not persuaded that Mr and Mrs Clapham’s claim is likely to succeed, we are satisfied that it is sufficiently strong to justify us allowing Mr and Mrs Clapham’s appeal and adjourning the creditor’s petition to give them an opportunity to have their claim against the Bank determined by the Supreme Court. This is the course that was followed by the Full Court in Ling v Commonwealth (1996) 68 FCR 180, and we think it is the preferable course to take in this case.

63    There was no evidence before me or it seems the primary judge based upon which a conclusion could be drawn that the Defamation Proceeding has sufficient merit, let alone that it was strong, such that either an adjournment or dismissal of the further amended creditor’s petition could be justified. Further, in circumstances where there is evidence that Dr Ghosh has been dilatory in prosecuting the Defamation Proceeding it would not be appropriate to adjourn the further amended creditor’s petition or to dismiss it.

64    Thirdly, there is evidence before me that the Trustee is of the view that the Defamation Proceeding does not vest in Dr Ghosh’s bankrupt estate. Thus, she is free to pursue the proceeding. It cannot be said that by reason of the making of the sequestration order the proceeding is stultified. The issue that she raises that constitutes “other sufficient cause” is that she will have no access to funds to retain solicitors to act for her. But that of itself would not be sufficient to constitute “other sufficient cause”. While I appreciate that it is serious, it is one of the consequence of the making of a sequestration order. There are of course other avenues available to litigants who do not have means to retain representation to ensure that their actions can proceed. But more relevantly, in circumstances where there did not seem to be material before the primary judge to satisfy him that the Defamation Proceeding is sufficiently strong to justify an adjournment or dismissal of the creditor’s petition and where there is evidence before me of delay in the prosecution of the Defamation Proceeding, it is difficult to see how the exercise of the primary judge’s discretion may have miscarried under s 52(2)(b) of the Act.

balance of CONVENIENCE

65    Dr Ghosh submitted that the balance of convenience favoured her. That is because there is at least one, if not three, arguable points in the appeal with rational prospects of success. Further, she submits that there is a good possibility, if not a high degree of probability, that an order annulling the bankruptcy would be made. Dr Ghosh submitted that, in any event, a stay would allow her to take the necessary steps to effect an annulment of her bankruptcy. She also submitted that she had tendered the balance claimed in the further amended creditor’s petition to Mr Miller but that tender had been refused and she repeated that tender.

66    Dr Ghosh submitted that, correspondingly, there is no discernible prejudice to Mr Miller if an order staying or suspending the operation of the sequestration is made pending the hearing of her appeal.

67    Mr Miller submitted that the balance of convenience did not favour the suspension of the operation of the creditor’s petition. While he concedes that Dr Ghosh would have experienced some difficulties as a result of the sequestration order, he submitted that those difficulties are the result of the operation of laws relating to bankruptcy. He further submitted, on the other side of the balance, are Dr Ghosh’s creditors including at least Mr Miller and the supporting creditors in the proceeding before the primary judge whose interests need to be considered. He contended that Dr Ghosh had an interest in having the sequestration order stayed as she would then get full access to her assets and that she has offered no undertakings in relation to those assets.

68    I am persuaded that the balance of convenience lies with Dr Ghosh. In my view, she has two arguable grounds of appeal including a ground relating to her solvency in relation to which there is some reason to believe that she has sufficient assets to pay her debts. The other issue that favours Dr Ghosh is her stated desire to annul her bankruptcy which is evidenced by the application she made before me. While, for the reasons set out below, that application has not succeeded she has demonstrated that she would wish to achieve that objective and that she may have the means to do so. Dr Ghosh has, through her counsel, offered an undertaking that she will comply with her obligations under the Act and that she will cooperate with the Trustee for the duration of the operation of any order suspending the operation of the sequestration order. Mr Miller submitted that such an undertaking could be given little weight in light of her conduct to date including the filing, as recently as the evening before the hearing of her amended interlocutory application, of a notice of motion in a proceeding which Mr Miller submitted must have vested in her bankrupt estate. I would infer that if those undertakings are offered to the Court, Dr Ghosh understands their importance and that failure to comply with them would have serious consequences for her.

69    The suggested prejudice to Mr Miller and by him to any other creditor is minimal. There is no evidence that leading up to the making of the sequestration order Dr Ghosh dissipated her assets. I would not infer she would do so during the pendency of any stay. While a stay may put off for another day Rothman J’s consideration of the applicability of s 60(2) of Act to the Defamation Proceeding that is not a reason which weighs the balance in favour of Mr Miller.

Annulment

70    In the alternative, Dr Ghosh seeks an annulment of her bankruptcy pursuant to s 153B of the Act which relevantly provides:

153B     Annulment by Court

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

…

71    Division 7.1 of Pt 7 of the Federal Court (Bankruptcy) Rules 2016 (Cth) sets out rules relating to annulment of bankruptcy. Rule 7.03 requires an applicant for annulment of his or her bankruptcy pursuant to s 153B to give notice of the application to each known creditor at least 7 days before the date fixed for hearing of the application.

72    Dr Ghosh had not provided notice of her application for an annulment as required by r 7.03. She sought dispensation from compliance with r 7.03 which I declined on the basis that there were at least three creditors, additional to Mr Miller, disclosed in her statement of affairs. The requirement for notice is important as it allows other creditors to consider and make known their position in the event of a proposed annulment.

73    In the alternative Dr Ghosh submitted that I should adjourn the hearing of the annulment application to allow her to provide the requisite notice and then bring the matter back before me to enable any interested creditor to make submissions. I will not accede to that request. To do so would create issues for the future running of the application should any creditor wish to be heard. That is because the order for an annulment was sought on a final basis, evidence was read on that basis and Dr Ghosh was cross examined. Any creditor who might wish to be heard was not given the opportunity to be relevantly involved in the proceeding to date. Rather, for the reasons that follow I do not propose to make the order for an annulment.

74    In Alfio Peter Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 Tracey J set out the propositions established by the authorities relating to s 153B of the Act and its predecessors at [12] including:

…

(2)    An applicant who seeks an annulment of his or her bankruptcy “carries a heavy burden”. It is incumbent on an applicant “to place before the Court all relevant material with respect to his or her financial affairs so that the Court may be properly informed and may make a judgment that is based on the actual circumstances of the applicant”: Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531.

(3)    In determining whether or not a sequestration order “ought not to have been made” the Court is not confined to a consideration of whether the order should have been made on the facts known to the Court at the time at which it was made. The Court must take account of facts, known at the time at which the sequestration order was made and at which it determines an annulment application, even if those facts were not before the Court at the time at which the sequestration order was made: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243; Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426.

(4)    A sequestration order “ought not to have been made” if, on the facts known at the time of the annulment application, the Court would have been bound not to make the sequestration order: Re Frank; ex parte Piliszky (1987) 16 FCR 396.

…

(7)    The power conferred on the Court by s 153B(1) is discretionary in nature. Even if persuaded that the sequestration order ought not to have been made, the Court can, in appropriate circumstances, decline to annul the bankruptcy: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243.

(8)    Considerations which may have a bearing on the exercise of discretion include unexplained delay in the making of the application, whether or not the applicant is solvent, whether or not the applicant has made full disclosure of his or her financial affairs and a failure by the bankrupt to oppose the creditor’s petition and attend the hearing at which the sequestration order was made: Re Williams (1968) 13 FLR 10 at 24-5; Boles at 247; Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7]. Additional considerations are collected in D. A. Hassall, “Annulment of Bankruptcy and Review of Sequestration Orders” (1993) 67 ALJ 761 at 766.

75    Based on the evidence given by Dr Ghosh I cannot be satisfied that she has placed before the Court all relevant material relating to her financial affairs. There were discrepancies between the evidence she gave and her disclosures in her statement of affairs, she had not disclosed all of her creditors in her affidavit or her statement of affairs and the details of the Family Court Proceeding are not known. As a result, there is uncertainty about the amount she owes to her creditors and her true asset position. Further, despite Dr Ghosh having given evidence that she had previously secured a loan approval, there is no evidence of whether that approval is still in place or, if not, if and when another may be forthcoming. If there is a need to sell one or both of the properties, either to her husband or outright, there is no evidence of her husband’s willingness to purchase her share, the time in which such a sale would be effected, or the price. Similarly if a transfer of her half share to her husband could not be achieved there is no evidence of how readily realisable one or both of the properties are and, in those circumstances, the willingness of her husband to sell.

76    The requirement by an applicant for annulment to provide full and fair disclosure is an important one. It is on the basis of that disclosure that the Court determines whether the bankruptcy should be annulled. Given the gaps in the information provided, in some cases acknowledged, I cannot be satisfied that Dr Ghosh has discharged her “heavy burden” and that there has been full disclosure.

77    As submitted by the Trustee, who assisted the Court by making submissions on the issue of the annulment, this outcome does not preclude Dr Ghosh from making further applications for an annulment. Dr Ghosh has expressed a desire to annul her bankruptcy on the basis that she is solvent and has the ability to pay out her creditors in full. She should be encouraged in this endeavour. It remains open for her to do so either pursuant to s 153A, without the need to approach the Court, or pursuant to s 153B by making a further application to the Court.

disposition

78    For the reasons set out above I will, upon Dr Ghosh giving an undertaking that she will cooperate with the Trustee and comply with her obligations under the Act, make an order suspending the operation of the sequestration order made on 30 September 2016 in relation to Dr Ghosh until the determination of Dr Ghosh’s appeal and will otherwise dismiss the amended interlocutory application.

79    I note that the Trustee does not seek his costs. I will hear the parties to the amended interlocutory application on costs.

Associate:

Dated:    2 November 2016