FEDERAL COURT OF AUSTRALIA

Leared v Lordan [2020] FCA 138

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s oral application for an adjournment of the hearing of his interim application dated 7 January 2020 be dismissed.

2.    The applicant have leave to amend the Creditor’s Petition herein to substitute “$262,479.05” in place of the reference in paragraph 1 thereof to “$383,267.04”.

3.    Any requirements under the Federal Court (Bankruptcy) Rules 2016 for verification and service of the Creditor’s Petition so amended be dispensed with.

4.    The orders of Registrar Ryan that are the subject of the respondent’s interim application dated 7 January 2020 be affirmed.

5.    The respondent’s interim application dated 7 January 2020 otherwise be dismissed.

6.    The applicant creditor’s costs of and pertaining to the respondent’s interim application dated 7 January 2020 be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

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

ORDERS

THE COURT ORDERS THAT:

1.    The deadline by which the respondent must file any notice of appeal be Tuesday, 10 March 2020.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an application dated 7 January 2020, the respondent debtor, Mr Lordan, applies under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (hereafter, the “FCA Act”) for a review of sequestration (and other) orders made by a registrar of the court in respect of his estate. Those orders (hereafter, the “Sequestration Orders”) were made under s 52 of the Bankruptcy Act 1966 (Cth) (hereafter, the “Bankruptcy Act”) in determination of a creditor’s petition that was filed on behalf of the applicant, Mr Leared, under s 43 of that act. That petition (hereafter, the “Creditor’s Petition”) assumes central significance presently.

2    The court heard the respondent’s application dated 7 January 2020 on Friday, 14 February 2020. At the conclusion of the hearing, I made orders affirming the Sequestration Orders and otherwise dismissing the respondent’s application. I undertook to provide reasons for doing so at the earliest subsequent opportunity. These are those reasons.

3    Mr Lordan is a property developer. He was the unsuccessful party in litigation that Mr Leared commenced against him in 2017 in the County Court of Victoria, the apparent subject of which was moneys that Mr Leared alleged—and that that court ultimately agreed—that Mr Lordan owed him. By orders dated 8 April 2019, the County Court of Victoria ordered Mr Lordan to pay Mr Leared a net sum of $262,479.05 (hereafter, the “Primary Judgment Debt”). On 10 April 2019, further orders were made requiring that Mr Lordan pay Mr Leared 70% of his costs of that proceeding, which Mr Leared has since had assessed as $159,610.11 (70% of which is $111,727.07).

4    Mr Lordan has not paid those sums to Mr Leared.

5    On 22 August 2019, Mr Leared served upon Mr Lordan a bankruptcy notice under s 41 of the Bankruptcy Act. By that notice (hereafter, the “Bankruptcy Notice”), Mr Leared required that Mr Lordan pay him $374,206.12 (comprising the net judgment debt of $262,479.05 plus $111,727.07, being 70% of Mr Leared’s assessed costs) plus interest of $9,060.92 (a total of $383,267.04). Alternatively, it required that Mr Lordan make arrangements satisfactory to Mr Leared by which that debt could be settled. Mr Lordan had until 12 September 2019 to do one or other of those things.

6    Again, Mr Lordan did neither.

7    On 31 October 2019, Mr Leared served his Creditor’s Petition upon Mr Lordan. It was verified by a number of affidavits: one of which was sworn on 4 October 2019 by a legal assistant employed by Mr Leared’s solicitors, Ms Tammie Maree Jansen (hereafter, the “Jansen Affidavit”). That affidavit was made in satisfaction of r 4.04(1)(b) of the Federal Court (Bankruptcy Rules) 2016 (Cth). Mr Leared also filed an affidavit sworn by Dennis John Domaille, process server, on 1 November 2019 (hereafter, the “Affidavit of Service”), which attested to service of the Creditor’s Petition upon Mr Lordan.

8    The Creditor’s Petition came before Registrar Ryan for hearing on 28 November 2019. By that date, two further affidavits were sworn in support of it. The content of those affidavits need not here be set out.

9    That 28 November 2019 hearing was adjourned and orders were made by which Mr Lordan was required to “…file and serve an affidavit which sets out his current financial position, including details of all assets, liabilities, incomes and expenses by 13 December 2019.”

10    Again, Mr Lordan did not comply with that requirement.

11    The hearing of the Creditor’s Petition resumed on 23 December 2019. Mr Lordan apparently made some attempt to have that hearing adjourned further on the ground that he was labouring under mental health concerns that had hampered or prevented his preparations, or that would hamper or prevent his appearance. Regardless, Registrar Ryan proceeded on that day to make the Sequestration Orders that Mr Lordan now seeks to overturn by way of review under s 35A(6) of the FCA Act.

12    There was no material disagreement about the nature of the hearing before me. A review conducted pursuant to s 35A(6) of the FCA Act is conducted by way of a hearing de novo: Totev v Sfar and Anor (2008) 167 FCR 193, 197 [14]-[15] (Emmett J, with whom Bennett J agreed); Zdrilic and Anor v Hickie and Anor (2016) 246 FCR 532, 540-541 [28]-[29] (Katzmann, Farrell and Markovic JJ). The issue for me to determine, on the evidence as it presently stands (rather than as it stood when Registrar Ryan made the Sequestration Orders), is how the Creditor’s Petition ought to be determined: that is, should there be a sequestration order operative against Mr Lordan’s estate under s 52(1) of the Bankruptcy Act, or should the Creditor’s Petition be dismissed pursuant to s 52(2)? If I am inclined to the former, Registrar Ryan’s Sequestration Orders should be affirmed. If I am inclined to the latter, then they should be set aside.

13    For the reasons that follow, the Sequestration Orders were affirmed.

Legislative Provisions

14    Section 43 of the Bankruptcy Act establishes the court’s jurisdiction to make sequestration orders. It relevantly provides as follows:

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.

…

15    Section 40 of the Bankruptcy Act defines the circumstances in which a debtor commits an “act of bankruptcy”. It relevantly provides:

40 Acts of bankruptcy

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

…

(g)    if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia 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;

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

…

(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;

16    Bankruptcy notices are the subject of s 41 of the Bankruptcy Act. That section relevantly provides:

41 Bankruptcy notices

…

(3)    A bankruptcy notice shall not be issued in relation to a debtor:

(a)    except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;

(b)    if, at the time of the application for the issue of the bankruptcy notice, execution of a judgment or order to which it relates has been stayed; or

   (c)    in respect of a judgment or order for the payment of money if:

(i)    a period of more than 6 years has elapsed since the judgment was given or the order was made; or

(ii)    the operation of the judgment or order is suspended under section 37.

…

(5)    A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

…

17    Section 52 of the Bankruptcy Act identifies the circumstances in which sequestration orders might be made. It relevantly provides as follows:

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.

…

(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.

Evidence

18    Mr Lordan affirmed three affidavits upon which he relied before me: a single-paragraph affidavit that he affirmed on 7 January 2020, a more detailed affidavit that he affirmed on that same day and an affidavit that he affirmed on 10 February 2020. All were read without objection.

19    Mr Lordan was cross-examined briefly. The content of that cross-examination need not here be recited.

20    Mr Lordan also led oral evidence from his son, Mr Trent Van Der Peet. Mr Van Der Peet gave evidence about a discussion that he had with Mr Leared (who happens to be one of his neighbours) outside his residence on or about 18 December 2019. He testified that, during their discussion, Mr Leared inquired about Mr Lordan’s mental health, in response to which Mr Van Der Peet politely indicated that he did not wish to discuss or otherwise be involved in any dispute between Mr Leared and his father. Mr Van Der Peet’s evidence was that Mr Leared then “flipped [out]”, at least to a degree, stating “Fuck the dog. I’ll make the cunt bankrupt by Monday”, or words to that effect. That evidence was not challenged in cross-examination.

21    Mr Leared relied upon the Jansen Affidavit and the Affidavit of Service. Three further affidavits were also read, namely an affidavit of Mr Adam Alan Bellman (the applicant’s solicitor) affirmed on 3 February 2020, an affidavit of Ms Vesna Rampova (legal executive of Davies Moloney Solicitors) sworn on 14 February 2020, and an affidavit of the applicant himself dated 7 February 2020. Again, all of those affidavits were read.

22    Mr Leared gave oral evidence by which he confirmed what Mr Lordan in any event readily conceded: namely, that Mr Lordan has not paid any of the debt to which the Creditor’s Petition refers. He was also cross-examined, principally upon his state of knowledge as to Mr Lordan’s capacity to generate funds from the development of a property located at 66 Livingstone Road, Eltham. The relevance of Mr Leared’s answers to those questions was limited to whether or not he was pursuing the Creditor’s Petition for reasons that would (or might) constitute it as an abuse of process. By way of summary, Mr Leared’s evidence was that he did not know whether (but did not discount the possibility that) Mr Lordan might be able to realise equity from the development of that property sufficient to satisfy the debt owed to Mr Leared. He also gave evidence to the effect that he did not consider that it was in his interests to pursue Mr Lordan into bankruptcy. Again, the relevance of that evidence was, as might be plain, somewhat limited.

Adjournment of the hearing

23    By email correspondence addressed to my chambers and dated Thursday, 13 February 2020, Mr Lordan foreshadowed an application to adjourn the hearing of his application. At the hearing on Friday, 14 February 2020, he pressed that application. It was opposed and I dismissed it.

24    Mr Lordan said that he required time to secure legal representation. He indicated that he had lined up a solicitor to assist him in the presentation of his application but that they required a few days to prepare it. The solicitor, he indicated, had agreed to represent him only the day prior to the hearing.

25    Mr Lordan’s application was the subject of a case management hearing that was conducted on Thursday, 30 January 2020. On that occasion, Mr Lordan indicated that he wanted the court to hear it there and then. That could not be accommodated and the matter was, instead, listed for hearing 15 days later. It suffices to say that Mr Lordan had ample opportunity to retain and brief legal representation prior to Thursday, 13 February 2020. His excuse for not taking that opportunity was that it was not until shortly before the hearing that he realised that Mr Leared had briefed counsel and that he (Mr Lordan) had received advice that he would be foolish to try and represent himself in the face of that courtroom firepower. With due respect to Mr Leared’s counsel, that was not a powerful argument in favour of adjournment. Just as importantly, the commitments of the court did not permit the matter to be adjourned for only a few days. For those reasons, I did not consider there to be anything sufficient to warrant the procedural indulgence that Mr Lordan sought.

Amendment of the Creditor’s Petition

26    At the commencement of the hearing, I raised with counsel for Mr Leared an issue about the debt that was claimed to be owing. As the recitation above makes clear, that debt was said to be in two parts: the Primary Judgment Debt ($262,479.05) and a component for Mr Leared’s costs of successfully obtaining it ($111,727.07). By the Bankruptcy Notice and the Creditor’s Petition, Mr Leared maintains that Mr Lordan owes him the sum of those two parts, namely, $374,206.12.

27    In reality, however—as counsel for Mr Leared later conceded—there is no judgment by which Mr Lordan is indebted to Mr Leared in the sum of $111,727.07 (the sum said to be due in respect of Mr Leared’s costs). That figure has been calculated by taking 70 per cent of a costs assessment prepared at the instigation of Mr Leared’s solicitors. It has not, itself, been the subject of a taxation in the Costs Court of the Supreme Court of Victoria, nor has any subsequent order been made by the County Court of Victoria. The only amount that Mr Lordan owes Mr Leared pursuant to a “final judgment or final order” is the Primary Judgment Debt ($262,479.05).

28    The Bankruptcy Notice, insofar as it nominated the higher figure—$374,206.12—as that which Mr Lordan owed under “final judgment/s or final order/s”, did so in error. It ought to have nominated $262,479.05 in that regard. That it contained the higher figure is not fatal. The effect of s 41(5) of the Bankruptcy Act is that, in the absence of challenge from Mr Lordan prior to 12 September 2019 (of which there was no evidence), Mr Lordan’s non-payment of the lower amount remains an act of bankruptcy under s 40(1)(g). Mr Lordan did not suggest otherwise—indeed, he properly conceded, after questioning from the court, that his non-payment of at least the Primary Judgment Debt amounted to an act of bankruptcy.

29    What the incorporation of the higher figure does, however, warrant is amendment of the Creditor’s Petition. In its original form, the Creditor’s Petition asserts—wrongly, as should now be apparent—that Mr Lordan was indebted to Mr Leared in the sum of $374,206.12. Mr Leared’s evidence was, of course, not capable of proving what was, in truth, false; but, in light of what the Creditor’s Petition incorrectly asserted, that was effectively a requirement upon which the making of the Sequestration Orders was conditioned: Bankruptcy Act, s 52(1)(a).

30    Alerted to that reality, counsel for Mr Leared made an oral application to amend the Creditor’s Petition so as to substitute $262,479.05 as the amount that Mr Lordan owed Mr Leared. Mr Lordan opposed that amendment, principally upon the basis that Mr Leared had had ample opportunity to “get it right” and ought not now to be permitted to correct what he (Mr Lordan) had intended to complain was incorrect. He was unable to identify, upon invitation from the court, any prejudice that the amendment might occasion him.

31    I allowed the amendment. Doing so struck me as an efficient and unremarkable means of allowing the Creditor’s Petition to reflect a reality in respect of which Mr Lordan offered only the barest of resistance: namely, that he was indebted to Mr Leared for at least the Primary Judgment Debt, which remains unpaid. It was, of course, regrettable that an amendment was necessary; but it was not material and there was no prejudice to Mr Lordan in granting it. Indeed, it brought the Creditor’s Petition into line with a submission that he was keen to impress upon the court: namely, that Mr Leared’s costs were not the subject of any taxation in the Costs Court of the Supreme Court of Victoria, nor any other order of the County Court of Victoria.

32    Consequential orders, to the extent that they might have been required, were made about service and reverification.

Issues

33    The evidence led on Mr Leared’s behalf established (and I am and was satisfied that):

(1)    Mr Lordan is indebted to Mr Leared in the sum of $262,479.05 (being the Primary Judgment Debt);

(2)    Mr Leared served the Bankruptcy Notice upon Mr Lordan, which required payment of that sum (amongst others);

(3)    that sum has not been paid; and

(4)    Mr Lordan has been served with the Creditor’s Petition.

34    As to the first of those issues, Mr Lordan submitted that the court should peer behind the Primary Judgment Debt and conclude that, in fact, he is not indebted to Mr Leared in that sum. I accept, of course, that the court may do so in an appropriate case: Shaw v Official Trustee in Bankruptcy [2019] FCA 1574, [38]-[39] (Snaden J). There is no warrant to do so here though. There is no suggestion, much less any evidence to prove, that the Primary Judgment Debt was obtained by means of a fraud, collusion or miscarriage of justice such as might justify—nor, indeed, any other sufficient cause by reason of which I might be justified in—questioning whether the debt that it records is, in truth and reality, owing. Mr Lordan’s only submission on this point was that he disagrees with and wishes to appeal the outcome of the proceeding before the County Court of Victoria. That is undoubtedly so but it is not a reason to treat the existence of the Primary Judgment Debt as anything other than what it is: namely, prima facie proof of the existence of the debt that Mr Lordan owes Mr Leared.

35    I am satisfied that Mr Lordan, insofar as he did not comply with the Bankruptcy Notice, has committed an act of bankruptcy and that, when he did so, he was personally present in or resident in Australia. The evidence also established service of the Creditor’s Petition and its verification by affidavit. The requirements of s 52(1) are, then, presently satisfied.

36    The primary issue for determination is whether Mr Lordan is able to pay his debts (as that phrase is to be understood for the purposes of s 52(2)(a) of the Bankruptcy Act). Mr Leared maintains that the evidence that Mr Lordan has put before the court is insufficient to establish such an ability. Mr Lordan submits that he is solvent—that is, that he has assets that he can liquidate within a reasonable period of time that are sufficient to cover his liabilities.

37    It is to that question that attention should now turn. I will return to address a secondary issue that Mr Lordan has raised: namely, whether the present proceeding is an abuse of process.

Mr Lordan’s Ability to repay his debts

38    Mr Lordan’s capacity to pay his debts turns, of course, upon what his debts are and what assets he has at his immediate or relatively immediate disposal to cover them. The relevant time for determining solvency is the time of the hearing: Christou v Demandem Holdings Pty Ltd [2012] FCA 695, [104] (Barker J).

39    As will shortly become clear, the evidence as to Mr Lordan’s financial state was far from satisfactory. Despite invitations from the court to do so, Mr Lordan has not provided evidence sufficient to show with clarity what his current financial predicament is. The analysis that follows is the best that may be cobbled together from what reluctantly emerges out of the evidence with which I was provided.

40    Mr Lordan has at least the following liabilities, namely:

(1)    a loan facility (which he described as a “mortgage”) extended to him by an institution identified as “Latrobes”, pursuant to which he is (or, as at 8 January 2020, was) indebted in the sum of $697,760.70;

(2)    a loan facility extended to him by NJ Capital Pty Ltd, pursuant to which he is (or, as at 14 February 2020, was) indebted in the sum of $318,000;

(3)    $154,711.66 presently owed in respect of unpaid invoices rendered by (or, perhaps in the alternative, pursuant to a loan facility extended to him by) Mosaic Project Services Pty Ltd; and

(4)    a loan facility extended to him by Hunt Investments Pty Ltd, pursuant to which he is (or, as at 10 February 2020, was) indebted in the sum of $102,815.00.

41    Save for what is said below (at [45]), the evidence does not permit of any assessment as to the circumstances or timeframes within which Mr Lordan might be or is obliged to repay any of the above liabilities. All of them, however, appear to be secured, in one way or another, against properties that Mr Lordan owns (or apparently owns). Each of the “Latrobes”, NJ Capital Pty Ltd and Mosaic Project Services Pty Ltd loans (or unpaid invoices, as the case may be) are apparently secured against a property located at 66 Livingstone Road in Eltham, Victoria. The Hunt Investments Pty Ltd loan is apparently secured against another property located at 316-318 Ferrars Street in South Melbourne, Victoria.

42    Under cross-examination, Mr Lordan stated that he has debts of approximately $1.95 million. It wasn’t clear whether that sum is additional to those listed at [40] above. As it happens, nothing turns on that. His evidence, perpetually imprecise though it was, seemed to be that all of his debt is secured against the various properties that he owns for development purposes.

43    In addition to those liabilities, Mr Leared led evidence about some other properties that Mr Lordan owns; and, in particular, about caveats and mortgages that have been registered in respect of them (including in the period post-dating the Primary Judgment Debt and, in some cases, service of the Bankruptcy Notice). The following emerges from that evidence, namely that:

(1)    caveats were registered in respect of the Livingstone Road property as follows, namely:

(a)    on 2 September 2019 by (or on behalf of) NJ Capital Pty Ltd, pursuant to an agreement struck between Mr Lordan and that entity on 28 August 2019;

(b)    on 19 September 2019 by (or on behalf of) Hunt Investments Pty Ltd, pursuant to an agreement struck between Mr Lordan and that entity on 9 April 2019;and

(c)    on 25 September 2019 by (or on behalf of) Mosaic Project Services Pty Ltd, pursuant to an agreement struck between Mr Lordan and that entity on 24 March 2019; and

(2)    caveats were registered in respect of another property, Certificate of Title volume 9264 folio 656 (also owned by Mr Lordan), as follows, namely:

(a)    on 28 August 2019 by (or on behalf of) Mr Stephen Rodgers, pursuant to a mortgage agreement apparently struck between Messrs Lordan and Rodgers on 24 July 2019;

(b)    on 31 October 2019 by (or on behalf of) “Strategic Capital Investments ACN: 00318678”, pursuant to an agreement that Mr Lordan struck with that entity on 30 October 2019;

(c)    on 12 November 2019 by (or on behalf of) Unibrite Pty Ltd, pursuant to an agreement that Mr Lordan struck with that entity on 10 November 2019; and

(d)    on 27 November 2019 by (or on behalf of) Best Hooper Pty Ltd, pursuant to an agreement that Mr Lordan struck with that entity on 27 November 2019.

44    Mr Leared also led evidence about two other properties formerly registered to (and apparently recently sold by) Mr Lordan: one whose title was transferred in September 2019 and another whose title was transferred on 12 December 2019. Caveats had been registered in respect of the latter property (prior to its sale and transfer) as follows, namely:

(1)    on 21 September 2018 by (or on behalf of) NJ Capital Pty Ltd pursuant to an agreement that Mr Lordan struck with that entity on 19 September 2018; and

(2)    on 9 April 2019 by (or on behalf of) Hunt Investments Pty Ltd pursuant to an agreement that Mr Lordan struck with that entity on 12 September 2018.

45    Of all of the agreements referred to in [43] and [44] above, the only one that Mr Lordan appears to have adduced into evidence before me is the agreement that he struck with Mosaic Project Services Pty Ltd on 24 March 2019. It requires repayment of the amount by which Mr Lordan is indebted to Mosaic Project Services Pty Ltd (above, [40(3)]) within the earlier of 30 days after demand or upon settlement of the sale of “the property, or part thereof, owned by [Mr Lordan] at 66 Livingstone Road, Eltham, Victoria 3095”. Mr Lordan indicated that that settlement would take somewhere in the vicinity of four-to-six months to complete. He also indicated—or seemed to indicate (with an unfortunate air of imprecision that inadvertently infused much of his evidence)—that other debts secured against that property were payable on equivalent terms.

46    Also in evidence before me were the following agreements that Mr Lordan appears to have struck (in return for security over properties that he owns or owned), namely:

(1)    an agreement with Hunt Investments Pty Ltd dated 12 September 2018, by which Mr Lordan agreed that the loan facility extended to him by that entity should be secured against his property at 316-318 Ferrars Street, South Melbourne; and

(2)    an agreement with Mosaic Project Services Pty Ltd dated 29 October 2018, which the agreement of 24 March 2019 (above, [45]) purported to “replace…and expunge”.

47    The agreement dated 12 September 2018 with Hunt Investments Pty Ltd (above, [46(1)]) says nothing about when Mr Lordan is to repay the sum by which he is indebted to that entity. There is no evidence about any of Mr Lordan’s other personal liabilities (if any), such as credit card debts or vehicle loans (although he gave oral evidence that he does have some).

48    As the analysis above makes clear, it is as good as impossible to construct from the evidence a clear picture of what Mr Lordan’s liabilities are and when, precisely, he might be required to repay them.

49    The picture is no less clear with respect to his assets. The evidence discloses that Mr Lordan owns at least three properties, and that he probably owned another two as recently as September 2019. There is, however, no admissible evidence as to what any of those properties is (or, in the case of those recently sold, was) worth. I would readily infer that they collectively are (or were) worth at least as much as Mr Lordan appears to have borrowed (see above, [40]). But, beyond that, the evidence discloses nothing, including in the way of the timeframe or timeframes within which Mr Lordan might be able to liquidate whatever he owns so as to pay Mr Leared what is owed (accepting, as I do, that it should not be necessary that Mr Lordan be immediately able to pay what is owed: see Sandell v Porter (1966) 115 CLR 666, 670 (Barwick CJ, with whom McTiernan and Windeyer JJ agreed)).

50    Mr Lordan suggested to the court that the Livingstone Road property was worth in the vicinity of $1.6 million; or, at least, that it would be if he were able to “complete” his development of it (a process that he indicated would take somewhere in the vicinity of four-to-six months). He sought to rely upon two letters dated 14 November 2019 that he received from Ms Sheryl Emerson, of Barry Plant (Eltham) Pty Ltd. Combined, those two letters tend to support Mr Lordan’s opinion as to what the Livingstone Road property might be worth. The difficulty for Mr Lordan, of course, is that none of that opinion (or, in the case of the letters, hearsay opinion) evidence could properly be admitted. I pay it no regard. Even if there were some way that I might legitimately rely upon it, however, the reality of Mr Lordan’s financial position remains so hopelessly unexplored by the evidence that it doesn’t much assist him.

51    There is no evidence that Mr Lordan possesses cash or any other assets sufficient to meet his liabilities (so far as they might be known). There is no evidence concerning his income. It is simply impossible to construct from the evidence a clear picture of Mr Lordan’s net financial position.

52    That being so, I cannot be satisfied, for the purposes of s 52(2)(a) of the Bankruptcy Act, that Mr Lordan is able to pay his debts. In Knudsen & Yates v Sanders [2003] FCA 1079 (Bennett J), the court observed (at [22]) as follows:

The onus of proving that the debtor is able to pay his debts is on [the debtor]. As noted by Hely J in Australia and New Zealand Banking Group Ltd v Foyster [2000] FCA 400…at [17] it is not sufficient for the respondent simply to establish that he has assets which exceed his liabilities in value. It must also be established that the assets are available to be realised and capable of ready realisation.

53    On the evidence before me, Mr Lordan has not discharged his onus.

Abuse of process

54    Mr Lordan also submitted that the Creditor’s Petition should be dismissed as an abuse of the court’s process. It was suggested that Mr Leared’s purpose in pursuing the Creditor’s Petition was to put pressure upon Mr Lordan to pay what he owes, rather than to invoke the court’s insolvency jurisdiction.

55    To that end, Mr Lordan relied upon:

(1)    Mr Van Der Peet’s evidence about his conversation with Mr Leared (above, [20]);

(2)    what he asserted was Mr Leared’s knowledge that bankrupting him would result in the Livingstone Road property being sold for significantly less than what it could otherwise attract, a circumstance that would likely result in Mr Leared not recovering from Mr Lordan’s estate the debt that is owed, and from which he (Mr Lordan) urged the court to infer that Mr Leared’s interest in pursuing the Creditor’s Petition was in some way malicious or punitive, rather than a genuine attempt to invoke the court’s bankruptcy jurisdiction.

56    I reject Mr Lordan’s contention. The Creditor’s Petition does not present as anything other than an unremarkable attempt by a creditor to recoup whatever might be recouped from a debtor that appears to be insolvent. Mr Leared’s concession that he understands that “…we will not receive what is legally ours” does not, as Mr Lordan contends, evince anything other than that Mr Leared considers that Mr Lordan is unable to pay what he owes. Mr Leared’s attempt to recoup from Mr Lordan’s estate whatever might be recouped on the Primary Judgment Debt is an unexceptional response to the predicament in which Mr Leared finds himself. I do not accept that Mr Leared’s unwillingness to wait four-to-six months—on top of the ten months that have transpired since the date of the Primary Judgment Debt—for Mr Lordan to “complete” the Livingstone Road development should serve as proof of some malevolent intent.

57    Likewise, the needlessly unfortunate exchange that took place between Mr Leared and Mr Van Der Peet (above, [20]), although reflective of what I would readily accept was a degree of frustration on Mr Leared’s part, is not proof that Mr Leared has sought to do anything other than what a creditor in his position is at liberty to do.

58    There is no basis upon which I might fairly conclude that Mr Leared knows (or is of the opinion) that Mr Lordan, if allowed to continue his development of the Livingstone Road property, will unlock equity (and funds) sufficient to repay some or all of what he owes Mr Leared. There is no basis upon which I might fairly conclude that Mr Leared has pursued his Creditor’s Petition in the knowledge (or with the belief) that doing so will prevent Mr Lordan from realising that opportunity (thereby, cruelling any—or the best—chance that Mr Lordan might otherwise have of paying Mr Leared the money that he is owed). I do not accept that Mr Leared, possessed of that knowledge (or being of that belief), has decided anyway to spite his own interests and pursue Mr Lordan into bankruptcy. It is one thing to acknowledge that Mr Leared has determined that Mr Lordan is no longer to be believed about the opportunities to which he claims to have access (a state of mind that emerged with great clarity from the hostility with which Mr Leared answered questions during cross-examination and for which, having witnessed for myself the imprecision with which Mr Lordan gave his evidence, I confess some sympathy); quite another to suppose that he has decided to channel that scepticism into a malevolent, self-defeating vendetta to which, as Mr Lordan would have it, the Creditor’s Petition has been directed.

59    The Creditor’s Petition did not amount to an abuse of process.

Impact of bankruptcy on Mr Lordan and other creditors

60    During his closing address, Mr Lordan suggested—for the first time and in a way that didn’t obviously marry with the written outline of submissions that he provided prior to the hearing—that the court should have regard to the impact that his bankruptcy would visit upon his other creditors. I took his submission as an indication that those impacts might themselves amount to “other sufficient cause” under s 52(2)(b) of the Bankruptcy Act.

61    The difficulty for Mr Lordan in this respect, assuming that the impact of bankruptcy upon other creditors is a matter that should inform the exercise of the court’s discretion under s 52(2)(b) of the Bankruptcy Act, is that there is no (or, perhaps as the analysis above suggests, very little) evidence about who his creditors are and what impact his bankruptcy threatens to visit upon them. Whatever the impact upon them might be, I cannot reasonably be (and am not) satisfied that they amount to “other sufficient cause” by reason of which Mr Lordan’s estate should not be sequestrated.

62    Mr Lordan also made submissions about the impact that bankruptcy will (and, to a degree, has) visited upon his capacity to manage his portfolio or otherwise earn an income. He indicated that he has “family law issues” upon which his bankruptcy might also impact in some adverse way. Again, none of these issues was the subject of any illuminating evidence. Whatever the impacts of bankruptcy might be upon Mr Lordan, I cannot reasonably be (and am not) satisfied that they amount to “other sufficient cause” by reason of which Mr Lordan’s estate should not be sequestrated.

Conclusion

63    As is outlined above, I am satisfied that Mr Leared has proved all of the matters that he is required by s 52(1) of the Bankruptcy Act to prove. I am not satisfied that Mr Lordan is able to pay his debts, nor that there is other sufficient cause by reason of which Mr Lordan’s estate should not be sequestrated. Had I been dealing with the Creditor’s Petition at first instance, I would have granted the Sequestration Orders.

64    Registrar Ryan’s decision is affirmed with costs. I consider it appropriate to make an order pursuant to r 36.03(b) of the Federal Court Rules 2011 (Cth) to extend the deadline by which any notice of appeal should be filed. That deadline will be extended to Tuesday, 10 March 2020.

Associate:

Dated:    17 February 2020