FEDERAL COURT OF AUSTRALIA

Ghosh v Miller (No 2) [2017] FCA 890

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The respondent’s costs of and incidental to the appeal be taxed and paid from the appellant’s bankrupt estate.

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

REASONS FOR JUDGMENT

FARRELL J:

1    Dr Ghosh appeals from the whole of the judgment of the Federal Circuit Court of Australia delivered on 30 September 2016: Miller v Ghosh (No 3) [2016] FCCA 2491. The primary judge made a sequestration order against Dr Ghosh’s estate. The operation of that order was suspended pending the determination of Dr Ghosh’s appeal: Ghosh v Miller [2016] FCA 1293.

Pleadings and preparation for hearing

Application for leave

2    To the extent necessary, Dr Ghosh also seeks leave to appeal the following decisions of the primary judge:

(1)    On 11 May 2016: to substitute Mr Miller for Baycorp Collections PDL (Australia) Pty Ltd as petitioning creditor and allowing the amended creditor’s petition to be heard. See Miller v Ghosh [2016] FCCA 1191 (Miller v Ghosh (No 1)). That leave is not now pressed.

(2)    On 17 May 2016: first, to allow to stand the orders made on 11 May 2016 that Mr Miller be substituted as petitioning creditor and granting leave to Mr Miller to rely on an amended creditor’s petition; and second, to not dismiss the amended creditor’s petition: see Miller v Ghosh (No 2) [2016] FCCA 1192. Unsurprisingly, Dr Ghosh does not seek to appeal other orders made by the primary judge on 17 May 2016 which set aside the sequestration order and appointment of a trustee in bankruptcy which he had made on 11 May 2016.

(3)    On 26 May 2016: to grant leave to Mr Miller to file a further amended creditor’s petition. The primary judge did not publish reasons for this decision, but it was foreshadowed in Miller v Ghosh (No 2) at [16].

Grounds of appeal

3    In her grounds of appeal, Dr Ghosh says that the primary judge erred in the following ways:

(1)    In failing to determine that three judgments of the Local Court of New South Wales dated 6 August 2014 were stayed as at each of 11 May 2016, 17 May 2016 and 26 May 2016. Dr Ghosh says that those judgments were relied on by Mr Miller in order to support his application to be substituted as petitioning creditor and in turn the further amended creditor’s petition. Dr Ghosh says that they were not debts which were at that time or times “payable immediately or at some future time” within the meaning of s 44(1)(b)(ii) of the Bankruptcy Act 1966 (Cth);

(2)    In failing to dismiss the creditor’s petition on each of 11 May, 17 May and 26 May 2016;

(3)    In failing to find that Dr Ghosh was able to pay her debts within the meaning of s 52(2)(a) of the Bankruptcy Act as at 30 September 2016;

(4)    In failing to determine that there was “other sufficient cause” within s 52(2)(b) of the Bankruptcy Act not to make a sequestration order against Dr Ghosh’s estate on 30 September 2016;

(5)    In making a sequestration order against Dr Ghosh and failing to dismiss the creditor’s petition on 30 September 2016; and

(6)    Alternatively, in failing to adjourn the hearing of the creditor’s petition on 30 September 2016 to a date which was seven days after the date of determination of defamation proceedings in the Supreme Court of New South Wales No 2013/238215 between Dr Ghosh and Mr Miller (among others).

Notice of contention

4    Mr Miller’s notice of contention claims that the decision of the primary judge should be affirmed on the ground that the primary judge should have found that Dr Ghosh did not have any set-off against the judgment debt for $7,000 entered in the District Court of New South Wales on 17 September 2014, upon which Mr Miller relied in his amended creditor’s petition and further amended creditor’s petition.

Preparation for hearing of the appeal

5    The preparation for this appeal was somewhat fraught. In part that derives from the fact that the parties have been involved in litigation in the Local Court, the District Court, the Supreme Court, the Federal Circuit Court as well as this Court. Further, Dr Ghosh appears to have had legal representation intermittently.

6    Although it appears that Dr Ghosh had legal advice at some points during the proceedings in the Federal Circuit Court (she referred to her barrister, Mr Soon, in submissions recorded by the primary judge in his reasons), she appeared in person at the hearings on 17 May and 20 July 2016.

7    Dr Ghosh was legally represented at the hearing of the application to stay the sequestration order, she changed representation after that and she was not legally represented at some case management hearings in preparation for the appeal. Her solicitor has changed more than once since the sequestration order was made and different barristers appeared for her on the stay application and on the appeal.

8    In preparation for the appeal, Dr Ghosh indicated a desire to put before the Court transcript of all of the proceedings before the primary judge; however, she said that she considered that it was too expensive to obtain it from Auscript. She sought to tender a transcription which she had caused to be made of recordings of proceedings before the primary judge. I put in place a process for both parties to identify any part of the recorded materials on which they sought to rely and to agree a transcript which they accept accurately reflects those parts of the recording. The parties ultimately did not avail themselves of that facility.

9    There was substantial difficulty in obtaining agreement concerning the materials which should appear in the appeal book. Parts A and B were ultimately compiled with the assistance of a Registrar.

10    There was also dispute as to whether some documents had been supplied by Mr Miller’s lawyers to Dr Ghosh’s then lawyers as she requested.

11    Ms Nolan, counsel for Dr Ghosh, was briefed to appear not long before the hearing. Ms Nolan and Mr Maconachie, counsel for Mr Miller, worked co-operatively to bring before the Court necessary materials on the basis of which the appeal could be conducted. The parties agreed that, in addition to Part C which had been compiled by Dr Ghosh, the material in Parts D and E of the appeal book should be before the Court. These Parts contain affidavits which were tendered in evidence in connection with the application to stay the sequestration order (therefore not before the primary judge) and materials supporting a chronology of the litigation which was prepared by Mr Miller’s legal advisors. Ms Nolan had no instructions to endorse the chronology but in response to a direct query from the Court, she said that she was unable to identify any error in it.

12    An affidavit dated 26 April 2017 but sworn by Dr Ghosh on 27 April 2017, the first day of the hearing of the appeal, was also admitted into evidence. Paragraph [2] (relating to valuation) was admitted only on the basis that it was Dr Ghosh’s belief, and paragraph [5] (relating to evidence concerning Dr Ghosh’s husband) was not admitted.

13    Dr Ghosh prepared written submissions in chief herself. Mr Maconachie responded to them briefly. In written submissions in reply, Ms Nolan indicated that Dr Ghosh “will re-agitate the arguments as recorded by Markovic J in her Honour’s reasons on the stay application ([2016] FCA 1293), in particular at [35] ff” and make submissions which went to grounds 1, 2 and 4 of the appeal. Mr Maconachie filed submissions in response to the brief points raised by Ms Nolan. Ms Nolan also filed written submissions summarising her oral submissions in reply. While acknowledging that both counsel were attempting to act in the best interests of their clients in difficult circumstances, this approach has not made for easy reconciliation of the arguments advanced. Having said that, I would like to record my thanks to both counsel for the spirit in which they worked in those circumstances.

Relevant statutory provisions

14    It is convenient to set out those provisions of the Bankruptcy Act on which the parties relied.

15    Relevantly, s 40(1) provides that a debtor commits an act of bankruptcy:

(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 or, by leave of the Court, elsewhere, 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; or

(ii)    where the notice was served elsewhere—within the time fixed for the purpose by the order giving leave to effect the service;

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;

16    Section 40(3) provides:

For the purposes of paragraph (1)(g):

(a)    [not relevant]

(b)    a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained;

[there is no paragraph (c)]

(d)    a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;

(e)    a judgment or order for the payment of money made by the Court in the exercise of jurisdiction conferred on it by this Act shall be deemed to be a judgment or order the execution of which has not been stayed notwithstanding that it may not be enforceable at law by execution; and

(f)    [not relevant]

17    Section 43 relevantly provides:

43    Jurisdiction to make sequestration orders

(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)    [not relevant]

18    Sections 44(1) and 47 provide:

44    Conditions on which creditor may petition

(1)    A creditor’s petition shall not be presented against a debtor unless:

(a)    there is owing by the debtor to the petitioning creditor a debt that amounts to $5,000 or 2 or more debts that amount in the aggregate to $5,000, or, where 2 or more creditors join in the petition, there is owing by the debtor to the several petitioning creditors debts that amount in the aggregate to $5,000;

(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

(c)    the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.

47    Requirements as to creditor’s petition

(1)    A creditor’s petition must be verified by an affidavit of a person who knows the relevant facts.

(1A)    If the rules of court prescribe a form for the purposes of this subsection, the petition must be in the form prescribed.

(2)    Except with the leave of the Court, a creditor’s petition shall not be withdrawn after presentation.

19    Section 49 provides:

49    Change of petitioners

Where a creditor’s petition is not prosecuted with due diligence or where for any other reason the Court considers it proper to do so, the Court may permit to be substituted as petitioner or petitioners another creditor or other creditors to whom the debtor is indebted in the amount required by this Act in the case of a petitioning creditor, and the petition may be proceeded with as if the substituted creditor or creditors had been the petitioning creditor.

20    Section 52 relevantly provides:

52    Proceedings and order on creditor’s petition

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

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

(b)    service of the petition; and

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

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

(1A)    If the Court makes a sequestration order, the creditor who obtained the order must give a copy of it to the Official Receiver before the end of the period of 2 days beginning on the day the order was made.

Penalty:    5 penalty units.

Note:    See also section 277B (about infringement notices).

(1B)    Subsection (1A) is an offence of strict liability.

Note:    For strict liability, see section 6.1 of the Criminal Code.

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

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

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

it may dismiss the petition.

(3)    The Court may, if it thinks fit, upon such terms and conditions as it thinks proper, stay all proceedings under a sequestration order for a period not exceeding 21 days.

(4)    A creditor’s petition lapses at the expiration of:

(a)    subject to paragraph (b), the period of 12 months commencing on the date of presentation of the petition; or

(b)    if the Court makes an order under subsection (5) in relation to the petition—the period fixed by the order;

unless, before the expiration of whichever of those periods is applicable, a sequestration order is made on the petition or the petition is dismissed or withdrawn.

(5)    The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor’s petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order.

Litigation Background

21    Mr Miller rented a holiday house in Queensland from Dr Ghosh for six days in the Christmas period in December 2011. Mr Miller and neighbours of the house subsequently complained in comments posted online about the condition of the premises. There were television broadcasts entitled “Naked Neighbours” which also raised the use and state of the house. There ensued litigation in a range of courts. It is necessary to understand some of the litigation background. What follows is by no means exhaustive. It derives largely from the chronology prepared by Mr Miller’s legal advisors.

Proceedings commenced in 2013

22    On 13 March 2013, Dr Ghosh commenced proceedings 2013/76771 in the Local Court of New South Wales against a number of parties, relevantly claiming that Mr Miller’s online complaint was defamatory. Mr Miller was named as the sixth defendant.

23    On 7 June 2013, Mr Miller commenced a claim (GEN 13/30848) in the Consumer Trader and Tenancy Tribunal (CTTT) (as it was then known) claiming misleading or deceptive conduct by Dr Ghosh in relation to the condition of the holiday house. Following a hearing on 3 September 2013, Mr Miller was awarded $2,000 damages. Mr Miller concedes that this amount has been paid.

24    On 11 July 2013, Cheetham LCM ordered that Dr Ghosh’s statement of claim in proceedings 2013/76771 be struck out as against Mr Miller with costs.

25    On 2 August 2013, Dr Ghosh commenced proceedings 2013/235153 in the District Court seeking leave to appeal Cheetham LCM’s decision on 11 July 2013.

26    On 6 August 2013, Dr Ghosh commenced defamation proceedings in the District Court (proceedings 2013/238215) against Google Australia Pty Ltd, Mr Miller, his wife and certain of his neighbours of the holiday house. The proceedings as against Mr Miller, his wife and those neighbours of the holiday house were transferred to the Supreme Court of New South Wales on 23 March 2016 and were extant at all times during the proceedings before the primary judge. I will refer to these proceedings as the “Defamation Proceedings”.

27    On 10 October 2013, in the absence of the defendants, the District Court ordered that proceedings 2013/76771 be transferred to the District Court and form part of proceedings 2013/238215 “by reason of the Local Court having no jurisdiction in defamation proceedings”.

23 April 2014: proceedings 2013/235153 withdrawn

28    On 23 April 2014, Registrar Bradford in the Supreme Court of New South Wales ordered that proceedings 2013/235153 be withdrawn with no order as to costs and directed that a copy of the orders be emailed to Dr Ghosh at an address at dodo.com.au.

6 August 2014: Local Court judgments

29    On 6 August 2014, three judgments in an aggregate amount of $8,234.32 were entered in the Local Court in favour of Mr Miller against Dr Ghosh (Local Court judgments). They arose out of the decision of Cheetham LCM in 2013/76711 (see [24] above). They were:

    $5,496.94, being the costs assessment of the costs order made by Cheetham LCM. With interest and registration costs this came to $5,833.84 (2014/231144);

    $870, being the costs of that costs assessment. With interest and registration costs this came to $956 (2014/231304); and

    $1,347.50, being the costs of a review of the costs assessment, which was affirmed. With interest and registration costs this came to $1,444.48 (2014/231292).

16 September 2014: unquantified costs order in favour of Dr Ghosh

30    On 16 September 2014, Olsson DCJ ordered that proceedings filed by Dr Ghosh in the District Court of New South Wales (assigned number 2014/247066 in the District Court) seeking leave to appeal the Local Court judgments be remitted back to the Local Court. Judge Olsson ordered that Mr Miller pay Dr Ghosh’s costs of the argument before her Honour on 8 September 2014 and that he have a certificate under the Suitors’ Fund Act 1951 (NSW). Although it was subsequently accepted that the certificate under the Suitors’ Fund Act 1951 (NSW) had not been validly given, an ex gratia payment of $1,980 was made to Mr Miller on 11 November 2016 and that amount was paid to Dr Ghosh’s trustee in bankruptcy on 14 November 2016.

17 September 2014: District Court cost order of $7,000 in favour of Mr Miller

31    On 17 September 2014, Gibson DCJ made a lump sum costs order in favour of Mr Miller in the sum of $7,000 in relation to an application by Dr Ghosh to appeal the CTTT decision (proceedings 2013/323249) (see [23] above) (District Court costs order). District Court Judge Gibson gave her principal judgment on Dr Ghosh’s application on 6 August 2014: see Ghosh v Miller (CTTT Appeal) [2014] NSWDC 228. Dr Ghosh has not appealed that decision.

18 November 2014: act of bankruptcy

32    On 28 October 2014, a bankruptcy notice was issued. Baycorp was named as creditor and Dr Ghosh as debtor for judgment debts and interest amounting to $11,265.01. It was served on Dr Ghosh on that day by email and by post. Dr Ghosh did not comply with the bankruptcy notice and accordingly an act of bankruptcy occurred on 18 November 2014.

8 December 2014: costs order for $10,500 in Mr Miller’s favour

33    In early November 2014, Atkinson LCM refused leave to appeal against the Local Court judgments which had been remitted to the Local Court by Olsson DCJ (proceedings 2014/247066) and dismissed the proceedings. On 8 December 2014, Atkinson LCM made a lump sum costs order in Mr Miller’s favour against Dr Ghosh for $10,500 (December 2014 costs order). Mr Miller obtained a certificate of judgment for that amount (2015/00017072).

2 February 2015: Baycorp presents creditor’s petition against Dr Ghosh

34    Baycorp lodged its creditor’s petition dated 2 February 2015 in the Federal Circuit Court on that day.

9 February 2015: stay of Local Court judgments and September 2014 costs order

35    Dr Ghosh sought leave to appeal Atkinson LCM’s decision in the Supreme Court of New South Wales (proceedings 2014/333115). On 9 February 2015, in those proceedings, Garling J made orders staying the Local Court judgments and the December 2014 costs order until further order.

36    On 17 July 2015, Beech-Jones J made a gross sum costs order against Dr Ghosh in favour of Mr Miller in an amount of $10,000 (proceedings 2014/333115). On 4 September 2015, the Supreme Court made an instalment payment order.

2 September 2015: Mr Miller applies to be substituted as petitioning creditor

37    On 2 September 2015, Mr Miller filed an application to be substituted for Baycorp as the petitioning creditor under s 49 of the Bankruptcy Act. The supporting affidavit sworn by Mr Miller relied on the District Court costs order of $7,000 (see [31] above) and the judgment debt (including interest and filing fees) recorded the next day in an amount of $7,089.26 (case number 2014/275183).

38    On 18 September 2015, Baycorp’s creditor’s petition and accompanying documents were served on Dr Ghosh.

18 November 2015: Dr Ghosh files grounds of notice of opposition to Baycorp’s creditor’s petition and Mr Miller’s claimed debts

39    On 18 November 2015, Dr Ghosh filed grounds of opposition which responded to Baycorp’s creditor’s petition and Mr Miller’s claimed debts. Relevantly, the grounds of opposition said (as written):

9.    The Supreme Court granted an Order to pay Mr Rodney Miller’s costs by instalment on 4 September 2015, which give an automatic STAY

10.    I have been granted Costs Orders against Mr Rodney Miller on 16 September 2014 by Judge Olsson of the Sydney District Court which predate and exceed the value of his costs orders against me, and which he has NOT paid me to date

23 November 2015: quantification of costs order in favour of Dr Ghosh

40    On 23 November 2015, Balla DCJ ordered that the costs order made against Mr Miller in favour of Dr Ghosh on 16 September 2014 (see [30] above) be quantified as $3,300 and that Dr Ghosh pay Mr Miller’s costs of that motion.

17 December 2015: Hearing of Baycorp’s creditor’s petition

41    Baycorp’s petition was heard on 17 December 2015. Judgment was reserved.

29 January 2016: Baycorp’s debt paid out

42    On 29 January 2016, the primary judge made an order under s 52(5) of the Bankruptcy Act extending the period at the expiration of which Baycorp’s creditor’s petition would lapse to 24 months after 2 February 2015. He also ordered that Dr Ghosh pay Baycorp $11,265.01. That payment was made.

13 April 2016: Mr Miller’s amended creditor’s petition (claiming $7,000) served

43    An affidavit of Mr Anthony Maher, Mr Miller’s solicitor, sworn on 18 April 2016 attests to the service on Dr Ghosh of an amended creditor’s petition dated 13 April 2016 which relies on the District Court costs order of $7,000.

14 April 2016: proceedings for leave to appeal Local Court judgments dismissed

44    On 14 April 2016, Fullerton J dismissed the proceedings (2014/333115) in which Garling J had ordered the stay of the Local Court judgements and the December 2014 costs order: see Ghosh v Miller [2016] NSWSC 430. To date, no appeal against Fullerton J’s decision has been commenced.

19 April 2016: orders made for hearing substitution application and amended creditor’s petition

45    On 19 April 2016, the primary judge set down Mr Miller’s application to be substituted as the petitioning creditor and the amended creditor’s petition for hearing on 11 May 2016 and ordered Dr Ghosh to file a notice of grounds of opposition and any supporting affidavits by 3 May 2016.

11 May 2016: hearing of application for substitution and amended creditor’s petition, substitution order and sequestration order made

46    Dr Ghosh did not attend the hearing on 11 May 2016, having applied for the hearing to be adjourned. In emails sent to the Court on the morning of 11 May 2016, Dr Ghosh sought an adjournment principally because her son was sick at home from school. Dr Ghosh also sought an adjournment on the basis that she had been unable to obtain counsel, her previous counsel having advised Mr Miller’s counsel on 29 April 2016 that he was no longer briefed in the matter. The primary judge placed little weight on either of these grounds in the absence of any evidence from Dr Ghosh of any attempt to arrange alternative care for her son or other counsel. There also appeared to be an implied assertion that she had not been served with relevant materials because her counsel did not receive documents from Mr Miller’s legal representatives. The primary judge was satisfied that the interim application for substitution of Mr Miller as the petitioning creditor and the amended creditor’s petition dated 13 April 2016 relying on the District Court costs order for $7,000 had been served on Dr Ghosh. The primary judge dismissed Dr Ghosh’s application to have the hearing adjourned and found that the District Court costs order was a debt owed to Mr Miller on the day Dr Ghosh committed an act of bankruptcy (18 November 2014) and that accordingly Mr Miller should be substituted as petitioner and a sequestration order should be made: see Miller v Ghosh (No 1).

16 May 2016 hearing and 17 May 2016 orders: Miller v Ghosh (No 2)

47    On 13 May 2016, Dr Ghosh applied to set aside the orders made by the primary judge on 11 May 2016. The matter was heard on 16 May 2016 and Dr Ghosh appeared by telephone. The primary judge’s reasons published in Miller v Ghosh (No 2) indicate that he was concerned that Dr Ghosh’s notice of grounds of opposition filed in November 2015 had not been drawn to his attention at the hearing on 11 May 2016 and he had overlooked it. The primary judge noted that it was not clear to what the instalment notice referred to in ground 9 of the notice of grounds of opposition related (see [39] above) and found that on 11 May 2016, Dr Ghosh had no prospects of demonstrating that it related to the District Court costs order for $7,000. It is now clear that the instalment payment order in fact related to the order made by Beech-Jones J on 17 July 2015 (see [36] above).

48    Ground 10 of the notice of grounds of opposition (see [39] above) raised more serious concerns. While the primary judge found that there was no evidence before him of a cost order being made on 16 September 2014 in Dr Ghosh’s favour as suggested by ground 10, Mr Miller (through his counsel, Mr Maconachie) accepted that an order now quantified in the sum of $3,300 had been made in Dr Ghosh’s favour against him. The primary judge found that there was a reasonably arguable case that on 11 May 2016 Dr Ghosh could have relied on the $3,300 costs order in her favour to reduce the $7,000 debt which she owed to Mr Miller under the District Court costs order. Mr Maconachie submitted that the $3,300 debt should be set-off against the Local Court judgments because they were first in time, but the primary judge noted that the alleged $3,300 was raised in the notice of grounds of opposition while Mr Miller had not relied on the Local Court judgments in his amended creditor’s petition. The primary judge went on to say (see Miller v Ghosh (No 2) at [16]-[17] and [24]-[25]):

16    It is quite likely that if I were to set aside the Orders Mr Miller would seek to again amend the creditor’s petition to include the Local Court judgments. He has sworn an affidavit verifying those debts. It could be said that if he is given leave to do that, the sum of the debts will 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 is, therefore, inevitable that a sequestration will be made. That may well be so, but there are two matters to note.

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.

…

Relief

24    I do not propose to set aside all of the Orders. I propose that the orders that Mr Miller be substituted as petitioning creditor and granting Mr Miller leave to rely on the amended creditor’s petition stand. I propose, however, to set aside the sequestration order, the order for costs, and the order appointing Mr Newton as trustee. I also propose to list the matter for directions. I will also reserve the question of the costs, both of the hearing of 11 May 2016 and the hearing of 16 May 2016.

25    The effect of the orders, when made, will be that there will be on foot an amended creditor’s petition based on the $7,000 District Court debt and, at the very least, there will be an issue whether, having regard to the $3,300 costs order that Dr Ghosh has against Mr Miller, a sequestration order should be made against the estate of Dr Ghosh.

49    On 17 May 2016, the primary judge made the orders foreshadowed the previous day.

50    On 25 May 2016, Dr Ghosh lodged grounds of opposition to Mr Miller’s amended creditor’s petition.

26 May 2016: leave given to Mr Miller to file further amended creditor’s petition

51    On 26 May 2016, the primary judge made orders granting leave to Mr Miller to file a further amended creditor’s petition and setting down the hearing of that petition for 20 July 2016. There are no published reasons for that leave being granted.

27 May 2016: stay lifted on Local Court judgments and December 2014 costs order

52    On 27 May 2016, Fullerton J made orders lifting the stay on the Local Court judgments and the December 2014 costs order.

30 May 2016: further amended creditor’s petition filed

53    On 30 May 2016, a further amended creditor’s petition was filed by Mr Miller and served on Dr Ghosh. In addition to the District Court costs order, it relied on the Local Court judgments.

20 July 2016

54    The further amended creditor’s petition was heard. The primary judge granted Dr Ghosh leave to file the statement of claim in proceedings 2013/235153. Dr Ghosh provided a copy of the statement of claim to the primary judge’s chambers the next day.

25 July 2016

55    Dr Ghosh filed a notice of motion in proceedings 2013/235153 seeking orders staying the costs orders made by Cheetham LCM and setting aside her decision in relation to Mr Miller in proceedings 2013/76771. Dr Ghosh also sought lump sum costs orders for Mr Miller’s failure to attend court on seven dates between 13 August 2013 and 23 April 2014. In her supporting affidavit, Dr Ghosh claimed that she “stayed these proceedings on 23 April 2014” for Mr Miller’s failure to attend. She said she did not file a notice of discontinuance. She claimed that Mr Maher’s evidence before the primary judge on 20 July 2016 that his client “was never a defendant in these proceedings” was “false” and noted that the orders made on 10 October 2013 transferring proceedings 2013/76771 to the District Court had “got Mr Rodney Miller back in as a defendant”.

3 August 2016

56    Following a three day hearing, Fagan J dismissed Dr Ghosh’s notice of motion and made an indemnity costs order against her in the sum of $12,000.

30 September 2016

57    The primary judge made the sequestration order against Dr Ghosh’s estate on 30 September 2016: see Miller v Ghosh (No 3). In the course of his reasons, the primary judge considered the following matters:

(1)    The need for a substituted creditor under s 49 of the Bankruptcy Act to be able to prove (at the very least) the act of bankruptcy on which the original creditor relied. The primary judge did not retreat from his finding on 11 May 2016 that Dr Ghosh committed an act of bankruptcy on 18 November 2014 when she failed to comply with Baycorp’s bankruptcy notice. Further, the tender by the debtor and acceptance of the amount claimed by the original creditor is not a deficiency in the petition which would invalidate it nor did that payment “undo” that act of bankruptcy: see [6], [15]-[20].

(2)    The substituted creditor must claim to be owed at least the amount required by s 44(1) of the Bankruptcy Act and the debt must have existed at the time of the act of bankruptcy, relying on McNamara v Langford (1931) 45 CLR 267; HCA 27. Despite difficulties of identifying the matters to which various orders related, the Local Court judgments and the District Court costs order existed at the time the act of bankruptcy occurred. The stay imposed by Garling J on 9 February 2015 on the Local Court judgments was lifted on 27 May 2016 by Fullerton J: see [7], [14], [25]-[28], [35]-[37].

(3)    There is a distinction between an order substituting a person as petitioning creditor under s 49 of the Bankruptcy Act and the making of a sequestration order after the person has been substituted. The primary judge found that the significance of the distinction was explained by the High Court in Hyams v Elder Smith Goldsbrough Mort Ltd (1976) 133 CLR 637; HCA 18 at 639; that is, it is at the hearing of the creditor’s petition that the debt of at least $5,000 required under s 44(1) of the Bankruptcy Act must be established: see [8]-[9].

(4)    After dismissing other grounds of her notice of grounds of opposition, the primary judge dealt with Dr Ghosh’s request for a stay of the proceedings for 12 months to allow final determination of litigation continuing against supporting creditors. Dr Ghosh had offered as security “my win against debtors in the same court” and she said that she would need time to sell her share of assets to pay any remaining debts. He found that this did not afford a reason (sufficient cause) 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”: [51]-[53].

After 30 September 2016

58    The operation of the sequestration order was suspended on 2 November 2016: see Ghosh v Miller [2016] FCA 1293.

59    The creditor’s petition lapsed on 2 February 2017.

60    On 19 June 2017, Rothman J (among other things) dismissed the Defamation Proceedings and made orders preventing Dr Ghosh from commencing further proceedings arising out of the same publications without the leave of the Court. That leave is to be granted if Dr Ghosh can establish a capacity to proceed “efficiently, justly and expeditiously”: see Ghosh v Miller [2017] NSWSC 791. I note that this decision was reserved pending appeal of related proceedings to the New South Wales Court of Appeal. Judgment was delivered by Rothman J after argument on Dr Ghosh’s appeal against the sequestration order was heard and while judgment was reserved.

Issues

61    There are four issues which are essential to this appeal and the applications for leave to appeal having regard to the arguments of the parties.

62    The first issue is the time or times at which debts relied on by a person who seeks to be substituted as a petitioning creditor under s 49 of the Bankruptcy Act must exist and be “payable immediately or at a certain future time” or established as “still owing” having regard to the terms of ss 44(1), 49 and 52 of the Bankruptcy Act.

63    The second issue is whether the primary judge should have dismissed the petition on 17 May or 26 May, instead of making the orders that he did having regard to: (1) the question of whether there was an available set-off between the amount of the District Court costs order for $7,000 and Dr Ghosh’s costs order quantified in the amount of $3,300; and (2) the fact that there was a stay of execution of the three Local Court judgments (for an aggregate amount of $8,234.32) which was imposed by Garling J on 9 February 2015. The stay was formally lifted on 27 May 2016 by order of Fullerton J, who had dismissed the proceedings in which the stay order had been made on 14 April 2016.

64    The third is whether the primary judge erred by failing to take into consideration the effect of the Defamation Proceedings in the Supreme Court of New South Wales having regard to the principles in Ling v Enrobook Pty Ltd (1997) 74 FCR 19; FCA 226 at 25-26.

65    The fourth issue is whether, and as at what date, Dr Ghosh must be able to establish that she was solvent and simply unwilling, rather than unable, to pay the debts relied on in the further amended creditor’s petition. Also at issue is whether Dr Ghosh has established that she was solvent at the relevant date.

Consideration

66    At the outset it is important to note that Dr Ghosh made no contention in the appeal that the primary judge made an error by finding that she committed an act of bankruptcy on 18 November 2014 or by finding that that there was no defect in the creditor’s petition presented by Baycorp on 2 February 2015.

Grounds 1 and 2

67    Dr Ghosh’s basal proposition was that, in the proceedings before the primary judge, it was necessary for Mr Miller to be able to establish that the three Local Court judgments (for $8,234.32 in aggregate) and the District Court costs order were “payable immediately or at some future time” on each of 11 May, 17 May and 26 May 2016 so as to satisfy s 44(1)(b)(ii) of the Bankruptcy Act and he could not do that because of the stay on those Local Court judgments imposed by Garling J on 9 February 2015 which was only lifted by Fullerton J on 27 May 2016.

68    She says the primary judge erred when, on 17 May 2016, he permitted the substitution order made on 11 May 2016 to stand and failed to dismiss the petition. She says that this is because the requirements of s 44(1)(b) of the Bankruptcy Act were not then satisfied in relation to the Local Court judgments but they had to be. She says the effect of the primary judge’s decision to set aside the sequestration order made on 11 May 2016 was to recognise (in the Court’s inherent jurisdiction) a set-off of the $3,300 costs order made in favour of Dr Ghosh against the District Court costs order for $7,000 on which the amended petition relied so that the amount which Dr Ghosh owed Mr Miller fell below the statutory minimum of $5,000 prescribed by s 44(1)(a). As the situation remained the same on 26 May 2017, the primary judge should have dismissed the petition on that day instead of granting leave to file the further amended creditor’s petition, which relied on the three Local Court judgments in addition to the District Court costs order.

69    In support of these contentions, Ms Nolan argued that:

(1)    While amendment of a petition does not amount to “presentation” of the petition, a petition is “presented” when an order for substitution of a creditor is made under s 49 so as to trigger the requirement to comply with s 44(1);

(2)    Further, or in the alternative, the costs assessments which formed the basis of the Local Court judgments were only “taken to be a judgment of that court” under s 368(5) of the Legal Profession Act 2004 (NSW). They involved no adjudication by the Court. When such orders are stayed, it cannot be said that there is a debt “payable” or “owing” because those judgments are a statutory fiction which do not exist absent a capacity to enforce them. Should the decision of the majority (Pincus and Gummow JJ) in Re Pollack; ex parte Deputy Commissioner of Taxation (1991) 32 FCR 40; FCA 651 (and the cases which followed that decision) operate to contradict that contention, those decisions are plainly wrong and should not be followed.

70    For the reasons which follow, I do not accept that the basal proposition or any of Ms Nolan’s supporting arguments have merit.

71    The primary reason why Dr Ghosh’s basal proposition must be rejected is that it is contrary to the decision of the High Court in Hyams at 639 cited by the primary judge and the authorities which have followed that decision, for instance: Dean v Q.U.F. Industries Ltd (1981) 51 FLR 317; FCA 76 (Deane, McGregor and Sheppard JJ) and Re Brent Hughes; ex parte Westpac Banking Corporation [1997] FCA 1324 (Merkel J). In Hyams at 639, Barwick CJ (with whom Gibbs and Mason JJ agreed) said:

Although a creditor seeking an order of substitution must claim the existence of a debt of the required amount as at the date of the act of bankruptcy, it is not necessary, in my opinion, that that creditor should establish, as part of his application, that his debt was in fact in existence at that time. Of course, if it appears on the face of the material he produces in support of his application that his debt was not in existence at the appropriate time the Court should not order the substitution. McNamara v Langford [(1931) 45 CLR 267], properly understood, decides no more than that. Whether or not the substituted petitioning creditor’s debt is sufficient in point of time to support the petition will be decided when the petition is heard.

72    In this case, at the time of the act of bankruptcy on 18 November 2014, the District Court costs order for $7,000 was in existence, no stay or instalment order had been made in relation to it and the costs order made by Olsson DCJ in favour of Dr Ghosh on 16 September 2014 had not been quantified. Dr Ghosh’s costs order was quantified in the amount of $3,300 on 23 November 2015, more than a year after the date of the act of bankruptcy and well after Baycorp presented its creditor’s petition (on 2 February 2015). Accordingly the debt of $7,000 claimed in the application for substitution and the amended creditor’s petition was sufficient to satisfy the requirements of s 44(1) (as applied by s 49) for the purposes of that application. While those matters are sufficient for current purposes, it is also the case that all three Local Court judgments for an aggregate amount of $8,234.32 in favour of Mr Miller (on which the further amended creditor’s petition relied when leave was granted to file it on 26 May 2016) had been made and were not subject to a stay order at the time the act of bankruptcy was committed.

73    In accordance with this established authority, whether the District Court costs order or the Local Court judgments would be sufficient to found a sequestration order fell to be determined at the hearing of the amended creditor’s petition (or further amended creditor’s petition) filed by the substituted creditor. The basal proposition (and ground 1) therefore cannot be made out.

74    For completeness, I will briefly consider the other arguments made in support of the basal proposition.

75    The submission that the order for substitution made on 11 May 2016 amounted to the presentation of the amended creditor’s petition must be rejected. Ms Nolan acknowledged that she could not cite authority for this proposition. However, she submitted that such a finding would be justified by the fact that the process of substitution introduces a new party. She says that it would also be justified to overcome the unfairness imposed on a debtor because the debtor does not have the opportunity to seek to set aside a bankruptcy notice on the basis that it does not comply with s 40(1)(g) of the Bankruptcy Act, an opportunity which is available before the original petitioning creditor presents its petition.

76    I am not persuaded by these arguments. A petition is presented when the original creditor lodges it with the Court and the Court acknowledges receipt: see Investec Australia Finance Pty Limited v Naude [2016] FCA 731 at [32] and the cases there cited. While the petition will need to be amended to accommodate debts owed to the substituted creditor, the policy of s 49 is to allow a person who is owed a debt in the relevant amount which existed at the time of the act of bankruptcy to pursue a sequestration order. That is consistent with the presumption of insolvency arising at the time of the act of bankruptcy, the fact that the petitioning creditor’s acceptance of full payment does not result in a deficiency in the petition and the fact that a creditor’s petition may only be withdrawn with the consent of the Court. It avoids a multiplicity of actions and ensures a level of certainty for creditors and third parties in relation to transactions which might be avoided as against a trustee in bankruptcy having regard to the timing of the act of bankruptcy. To accept Ms Nolan’s argument would undermine all of those policy considerations. The debtor is sufficiently protected by: (1) the fact that the Court may set-off debts at the time the question of whether a sequestration order should be made falls for determination; and (2) the debtor’s capacity to avoid a sequestration order by proving solvency or “other sufficient cause” for a sequestration order not to be made under s 52 of the Bankruptcy Act.

77    I do not accept Ms Nolan’s submissions that the primary judge found that the District Court costs order for $7,000 and Dr Ghosh’s costs order for $3,300 were set-off on 17 May 2016. The hearing on that day had been called on urgently at Dr Ghosh’s insistence; it was focussed on the issue of whether orders made on 11 May 2016 should be set aside. The primary judge had no obligation (nor would it have been appropriate) to proceed to determine the issue of set-off or (in the absence of an application from Dr Ghosh) to dismiss the petition: see Miller v Ghosh (No 2) at [4].

78    While the primary judge found that ground 10 of Dr Ghosh’s grounds of opposition (based on set-off of costs orders) was arguable, that was all he was in a position to determine at that time and the primary judge’s reasons in Miller v Ghosh (No 2) demonstrate that his Honour was aware of that. Indeed, contrary to Ms Nolan’s submissions, I do not accept that as at 17 May 2017 a court would have been compelled to find that the District Court costs order for $7,000 and Dr Ghosh’s costs order assessed in the amount $3,300 should be set-off in light of the range of costs orders which had been made in the various litigation to which Mr Miller and Dr Ghosh had been party. While it is certainly the case that the Court has power to effect set-off of costs orders (see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 1106 at [46] on which Ms Nolan relied and Miller v Ghosh (No 2) at [13]), the appropriateness of doing so must be determined in all of the circumstances.

79    In my view, the primary judge took the appropriate course on 17 May 2016. It was appropriate to set aside the sequestration order made on 11 May 2016 as Dr Ghosh’s notice of grounds of opposition filed in November 2015 had not been taken into account. For reasons previously given, I also perceive no error in the primary judge’s decision to allow the order for substitution of petitioning creditor made on 11 May 2016 to stand. The primary judge did not err in setting the matter down for further directions on 26 May 2016 rather than hearing the amended creditor’s petition. The matter was attended by complexity because of the extensive litigation between Dr Ghosh, Mr Miller and a range of other parties. It was made more difficult by the exigencies of Dr Ghosh’s conduct of her opposition to the bankruptcy proceedings (including her failure to attend the hearing on 11 May 2017), some of which may derive from her standing as a sometimes self-represented litigant. The difficulty of ascertaining in which proceedings orders had been made as necessitated by the pleadings is apparent from the reasons in Miller v Ghosh (No 2). The likelihood that Mr Miller would seek to amend the petition was apparent. In my view, the order that the matter be set down for further directions on 26 May 2016 was necessary to allow orderly preparation for a hearing of the further amended creditor’s petition in the interests of all parties to the proceeding and of the administration of justice.

80    The proceedings on 26 May 2016 were not listed for hearing of the petition, they were listed for directions. I therefore perceive no error in the primary judge proceeding as he did on 26 May 2016 so that the hearing of the further amended creditor’s petition might be held in an orderly manner, allowing the case of each party to be heard on its merits. Any question concerning whether the Local Court judgments were “payable” or “owing” was put beyond doubt on 27 May 2016 when Fullerton J formally lifted the stay on the Local Court judgments. Although liberty to file a further amended creditor’s petition relying on the Local Court judgments was granted the day before the stay was lifted, having regard to Hyams, that involved no error. Further, in light of the fact that on 14 April 2016 Fullerton J dismissed the proceedings brought by Dr Ghosh in which the stay order had been made, I perceive no injustice to Dr Ghosh in the result that the hearing of the of the further amended creditor’s petition which relied in part on the Local Court judgments occurred after the stay was lifted.

81    Ms Nolan devoted considerable focus to the argument that the three Local Court judgments are mere legal fictions which can have no substance if enforcement is prohibited by a stay order because they are not judgments which result from a judicial act but rather, they derive their force from statute. In deference to that argument, it is appropriate to express my view although I do not regard it as necessary in light of the authority of Hyams.

82    Even though the Local Court judgments arose from a “ministerial act” of recording a costs assessment which had been filed under the Legal Profession Act 2004 (NSW), they became enforceable as a judgment upon entry in the Court’s computerised record system: see Tu v Chang (No 2) [2016] FCA 1568 at [11]; Calandra v Murden [2015] NSWCA 231 at [5]. The judgment created a debt which was immediately payable. In contrast to an order setting aside such a judgment or permanently staying it (cf the situation in Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172), a stay of execution “until further order” does not make the judgment a nullity. It is not a mere “scrap of paper”. Such a judgment debt remains in existence. Its validity is not affected; it remains “owing”, albeit that it is not capable of enforcement until the stay is lifted. It is difficult to see why it should not be available to be set-off against another judgment debt. I find the reasoning of Beazley JA (Hodgson and Santow JJA agreeing) in Australian Beverage Distributors Pty Ltd v Evans and Tate Premium Wines Pty Ltd (2007) 69 NSWLR 374; NSWCA 57 at [26]-[41] compelling. That is so even though Beazley JA’s remarks were made in the context of winding up a company and the argument put by Ms Nolan does not appear to have been considered. At [34], Beazley JA said:

No submission was put to the court that Pollack was wrong and, in my opinion, the decision is correct. As Pincus J explained, it would be strange if a judgment creditor could not plead a debt, the enforcement of which had been stayed, as a set-off. Other examples come to mind which underscore the proposition that a judgment debt, the enforcement of which has been stayed, remains payable. Thus, if a winding-up order or sequestration order was made on the application of some other creditor, it would also be strange if a debt the enforcement of which had been stayed, was not part of the indebtedness to be taken into account for purposes such as determining solvency, or for the purposes of determining the distribution to creditors. The view that I have taken is supported by the underlying purpose of a winding-up order, which is to prevent insolvent companies from trading.

83    Further, as was noted by Gummow J in Pollack at 55-56 and reiterated by Merkel J in Re Hughes, although s 40(1)(g) has an express requirement that the judgment debt be one “the execution of which has not been stayed”, that is not a requirement of either s 44 or s 52 of the Bankruptcy Act. That fact is a powerful indicator that it was not the legislative intent to impose that requirement under ss 44(1) and 52.

84    After judgment in this appeal had been reserved, Ms Nolan drew to the Court’s attention the decision of the High Court in Talacko v Bennett (2017) 91 ALJR 564; HCA 15 handed down on 3 May 2017. In that case, the High Court considered an argument based on a distinction between a stay of execution of a judgment and a stay on the operation of the judgment. It was contended that, while s 58(3) of the Bankruptcy Act prevents execution of a judgment, the judgment still exists for other purposes and may usefully be invoked by the judgment creditor, for instance, by way of set-off, relying on Pollack at 51 and Re Hughes. The contention was rejected in the context of the High Court’s need to respond to the question of whether a certificate could validly be issued under s 15(2) of the Foreign Judgments Act 1991 (Cth) to facilitate the enforcement in a foreign country of a judgment obtained by a creditor against a debtor who had become bankrupt having regard to s 58(3)(a) of the Bankruptcy Act. Section 58(3)(a) provides that, after a debtor has become bankrupt, it is not competent for a creditor “to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt”. The Court (Keifel CJ, Bell, Keane, Gordon and Edelman JJ, with whom Gageler and Nettle JJ agreed) relevantly found (at [64]) (emphasis in the original):

… the crucial point remains that s 15(2) of the Foreign Judgments Act prohibits the making of an application for a certificate until the expiration of any stay on the enforcement by execution of the judgment in question. The issue is not whether there might be some utility in having the judgment recognised in the Czech Republic, for example as the basis for a set-off against a claim by the appellant against the respondents. The issue is whether s 15(2) of the Foreign Judgments Act prohibited the making of an application [for a certificate] while the judgment could not, by Australian law, be enforced by execution.

85    At [73], the plurality went on to say:

… Section 15(2) of the Foreign Judgments Act is expressed to operate, and does operate, as an absolute bar to an application for a certificate. It neither requires nor permits the Registrar of an Australian court to undertake some assessment about the use to which the documents might be put in a foreign country by the judgment creditor or, as occurred here, by the authorities in that country.

86    The parties provided no submissions on the relevance of this decision in the current context, despite leave being granted leave to do so. In my view, this judgment of the High Court does not either expressly or by implication overrule the decision of the majority in Pollack or of Merkel J in Re Hughes in the context of ss 44 and 52 of the Bankruptcy Act that a stay of execution of a judgment does not mean that the judgment debt is not “owing” for the purposes of s 52 or that it might not properly be relied on by way of set-off.

87    For these reasons, I find that grounds 1 and 2 are not made out. I note that Dr Ghosh did not seek to appeal any of the judgment or orders made on 11, 17 and 26 May 2016 in a timely way and she has offered no reason for her delay. Having regard to that factor and any appeal on grounds 1 or 2 against the judgment delivered on 17 May and the orders made on 17 and 26 May (that is, the leave applications which were pressed) would lack merit, I refuse the leave sought in paragraphs (b) and (c) of the amended notice of appeal as set out at [2](2) and [2](3) above.

Ground 3-6

88    Mr Miller points out that, under s 52(2)(a) of the Bankruptcy Act, the time at which it was necessary for Dr Ghosh to be able to demonstrate that she was solvent was the date of the hearing of the further amended creditor’s petition, that is, 20 July 2016, not the date the sequestration order was made, being 30 September 2016. While I accept Mr Miller’s submission (see Christou v Demandem Holdings Pty Ltd [2012] FCA 695 at [104] per Barker J), little turns on the distinction as a practical matter in this case and Mr Maconachie appeared to accept that or at least did not point to any relevant difference in Dr Ghosh’s circumstances between those dates.

89    Dr Ghosh provided no evidence in the proceedings before the primary judge as to her financial condition save for that recorded in Miller v Ghosh (No 3) at [51] derived from Dr Ghosh’s affidavit affirmed on 19 July 2016:

I have obtained bankruptcy notices … against two debtors who owe me judgment debt, that will be enforced in this court …

I request a Stay of these proceedings for 12 months to allow final determination of litigation continuing against all remaining supporting creditors, as they do not have any final judgment.

If granted the Stay, I will offer as security my win against debtors in the same court …

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

90    At [52], the primary judge found 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.

91    Dr Ghosh’s submissions dated 17 March 2017 (sent to the Court by Dr Ghosh prior to the appointment of Ms Nolan as her counsel) assert that affidavits of Dr Ghosh and her husband were tendered in evidence at the hearing on 20 July 2016 “proving the appellant’s solvency beyond any doubt. Repeated searches of the appellant’s properties by both Baycorp and Miller were on the court file, proving the appellant had assets that could be realised.” It is true that searches conducted on behalf of Baycorp disclosed the existence of properties at Rydalmere and Hurstville in New South Wales registered in Dr Ghosh’s name. However, those searches did not disclose Dr Ghosh’s liabilities. Dr Ghosh’s evidence recorded at [51] of Miller v Ghosh (No 3) appears to be the extent of Dr Ghosh’s evidence submitted to the primary judge.

92    Dr Ghosh did not plead that she was solvent in any of the three notices of grounds of opposition she filed. I do not accept that the request in her notice of grounds of opposition lodged on 1 July 2016 that “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) is adequate for that that purpose.

93    Dr Ghosh’s evidence was inadequate to enable the primary judge to form a view of her assets, income and liabilities. The burden of proving solvency fell on Dr Ghosh and she did not discharge it. The primary judge was correct that Dr Ghosh’s assertion that she would need time to sell assets tends against demonstrating solvency. Accordingly, the primary judge did not err in his finding at [52] as it relates to the issue of solvency.

94    Dr Ghosh also submits that the primary judge should have, but did not, take into account the amounts Dr Ghosh might recover in the Defamation Proceedings in determining her solvency for the purposes of s 52(2)(a), see also: Ghosh v Miller at [46]. She also contends that the primary judge did not take the Defamation Proceedings into account in determining whether there was “other sufficient cause” not to make the sequestration order for the purposes of  52(2)(b).

95    Ms Nolan relied on paragraphs [9] and [14] of Dr Ghosh’s notice of grounds of opposition dated 28 June 2016 (as written):

9.    My litigation against all parties is not finalised, but continues in case 2013/238215 in the Supreme Court.

…

14    I therefore request this case be dismissed, and in 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.

96    Ms Nolan also relied on paragraph [12] of Dr Ghosh’s affidavit affirmed on 19 July 2016. It is useful to set out the context in which paragraph [12] appears (as written):

6.    Mr Miller’s costs orders in 1(b), (c) and (d) [the Local Court judgments] of his amended creditor’s petition against me are not final, but stem from an interlocutory costs order in case 2013/238215, that has not concluded. They do not constitute a ‘final judgment or final order’ within the meaning of s 40(1)(g) of the BANKRUPTCY ACT 1966 – SECT 40

7.    On 10 October’13, Judge Gibson (DC) merged case 2013/76771 with case 2013/238215, as in Annexure “B”

8.    Interlocutory costs orders cannot be enforced pursuant to UCPR 42.7(2), as in Annexure “C”

9.    Case 2013/238215 was transferred to the Supreme Court by consent on 21.3.16, Annexure “D”

10.    The costs order in 1(b) of the amended creditor’s petition relates to a judgment in case 2013/76771, which is not final

11.    The costs orders in 1(c) and (d) of the amended creditor’s petition are merely costs assessor’s bills for the costs order in 1(b)

12.    Moreover, the judgment in case 2013/76771 that the costs orders in 1(b), (c) and (d) of the amended creditor’s petition stem from, was appealed to the Supreme Court in case 2013/00235153. This appeal is still on foot, as Mr Miller was totally unrepresented despite undeniable proof of service at eleven hearings on 16 Aug 2013, 10 Oct 2013, 01 Nov 2013, 29 Nov 2013, 14 February 2014, 28 Feb 2014, 21 Mar 2014, 28 Mar 2014, 11 Apr 2014, 23 May 2014, and 27 Jun 2014

13.    Therefore, the costs orders in 1(b), (c) and (d) of the amended creditor’s petition are not final, and cannot be enforced. By default, the appeal should overturn the order.

97    In Miller v Ghosh (No 3) at [25]-[28], the primary judge accepted Mr Maher’s evidence that Dr Ghosh filed an appeal against the Local Court judgments in the District Court on 15 August 2014 (proceedings 2014/247066); that those proceedings was transferred back to the Local Court on 16 September 2014; that Dr Ghosh was refused leave to appeal the Local Court judgements on 3 November 2014; and that on 27 May 2016, Fullerton J (in proceedings 2014/000333115) made an order lifting the stay on the Local Court judgments imposed by Garling J on 9 February 2015 in proceedings 2014/000333115. The primary judge found that proceedings 2014/000333115 were the Supreme Court proceedings in which Dr Ghosh sought to challenge the costs assessments which were registered as the Local Court judgments. He concluded that there was no impediment to Mr Miller relying on the Local Court judgments as the stay on them was lifted and that they were final orders (contrary to Dr Ghosh’s submissions).

98    It is apparent from Miller v Ghosh (No 3) at [29]-[35] that the primary judge, for good reason, struggled with clear identification of the proceedings to which Dr Ghosh was a party on which she sought to rely and the interaction of those proceedings. He said (as written, footnotes omitted):

29.    Dr Ghosh also claims that “[m]y litigation against all parties is not finalised, but continues in Case 2013/238215 in the Supreme Court”. It is not entirely clear, however, to which proceeding Dr Ghosh intends to rely. In her oral submissions, Dr Ghosh submitted that a differently numbered proceeding, proceeding no. 2013/00235153, is an appeal from all three Local Court judgments. That is not correct. As I have already noted, the proceeding by which Dr Ghosh sought to appeal the costs determinations was assigned proceeding no. 2014/247066 in the District Court, and 2014/00333115 in the Supreme Court. It appears, however, that Dr Ghosh submits that proceeding no. 2013/00235153 is an appeal against the orders for costs pursuant to which costs assessments have been made, and which were registered as the Local Court judgments referred to in the further amended creditor’s petition.

30.    When I asked Dr Ghosh what evidence she had for submitting that proceeding no 2013/00235153 is an appeal from all three Local Court judgments, Dr Ghosh referred me to page 3 of her affidavit of 19 July 2016. In that affidavit, Dr Ghosh asserts the following:

a)    The three Local Court judgments stemmed from an “interlocutory costs order in case 2013/238215, that has not concluded”.

b)    On 10 October 2013 Judge Gibson “merged case 2013/76771 with case 2013/238215”. In support of the latter assertion, Dr Ghosh annexes what appears to be a record of proceedings in District Court matter 2013/00238215 that took place on 13 October 2013. From that document it appears proceeding no 2013/00238215 is a defamation proceeding Dr Ghosh commenced against Mr Miller. The document records that on 10 October 2013 there was before the Court a notice of motion filed by Dr Ghosh to which Mr Miller did not appear. One of the orders was that “Local Court matter 2013/76771” be transferred to the District Court of New South Wales “forming part of District Court matter 2013/238215, by reason of the Local Court having no jurisdiction in defamation proceedings”.

c)    Proceeding no 2013/238215 was transferred to the Supreme Court by consent on 21 March 2013.

d)    Judgment in proceeding no 2013/76771, from which the Local Court judgments stem from, was appealed to the Supreme Court.

31.    None of these documents disclose that any of the proceedings relate to the three Local Court judgments. During the hearing, Dr Ghosh tendered a notice of listing dated 25 March 2014 from the Supreme Court of New South Wales. It was issued in relation to “Case number 2013/00235153” in a matter titled “Dr Ratna Ghosh v John Bee”. There is nothing in this document that supports the assertion Dr Ghosh made in her affidavit that the Local Court judgments are the subject of proceeding no. 2013/238215.

32.    In response to Dr Ghosh’s affidavit on this question, counsel for Mr Miller read an affidavit made by Mr Maher that attaches a notice of appearance and notice of change of solicitor filed in proceeding 2013/238215. Neither document shows that Mr Miller is a party.

33.    At the end of the hearing, I granted Dr Ghosh liberty to file and serve by 22 July 2016 the originating process that was filed in proceeding no. 2013/00235153. Dr Ghosh did file a copy of a summons filed with the Supreme Court of New South Wales on 2 August 2013 in which Mr Miller is one of six defendants. The summons was assigned proceeding no. 2013/235153. It appeals the orders of Local Court Magistrate Cheetham made on 11 July 2013 in proceeding no. 2013/76771. The only evidence of the orders Local Court Magistrate Cheetham made on that day is the assessment for costs issued on 18 December 2013 by Mr John Sharpe, costs assessor. The assessment refers to Local Court Magistrate Cheetham striking out on 11 July 2013 a statement of claim Dr Ghosh filed in the Local Court alleging defamation, and ordering that Dr Ghosh pay Mr Miller’s costs of the notice of motion by which Mr Miller applied to strike out the statement of claim, and the notice of motion Dr Ghosh filed to have the matter transferred to the District Court. Mr Sharpe assessed Mr Miller’s costs at $5,496.94 and determined that Dr Ghosh should meet the costs of the assessment, which Mr Sharpe assessed to be $870. The amount of this assessment is not included in the amended creditor’s petition.

34.    I am prepared to assume for the purposes of the application before me that Dr Ghosh has filed an appeal with the Supreme Court of New South Wales from the orders of Local Court Magistrate Cheetham, and that Mr Miller is a party to the appeal. There are, however, a number of matters to note:

a)    First, the appeal does not directly relate to the three Local Court judgments on which Mr Miller relies in his further amended creditor’s petition. As I have already noted, Dr Ghosh sought, but failed to obtain from Magistrate Atkinson, leave to appeal from the three costs assessments, although I also note that in Supreme Court of New South Wales proceeding no. 2014/00333115, it appears Dr Ghosh has sought to challenge Magistrate Atkinson’s decision not to grant leave.

b)    Second, it is not apparent from the summons, or from the orders Local Court Magistrate Cheetham made on 11 July 2013, that the three Local Court judgements included in the further amended creditor’s petition represent assessments of the costs Local Court Magistrate Cheetham ordered on 11 July 2013 Dr Ghosh to pay. The more likely inference is that the three Local Court Judgments on which Mr Miller relies do not relate to the costs Local Court Magistrate Cheetham ordered on 11 July 2013 Dr Ghosh to pay. That is so because Mr Sharpe assessed those costs to be $5,496.94 together with $870 for the costs of the assessment. These amounts, however, whether alone or together, do not match the amounts of any of the three Local Court judgments on which Mr Miller relies in the further amended creditor’s petition.

c)    Even if the three Local Court judgments on which Mr Miller relies represents the assessment of the costs Local Court Magistrate Cheetham ordered Dr Ghosh pay on 11 July 2013, there is no evidence of any stay of execution. On the contrary, as I have already noted, a stay had been ordered in relation to the Local Court judgments but, on 27 May 2016, Fullerton J ordered that such stay be lifted.

d)    The proceedings in which Local Court Magistrate Cheetham made the order have been finalised by the orders that were made on 11 July 2013. Dr Ghosh’s statement of claim was struck out. The proceedings were later transferred to the District Court by order of the District Court. That is, the proceeding, in the Local Court, was concluded. Rule 42.7(2) of the UCPR, therefore, does not prevent Mr Miller from recovering the costs Local Court Magistrate Cheetham ordered that Dr Ghosh pay.

e)    Further, even if r. 42.7 of the UCPR applied to the judgments on which Mr Miller relies, given the orders Fullerton J made on 27 May 2016 lifting a stay, I am satisfied the Court has “otherwise ordered” that the costs ordered to be paid on 11 July 2013 may be recovered before the proceeding is concluded.

35.    I am satisfied, therefore, that the three Local Court judgments on which Mr Miller relies are due and payable.

99    Ms Nolan submitted that the primary judge’s focus was too narrow and that he made insufficient inquiry in relation to the Defamation Proceedings. I do not accept that criticism as well founded.

100    In Miller v Ghosh (No 3) at [29], the primary judge noted Dr Ghosh’s reference to proceedings 2013/238125 in the Supreme Court and he referred to the Defamation Proceeding at [30] in dealing with Dr Ghosh’s explanation. The primary judge sought clarity from Dr Ghosh as to the case she was attempting to make having regard to her apparent reliance on proceedings 2013/235153 and he explored the issue in some detail with her. Having regard to the broader material contained in the notice of grounds of opposition, Dr Ghosh’s affidavits before the primary judge and Dr Ghosh’s oral submissions as reflected in the reasons, the primary judge fairly understood the focus of this argument to be the costs assessments which form the basis of the Local Court judgments. That belief would have been supported when, on 21 July 2016 (in accordance with leave given by the primary judge) Dr Ghosh provided to him a copy of the summons filed in the District Court on 2 August 2013 and given case number 2013/235153 in which Dr Ghosh again sought leave to appeal Cheetham LCM’s decision on 11 July 2013.

101    With the benefit of an affidavit of Mr Maher filed on 12 October 2016 in the stay proceedings before Markovic J, it is clear that the Supreme Court ordered proceedings 2013/235153 to be withdrawn in April 2014 (see [2828] above). That does not clearly emerge from the pleadings and evidence tendered by Dr Ghosh; indeed, it is inconsistent with the thrust of that material which she put before the primary judge. Shortly after the hearing on 20 July 2016, on 25 July 2016, Dr Ghosh sought to revive this claim, but her notice of motion was dismissed by Fagan J on 3 August 2016 with costs awarded against Dr Ghosh on an indemnity basis and in an amount of $12,000.

102    It appears that Dr Ghosh did not provide the primary judge with the pleadings in the Defamation Proceedings (proceedings 2013/238215) or information as to the amount of damages to which she claimed to be entitled. Nor did she provide evidence as to her prospects of success in the Defamation Proceedings. Dr Ghosh provided no evidence of her prospects in any of the litigation which she claimed to be ongoing. Indeed, she suggested that she had no prospect of recovering “any win” from Mr Miller: see the summary of the references to the Defamation Proceedings in Dr Ghosh’s affidavits at [110] below. That was how she chose to run her case.

103    I do not accept the submission made by Ms Nolan during oral argument that the primary judge erred by failing to inform Dr Ghosh of the requirements which had to be met in relation to the relevance of the Defamation Proceedings to a decision not to make a sequestration order under s 52(2). Ms Nolan relied on the decision of the Full Court in SZRUR v Minister for Immigration and Border Protection (2012) 216 FCR 445; FCAFC 146 that the appellant in that case (a self-represented litigant who did not speak, read or write English) was denied procedural fairness because the Federal Circuit Court Judge who heard his application to review a decision of the Refugee Review Tribunal (as it then was), did not explain to him that the Court would not act on statements from the bar table and that his allegation of fraud against his migration agent needed to be the subject of sworn evidence on which he could be cross-examined.

104    This Court has not had the benefit of transcript of any of the proceedings leading up to the hearing on 20 July 2016 so it is not possible to know the extent of the assistance provided to Dr Ghosh by the primary judge beyond the fact that she was given the opportunity to file three notices of opposition and to provide evidence in support of her case on many occasions, including in the orders made on 26 May 2016. Mr Maconachie (who appeared for Mr Miller on 20 July 2016) submitted that the primary judge “bent over backwards” to afford Dr Ghosh the opportunity to present grounds and evidence which would allow her case to be heard on its merits.

105    In my view this case is significantly removed from SZRUR. Dr Ghosh is a professional woman, educated to a tertiary level, running litigation in a number of venues over a number of years. At least to some extent, she has had the benefit of legal advice in the bankruptcy proceedings given the references to her counsel, Mr Soon, in Miller v Ghosh (No 1). It appears to me that the primary judge was diligent and patient in his attempt to understand the case being put to him and to assist Dr Ghosh appropriately to present her case on its merits, including by allowing leave for Dr Ghosh to file further evidence of the proceedings on which she relied in her argument.

106    I do not accept that that the primary judge erred because he did not take into account the amount Dr Ghosh might recover if she was successful in the Defamation Proceedings in assessing her solvency. Dr Ghosh provided no evidence on the basis of which the primary judge might make a finding either as to the amount Dr Ghosh might recover or the time at which she might expect to make any recovery.

107    In relation to the question of whether the primary judge should have refused to make a sequestration order on the basis of s 52(2)(b) (“other sufficient cause”) or to adjourn the proceedings for 12 months, Ms Nolan relied on the Full Court’s decision in Ling at 25-26 to submit that in assessing whether the existence of the Defamation Proceedings constitutes “other sufficient cause” it is relevant that:

(1)    Mr Miller is a party to the Defamation Proceedings;

(2)    Dr Ghosh is solvent, as demonstrated by evidence adduced in the proceedings for a stay of the sequestration order;

(3)    The Defamation Proceedings fall within s 60(2) of the Bankruptcy Act as a personal right which does not vest in the trustee in bankruptcy;

(4)    It is not the purpose of sequestration to force payment of the amount claimed by the petitioning creditor.

108    The relevance of points (1) and (4) may readily be accepted. Point (3) does not necessarily weigh against a sequestration order being made as the parties both now appear to accept that Dr Ghosh would not be precluded from running litigation of the kind contemplated in the Defamation Proceedings by s 60(2). (Mr Miller did not accept that in submissions filed in connection with the stay application). The result would be that as a bankrupt, Dr Ghosh would not run the risk that the litigation would be stayed if the trustee in bankruptcy did not want to pursue it. However, point (2) was not satisfied at the time the primary judge made his decision. Dr Ghosh did not provide sufficient evidence to the primary judge on the basis of which to form the view that Dr Ghosh was solvent.

109    Further, it is not in all cases that a debtor’s extant litigation would justify the Court declining to make a sequestration order under s 52(2)(b) or deciding to adjourn the proceedings. In Ling at 26D, the Full Court (Davies, Wilcox and Branson JJ) said:

The authorities also show that satisfaction that the debtor is well advanced with litigation likely to result in the debtor being in a position to pay his or her debts may well provide a basis for a finding that there is “sufficient cause” for a sequestration order not to be made (see, for example, Maddestra v Penfolds Wines Pty Ltd). But the authorities did not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally. They only recognise that is not in the public interest for a debtor to be forced into bankruptcy by reason of a state of insolvency likely to be of only short duration.

110    It appears from Miller v Ghosh (No 3) and the materials in the Appeal Book that neither party provided assistance to the primary judge in understanding the Defamation Proceedings, albeit that the onus fell on Dr Ghosh. Dr Ghosh’s evidence was: (1) “I have defamation action against Mr Miller that will be determined on or soon after 24 June 2016, with no hope of recovering any win or costs from Mr Miller” (affidavit affirmed on 25 May 2016); (2) on 10 October 2013 Gibson DCJ merged case 2013/76771 with case 2013/238215 (affidavit affirmed on 1 July 2016); and that those proceedings were transferred to the Supreme Court in March 2016 (affidavit affirmed on 19 July 2016).

111    In the proceedings for a stay of the sequestration order, Mr Maher swore two affidavits (dated 12 and 21 October 2016) which would have vastly assisted the primary judge in his understanding of the array of litigation in which Dr Ghosh was involved. Those affidavits make it easier to understand that:

(1)    On 11 July 2013, Cheetham LCM ordered that Dr Ghosh’s statement of claim in proceedings 2013/76711 be struck out as against Mr Miller with costs. At that point he ceased to be a party to those proceedings, even though he had the benefit of costs orders which (through cost assessments and review) resulting in the Local Court judgments. Those judgments were final, not interlocutory, as found by the primary judge.

(2)    The Defamation Proceedings were commenced on 6 August 2013 in the District Court of New South Wales.

(3)    Following the transfer of the proceedings to the Supreme Court, on 12 May 2016, Dr Ghosh filed a notice of motion seeking (among other orders) to have the defences of all defendants struck out and an award for damages.

(4)    On 1 July 2016, Mr Miller and his wife (who was also a defendant in the proceedings) filed a notice of motion that the proceedings be dismissed based on Dr Ghosh’s failure to comply with court orders regarding discovery, the first such order having been made on 20 November 2015. This notice of motion and the one referred to at (3) above were set down for hearing on 12 August 2016.

(5)    Dr Ghosh had a notice of motion listed for determination by Rothman J in the proceedings, seeking to join as defendants NineMSN Pty Ltd, NBN Ltd and Katie Gregory.

(6)    Mr Maher said that if the Defamation Proceedings were not concluded as a result of the notices of motion, he did not believe that the Defamation Proceedings would be ready to be listed for hearing before 2018 on the basis that it would be a five day trial and there were no dates available for a hearing of that duration in 2017.

112    In light of this information and having regard to the principles enunciated by the Full Court in Ling at 26D, I do not consider that it would have been appropriate for the primary judge to have found that the fact that the Defamation Proceedings were extant was either a “sufficient cause” not to make a sequestration order or to adjourn the bankruptcy proceedings. More than three years after the proceedings were commenced in the District Court, the pleadings were not finally settled and there were motions on foot for the dismissal of the proceedings for the plaintiff’s failure to comply with orders for discovery.

113    In Dr Ghosh’s written submissions in-chief at [38(c)-(g)], she raised a number of matters as a sufficient cause for the primary judge not to make a sequestration order and otherwise complaining of remarks allegedly made by the primary judge. Those submissions appear to have been prepared by Dr Ghosh without benefit of legal counsel. They were not addressed by Ms Nolan in oral argument. To the extent it is necessary to deal with those submissions, I reject them for the reasons set out in Mr Miller’s written submissions filed on 31 March 2017 at [20].

114    Ms Nolan argued that the primary judge should have, but did not, take into account as a “sufficient cause” to refuse to make the sequestration order that Dr Ghosh had not had the benefit of being able to resist a bankruptcy notice on the basis that Mr Miller would not have been able to satisfy s 40(1)(g) at the time the order for substitution was made (11 May 2016). Having regard to the authority of Hyams and the fact that the requirements of s 40(1)(g) were satisfied at the time Baycorp’s bankruptcy notice was issued and the act of bankruptcy occurred, this argument must be rejected.

Should the sequestration order be set aside because new evidence establishes that Dr Ghosh was solvent?

115    I accept Dr Ghosh’s submission that it is not the purpose of sequestration under the Bankruptcy Act to force solvent debtors to pay debts they are unwilling, rather than unable, to pay. Dr Ghosh contends (and it is not contested) that on 29 January 2017 she paid the debt claimed by Baycorp in its creditor’s petition. Dr Ghosh also claims that she tendered payment to Mr Miller of the amounts claimed in the further amended creditor’s petition but that tender was refused: that issue is contested.

116    An act of bankruptcy having occurred, the onus is on Dr Ghosh to satisfy the Court that she was solvent at the time the petition was heard, albeit that the evidence is likely to be relevantly the same in this case as at the time the sequestration order was made.

117    Dr Ghosh relied on the evidence of her financial circumstances as at 30 September 2016 submitted in support of the application to stay the sequestration order included in the appeal book. In her Honour’s reasons ([2016] FCA 1293) published on 2 November 2016, Markovic J summarised that evidence at [9]-[14] as follows:

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.

118    Ms Nolan described Dr Ghosh’s affidavit dated 26 April 2017 as an attempt to bring together Dr Ghosh’s evidence submitted on the stay application and that it “putties up” some gaps without going beyond the evidence otherwise before the Court.

119    The best evidence before the Court of the value of the two properties in which Dr Ghosh and her husband have an interest (the Properties) are “desktop” valuations. In relation to the East Brisbane Property, the “valuation” is from “Onthehouse.com.au” and reads:

House Claim Last sold 14 years ago. Full history Suggest an edit Low $981k $1,226,703 High $1.4m Low accuracy Last updated 05 SEP 2016 Disagree with estimate? On the house.com.au is one of the leading providers of residential property data for banks and the general public. The Calculated Estimate is mathematically calculated based on publically available property data and past sales histories sourced from state governments, property owners, real estate agents and other third party data sources. Calculated Estimates and Estimate Range, can vary depending on data available. Accuracy can be improved if homeowners add to, and correct, the property data so we can mathematically calculate the likely market value.

…

Land Size 1,222 m2

Property History Sold : $658,500 08 APR 2002: Source: Government Sold : $215,000 03 MAY 1991 Source: Government

120    In her affidavit of 18 October 2016, Dr Ghosh said that the East Brisbane Property was then untenanted and that it was managed by her husband. There is no evidence that it was tenanted as 30 September 2016. It is hard to explain the $2,000 in monthly rent which Dr Ghosh says she was receiving as at 30 September 2016 (see below).

121    The estimates for the Rydalmere Property are also from “Onthehouse.com.au”, with a “low” of $823,000, a median price of $1,029,350 and a “high” of $1.2 million. These estimates are subject to the same qualification as that applied to the East Brisbane property.

122    Ms Nolan invited the Court to infer the likely value of the Properties (having regard to current activity as reported in the Sydney property market) was at the higher end of the range. There are a number of problems with that proposition. First, the estimates provided by “Onthehouse.com.au” are clearly not expert valuations. There are a number of factors which can affect valuation which are not in evidence, for instance, the state of maintenance of the Properties. Second, even if it be accepted that Dr Ghosh’s valuation of $2.2 million for the Properties is correct, Dr Ghosh and her husband are involved in Family Court proceedings. All things being equal, Dr Ghosh may well be entitled to more than half of the value of the Properties in those proceedings. However, there is nothing in evidence which indicates what the partners’ respective contributions to the purchase price of the Properties were, whether any improvements have been made to the Properties and who paid for them or who has made mortgage payments, all matters which might affect the shares to which they may each ultimately be entitled. All of this adds uncertainty as to the timeliness of the sale of either Property. Dr Ghosh suggests that her husband would be more willing to buy her share than to allow the sale of one of the properties. Even if it be accepted that Dr Ghosh’s husband was prepared to buy out her share, there is no evidence of on what terms, that the terms would be acceptable to Dr Ghosh or how long it would take them to come to a suitable arrangement.

123     Dr Ghosh also provided a statement of financial position as at 30 September 2016 which was on a form bearing the Commonwealth Bank’s logo (Statement). Dr Ghosh’s evidence is that she was provided with the form by the Bank and she completed it with information provided by her bank manager. It is not, however, a form which was completed and issued by the Bank.

124    The Statement indicates that Dr Ghosh’s monthly income in the year to 30 September 2016 was $5,000, comprising wages or drawings from her business as $3,000 per month and rental income of $2,000 per month. The Statement indicates that she values her share of the Properties at $1.1 million, that she did not have a bank account and her furniture and personal effects are worth $10,000. She says that she is responsible for half the outstanding Commonwealth Bank loan of $489,774.66 in respect of which she paid $1,700 per month. Her credit card payments are $2,000 per month.

125    It is easy to accept that the Statement is incomplete and deals only with things which might relate to the Commonwealth Bank as suggested by the form. However, it is not a balance sheet or cash flow statement which would be necessary to support Dr Ghosh’s current assertion that she is solvent.

126    Further, in cross examination, Dr Ghosh said that the amount of $5,000 (or $60,000 per annum) is not her gross income which she said is $400,000 per annum. She says the figure of $5,000 per month takes into account legal costs which she paid in the period and the impact of two “geared” properties being untenanted. The difficulty with this is that the draft profit and loss statement for Ghoband Pty Ltd does not support the contention that Dr Ghosh’s gross salary was $400,000 in either of the last two years. Nor does her statement of affairs which suggested that her income was $100,000. Inferring that she was the recipient of superannuation salary and wages recorded on the profit and loss statement, which appears to be the contention, the draft profit and loss statement suggests that she was paid $71,027.71 in superannuation and $45,761.38 in wages in the year to 30 June 2015. It appears that, in the year to 30 June 2016, $70,000 was paid by way of superannuation and $10,000 was paid as wages. The total income for Ghoband Pty Ltd in 2015 was $94,340.78 and in 2016 it was $84,819.91. It is extremely difficult to see how, from an accounting viewpoint, legal costs incurred in the sort of litigation referred to in these reasons can be deducted before the statement of gross income. On any basis, if Ghoband Pty Ltd is Dr Ghosh’s employer, then she did not earn a gross income from her practice as a general practitioner of $400,000 (or $100,000) in either of the last two years. If she earns income as a general practitioner from any other source, she has not identified it. Further, the superannuation funds would not be available to meet Dr Ghosh’s living expenses and ordinary creditors.

127    In relation to rent, Dr Ghosh provided a statement from First National Real Estate at Parramatta that a tenant was vacating the Rydalmere Property on 15 July 2016 and that tenant paid rent of $350 per week ($1,400 per month). In cross-examination, Dr Ghosh said that a previous tenant had paid $1,000 per week. She also said that after the tenant left the property (which I take to be on 15 July 2016) “my husband occupied the property. And I think he was looking at subdividing and subleasing, but I don’t know if he got around to that”. I therefore infer that as at 30 September 2016, the Rydalmere Property was untenanted and that before that, the gross rent was $1,400 a month. At best, Dr Ghosh’s share of rent was $700 per month. Dr Ghosh has not account for any rent (if any), on the East Brisbane Property. Her evidence would suggest that it was untenanted, although the trustee in bankruptcy’s evidence would suggest that her bank accounts did receive rental income from the two Properties at times during the period.

128    Ms Nolan, correctly, submitted that to be solvent, a person does not have to be able to pay his or her debts from their own property. A person is solvent if they are able to raise funds with which to meet their debts. Annexure A to Dr Ghosh’s affidavit is an email dated 9 November 2016 and addressed to “Ratna and Bhaskar”. The email advises that the Commonwealth Bank had made a “conditionally eligible decision” in relation to a loan application. Approval of that loan would be granted conditionally on “proof of rent on Rydalmere investment property of $1800 per month. A lease agreement, rental statement or Rental appraisal is required to confirm this”. The amount of the loan application is unstated and the loan application is not in evidence. However, in the email, the “manager premier banking” indicated that she had gone back to her credit team to see if she could increase the loan figure “from $680k to $760k” and that that would include “refinancing your current loan for $488k”. The offer of finance was withdrawn when the Bank became aware that the sequestration order had been made.

129    There are two things to note: first, this email is dated November 2016, it is not clear that this funding was available on 30 September 2016. However, even if that hurdle could be overcome, Dr Ghosh was not able to satisfy the condition of the loan, since on her own evidence, the last lessee of the Rydalmere Property had paid only $1,400 per month and thereafter her husband occupied the premises. Under cross examination, Dr Ghosh said that her current income would make up for the $300 per week difference. The Court does not know what information Dr Ghosh provided to the Commonwealth Bank in support of her loan application, but it is not clear from the Statement that she completed as at 30 September 2016 that she would have been able to satisfy the Commonwealth Bank of that position or that her statement that she earned $2,000 in rent could have been sustained in light of her evidence as to her husband’s plans.

130    It is perhaps surprising that the Statement indicates that Dr Ghosh has no bank account. That is contrary to the trustee in bankruptcy’s evidence and the transaction details of an account with Newcastle Permanent Building Society in the name of Dr Ghosh and her husband “ATF” Bandy Family Trust. It appears that rent payments from the Properties were paid to this account. That would suggest – albeit that it is not determinative – that the Properties may also be held on behalf of the Bandy Family Trust. If that be the case, it may be that Dr Ghosh would not have free access to the proceeds of sale of the Properties. Although this observation derives from the evidence, the terms of any trust deed constituting the Bandy Family Trust were not in evidence and this issue was not the subject of argument so I will take it no further.

131    Dr Ghosh is not a convincing witness. In my observation of her at the hearing of the appeal and in her approach to its preparation, she is evasive and her evidence is often self-serving. She has not discharged her onus of proof that she was solvent as at 20 July or 30 September 2016. It may well be that she has access to assets and income through trust arrangements or otherwise. However, she has provided insufficient and inconsistent evidence of her true financial position. The evidence she has provided does not support a finding that she could meet (in a timely way) the crystallised debts identified by the trustee in bankruptcy as they fell due either from her own assets or with borrowed funds. I do not accept that the sequestration order should be set aside.

Conclusion

132    The appeal should be dismissed. Costs should follow the event.

Associate:

Dated:    8 August 2017