FEDERAL COURT OF AUSTRALIA

ACW v Du Bray (No 2) [2020] FCA 994

ORDERS

THE COURT ORDERS THAT:

1.    A sequestration order under the Bankruptcy Act 1966 (Cth) be made against the estate of Lee Francis Du Bray.

2.    The costs of the applicant be assessed by a Registrar of the Federal Court of Australia and be paid from the bankrupt estate of Lee Francis Du Bray in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

1.    The date of bankruptcy was 13 September 2018.

2.    A consent to act as trustee signed by David Henry Sampson has been filed under s 156A of the Bankruptcy Act 1966 (Cth).

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this matter has applied by creditor’s petition for a sequestration order against the respondent, Mr Lee Francis Du Bray, on the basis that Mr Du Bray owes her the amount of $6,558,934.61. That indebtedness is said to arise from a series of orders made by this Court between 7 May 2015 and 12 December 2017. Some of those orders involved the registration of judgments, pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) (T-TP Act), given by courts in New Zealand. Others relate to costs orders made in proceedings relating to Mr Du Bray’s unsuccessful attempt to have the registration of some of the New Zealand judgments set aside. The New Zealand judgments were the outcome or culmination of many years of protracted litigation between the applicant and Mr Du Bray following the break-up of their relationship.

2    Mr Du Bray opposed the petition and the making of a sequestration order. His main ground of opposition was that the Court could not be satisfied that the debts upon which the applicant relied were owing. He urged the Court, in that context, to exercise its discretion to “go behind” the main New Zealand judgment on the basis that he had been “debarred from actively participating” in the proceeding which gave rise to that judgment and the judgment was “tainted by bias”. He also raised an objection based on the proposition that the petition was not verified by a person who had knowledge of the relevant facts as required by s 47(1) of the Bankruptcy Act 1966 (Cth).

3    The applicant, perhaps not surprisingly in the circumstances, contended that there was no basis for questioning whether there was, behind the judgments upon which she relied, a debt due to her. She contended, in that context, that the arguments now raised by Mr Du Bray were “rebadged” versions of arguments that had been advanced and rejected by the Court in the course of Mr Du Bray’s attempts to have the registration of the New Zealand judgments set aside. There was, in her submission, therefore no basis for the Court to go behind any of the relevant judgments.

4    The parties agreed that the appropriate course was for the Court to first determine whether the Court should exercise its discretion to go behind the relevant judgment or judgments. Only if the Court decided to exercise that discretion would it be necessary to take the next step and determine whether there was in fact a debt lying behind the judgments. It will also be necessary to determine the question whether the petition was appropriately verified.

5    In order to address Mr Du Bray’s case for going behind the judgments, it is necessary to first consider the history of the New Zealand proceedings and judgments. That, unfortunately, is no mean feat given the nature and scale of the litigation, which was described in one of the many judgments, perhaps with a degree of understatement, as a “highly fractious property dispute”. Consideration must then be given to Mr Du Bray’s unsuccessful attempts to have the registration of those judgments in this Court set aside.

6    It should also be noted at the outset that on 12 July 2019, the Court made orders, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), the general effect of which was to permit the applicant, but not Mr Du Bray, to continue to be identified by a pseudonym and to prohibit the disclosure or publication of the applicant’s name or other information that could identify her: ACW v Du Bray [2019] FCA 1075 (Du Bray (No 1)). A new pseudonym was also to be employed to identify the applicant because it was considered that, once Mr Du Bray was no longer able to be identified by way of pseudonym, the continued use of the applicant’s old pseudonym would tend to reveal her identity. Because all the previous proceedings employed the old pseudonym, these reasons will avoid referring to case names and citations, the names of the relevant judges and any other information which would or might, by a process of deduction, allow the applicant to be identified.

THE NEW ZEALAND PROCEEDINGS AND JUDGMENTS

7    The long and sorry history of the litigation between the applicant and Mr Du Bray has been described in several judgments of both the High Court and Supreme Court of New Zealand, as well as in the proceedings in this Court relating to the registration of some of those judgments. Following is a short summary of the main events in the litigation which are relevant to this matter, in particular those which explain how it came to be that Mr Du Bray was debarred and prevented from appearing at the final hearing of the property proceeding in the High Court of New Zealand. It does not include many of the other interlocutory steps in the litigation.

Proceedings in the New Zealand Family Court

8    Shortly after Mr Du Bray and the applicant separated in January 2009, Mr Du Bray commenced what was described as a “relationship property proceeding” in the Supreme Court of New South Wales. The applicant commenced a similar claim in the New Zealand Family Court. The applicant’s New Zealand claim proceeded after a judge in the Supreme Court of New South Wales ruled that New Zealand was the forum conveniens. A judge in the New Zealand Family Court also dismissed Mr Du Bray’s appearance under protest to jurisdiction.

9    It would appear that there were numerous contested interim or interlocutory applications in the New Zealand Family Court during 2010. It is unnecessary to detail the nature or outcome of those applications. There were also various appeals and applications filed in the High Court of New Zealand in late 2010 and into 2011. It is again unnecessary to detail those proceedings. It suffices to say that by October 2011, when the proceedings were transferred to the High Court, there had been 23 interlocutory applications, the parties had filed 53 affidavits and there had been five judicial conferences and a hearing, seven court judgments or directions and numerous appeals and applications filed in the High Court. The Family Court judge who transferred the proceedings to the High Court characterised Mr Du Bray’s conduct during the litigation as the waging of a “war of attrition” against the applicant. Not surprisingly, even by this stage, the legal costs incurred by the parties were substantial.

Proceedings in the High Court of New Zealand, the “unless” order and the debarring of Mr Du Bray

10    It would seem that the proceedings continued in a similar vein in the High Court of New Zealand during 2012.

11    It is again unnecessary to detail all the interlocutory skirmishes. Critically, in September 2012, a High Court judge made what was referred to as an “unless” order against Mr Du Bray in respect of what was said to be his “longstanding and conspicuous failure” to pay costs awarded against him in the Family Court. The effect of that order was that, unless Mr Du Bray paid the costs and complied with other directions of the court by a set date, he would be “debarred” from contesting the proceeding. At the time that order was made, Mr Du Bray was in default in relation to a number of other orders that had been made by the court.

12    On this particular occasion, Mr Du Bray paid the outstanding costs orders the day before the “unless” order took effect. As a result, he was not debarred and was free to continue to contest and actively participate in the proceeding. His unsatisfactory conduct of the proceeding, however, appeared to have continued unabated. His “litigation stance” was described by more than one High Court judge at this point as involving a “pattern of late-raised points and obstruction”. It also involved the service of lengthy affidavits outside the timetable stipulated by the court.

13    In July 2013, the High Court judge who had the misfortune of being allocated the proceedings between the applicant and Mr Du Bray (the trial judge) ordered Mr Du Bray to pay the applicant an interim distribution and to pay the applicant the costs of that interim application. Those costs were fixed at NZ$20,000 and required to be paid, with interest, by 9 August 2013. On 29 August 2013, the trial judge ordered that if Mr Du Bray did not pay the applicant’s solicitors the sum of NZ$24,435.08 plus interest by 9 September 2013, he would be “debarred from taking any further part in the proceedings presently before [the] Court”. That order was referred to in subsequent judgments as the “second unless order”.

14    Mr Du Bray did not pay the applicant’s solicitors in accordance with the second unless order. Instead, on 9 September 2013, he filed an application to stay its execution and, on 12 September 2013, filed an appeal against it in the Court of Appeal of New Zealand. He also filed an application to reinstate and seek an extension of time in respect of an earlier abandoned appeal against the costs order which had been made against him in July 2013.

15    It should be noted at this point that Mr Du Bray’s appeal to the Court of Appeal against the second unless order was ultimately abandoned by him on 12 March 2014.

16    On 14 October 2013, the trial judge refused to stay the execution of the second unless order and refused to grant an extension of time for Mr Du Bray to comply with it. The effect was that Mr Du Bray was debarred from taking any further part in the proceeding.

17    The trial judge gave detailed reasons for refusing Mr Du Bray’s application for a stay and extension of time. Her Honour agreed with an observation which had been made by a judge in the Court of Appeal of New Zealand in an earlier appeal filed by Mr Du Bray that Mr Du Bray’s conducted had followed a “discernible pattern of obstructing the determination of [the applicant’s] claim”. The trial judge noted that over the preceding four months Mr Du Bray had: filed four appeal proceedings, two of which he duplicated and then abandoned and in so doing, attempted to “cancel” consent orders made at his request; made three applications to stay orders made by the court, one of which he withdrew then duplicated; made four applications for extensions of time, one of which he subsequently withdrew; and made, “withdrew”, then “reinstated” proposals to meet costs orders from property sale proceeds.

The discharge of the unless order

18    Mr Du Bray did not appeal the trial judge’s judgment refusing Mr Du Bray’s application to stay and extend time for compliance with the second unless order made on 29 August 2013. Instead, on 17 October 2013, he paid the costs order, together with interest, and then applied retrospectively to extend time for compliance with the second unless order and for its discharge. That application was eventually acceded to by the trial judge on 22 November 2013 and the second unless order was discharged. The trial judge reasoned that while Mr Du Bray’s actions had constituted a “protracted game of ‘chicken’ with the Court” and that the applicant had suffered prejudice as a result of those actions, she had an “overriding concern that if [Mr Du Bray] is not permitted to participate in the February hearing there is a risk that [the applicant] will only face further and more protracted litigation”. Her Honour also noted that the “task faced by the Court, in relation to a formal proof hearing in a complex matter such as this, will be extremely difficult”.

The Court of Appeal of New Zealand reinstates the debarring of Mr Du Bray

19    The applicant appealed to the Court of Appeal of New Zealand against the trial judge’s retrospective extension of time to comply with and discharge of the second unless order.

20    The Court of Appeal of New Zealand allowed that appeal on 14 July 2013. The Court of Appeal held that it was “well-established” that r 7.48 of the High Court Rules 2016 (NZ) permitted a judge to make an “unless” order and discussed at some length the relevant principles that should guide a judge dealing with the situation faced by the trial judge. One of the principles was that, in deciding whether or not to excuse breach of an unless order, the key question for the judge is: “what does justice demand in the circumstances of this case?”. Relevant considerations in answering that question included the public interest in ensuring that justice is administered without unnecessary delays and costs, and the interests of the injured party, in particular, in terms of delay and wasted costs. The court noted that any injustice to the defaulting party would be likely to carry much less weight than those considerations. It also found, in that context, that there was no doubt that Mr Du Bray “deliberately flouted the second unless order, knowing full well the consequences” and that his breach of the order was “contumacious”.

21    Importantly, for present purposes, the Court of Appeal also gave detailed consideration to the ramifications of Mr Du Bray remaining debarred from participating in the High Court proceedings. It noted, in that regard, that counsel for the two parties had provided the court with “an outline of the shape of a formal proof hearing”. Having been provided with that outline, the court found that the trial judge was wrong to conclude that the task faced by her would be “extremely difficult” if Mr Du Bray remained debarred. In relation to any prejudice to Mr Du Bray if he remained debarred, the court stated that any such prejudice carried much less weight than the prejudice to the administration of justice generally, and to the applicant specifically. It also noted that Mr Du Bray “very well knew the ramifications of what he deliberately did” and “brought any prejudice down upon himself”.

22    The effect of the applicant’s successful appeal to the Court of Appeal was that the debarring of Mr Du Bray from taking any further part in the proceeding was reinstated.

23    That was not, however, the end of the matter.

The Supreme Court grants and then revokes leave to appeal

24    Mr Du Bray applied to the Supreme Court of New Zealand for leave to appeal the judgment of the Court of Appeal. Leave to appeal was granted on 20 November 2014, though Mr Du Bray’s application for a stay of the Court of Appeal’s judgment was refused.

25    Mr Du Bray’s appeal to the Supreme Court was heard on 5 December 2014. During the course of the hearing, however, Mr Du Bray’s leave to appeal was revoked. That was because the Court was informed that Mr Du Bray was in default of yet another costs order made against him by the trial judge in October 2014. The court accordingly expressed concern that Mr Du Bray’s attitude continued to be that of a “recalcitrant and unreasonable litigant”. It also noted that it was clear that Mr Du Bray’s “ongoing conduct of the litigation was such that it would inevitably create more continuing problems for [the applicant] and the courts” than it had appreciated at the time leave was granted. The court also stated that it had formed the view that “the manner in which [Mr Du Bray] has continued to conduct the proceeding is oppressive” and that it was clear that “the court system is being abused”. The court held, in those circumstances, that it was not in the interests of justice for it to hear and determine the appeal.

Freezing orders

26    On 5 February 2015, another judge in the High Court of New Zealand, not the trial judge, made freezing orders against property owned or controlled by Mr Du Bray. The judge who made those orders found, amongst other things, that there was a danger that judgments in favour of the applicant would be wholly or partly unsatisfied because the assets in which Mr Du Bray had any interest might be removed outside New Zealand, or disposed of, or dealt with, or diminished in value. Those freezing orders were subsequently extended.

27    One of the orders that was made directed Mr Du Bray and any company or trust associated with him, among others, to provide the applicant within 24 hours and at his expense “any information and documents that [the applicant] requests as to the ownership, status, value, acquisition, disposition and location of the assets”. Mr Du Bray’s evidence in that proceeding was that, purportedly in response to that order, he commissioned a person named Mr Trevor Vella to prepare a report for him. On 5 March 2015, he sent a valuation report prepared by Mr Vella to the applicant and the trial judge. Exactly why he sent the report to the trial judge is unclear. The freezing orders required information and documents to be sent to the applicant, not to the court or the trial judge. As was noted earlier, it was not the trial judge who made the relevant freezing orders.

28    As will be seen, this particular sequence of events is of some significance to this proceeding. That is because one of the arguments advanced by Mr Du Bray in support of his contention that this Court should go behind the judgment of the trial judge was that the trial judge did not have regard to Mr Vella’s report in her judgment. That argument will be addressed below. It suffices at this point to observe that it cannot be accepted that it was properly open to Mr Du Bray to send Mr Vella’s report to the trial judge on the basis that it was evidence to be relied on by him in the property proceeding about to be heard by the trial judge. Indeed, the available inference is that, if Mr Du Bray did send Mr Vella’s report to the trial judge, he most likely did so with a view to somehow frustrate or disrupt the proceedings. That is so for a number of reasons.

29    First, it is difficult to see how he could genuinely have believed that he was required by the freezing orders to send Mr Vella’s report to the trial judge in the first place. Second, and perhaps more significantly, he plainly knew that at this point in time he was still debarred from participating in any way in the proceeding. It may be inferred that he well-knew that he was therefore precluded from filing or purporting to file further evidence. Third, he also plainly knew that, prior to his disbarment, he had already submitted filed expert reports from a valuer named Mr John Dobson. Indeed, somewhat curiously, Mr Vella’s report purports to critique Mr Dobson’s evidence. Given those facts, and Mr Du Bray’s past history in relation to the conduct of the litigation, the inference that he had some nefarious purpose in sending the report to the trial judge is well-nigh inescapable.

30    It is, however, perhaps unnecessary to go that far. It is sufficient to conclude that the suggestion by Mr Du Bray that the trial judge somehow erred because she did not have regard to Mr Vella’s report is, in all the circumstances, entirely baseless, to the point of being almost disingenuous. The circumstances in which the report was prepared and sent to the trial judge, even on Mr Du Bray’s own evidence, were such that the trial judge would not have been obliged to have regard to it as evidence in Mr Du Bray’s case. In any event, as will be seen it cannot necessarily be accepted that the trial judge did not have regard to Mr Vella’s report.

The hearing before the trial judge

31    The “formal proof hearing” in the High Court of New Zealand was heard by the trial judge on 4 and 5 May 2015.

32    Given the arguments raised by Mr Du Bray in support of his submission that the Court should go behind the judgment of the trial judge, it is necessary to give close consideration to the approach taken by the trial judge to the hearing. In her judgment, the trial judge noted that the “logical and most obvious approach” to take to the hearing was to determine the applicant’s claims by way of formal proof as if no evidence had been filed by Mr Du Bray. The applicant would, in those circumstances, only be required to prove matters which Mr Du Bray denied on the pleadings. Her Honour concluded, however, that the position was somewhat more complicated and that to put what Mr Du Bray had said and filed “wholly to one side” would invite “incoherence and confusion”. The material put in evidence by him therefore could not be ignored.

33    The trial judge also noted, in that context, that the court’s role in a formal proof was to ensure as best it could that the applicant’s claims had a “proper foundation both in law and in fact”. It was therefore “relevant to take account, in a limited way, the position taken by [Mr Du Bray] in not only his pleadings but his evidence, if only as a means of identifying those areas in which the Court needs to take particular care to satisfy itself that the [applicant] has established her case”.

34    The trial judge did, however, emphasise that Mr Du Bray had “repeatedly failed to comply properly or completely with numerous orders for discovery and disclosure” and that, given the vast majority of the alleged relationship property was in Mr Du Bray’s custody and control and much of the relevant information concerning the relationship property was in Mr Du Bray’s sole custody and control, his “defaults of disclosure potentially prejudice the [applicant] in her quest for proof”. The trial judge gave, as one example, the absence of information relating to Mr Du Bray’s superannuation. Her Honour concluded, in those circumstances, that Mr Du Bray’s “refusal to comply with discovery orders prior to debarring … should weigh heavily against him” and that “where information that is believed on reasonable grounds to exist was sought and not disclosed or only partially disclosed”, she was “prepared to draw the inference that the information did exist but was not disclosed because it favoured the [applicant’s] position”.

35    Therefore, it is readily apparent that the trial judge did not approach this matter as if it was effectively an ex parte hearing, or as if it was akin to a default judgment. Her Honour indicated that she would have regard to Mr Du Bray’s evidence. It is also abundantly clear that her Honour did just that. That conclusion is borne out in much of the reasoning in the trial judge’s judgment.

36    As the applicant submitted in this proceeding, the approach taken by the trial judge was scrupulously fair to Mr Du Bray in all the circumstances and was a “proper judicial method applied to a difficult case with a difficult litigant”.

The trial judge’s judgment and orders

37    The trial judge delivered her judgment in the matter on 27 October 2015 (the substantive judgment). Her Honour’s reasons were detailed and lengthy, running to almost 75 pages and 198 paragraphs. It is unnecessary at this point to consider her Honour’s findings and reasons in any detail. It will be necessary to revisit some findings later in the context of Mr Du Bray’s arguments.

38    The trial judge also made detailed and lengthy orders concerning, amongst other things, the classification and valuation of the relationship property and its division between, relevantly, the applicant and Mr Du Bray. The net effect of those orders was that Mr Du Bray was required to pay the applicant the total net sums of AU$3,795,746 and NZ$1,285,789 plus interest. Her Honour also made various costs orders which were later fixed at NZ$510,339.89. The final orders were sealed on 26 November 2015.

Mr Du Bray’s unsuccessful appeal

39    Mr Du Bray was required, under the applicable rules of court, to file any appeal from the substantive judgment by 15 February 2016. He did not file any appeal by that date. He did, however, file an application for leave to appeal on 24 March 2016. It will be necessary to say something further about his draft grounds of appeal later in the context of some of the arguments Mr Du Bray raised in this proceeding for going behind the trial judge’s judgment.

40    On 16 June 2016, the Court of Appeal of New Zealand granted an extension of time for Mr Du Bray to appeal on strict conditions. Those conditions included that, no later than 12 August 2016, Mr Du Bray was required to pay the applicant all outstanding costs orders and interest thereon totalling NZ$230,786.46; pay the registrar of the court the costs of NZ$524,441.92 (including accrued interest) on the substantive judgment; file and serve the case on appeal; pay the filing fees; pay the registrar of the court NZ$6,600 for security for costs; and pay the applicant NZ$2,500 in respect of costs on the application for leave to appeal. The court ordered that if those conditions were not fully satisfied by 12 August 2016, the appeal would be dismissed.

41    It is worth noting some observations made by the Court of Appeal in its judgment granting an extension of time. The court noted that the case before it was “one of the most egregious cases of repeated abuse of the court’s processes encountered in this Court’s collective experience”. It involved, in the court’s assessment, a “cynical attempt to deny the [applicant] her proper share of relationship property and, by a process of attrition, to force her to give up her attempts to secure justice”. Referring to the outstanding costs orders against Mr Du Bray, the court noted that Mr Du Bray had been “in serious contempt of court for a lengthy period” and that the position he found himself in at that point was “solely the result of his own contumacious conduct”. He therefore could not expect the courts of New Zealand to “hear him while he remains in contempt”.

42    Somewhat extraordinarily, Mr Du Bray did not comply with the terms upon which the extension of time to appeal was granted. Mr Du Bray’s appeal was accordingly dismissed on 29 August 2016.

REGISTRATION OF NEW ZEALAND JUDGMENTS IN THIS COURT

43    In May 2015, a registrar in this Court registered four New Zealand judgments pursuant to s 68 of the T-TP Act: a judgment of the Court of Appeal of New Zealand delivered on 15 December 2014 for costs in the sum of NZ$31,850.08 (registered on 7 May 2015 for the sum of AU$31,159.19); a judgment of the Supreme Court of New Zealand handed down on 13 April 2015 for costs of NZ$53,756.75 (registered on 13 May 2015 for the sum of AU$47,351.34); a judgment of the Court of Appeal of New Zealand handed down on 22 January 2015 for costs of NZ$17,303.66 (registered on 13 May 2015 for the sum of AU$17,342.47); and a judgment of the Court of Appeal of New Zealand handed down on 15 December 2014 for costs of NZ$15,970.00 (registered on 13 May 2015 for the sum of AU$15,154.64).

44    Mr Du Bray did not apply to have the registration of any of those four judgments set aside. Mr Du Bray’s indebtedness in respect of each of them formed part of the total debt the subject of the bankruptcy notice which was subsequently issued and served on Mr Du Bray.

45    On 16 December 2015, a registrar of this Court registered two further New Zealand judgments under the T-TP Act: a judgment of the High Court of New Zealand delivered on 26 November 2015 for costs totalling NZ$23,658.79 (registered for the sum of AU$22,826.20) arising from proceedings relating to the freezing orders made against Mr Du Bray and others; and the final orders arising from the substantive judgment for the sums of AU$3,795,746.00 and NZ$1,883,483.70 (the later sum being registered for AU$1,755,180.04).

46    In February 2016, Mr Du Bray applied to have the registration of the two judgments registered on 16 December 2015 set aside pursuant to s 72(1) of the T-TP Act. He advanced three grounds in support of that application: first, that enforcement of the judgments would be contrary to public policy in Australia; second, that the judgments were given in a proceeding in rem, the subject of which was moveable property not situated in New Zealand; and third, that the substantive judgment was registered in contravention of s 72(1)(b) of the T-TP Act because it was not a “registerable judgment” since it was partly an order that, if contravened, would make Mr Du Bray liable to conviction for contempt in New Zealand.

47    It is unnecessary, for the purposes of this proceeding, to consider the second and third of the grounds advanced by Mr Du Bray for setting aside the registration of the judgments. It suffices to say that both of those grounds were ultimately rejected by the Court. It is, however, relevant to consider the arguments advanced by Mr Du Bray in support of the public policy ground. That is because, at least to a certain extent, they mirror some of the arguments advanced by Mr Du Bray in support of his contention that this Court should go behind the substantive judgment.

48    Mr Du Bray contended that enforcement of the substantive judgment would be contrary to public policy in Australia because it involved a “gross denial of procedural fairness”. That was because, by reason of his debarring, Mr Du Bray was not permitted to contest or otherwise make submissions in the proceedings that resulted in the substantive judgment and final orders and the costs orders in respect of the freezing orders. Mr Du Bray’s contention was that that was fundamentally inconsistent with Australian law regarding procedural fairness. Mr Du Bray also complained that the decision of the Supreme Court of New Zealand to revoke leave to appeal in respect of the debarring order was “bizarre” because the revocation was based on the non-payment of a costs order which was not then due for payment. Arguments were also advanced in respect of the inability of parties to the freezing order to put submissions in relation to those orders.

49    The judge of this Court who heard Mr Du Bray’s application at first instance rejected Mr Du Bray’s arguments based on the proposition that the relevant New Zealand judgments were the product of a gross denial of procedural fairness. His Honour concluded that the making of the second unless order, non-compliance with which resulted in Mr Du Bray being debarred, did not involve gross procedural unfairness to him and the reasons for it were fully explained by the trial judge. Mr Du Bray’s contention that the Supreme Court’s revocation of leave to appeal was bizarre was rejected given the “detailed and careful reasoning” which revealed that the fact that the period for payment of the relevant costs order had not lapsed was beside the point given Mr Du Bray’s continuing recalcitrance. Mr Du Bray’s various arguments concerning the unfairness of various aspects of the proceedings relating to the freezing order were also rejected.

50    Mr Du Bray appealed the dismissal of his application to set aside the registration of the relevant New Zealand judgments. That appeal was in due course dismissed by the Full Court of the Federal Court of Australia.

51    It is important to refer to some aspects of the Full Court’s reasons for dismissing Mr Du Bray’s appeal. That is because the arguments that Mr Du Bray advanced on appeal even more closely resembled some of the arguments he advanced in this proceeding in support of his contention that the Court should go behind the substantive judgment.

52    Mr Du Bray contended on appeal that it was “impossible” for the trial judge in the High Court of New Zealand to fulfil her statutory function and make orders under the relevant New Zealand legislation, the Property (Relationships) Act 1976 (NZ), because he was prevented, by the second unless order, from participating at the property dispute hearing. The Full Court rejected that argument for a number of reasons, including that the Court of Appeal of New Zealand had rejected the contention that conducting the property dispute hearing in the absence of Mr Du Bray would be “extremely difficult” and had found that Mr Du Bray’s absence would not create insuperable difficulties in determining the substantive application. The Full Court also noted that the highest court in New Zealand did not interfere with the Court of Appeal’s orders which were premised on that reasoning. There was, therefore, no merit in the contention that it was impossible for the High Court judge to properly make the final orders.

53    Mr Du Bray also contended in the Full Court that, even if it was possible for the trial judge to fulfil its statutory function and proceed to make just orders under the relevant New Zealand legislation notwithstanding the debarring order, it was necessary for the trial judge to “pay heed to whatever material” Mr Du Bray had previously filed. Mr Du Bray submitted that the substantive judgment did not “evince a consideration” of the material he had put before the court. The Full Court found that this argument was “flawed at the most basic level” because the trial judge’s “careful and comprehensive reasons” plainly demonstrated that her Honour, in making the final orders, “did pay particular heed and took account” of the material filed by Mr Du Bray prior to the making of the second unless order. The Full Court gave numerous examples of instances where the trial judge had plainly had regard to the material filed by Mr Du Bray. It concluded that the notion that the substantive judgment did not evince a consideration of Mr Du Bray’s material was “simply wrong”.

54    It should perhaps also be noted in this context that, perhaps tellingly, Mr Du Bray did not contend, either at first instance or on appeal, that the substantive judgment was somehow flawed because the trial judge did not give any consideration to Mr Vella’s report. That is a matter about which more will be said later.

55    Mr Du Bray’s indebtedness arising from the two New Zealand judgments registered on 16 December 2015 were included in the amount claimed in the bankruptcy notice, which was subsequently issued and served on Mr Du Bray.

56    The Full Court ordered Mr Du Bray pay the applicant’s costs of the appeal on a lump sum basis. The quantum of the lump sum costs order was subsequently determined by a registrar to be AU$60,516.14. Mr Du Bray was ordered to pay that sum to the applicant within 28 days of the date of the order, which was 29 March 2018. It is readily apparent that Mr Du Bray did not comply with that order. The costs order made on 29 March 2018 was included as one of the judgments or orders in the bankruptcy notice which was in due course issued and served on Mr Du Bray.

THE BANKRUPTCY NOTICE AND MR DU BRAY’S CHALLENGE TO IT

57    On 18 July 2018, a bankruptcy notice was issued claiming that Mr Du Bray owed the applicant a total of $6,558,934.61. That was the sum of the four New Zealand judgments registered in May 2015, the two New Zealand judgments registered on 16 December 2015, the costs order made by this Court on 29 March 2018, together with interest calculated on those amounts. The bankruptcy notice was served on Mr Du Bray on 24 July 2018.

58    In August 2018, Mr Du Bray applied to this Court to set aside the bankruptcy notice. He claimed that the bankruptcy notice was defective and a nullity because of the use of pseudonyms to name the debtor and creditor. The pseudonyms that were used in the bankruptcy notice were the same as those which had been used in the proceedings in New Zealand and in the previous proceedings in this Court relating to the registration of the New Zealand judgments. The full history of the use of pseudonyms to identify the applicant and Mr Du Bray is set out in Du Bray (No 1). It is unnecessary to repeat it here, save as to say that, as a result of the orders made in Du Bray (No 1), the pseudonym now used to identify the applicant is different to the pseudonym previously used.

59    Mr Du Bray’s application to set aside the bankruptcy notice was dismissed. In dismissing the application, however, the presiding judge made it tolerably clear that there would be potentially insurmountable hurdles in using a pseudonym for the respondent debtor if the bankruptcy notice was not complied with and a creditor’s petition was filed. Her Honour noted, in that regard, that the use of acronyms or pseudonyms in a creditor’s petition, particularly in respect of the debtor’s name, would not be appropriate given the nature of the statutory scheme concerning bankruptcy.

60    Mr Du Bray failed to comply with the bankruptcy notice and the applicant duly filed a creditor’s petition. That creditor’s petition used the same pseudonyms as those used in the bankruptcy notice. The applicant subsequently applied for leave to identify Mr Du Bray in the creditor’s petition and for leave to amend the creditor’s petition accordingly. Mr Du Bray opposed that application, but such leave was granted over his opposition: Du Bray (No 1). Mr Du Bray’s application for leave to appeal Du Bray (No 1) was subsequently refused.

GROUNDS OF OPPOSITION TO THE CREDITOR’S PETITION

61    Mr Du Bray’s notice stating grounds of opposition to the creditor’s petition included three grounds.

Ground 1 – Petition not properly verified

62    The first ground was that the creditor’s petition is defective because it was not verified by a person who has knowledge of the facts, as required by s 47(1) of the Act.

63    Subsection 47(1) of the Act provides that a “creditor’s petition must be verified by an affidavit of a person who knows the relevant facts”. The amended creditor’s petition was verified by an affidavit affirmed by the applicant’s solicitor. Paragraph 6 of that affidavit, to which objection was taken, stated that the “statements made in paragraphs 1, 2 and 3 of the amended creditor’s petition remain within my own knowledge true, on the basis of information and belief from [the applicant]” (emphasis added). Paragraph 1 of the petition stated that Mr Du Bray owed the applicant $6,558,934.61 for orders obtained under the registered New Zealand judgments and the costs judgment made by the Full Court when dismissing Mr Du Bray’s appeal against the judgment dismissing his application to set aside the registration of two of the New Zealand judgments. Paragraph 2 stated that the applicant does not hold security over the property of Mr Du Bray. Mr Du Bray conceded that there was no issue or dispute about that matter. Paragraph 3 of the petition stated that, at the time when the act of bankruptcy was committed, Mr Du Bray was ordinarily resident in Australia and had a dwelling house or place of business in Australia. That fact was also not in issue and Mr Du Bray conceded as much.

64    Mr Du Bray contended that matters in dispute in bankruptcy proceedings must be strictly proved by admissible evidence and that affidavits in support of the petition must be the affidavits of persons who can swear to the statements contained therein from their own knowledge. He relied, in that regard, on the judgment of the Full Court in Daly v Watson (1994) 50 FCR 544.

Ground 2 – Debts not owing

65    The second ground was that for the purposes of s 52(1)(c) of the Act, no sequestration order should be made as the Court cannot be satisfied that the debts upon which the applicant relies are owing.

66    The particulars provided in respect of this ground were to the following effect: first, that the substantive judgment and the “various costs orders of various Courts of New Zealand” were given in circumstances where Mr Du Bray was debarred from actively participating in those proceedings; second, in the hearing before the trial judge in the substantive proceeding, Mr Du Bray was not permitted to appear or to be heard, or to adduce evidence, or to test the applicant’s evidence, was not permitted to access the court file, was not given the pleadings or copies of the evidence to be relied on by the applicant and was not permitted to obtain a transcript of the hearing; third, the judgment of the trial judge was “tainted by bias”; fourth, the findings made by the trial judge as to Mr Du Bray’s assets were not correct; fifth, the trial judge found that the applicant owed Mr Du Bray money; and sixth, the applicant has failed to account for funds seized by the applicant in New Zealand pursuant to freezing orders made by the High Court of New Zealand.

67    Mr Du Bray’s written and oral submissions in relation to this ground made it plain that to succeed on this ground, he had to persuade the Court to exercise its discretion to go behind the substantive judgment. It should be noted again, in this context, that the parties agreed that the appropriate course was to determine whether there was sufficient reason to question the existence of a real debt behind the judgment for the purpose of considering whether to exercise the discretion to go behind the judgment. If it was found that there was sufficient reason to go behind the judgment, the Court would then separately consider and determine whether there was in truth or in fact a debt behind the judgment.

68    Mr Du Bray did not press, or at least did not advance any submissions in support of, many of the particulars to his second ground of opposition. His submissions in support of the proposition that the Court should exercise the discretion to go behind the judgment appeared to focus on four contentions.

69    The first and main contention was that the substantive judgment of the trial judge was “tainted by bias”, though it was emphasised by Mr Du Bray in his submissions that the allegation was only one of apprehended bias, not actual bias. The allegation of apprehended bias was mostly based on a handful of passages in the substantive judgment, one of which referred to an earlier judgment of the trial judge. While somewhat unclear, the allegation appeared to be that a fair-minded lay observer who read those passages might reasonably consider that the trial judge might have prejudged the matter. Mr Du Bray also appeared to suggest that the fact that the trial judge made freezing orders and made the unless order that led to him being debarred gave rise to an apprehension of bias.

70    The second contention appeared to be that the Court should exercise its discretion to go behind the substantive judgment simply because he was debarred from participating in the final hearing before the trial judge. The suggestion appeared to be that his debarring alone gave rise to a substantial reason for doubting whether there was in truth or reality a debt lying behind the substantive judgment.

71    The third contention was that the findings made by the trial judge were not correct. That main argument advanced in this regard concerned a finding by the trial judge that Mr Du Bray’s compulsory superannuation was valued at $1,466,000. Mr Du Bray’s asserted, in his evidence in this proceeding, that he did not have any superannuation fund. Mr Du Bray also asserted or argued that some of the other findings made by the trial judge concerning the valuation of assets were wrong.

72    The fourth contention related to Mr Vella’s report. It was initially contended that the trial judge somehow erred because she did not consider or have regard to Mr Vella’s report in arriving at her valuation findings. When confronted with the fact that Mr Du Bray had not been given leave to file or rely on Mr Vella’s report in the proceeding and that it appeared to have been prepared and sent to the trial judge in connection with the freezing orders, the argument changed somewhat. It was then argued that the applicant ought to have brought Mr Vella’s report to the attention of the trial judge given that it was an ex parte hearing.

73    The other particulars provided in relation to this ground, including that the applicant had failed to account for funds seized under the freezing orders, were either not pressed, or were faintly pressed in the context of ground 3. The contention, in the particulars, that the applicant was found to owe Mr Du Bray an amount of money, was said only to be relevant in the event that the Court exercised its discretion to go behind the judgment.

Ground 3 – Other sufficient cause

74    Subsection 52(2) of the Act provides that if the Court is not satisfied with the proof of any of the “matters” referred to in s 52(1), or is satisfied that the debtor is able to pay his or her debts or that “for other sufficient cause a sequestration order ought not to be made”, it may dismiss the creditor’s petition.

75    Mr Du Bray did not contend, in his notice of grounds of opposition to the creditor’s petition, that he was able to pay his debts. In written submissions filed on Mr Du Bray’s behalf, however, it was contended that he was solvent. That contention appeared to be based entirely on the findings made by the trial judge in the substantive judgment. The contention that Mr Du Bray was solvent was not developed beyond bare assertion and was not the subject of any oral submissions. It appeared to have been effectively abandoned.

76    As for “other sufficient cause”, Mr Du Bray’s case seemed to be based on a rather confusing argument to the effect that the bankruptcy notice was a nullity because it overstated the amount in fact due. That was said to be the result of the fact that since the delivery of the substantive judgment, certain amounts had been recovered by the applicant but not taken into account in calculating the amount said to be owing in the bankruptcy notice. Ultimately, however, Mr Du Bray appeared to concede that the amounts which had been recovered by the applicant were applied to reduce various costs orders other than those which made up the indebtedness in the bankruptcy notice. He then complained about the “opaqueness” of the process by which the amounts recovered by the applicant had been applied and appeared to suggest that this was a sufficient cause not to make the sequestration order.

77    Before addressing Mr Du Bray’s grounds of opposition to the creditor’s petition, it is necessary to address some issues that arose in relation to the evidence adduced by Mr Du Bray in opposition to the creditor’s petition.

EVIDENCE

78    Mr Du Bray sought to rely on three affidavits in opposition to the creditor’s petition: an affidavit affirmed by him; an affidavit sworn by Mr Vella which annexed a report prepared by him dated 3 March 2015; and an affidavit affirmed by Mr Andrew Chen. Before addressing the contents of those affidavits, it is necessary to say something about Mr Du Bray’s compliance with the orders made by the Court in relation to the filing of evidence to be relied on by him in opposition to the creditor’s petition.

79    It would be fair to say that once judgment was handed down in Du Bray (No 1) and leave was granted to amend the creditor’s petition, the applicant pressed for an early hearing of the creditor’s petition. The hearing of the petition was, however, initially delayed because Mr Du Bray applied for leave to appeal the judgment in Du Bray (No 1). That application was in due course dismissed and the matter was promptly listed for a case management hearing on 29 October 2019. At that case management hearing, Mr Du Bray was ordered to file and serve his notice of grounds of opposition to the creditor’s petition and any evidence upon which he proposed to rely in relation to the grounds of opposition by 19 November 2019.

80    Mr Du Bray filed and served his notice of grounds of opposition on 19 November 2019 as was required. He did not, however, file or serve any evidence. That resulted in the adjournment of the next case management hearing from 26 November 2019 to 5 December 2019. On the day prior to that case management hearing, Mr Du Bray filed and served his affidavit. That affidavit referred and exhibited a folder of documents which was said to be a confidential exhibit.

81    At the case management hearing on 5 December 2019, the applicant again pressed for an early hearing of the creditor’s petition. She also foreshadowed an application to strike out or summarily dismiss Mr Du Bray’s notice which stated his grounds of opposition to the creditor’s petition on the basis that it was an abuse of process because it sought to relitigate his unsuccessful application to set aside the registration of two of the New Zealand High Court judgments. The Court listed the creditor’s petition for hearing on 3 March 2020. The applicant was ordered to file and serve her written submissions by 3 February 2020, Mr Du Bray was ordered to file and serve his written submissions by 17 February 2020 and the applicant was ordered to file and serve her written submissions in reply by 24 February 2020. Mr Du Bray, who was represented by counsel, said nothing at the case management hearing about filing or seeking to rely on any further evidence. No orders were made which permitted the filing of any further evidence. As events transpired, the applicant did not seek to strike out Mr Du Bray’s notice of opposition to the creditor’s petition. The creditor’s petition was heard on 3 March 2020.

82    Despite the absence of any order permitting him to file any further evidence, Mr Du Bray filed the affidavit of Mr Vella on 13 December 2019 and the affidavit of Mr Chen on 24 January 2020. No explanation was ever provided for the late filing of those affidavits. Not surprisingly, in those circumstances, those affidavits were objected to at the hearing of the petition. Those objections and the rulings made in relation to them will be addressed shortly.

83    Mr Du Bray’s affidavit contained a short and fairly anodyne account of how he came to be debarred from playing any active role in the High Court of New Zealand proceedings against him. It was and is uncontroversial that Mr Du Bray was debarred and accordingly prevented from filing any further evidence in those proceedings from 14 July 2014, when the Court of Appeal of New Zealand allowed the applicant’s appeal from the trial judge’s order discharging the unless order. As noted earlier, however, Mr Du Bray had filed extensive evidence, including expert evidence from a valuer, prior to being debarred and including the time of his debarring order and the trial judge had regard to that evidence in determining the matter. It was also uncontroversial that Mr Du Bray was, by reason of him being debarred, prevented from appearing at the final hearing before the trial judge on 4 and 5 May 2015 and was therefore effectively prevented from testing the applicant’s evidence during the course of that hearing, or making any submissions in opposition to the applicant’s case or in support of his case.

84    Mr Du Bray’s affidavit also included some evidence concerning the fact that, as a result of the freezing orders made against him, the applicant had been able to access money held in various bank accounts. He provided a list of withdrawals from certain accounts totalling AU$329,392.49 which he asserted were made by or on behalf of the applicant. The argument ultimately advanced by Mr Du Bray based on amounts that the applicant was able to extract from him or entities associated with him by virtue of the freezing orders is addressed later.

85    More controversially, Mr Du Bray’s affidavit contained a series of assertions, arguments or statements of belief or opinion concerning findings made by the trial judge about the valuation of certain assets. Not surprisingly, the applicant objected to that evidence.

86    In summary, Mr Du Bray said that he believed that a number of those findings were incorrect. He produced a table which purported to compare findings made by the trial judge about the value of certain assets with his views, assertions or beliefs concerning the same. For the most part, the basis of the views expressed by Mr Du Bray about the value of the assets went entirely unexplained. Where he did purport to explain the valuations he ascribed to certain assets, the explanation amounted to nothing more than bare assertion or argument. His counsel conceded, at the hearing, that Mr Du Bray did not “develop [his assertions or arguments about the asset valuations] very well”. That was an understatement. Somewhat confusingly, counsel for Mr Du Bray ultimately pressed the tender of this evidence on the limited basis that it showed that there was a “proper basis” for contending that there is a doubt about the value of the assets. He did not press it on the basis that it was evidence of the actual value of the assets.

87    Mr Du Bray’s evidence concerning his views, beliefs or assertions relating to the value of certain assets was ultimately admitted on the strictly limited basis that it was evidence of just that. It was not admitted as evidence of the actual value of the assets at the relevant time. For the reasons given later, Mr Du Bray’s views, beliefs and assertions about the value of assets is deserving of little, if any, weight in determining whether there were good or substantial reasons for doubting that there was, behind the judgment, a debt in truth and reality owing to the applicant.

88    As noted earlier, Mr Du Bray also referred in his affidavit to him having commissioned a report from Mr Vella in February 2015 in response to what he said was an order made by the trial judge. In fact, the order to which Mr Du Bray referred in that context was one of the orders made by a different judge of the High Court of New Zealand on 5 February 2015 as part of the suite of orders referred to as the freezing orders. Contrary to the suggestion by Mr Du Bray in his affidavit, that order did not request or require him to commission a valuation report. It simply required him to provide the applicant “within 24 hours and at [Mr Du Bray’s] expense any information and documents that the [applicant] requests as to the ownership, status, value, acquisition, disposition and location of the assets including bank and credit card statements”. There is no evidence to suggest that the applicant requested Mr Du Bray to provide information concerning the value of his assets.

89    As also noted earlier, Mr Du Bray stated in his affidavit that he sent Mr Vella’s report to the trial judge and the applicant. It is entirely unclear why he did so. The apparent suggestion that his reasons for doing so had something to do with the freezing orders is entirely without foundation. Indeed, if that is what was intended to be suggested by Mr Du Bray in his affidavit, it was, and is, entirely disingenuous. That is apparent from the introductory paragraphs of the report prepared by Mr Vella, dated 3 March 2015, in which Mr Vella noted that he had been asked to prepare a report setting out his opinion as to the value of Mr Du Bray’s interests in Du Bray & Associates Pty Limited and that the purpose of the report was to assist Mr Du Bray and his legal advisers in relation to the proceedings between Mr Du Bray and the applicant. Curiously, the report also noted that he had been asked to “critique” the reports of Mr Dobson dated 16 November 2012 and Mr Tony Weber dated 18 January 2013. Mr Dobson was the expert valuer who had been retained by Mr Du Bray and whose report had been filed in the proceedings before the trial judge before Mr Du Bray was debarred. Exactly why Mr Du Bray would want another person to critique his own expert’s report is entirely unclear.

90    It may readily be inferred that, if Mr Du Bray sent the report to the trial judge in March 2015, as he said he did, he did so despite being aware that he had been debarred from taking any further part in the proceedings and despite the fact that there was no order giving him leave to file or rely on any further evidence.

91    Mr Du Bray sought to rely on Mr Vella’s report in this proceeding. It was annexed to an affidavit sworn by Mr Vella and included in the exhibit to Mr Du Bray’s affidavit. The applicant objected to the tender. The question of its admissibility was reserved to be dealt with in this judgment. For the reasons that follow, Mr Vella’s report is not admitted as evidence relating to the value of Mr Du Bray’s interests in Du Bray & Associates or any other assets. It is also not admitted as evidence of Mr Vella’s opinions in that regard. It is admitted on the strictly limited basis that it was the document that Mr Du Bray claimed he sent to the trial judge on the eve of the trial of the substantive proceeding. The fact that Mr Vella’s report was said to have been sent to the trial judge was relevant to Mr Du Bray’s argument, in opposition to the creditor’s petition, that the trial judge should have referred to it or taken it into account.

92    The first reason for rejecting the tender of Mr Vella’s report as evidence of the asset valuations referred to in it is that it was served late, well outside the Court ordered timetable. No attempt was made to explain the late service. It may be true that the applicant or her legal advisers were aware of the existence of Mr Vella’s report prior to its service, given that, at least according to Mr Du Bray’s affidavit evidence, it was sent to the applicant in March 2015. It was also included within the voluminous exhibit to Mr Du Bray’s affidavit. What the applicant and her advisers did not know, however, at least until the late service of Mr Vella’s affidavit in December 2019, was that Mr Du Bray would seek to rely on Mr Vella’s report in this proceeding as evidence of the valuation of some of his assets. That had never previously been foreshadowed.

93    It should also be noted in this context that the lengthy and detailed written submissions filed on behalf of Mr Du Bray made no mention whatsoever of Mr Vella’s report, or the basis upon which it was to be tendered. Nor did the written submissions give any indication that at the hearing of the creditor’s petition Mr Du Bray would seek to rely on Mr Vella’s opinion evidence, or any expert evidence, concerning the value of his assets, either in support of the proposition that the Court should go behind the substantive judgment or otherwise.

94    Mr Vella’s report is 45 pages long and very detailed. The applicant could not possibly have appropriately responded to it in time for the March 2020 hearing if it was to be relied on as valuation evidence. The late service of Mr Vella’s affidavit annexing the report was, in all the circumstances, manifestly unfair and prejudicial to the applicant. As has already been noted, its late service went entirely unexplained.

95    The second reason for rejecting the tender of Mr Vella’s report as valuation evidence in this proceeding is that, while it is accepted that one of the key issues for consideration by the Court is whether there are substantial reasons for questioning whether behind the judgment there was in fact a debt owing by Mr Du Bray to the applicant, it does not follow that this gave Mr Du Bray licence to essentially rerun his case before the trial judge; or perhaps more accurately in the circumstances of this case, run the case that he now says he would have liked to have run before the trial judge. It is, with respect, absurd to suggest that the Court, in considering whether to exercise the discretion to go behind the judgment, should entertain contested expert valuation evidence tendered for the purpose of demonstrating that the trial judge’s findings were incorrect. That is particularly so given that Mr Du Bray made no attempt to put before the Court all of the evidence that was before the trial judge in respect of the valuation of assets.

96    The question whether Mr Vella’s evidence was in fact before the trial judge is considered later. It should be noted, in this context however, that in considering whether to admit Mr Vella’s report as evidence of his valuations, it is relevant to take into account that Mr Vella’s report was not filed by Mr Du Bray in the proceedings before the trial judge at a time before he was debarred, or pursuant to any order of the Court. Important also is the fact that there is nothing to suggest that Mr Du Bray sought to rely on Mr Vella’s report, or the trial judge’s supposed failure to have regard to it, in his failed attempt to appeal the substantive judgment.

97    Ultimately, Mr Du Bray, through his counsel, appeared to accept that Mr Vella’s report should only be accepted on a limited basis. That limited basis was that it was evidence that Mr Du Bray challenged or disagreed with the trial judge’s findings concerning the valuation of certain assets and that the difference between the trial judge’s findings and Mr Du Bray’s arguments or contentions was very large. It was said that “the fact that there are large sums of money involved and that evidence of an experienced valuer was not referred to in the judgment, then your Honour would have more comfort that the exercise in going behind the judgment was not fruitless”. That submission was and is somewhat difficult to grasp. To the extent that it meant that the report should be admitted as evidence of the value of the assets referred to in it, it is rejected. As has already been noted, however, the report will be admitted on the strictly limited basis that it is a document that is said to have been sent to the trial judge which sets out Mr Du Bray’s apparently competing position in relation to the valuation of certain assets.

98    The limitation placed on the use to which Mr Vella’s evidence may be put was and is also warranted on the basis that there was a danger that any other use would be unfairly prejudicial to the applicant for the reasons given: s 136 of the Evidence Act 1995 (Cth).

99    Finally, it is necessary to address Mr Chen’s affidavit.

100    Mr Chen is apparently a chartered accountant. He has been Mr Du Bray’s accountant since 2001. Despite that, there is no suggestion that Mr Du Bray sought to rely on any evidence from Mr Chen in the proceedings before the trial judge. Mr Chen’s affidavit purported to contain his expert evidence concerning the valuation of the Du Bray Property Trust, or its assets, including some real property. It also included what appeared to be a critique of some of the findings made by the trial judge in relation to the valuation of those assets, though the references in the affidavit to the trial judge’s judgment or reasons are so vague and obscure that it is difficult to be clear about that.

101    The applicant objected to Mr Chen’s evidence in its entirety. That objection was and is upheld for the following reasons.

102    First, as noted earlier, Mr Chen’s affidavit was not served until 24 January 2020, even later than the service of Mr Vella’s affidavit. Again, no explanation whatsoever was ever given for the late service of this evidence. The late service of the affidavit was unfairly prejudicial to the applicant. She could not possibly have marshalled expert evidence in response to Mr Chen’s evidence prior to the March 2020 hearing date of the creditor’s petition.

103    Second, the relevance of Mr Chen’s opinions concerning the valuation of certain assets is, in any event, unclear and obscure. As already noted, there is no suggestion that Mr Du Bray sought to rely on Mr Chen’s expertise or evidence in the proceedings before the trial judge, or indeed on appeal. There is no evidence to suggest that Mr Chen’s opinions aligned in any way with the expert evidence that Mr Du Bray did rely on in those proceedings. As noted earlier in the context of Mr Vella’s evidence, the fact that the Court is required to consider whether there are substantial reasons for questioning whether behind the judgment there was in truth and reality a debt does not give Mr Du Bray the licence to effectively rerun the case that was before the trial judge, or run the case that he would have liked to have run before the trial judge, by adducing new evidence, particularly where there was no explanation for why that evidence was not relied on in the first place.

104    Third, Mr Chen’s opinion evidence was, in any event fundamentally flawed in numerous respects. It suffices to mention only a few. First, early in his affidavit, Mr Chen stated that “[f]rom time to time [Mr Du Bray] advised me as to the approximate value of his assets. I have assumed this to be true”. That assumption, the validity of which is, at best, questionable, effectively undermined or infected most, if not all, of Mr Chen’s evidence. It meant that some of his valuations were simply based on what he had been told by Mr Du Bray. Mr Chen purported to express opinions about the value of properties. There was, however, no evidence in his affidavit to suggest that he had any relevant qualifications or experience to do so. In any event, he appeared to simply rely on valuation reports prepared by others. The provenance and reliability of those reports was, at best, unclear. The provenance and reliability of numerous other documents relied on by Mr Chen in expressing various opinions was equally unclear. It was unclear whether any of the documents relied on by Mr Chen were discovered, let alone referred to in the evidence that Mr Du Bray filed in the proceedings before the trial judge. Finally, Mr Chen’s critique of some of the trial judge’s findings were wholly unsatisfactory. They were, according to Mr Chen himself, based on nothing more than his assumptions.

105    Even putting aside the highly doubtful relevance and admissibility of much of Mr Chen’s evidence, its exclusion was and is in any event warranted on the basis that its very low probative value was well outweighed by the danger that it would be unfairly prejudicial to the applicant, particularly given its late service, and that it would, in any event, cause or result in undue waste of time.

GROUND 1 – VERIFICATION OF THE CREDITOR’S PETITION

106    The first point to emphasise is that Mr Du Bray’s articulated ground of opposition to the creditor’s petition was essentially a technical one; that the amended creditor’s petition was defective because it was not verified by a person who had knowledge of the relevant facts as required by s 47(1) of the Act. His submissions, however, tended to conflate the requirement in s 47(1) of the Act with the requirement, under s 52(1)(a) of the Act, that there be proof of the “matters stated in the petition”.

107    Mr Du Bray did not contend that the matters stated in the petition had not been proved, or were not the subject of proof, as required by s 52(1)(a) of the Act. His second ground of opposition, which will be considered next, referred to s 52(1)(c) of the Act and was to the effect that the Court cannot be satisfied that the debts on which the applicant relied were owing. That contention was in turn based entirely on the proposition that the Court should exercise its discretion to go behind the relevant judgments, or at least one of them. Mr Du Bray, not surprisingly given the history of the matter, did not dispute the existence of the orders referred to in paragraph 1 of the amended creditor’s petition, or suggest that he had paid the applicant the amounts that he had been ordered to pay her. Nor did he dispute that the statement in paragraph 2 of the amended creditor’s petition that the applicant did not hold security over his property, or dispute the statement in paragraph 3 of the amended creditor’s petition that he was either ordinarily resident in Australia, or had a dwelling house or place of business in Australia.

108    Mr Du Bray’s contention that the amended creditor’s petition was not verified by a person who had knowledge of the facts was based entirely on the fact that the affidavit verifying the petition was sworn by the applicant’s solicitor, Ms Kiera Peacock, who deposed (at paragraph 6) that “[t]he statements made in paragraphs 1, 2 and 3 of the amended creditor’s petition remain within my own knowledge true, on the basis of information and belief from [the applicant]”. His contention, in short, was that, because Ms Peacock’s assertion that the statements in the petition were within her knowledge true was qualified by the words “on the basis of information and belief from [the applicant]”, it necessarily followed that she did not know the “relevant facts” as required by s 47(1) of the Act.

109    That contention is rejected.

110    In Re Cirillo; Ex parte Commissioner of Taxation (1992) 36 FCR 279, a creditor’s petition had been verified by an officer of the Australian Taxation Office, who was authorised to swear the affidavit verifying the petition. The officer deposed that the statements contained in paragraphs 1, 2 and 3 of the petition were “within my own knowledge and true” and that “I know the facts deposed to herein of my own knowledge and from perusal of the records maintained by the Australian Taxation Office”. In cross-examination, the officer conceded that he had no direct knowledge that the debtor was in Australia on the date of the commission of the alleged act of bankruptcy (as alleged in paragraph 1 of the creditor’s petition), although he held that belief on the basis of information contained in various documents on the files of the Australian Taxation Office. The debtor alleged that the petition was defective because the officer who swore the verifying affidavit did not have any or any sufficient knowledge to verify paragraph 1 of the petition. That contention was rejected by von Doussa J, who reasoned as follows (at 285-6):

The requirements as to a creditor’s petition are set out in s 47 of the Act. Section 47(1)(b) requires that a creditor’s petition shall be verified by the affidavit of a person who has “knowledge of the facts”. In ordinary language, a person may have knowledge of facts even if that knowledge has been gained on information which is believed to be true, supplied by others and not by direct experience. In many instances it is probable that a petitioning creditor would not of his own knowledge know directly whether a debtor was within Australia, or even ordinarily resident in Australia, at the date of the act of bankruptcy alleged. Inquiry by or on behalf of the petitioning creditor may give rise to a state of knowledge on the part of the petitioning creditor but such knowledge would be based on information and belief. In my opinion s 47(1)(b) should be construed so as to permit an affidavit by a person who has knowledge based on information and belief. The affidavit would then follow the form prescribed by r 132 of the Bankruptcy Rules 1968 (Cth), and in particular “shall ... state the source of the information of any facts or circumstances set out in the affidavit that are not within the deponent’s own knowledge” .

111    Rule 132 of the Bankruptcy Rules 1968 (Cth) is not replicated in the current Federal Court (Bankruptcy) Rules 2016 (Cth). The reasoning of von Doussa J was not, however, materially based on that rule. The critical part of his Honour’s reasoning was that “a person may have knowledge of facts even if that knowledge has been gained on information which is believed to be true, supplied by others and not by direct experience”.

112    The same point was made by Davies J in Daly v Watson. In that case, a creditor’s petition was verified by the creditor’s solicitor who deposed that the statements made in paragraphs 1, 2 and 3 of the petition were within his own knowledge true. At the final hearing of the petition, however, the creditor conceded that the affidavit was based on information and belief. The primary judge, Hill J, rejected a challenge to the validity of the creditor’s petition on that basis. His Honour referred to Cirillo and found that s 47 of the Act would have been complied with had the solicitor sworn an affidavit verifying the truth of the petition on the basis of information and belief, instead of deposing that the statements in the petition were within his own knowledge. Hill J also found that if there was a defect in the affidavit verifying the petition, because it did not specify the source of the deponent’s information and belief, it was a formal defect only.

113    The debtor’s appeal was dismissed with costs. Davies J reasoned as follows (at 545-546):

However, a solicitor may have sufficient knowledge to verify a petition. The term “knowledge” is to be read in the light of well understood practice. It does not denote direct personal knowledge of every issue of fact but rather knowledge of the type which in the past has been thought sufficient to justify a deponent to swear to the truth of the statements in the petition. In my view, it would encompass the knowledge of a solicitor who had been concerned in the matters leading up to the creation of the debt or in the collection of the debt or in legal proceedings to obtain judgment and who was aware of the debtor’s residential address and of the fact of non-payment. Knowledge of this type is sufficient knowledge for affidavits verifying petitions and is different from the strict proof which may be required on the hearing of a contested petition.

114    His Honour referred to some authorities concerning the winding up of companies and continued as follows (at 546):

Knowledge is different from mere instructions. A solicitor who has been concerned in legal proceedings and other steps to recover a debt may well have sufficient knowledge. But if he knows no more about the facts of the matter than the instructions he has received from his client as to the debtor’s residence, as to the incurring of the debt, and of the fact that the debt is unpaid, he would not, in my opinion, have sufficient knowledge to swear the affidavit.

115    Davies J noted that it had been conceded that the solicitor had made the affidavit on information and belief. His Honour concluded, however, that that concession did not amount to a concession that the solicitor did not have knowledge in the sense that he had outlined.

116    Beaumont and Gummow JJ held that the question whether the verifying affidavit was in admissible form was immaterial because there was, in any event, other evidence, which was not seriously disputed, which established the matters stated in the creditor’s petition. Their Honours also held that the primary judge was correct in holding that if there was a defect in the verifying affidavit, it was a mere formal defect. Their Honours reasoned as follows (at 553):

Moreover, in our view, Hill J was correct in holding that, if there was a defect in the affidavit verifying the petition, it was a formal deficiency only, in the sense that, as a matter of substance, there was other evidence to establish the matters which were not in dispute. In its essence, the argument for the appellant was that, if the affidavit verifying the petition was not, in truth, in admissible form, this was a fatal, self-executing defect, such that the petition ought to be dismissed, either as a matter of right or in the exercise of the discretion given by s 52 to make, or to refuse to make, a sequestration order. We cannot accept that the proper function of the Court on the hearing of a petition should be restricted in this way. It is one thing to insist upon the proper application of the rules of evidence where there is no other evidence to prove the matters stated in the petition. It is another to claim, as here, that, if an objection is taken that evidence in the affidavit verifying the petition is bad in form, it follows that the deficiency cannot be remedied by other material which is in admissible form and which, as here, is, as a matter of substance, not contentious.

117    It should finally be noted that nothing said by Beaumont and Gummow JJ cast any doubt on von Doussa J’s decision and reasoning in Cirillo. While Davies J did not expressly refer to Cirillo, his Honour’s reasoning was entirely consistent with the reasoning in that case.

118    Mr Du Bray placed reliance on the fact that, in their judgment, Beaumont and Gummow JJ stated (at 552) that a different question could arise as to the admissibility of the affidavit verifying the petition at the final hearing where “the usual rules of evidence apply”. Their Honours referred, in that context, to the judgment of Gibbs J in Re Williams (1968) 13 FLR 10, where his Honour said (at 23) that the “petition must be strictly proved, by admissible evidence, and the affidavits in support of the petition must be the affidavits of persons who can swear to the statements contained therein of their own knowledge”. It is clear, however, that those observations related to the requirement in s 52(1)(a) that there be proof of the matters stated in the petition. They did not relate to the question whether the creditor’s petition was defective on the basis that it was not verified in accordance with s 47 of the Act. As was emphasised earlier, Mr Du Bray’s ground of objection related to the validity of the amended creditor’s petition and was not concerned with whether the matters stated in the petition were the subject of proof as required by s 52(1)(a) of the Act.

119    It should finally be noted, in this context, that in Culleton v Balwyn Nominees Pty Ltd (2017) 343 ALR 632; [2017] FCAFC 8, the Full Court (Allsop CJ, Dowsett and Besanko JJ) observed, albeit in a slightly different context, that “[w]e would not accept that a solicitor could never have knowledge of whether or not a debt had been paid” and noted, for example, that “there may be cases where there are dealings between solicitors for parties over a long period of time and the solicitors do have knowledge of whether the debt has been repaid” (at [107]). Their Honours contrasted that situation with the position where the solicitor had merely acted on instructions.

120    It would thus appear, on the basis of both Cirillo and Daly v Watson, that a solicitor can swear or affirm an affidavit verifying a creditor’s petition if they have knowledge of the relevant facts, even if that knowledge was acquired in the course of their acting for the creditor, including knowledge acquired from the creditor, so long as that knowledge amounted to more than mere instructions. It would equally appear, from Cirillo at least, that the verifying affidavit may be sworn on information and belief.

121    It is tolerably clear that, despite the inclusion of the words “on the basis of information and belief from [the applicant]” in her verifying affidavit, Ms Peacock in fact had sufficient knowledge of the relevant facts for the purposes of s 47 of the Act. In her verifying affidavit, Ms Peacock stated that she had acted for the applicant in each of the proceedings referred to in paragraph 1 of the creditor’s petition. In another affidavit sworn by Ms Peacock and read without material objection in support of the creditor’s petition, Ms Peacock stated that she had acted for the applicant in all of the proceedings before this Court since 2015 and gave a detailed recitation of the extensive chronology of the proceedings between the applicant and Mr Du Bray, including the proceedings in New Zealand. None of her evidence relating to the chronology of the proceedings was challenged or disputed in any way. There could be little doubt that Ms Peacock acquired knowledge of the matters in the creditor’s petition in the course of her acting for the applicant. That knowledge was not acquired simply as a result of instructions.

122    It follows that ground 1 of Mr Du Bray’s notice stating his grounds of objection to the creditor’s petition has no merit and must be rejected. The petition was not defective because it was verified in accordance with s 47 of the Act. Ms Peacock had sufficient knowledge of the matters in the creditor’s petition for the purposes of s 47 of the Act and was, in any event, able to swear the verifying affidavit on information and belief.

123    It should finally be noted that even if paragraph 6 of Ms Peacock’s affidavit verifying the amended creditor’s petition was inadmissible and therefore unable to prove the matters stated in the petition for the purposes of s 52(1)(a) of the Act, there was in any event sufficient admissible evidence before the Court to prove those matters, just as there was in Daly v Watson.

124    There was no dispute about the existence of the orders described in paragraph 1 of the amended creditor’s petition, all of which were orders made by this Court. Putting to one side Mr Du Bray’s contention that the Court should go behind the substantive judgment in New Zealand, which will be considered separately, there was no dispute that the orders required Mr Du Bray to pay sums of money to the applicant which he had not paid. Ms Peacock, in any event, gave evidence, without objection, based on her having acted for the applicant at all relevant times since the issuing of the bankruptcy notice and creditor’s petition, that the debt arising from those orders was outstanding as at the day before the hearing of the petition.

125    As for paragraph 2 of the petition, it was conceded on Mr Du Bray’s behalf at the hearing that the applicant did not hold any security over Mr Du Bray’s property. That was in any event an obvious inference from the contents of Ms Peacock’s other affidavits. It was also conceded that Mr Du Bray was either ordinarily resident in Australia, or had a dwelling house or place of business in Australia, as stated in paragraph 3 of the petition. There was in any event evidence of that matter before the Court, including in Mr Du Bray’s own affidavit which gave an address in Kent Street, Sydney. There were other documents which gave an Australian address for Mr Du Bray.

126    The matters stated in the petition were satisfactorily proved as required by s 52(1)(a) of the Act.

GROUND 2 – GOING BEHIND THE JUDGMENT

127    There was no material dispute between the parties concerning the relevant principles that apply in determining whether a court exercising bankruptcy jurisdiction should exercise its discretion to go behind the judgment to ascertain whether or not there is, in truth and reality, a debt owing by the debtor to the creditor. The main issue was the application of those principles to the facts of this case. It is, nevertheless, necessary to outline some of the relevant principles.

Relevant principles

128    The existence of a judgment is prima facie evidence of a debt: Corney v Brien (1951) 84 CLR 343 at 355. A judgment is, however, never conclusive evidence of a debt in bankruptcy proceedings and the court may “go behind” the judgment to investigate whether there was a good debt to support it: Corney at 347. In Wren v Mahony (1972) 126 CLR 212, Barwick CJ (with whom Windeyer and Owen JJ agreed) said (at 224):

… The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor’s debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment: to what is its consideration. …

129    That statement of principle was approved and applied by the High Court in Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132. Importantly, the plurality in Ramsay, Kiefel CJ, Keane and Nettle JJ (at 145), with whom Edelman J relevantly agreed (at 160-161, 165-166), made it clear that the relevant statement of principle in Wren v Mahony should not be given the “artificially narrow application” that the appellant in that case had urged, which was that the bankruptcy court’s discretion to go behind a judgment after a contested hearing was enlivened only in the event of some fraud, collusion or miscarriage of justice. Rather, the categories of case in which the court will inquire into the validity of the judgment debt are not closed or constrained to any fixed categories.

130    It is thus clear that the discretion to go behind the judgment will be enlivened whenever there are “substantial reasons … for questioning whether behind [the] judgment there was in truth and reality a debt due to the petitioner”: Wren v Mahony at 225 (per Barwick CJ); Ramsay at 143 and 150 (per Kiefel CJ, Keane and Nettle JJ) and 165-166 (per Edelman J).

131    As for whether the discretion to go behind a judgment was in any way confined to cases where a miscarriage of justice sufficient to impeach or set aside the judgment could be demonstrated, the plurality in Ramsay stated as follows (at 147):

In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as “res judicata” between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary processes of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order. A Bankruptcy Court has a statutory duty to be “satisfied” as to the existence of the petitioning creditor’s debt; a creditor should not be able to make a person bankrupt on a debt which is not provable.

(Footnote omitted.)

132    Equally, however, it was made clear in Ramsay that the it would rarely be appropriate to exercise the discretion where the judgment is the outcome of a trial in which the relevant claim and any counterclaim were tested in adversarial litigation. The plurality stated as follows in that regard (at 151):

For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability.

(Footnote omitted.)

133    Likewise, Edelman J said (at 166):

Whether a matter will amount to substantial reasons so as to permit the exercise of the discretion will depend upon the particular circumstances. But, as history shows, where a judgment debt has been obtained after the testing of the merits in adversarial litigation, then in the absence of some evidence of fraud, collusion, or miscarriage of justice, a court exercising bankruptcy jurisdiction will rarely have substantial reasons to investigate whether the debt which merged in the judgment was truly owed.

134    While it may therefore be accepted that a court exercising bankruptcy jurisdiction may more readily exercise its discretion to go behind a judgment where the judgment is not the product of the rigours of adversarial litigation, it does not follow that the court will necessarily exercise its discretion in all such cases. For example, the fact that a judgment debtor did not fully participate in the trial may not itself give rise to any reason for questioning whether, behind the judgment, there was in truth and reality a debt due to the judgment creditor, particularly where the non-participation was the product of the judgment debtor’s own choices or conduct. Whether it is appropriate to exercise the discretion in such a case, or indeed in any case, will depend on the particular facts and circumstances of the case.

135    Given that the categories of case where it will be appropriate to exercise the discretion to go behind a judgment are not fixed or closed, it is not particularly fruitful to provide a catalogue of past cases where the discretion has been, or has not been, exercised. There is, however, one category of case that is deserving of mention having regard to some of the contentions and arguments advanced by Mr Du Bray.

136    There is authority to suggest that the Court may, or would be justified to, decline to go behind a judgment where the grounds relied on, if accepted, would only support a finding that the amount of the debt was less than that stated in the judgment, but would not support a finding that there was, in truth, no debt at all: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589; Olivieri v Stafford (1989) 24 FCR 413 at 431-432 (per Gummow J); Re Longo; Ex parte Longo (1995) 57 FCR 523 at 530; Cumins v Deputy Commissioner of Taxation (2008) 172 FCR 425 at 427-428; Re Riviere; Ex parte Original Mont de Piete Ltd (1919) 20 SR (NSW) 77 at 83-84. It is, however, doubtful that these authorities should be approached on the basis that they lay down an immutable rule or principle, particularly in light of what was said in Ramsay about the discretion not being approached in a narrow or inflexible manner.

137    The determination of whether there is, behind the relevant judgment or judgments, in truth and reality a debt due to the petitioning creditor, generally involves a two-stage procedure. The first stage involves the issue as to whether there is sufficient reason to question the existence of a debt behind the judgment. It generally involves some preliminary investigation into the merits of the challenge to the judgment: Corney at 358. It can be, but need not be, dealt with as a preliminary question: Makhoul v Barnes (1995) 60 FCR 572 at 584; Wolff v Donovan (1991) 29 FCR 480 at 481 and 485-486. Once the Court decides that there is a sufficient reason to question the existence of the debt, it will then exercise its discretion and move to the second stage, which is to determine that issue. At that point, “the whole [of the] matter is open”: Corney at 358.

138    As has already been noted, the parties agreed that the question, whether there was sufficient reason to question the existence of the debt claimed by the applicant and whether the Court should exercise its discretion, should be determined effectively as a preliminary issue.

Mr Du Bray’s arguments for going behind the judgment

139    As outlined earlier, Mr Du Bray advanced essentially four reasons for questioning whether there was in truth and reality a debt due by him to the applicant. It should be emphasised, however, that all of those reasons related to the substantive judgment delivered by the trial judge in New Zealand. No reasons were advanced for going behind any of the other judgments or orders that made up the debts the subject of the creditor’s petition, all but one of which were orders registering judgments or orders made by courts in New Zealand. Nor were any reasons advanced for going behind any of the New Zealand orders or judgments, other than the substantive judgment. It follows that, even if Mr Du Bray was able to demonstrate reasons for going behind the substantive judgment, that would nonetheless leave him significantly indebted to the applicant pursuant to the other judgments and orders which he did not question.

140    It should equally be noted that some of the reasons advanced by Mr Du Bray for going behind the substantive judgment, at their highest and if accepted, were capable of demonstrating no more than that the final orders made as a result of the substantive judgment were for an amount higher than they should have been. The substantive proceedings before the trial judge essentially involved valuing and dividing the assets of the relationship. The majority of those assets were owned by Mr Du Bray, or entities associated with him. Most of Mr Du Bray’s arguments for going behind the judgment related in some way or another to the valuation of those assets; that the trial judge overvalued them meaning that he was ordered to pay more to the applicant than he should have. He did not suggest that there was any possibility that the outcome of the proceeding would not involve him being ordered to pay something to the applicant.

141    The first and “key” reason advanced by Mr Du Bray for why the Court should exercise its discretion was that the substantive judgment was “tainted by bias”, though his submissions made it clear that this was an allegation of apprehended, not actual, bias. Mr Du Bray submitted that the test for apprehended bias in New Zealand is essentially the same as it is in Australia. He contended that, applying that test to the facts of his case, it should be concluded that a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the resolution of the question which she was required to decide. The “conduct” of the trial judge that Mr Du Bray relied on in that context included: the making of freezing orders which prevented him from paying for legal representations; the making of the “debarring order”; finding (in the substantive judgment) that he held superannuation; finding (in an interim application) that she preferred the applicant’s evidence to his evidence; and making what were said to be “robust and highly adverse” findings against him in the substantive judgment.

142    The second reason advanced by Mr Du Bray for going behind the substantive judgment appeared to simply relate to the fact that, by reason of him being debarred, he was not permitted to be heard at the final hearing, or to adduce evidence at that hearing, or to test the applicant’s evidence. He appeared to contend, in that regard, that the substantive judgment could effectively be compared with a default judgment, or at least that the mere fact that he was unable to participate in the final hearing gave rise to a reason to doubt that he was indebted to the applicant as found by the trial judge.

143    The third reason for going behind the judgment was said to be that the findings made by the trial judge concerning his assets were “not correct”. There appeared to be two limbs to this argument. The first was that the trial judge’s finding that Mr Du Bray had superannuation was wrong. He relied, in this regard, on his assertion to the contrary in his evidence in this proceeding. The second appeared to be based on the evidence of Mr Vella and Mr Chen. For the reasons given earlier, Mr Vella’s report was admitted into evidence subject to a limitation; that limitation being that it was not admitted as expert evidence of Mr Vella’s valuation of certain assets. It was admitted only on the basis that it was, at least on Mr Du Bray’s evidence, sent to the trial judge on the eve of the trial. Mr Chen’s evidence was not admitted.

144    The fourth reason for going behind the judgment was also based on Mr Vella’s report. While Mr Du Bray’s arguments as to why Mr Vella’s report provided a reason for going behind the judgment were somewhat elusive and shifted over time, he appeared to suggest that the fact that the trial judge did not refer to Mr Vella’s report in the final judgment meant that there was reason to doubt the correctness of the primary judge’s findings, or gave rise to an apprehension of bias, or even meant that the applicant somehow breached her duty to the Court on an ex parte hearing as she should have brought the report to the attention of the trial judge.

145    For the reasons that follow, none of the reasons advanced by Mr Du Bray, and none of the submissions made by him in support of them, establish that there are substantial reasons for questioning whether behind the substantive judgment there was, in truth and reality, a debt owing to the applicant. That is so whether the reasons are considered individually or collectively.

Apprehended bias

146    It is unnecessary, for present purposes, to consider the relevant principles relating to apprehended bias in any detail. In Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35; [2009] NZSC 72, the Supreme Court of New Zealand in effect adopted the test for apprehended bias expounded in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. That test, in short, is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring (or might not have brought) an impartial mind to the resolution of the question that the judge is (or was) required to decide: Ebner at 344-345. Application of the test requires two steps: first, it requires the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner at 345.

147    There is no basis whatsoever for finding that a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the question that the trial judge was required to decide in the proceedings between the applicant and Mr Du Bray. None of the matters relied on by Mr Du Bray in support of his contention of apprehended bias have any merit.

148    As for his reliance on the making of the freezing orders, Mr Du Bray did not advance any substantive submissions in support of the proposition that the making of those orders might suggest prejudgment or partiality on the part of the trial judge. He made no attempt to demonstrate why those orders should not have been made in the proper exercise of judicial discretion, or why the making of them demonstrated partiality or prejudgment. He said nothing, or next to nothing, about the making of those orders in his affidavit evidence and did not adduce any evidence concerning the circumstances in which they were made. In any event, those orders were not made, at least in the first instance, by the trial judge. They were made by another judge in the High Court of New Zealand

149    Mr Du Bray’s reliance on the making of the “debarring order” – in fact the making of an unless order, non-compliance with which had the effect that he was debarred – also did not assist him in any way in establishing apprehended bias. There is considerable merit in the applicant’s submission that this was simply a “rebadging” of the arguments that Mr Du Bray had unsuccessfully advanced in support of his failed attempt to set aside the registration of the substantive judgment. He did not expressly rely on apprehended bias, either at first instance or on appeal, as a reason why the registration of the substantive judgment should be set aside. He did, however, argue that he was denied procedural fairness in the proceeding before the trial judge because he had been debarred. That contention was emphatically rejected both at first instance and on appeal.

150    In any event, the fact that the trial judge made the second unless order which ultimately led to Mr Du Bray being debarred provides no basis for a finding of apprehended bias. There is no reason to think that a fair-minded lay observer who was aware of the full circumstances which led to the making of the second unless order might apprehend that the trial judge might have been impartial or might have prejudged the matter. Indeed, it may readily be concluded that a fair-minded lay observer who was aware of all the circumstances would almost certainly apprehend that the making of the second unless order was entirely justified and warranted and was a proper exercise of judicial discretion by an impartial judge. The observations made by both the Court of Appeal and Supreme Court of New Zealand in effect compel that conclusion.

151    A few other points may be noted in this regard: first, Mr Du Bray ultimately did not pursue any appeal against the making of the second unless order; second, the trial judge subsequently in effect retrospectively revoked the debarring of Mr Du Bray and it was the Court of Appeal of New Zealand that reinstated it; third, Mr Du Bray’s appeal against the Court of Appeal’s decision to effectively reinstate Mr Du Bray’s debarring was dismissed; and fourth, Mr Du Bray never applied for the trial judge to recuse herself on the basis of apprehended bias arising from the making of the second unless order or for any other reason. The last of those points is of particular significance as it would suggest that Mr Du Bray waived any possible complaint he could have had based on apprehended bias. Needless to say, Mr Du Bray also never raised any argument of apprehended bias on the part of the trial judge in either the Court of Appeal or the Supreme Court of New Zealand.

152    As for Mr Du Bray’s reliance on the trial judge’s finding concerning his superannuation, there is no merit in the contention that the trial judge was somehow wrong to find that Mr Du Bray had superannuation on the basis of the evidence that was before her. Perhaps more significantly, even if the trial judge was somehow wrong to make that finding, it would not in any event provide any basis for a finding of apprehended bias.

153    The general approach that the trial judge took to assessing the evidence, including the evidence which had been filed by Mr Du Bray prior to him being debarred, was referred to earlier in these reasons. The trial judge’s finding concerning Mr Du Bray’s superannuation must be considered in the context of the observations made by the trial judge, also adverted to earlier, concerning Mr Du Bray’s approach to the litigation and the implications that this had in relation to the findings ultimately made. It is appropriate to set out the trial judge’s observations in that regard in full:

The other matter of approach that it is necessary to signal at the outset, relates to the fact that [Mr Du Bray] has repeatedly failed to comply properly or completely with numerous orders for discovery and disclosure. Because the vast majority of the alleged relationship property is in [Mr Du Bray’s] custody and control and because much of the relevant information about that property is also in his sole custody and control, his defaults of disclosure potentially prejudice [the applicant] in her quest for proof. The absence of information relating to [Mr Du Bray’s] superannuation (which is required by law in Australia but which [Mr Du Bray] denied having, notwithstanding circumstantial evidence to the contrary) is but one example.

(Emphasis added.)

154    The trial judge then noted that counsel for the applicant had submitted that the court should draw adverse inferences against Mr Du Bray and his interests where he was peculiarly placed to provide that information but failed to do so. Her Honour accepted that submission.

I agree. I consider that [Mr Du Bray’s] failure and refusal to comply with discovery orders prior to his debarring (and further to the terms of the freezing orders) should weigh heavily against him here. Accordingly, where information that is believed on reasonable grounds to exist was sought and not disclosed or only partially disclosed I am prepared to draw the inference that the information did exist but was not disclosed because it favoured [the applicant’s] position.

155    It is clear that the trial judge was aware that Mr Du Bray denied that he had any superannuation. It is equally clear that the trial judge considered that Mr Du Bray had failed to comply with discovery and disclosure orders which, if complied with, would most likely have allowed that denial to be tested. It was open to the trial judge in those circumstances to draw adverse inferences against Mr Du Bray concerning his superannuation. Mr Du Bray did not advance any submission to the contrary in this proceeding. It is clear that there was at least circumstantial evidence before the trial judge that Mr Du Bray did have superannuation. It is also apparent from other parts of the judgment that the applicant’s expert witness had expressed an opinion concerning the valuation of superannuation held by Mr Du Bray. It is, in those circumstances, entirely understandable why and how the trial judge came to make the finding that Mr Du Bray now seeks to impugn.

156    In all the circumstances, Mr Du Bray’s bare assertion, in his evidence in this proceeding, that he had no superannuation should be, and is, given little weight for the purposes of determining both the issue of apprehended bias and in relation to the exercise of the discretion to go behind the judgment generally. A fair reading of the substantive judgment reveals that the approach taken by the trial judge to the evidence, including the evidence adduced by Mr Du Bray, was entirely fair and reasonable. It would appear to have been open to her Honour to make the finding she did concerning Mr Du Bray’s superannuation, despite his denial that he held any superannuation.

157    Mr Du Bray’s contention that apprehended bias was demonstrated by findings made by the trial judge in an interim application was based on a passage in the substantive judgment where the trial judge referred to the determination of an “interim distribution application”. Her Honour noted that she had recorded in her judgment in relation to that application that she was “comfortable, in general terms, with preferring the evidence of the plaintiff [the applicant] over that of the defendant [Mr Du Bray]”. Her Honour then extracted a portion of her judgment in relation to the applicant where she noted that Mr Du Bray’s evidence over time had “been something of a moveable feast” and that that feature of his evidence served to “undermine its overall credibility”. Mr Du Bray submitted, in effect, that this gave rise to an apprehension of bias.

158    That submission is rejected for at least two reasons. First, the trial judge’s finding in the interim application was a finding concerning the applicant’s evidence in relation to that application. It was not a finding about Mr Du Bray’s credibility. Second, the finding was made on an interim application. There is ample authority for the proposition that claims of apprehended bias made on the basis of findings in interlocutory proceedings must be “firmly established”: Re J.R.L.; Ex parte C.J.L (1986) 161 CLR 342 at 352 (per Mason J) and 359-360 (per Wilson J); see also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 (per Gaudron and McHugh JJ). In Doggett v Commonwealth Bank of Australia [2019] FCAFC 19, the Full Court said (at [11]) that unfavourable findings in interlocutory proceedings are generally “not to be taken by a fair-minded person as an expression that the judge has other than an impartial and unprejudiced mind in relation to the substantive proceeding”.

159    In any event, once again there was no evidence to suggest that Mr Du Bray applied to have the trial judge recuse herself after this finding was made in the context of the interim distribution application. He may accordingly be taken to have waived his right to object to the trial judge continuing to hear the proceeding.

160    Mr Du Bray’s contentions based on what he said were “robust” findings made by the trial judge in the substantive judgment have even less merit. It is unnecessary to refer to all of the handful of passages in the substantive judgment that were relied on in support of this contention. The highpoints, so far as Mr Du Bray was concerned, included a finding by the trial judge that the “perversity of, and internal inconsistencies within” Mr Du Bray’s “final stance” spoke for itself, and a finding that his “conduct in the whole affair” concerning a mortgagee sale of one of the relevant properties was “beyond reprehensible”.

161    There is nothing to suggest that those findings were not entirely appropriate having regard to the evidence that was before the trial judge. In any event, there is ample authority that apprehended bias will not generally be established by “pointing to adverse findings” in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [234] (per Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias”: Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 at [95]; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36]; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14]; DOQ17 v Australian Financial Security Authority (No 2) (2018) 363 ALR 681; [2018] FCA 1270 at [33]. In Hamod v State of New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) that unfavourable decisions against a party “are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias”.

162    Mr Du Bray’s arguments relating to the fact that the trial judge did not refer to Mr Vella’s report in the substantive judgment are addressed later. It suffices at this point to note that the absence of any reference to Mr Vella’s report in the substantive judgment provides no basis whatsoever for a finding of apprehended bias. As has already been explained, there is no basis for finding that the trial judge was obliged to refer to Mr Vella’s report given the circumstances in which it was apparently sent to the trial judge. There is, in any event, no basis for finding that the trial judge ignored the report; her Honour equally may have simply given it no weight in all the circumstances.

163    Finally, it should be noted that despite the lengthy history of the litigation between Mr Du Bray and the applicant, in both the courts of New Zealand and this Court, the suggestion of apprehended bias on the part of the trial judge was raised for the very first time in Mr Du Bray’s opposition to the creditor’s petition. That itself speaks volumes.

164    Mr Du Bray’s contention that the substantive judgment was in any way “tainted by bias” is rejected. It was, and is, utterly without any merit.

The debarring order

165    Mr Du Bray’s submission that the fact that he was debarred and prevented from participating in the final hearing before the trial judge provided a reason for going behind the judgment appeared to proceed on the premise that the substantive judgment was therefore somehow akin to a default judgment, or was not the subject of the rigorous processes of adversarial litigation. Beyond that, his complaint appeared to amount to nothing more than a complaint about the unfairness of him being deprived of the opportunity to participate in the final hearing before the trial judge.

166    There was and is, of course, no dispute that Mr Du Bray was debarred and as a result prevented from playing any role in the final hearing. It does not, however, follow that the substantive judgment is in any way akin to a default judgment. Nor does the fact that Mr Du Bray conducted himself in such a way that he was prevented from participating in the final hearing give rise to any substantial reasons for questioning whether, in truth and reality, he owed a debt to the applicant. The implicit suggestion that, because Mr Du Bray was unable to participate in the final hearing the findings made by the trial judge were in some way tainted, or uncertain, or not based on a rigorous consideration of the evidence, has no substance.

167    As discussed at length earlier in these reasons, it is readily apparent from what the trial judge said in the substantive judgment that, despite the fact that Mr Du Bray was unable to participate in the proceeding after he was debarred, her Honour did not approach the final hearing as if it was effectively an ex parte hearing, or approach her task as if it was akin to entering a default judgment. As the Full Court found in dismissing Mr Du Bray’s appeal against the dismissal of his application to set aside the registration of the judgment, the trial judge’s careful and comprehensive reasons plainly demonstrated that her Honour considered the material filed by Mr Du Bray prior to him being debarred. The substantive judgment was in that sense the product of adversarial litigation, albeit that Mr Du Bray made the trial judge’s task somewhat more difficult because of the obstructionist and unsatisfactory approach he took to that litigation.

168    In all the circumstances, the mere fact that Mr Du Bray was debarred from participating in the final hearing of the proceeding before the trial judge provides no reason for doubting that there is, in truth and reality, a debt lying behind the judgment. It provides no reason for the Court to exercise its discretion to go behind the substantive judgment.

The contention that the trial judge’s findings were not correct

169    Mr Du Bray’s contention that the trial judge’s findings were not correct ultimately focussed almost entirely on his contention that the trial judge was wrong to find that he had superannuation. For the reasons already given, it is readily apparent from the substantive judgment that it was open to the trial judge, on the basis of the evidence that was before her and, in all the circumstances, to find that, despite his denials, Mr Du Bray in fact had superannuation. His bare assertion in his evidence in this proceeding was and is, in all the circumstances, deserving of little, if any, weight. It provides no reasonable basis for doubting the trial judge’s finding concerning superannuation, let alone a reason for questioning whether there was in truth and reality a debt lying behind the substantive judgment.

170    To the extent that Mr Du Bray’s contention that the trial judge’s findings were wrong relied on the evidence of Mr Vella and Mr Chen, for the reasons explained earlier, Mr Chen’s evidence was not admitted and Mr Vella’s evidence was admitted subject to the limitation that it was not evidence of the valuation of the assets. The submission that the trial judge was wrong because Mr Vella and Mr Chen said so had no evidential basis.

171    It should nevertheless be emphasised that even if the evidence of the views or opinions of Mr Vella and Mr Chen concerning the valuation of certain assets had been admitted, it would not have given rise to any reason for doubting that Mr Du Bray was indebted to the applicant as found by the trial judge. For the reasons already given, the trial judge made findings concerning the valuation of the assets of Mr Du Bray and entities associated with him on the basis of the evidence that was properly before the court. Mr Du Bray did not suggest that Mr Chen’s evidence was filed in the proceedings before the trial judge. Indeed it is readily apparent that it was not. Equally, for the reasons already given, Mr Vella’s report was on any view not properly before the trial judge for the purposes of the proceedings. If, as Mr Du Bray asserted, he sent the report to the trial judge, he did so at a time that he was debarred from participating in the proceeding and supposedly in response to the freezing orders.

172    In any event, even if Mr Vella’s report was properly before the trial judge, there is no basis for finding that the trial judge was bound to accept his opinions, or to give them any weight, in preference to the other valuation evidence. The mere fact that Mr Vella held a different opinion in relation to the valuation of some of the assets is incapable of demonstrating that the trial judge’s findings were wrong.

173    It should finally be noted in relation to Mr Du Bray’s contentions that the trial judge’s findings were incorrect that he had the opportunity to pursue an appeal against the trial judge’s findings. He ultimately did not pursue the appeal as he failed to meet the conditions upon which the Court of Appeal had granted an extension of time. His evidence in this Court was silent as to why he did not meet those conditions and why he did not pursue his appeal. It may be inferred in all the circumstances, however, particularly in the absence of any evidence from Mr Du Bray about his appeal, that if he had any reasonably arguable appeal grounds he would have pursued them. It is also noteworthy that Mr Du Bray’s draft notice of appeal filed in the Court of Appeal made no mention whatsoever of Mr Vella’s report, or any contention that the trial judge somehow erred in not having regard to it. Nor, of course, did it suggest that the substantive judgment was “tainted by bias”.

Mr Vella’s report is not referred to in the substantive judgment

174    Mr Du Bray’s various arguments based on the fact that the trial judge did not refer to Mr Vella’s report in the substantive judgment have already been disposed of. Lest there be any doubt: the report was not properly before the trial judge for the purposes of the proceedings; there is, in any event, no basis for concluding that the trial judge ignored it, as opposed to giving it no weight; the fact that the trial judge did not refer to Mr Vella’s report, in the circumstances, provides no basis for a finding of apprehended bias; and there is no basis for finding that the trial judge’s findings were wrong simply on the basis of the opinions in Mr Vella’s report. The existence of Mr Vella’s report accordingly provides no reason to doubt the trial judge’s findings, or to question whether there is in truth a debt behind the judgment and therefore provides no reason for the Court to exercise its discretion to go behind the judgment.

Conclusion – No reason to go behind the judgment

175    Mr Du Bray’s arguments in support of the proposition that the Court should exercise its discretion to go behind the substantive judgment have no merit. He has not demonstrated any reason for questioning whether behind the substantive judgment there is in truth and reality a debt owing to the applicant. He did not advance any reasons for going behind any of the other orders giving rise to the indebtedness claimed in the creditor’s petition.

176    Two further matters should be noted in conclusion.

177    First, even if Mr Du Bray had been able to demonstrate any legitimate or reasonable arguments for questioning the trial judge’s findings concerning the valuation of some of his assets, it would nonetheless not have been appropriate to exercise the discretion to go behind the substantive judgment in all the circumstances. That is because those arguments, if accepted, would, at their very highest, support a finding that the trial judge should have ordered Mr Du Bray to pay some lesser sum to the applicant. They would not, therefore, have supported a finding that there was no debt. That is all the more so given that Mr Du Bray mounted no challenge whatsoever to any of the other orders or judgments identified in the bankruptcy notice and creditor’s petition. Those orders alone give rise to a substantial and uncontested debt owing by Mr Du Bray to the applicant. The delays already suffered by the applicant and Mr Du Bray’s obviously unsatisfactory conduct of the litigation would also weigh heavily against the Court exercising its discretion to go behind the substantive judgment in the unique circumstances of this case.

178    Second, it should be noted that the applicant submitted that the Court’s power to go behind a judgment debt is not so wide as to permit the Court to enquire as to the existence of a judgment debt which had been entered by itself, other than in an extraordinary circumstance. There was no demonstrated extraordinary circumstance and it followed, in the applicant’s submission, that the Court did not have power to go behind the judgments or orders in question in this case, each of which was an order made by this Court either registering a New Zealand judgment pursuant to the T-TP Act, or in one case a costs order. It was also submitted, in effect, that Mr Du Bray’s contention that the Court should go behind the substantive judgment was misconceived because the substantive judgment was not one of the judgments or orders referred to in the bankruptcy notice and creditor’s petition, each of which was an order made by this Court, not a New Zealand court.

179    It is unnecessary to decide whether the applicant’s submissions in that regard are correct given the finding that Mr Du Bray has not, in any event, demonstrated that there is any reason for the Court to exercise its discretion to go behind the substantive judgment. It would appear, however, that there is some merit in Mr Du Bray’s submission that the Court does have the power to go behind a judgment which is registered in this Court under the T-TP Act. As the reasoning in Corney, Wren v Mahony and Ramsay shows, the basis of the Court’s discretion to go behind a judgment is that a judgment is only prima facie evidence of a debt. It is not conclusive. If the applicant’s submission was correct, the effect would be that a judgment registered under the T-TP Act would be effectively conclusive, particularly if the judgment creditor had failed in having the registration set aside. The grounds upon which the registration of a judgment under the T-TP Act may be set aside are, however, limited and do not extend to the broad question which underlies a bankruptcy court’s discretion to go behind a judgment; that is, whether there are substantial reasons for questioning whether, behind the judgment, there was in truth and reality a debt due to the judgment creditor.

180    It should finally be noted in this context, however, that the applicant’s submissions concerning the Court’s powers to go behind orders entered by itself does appear to have merit in relation to the costs orders made in this Court. That said, Mr Du Bray did not contend that the Court should exercise its discretion to go behind those orders, let alone seek to show any substantial reasons for going behind those orders. There plainly were none.

GROUND 3 – OTHER SUFFICIENT CAUSE

181    Mr Du Bray’s contentions and arguments in support of the proposition that there was some “other sufficient cause” why a sequestration order ought not be made were either not pressed or abandoned, or were elusive and unclear.

182    While Mr Du Bray’s written submissions suggested that he was solvent, that submission appeared to be based on the fact that the trial judge found that he had substantial assets. The substantive judgment was handed down in October 2015. There was no evidence to suggest that Mr Du Bray still had any of those assets at his disposal. He did not adduce any evidence in these proceedings concerning his solvency.

183    Mr Du Bray initially pursued an argument that the bankruptcy notice was invalid because it overstated the debt. That argument was based on the assertion that the applicant had, by virtue of the freezing orders made in New Zealand, been able to recover certain amounts owing to her from various bank accounts owned or controlled by Mr Du Bray or associated entities. Ultimately he conceded, however, that the evidence of Ms Peacock demonstrated that those amounts that had been recovered by the applicant had either been recognised in the bankruptcy notice, or were applied towards costs orders other than any of those the subject of the bankruptcy notice. That concession was properly made. It is unnecessary in those circumstances to consider the evidence in that regard.

184    Mr Du Bray faintly pressed an argument to the effect that he was somehow left in the dark as to how the claim against him was made up. That argument appeared to be based on the proposition that he did not know how the amounts that the applicant had been able to recover had been applied. That argument was unsupported by any evidence. The basis of Mr Du Bray’s indebtedness is abundantly clear from the bankruptcy notice and creditor’s petition.

185    It should also be noted that Mr Du Bray accepted that, to the extent that his arguments concerning the validity of the bankruptcy notice were based on the allegation that the bankruptcy notice overstated his indebtedness, he required an extension of time in which to serve a notice under s 41(5) of the Act. Given his effective abandonment of the overstatement argument, it is unnecessary to determine his application for an extension of time. If it had come to it, however, that extension of time would not have been granted given the delay and lack of any evidence explaining why these arguments had not been advanced at any earlier stage.

186    Other grounds included in Mr Du Bray’s notice stating grounds of opposition in respect of there being some other sufficient cause why a sequestration order should not be made were either expressly abandoned or were not developed at all in Mr Du Bray’s written or oral submissions. Those grounds included: a ground that appeared to be based on the fact that the substantive judgment “clearly sets out sums that are payable” by the applicant to Mr Du Bray (an argument that appeared to ignore the overall effect of the final orders and which was in any event unsupported by any evidence or submission); a ground based on an assertion about a “backdated maintenance order” (expressly abandoned); and a ground (somewhat ironically in the circumstances) based on an unquantified costs order supposedly made against the applicant in this Court (expressly abandoned).

187    Mr Du Bray failed to make out any “other sufficient cause”, for the purposes of s 52(2)(b) of the Act, why the Court could or should decline to make a sequestration order against him.

CONCLUSION AND DISPOSITION

188    None of Mr Du Bray’s grounds of opposition to the applicant’s creditor’s petition have any merit.

189    The creditor’s petition was properly verified for the purposes of s 47(1) of the Act.

190    Mr Du Bray failed to establish any reason why the Court should exercise its discretion to go behind any of the judgments or orders which made up the debt claimed to be owing by Mr Du Bray to the applicant in the creditor’s petition.

191    Mr Du Bray did not demonstrate that there was some “other sufficient cause” why a sequestration order should not be made against him.

192    There was otherwise no issue or dispute that the applicant had proved all that was required for a sequestration order to be made by the Court pursuant to s 52 of the Act. It follows that a sequestration order against the estate of Mr Du Bray should be made.

Associate:

Dated:    16 July 2020