Federal Court of Australia

Valladares as executor of the estate of Sabrina Karen Andreazza v De Angelis [2020] FCA 1865

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s application for review is dismissed.

2.    The Applicant be given leave with effect from 19 March 2020 to amend the Creditor’s Petition in the form set out in Annexure CRW21 to the affidavit of Caitlin Rose Walkington filed 28 July 2020.

3.    The requirement to file and re-verify the Amended Creditor’s Petition be dispensed with.

4.    The estate of AGOSTINO DE ANGELIS be sequestrated under the Bankruptcy Act 1966 (Cth).

5.    The Applicant Creditor’s costs (other than those of and incidental to the application for review) be fixed in the sum of $5,389.00 and be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966 (Cth).

6.    The parties be heard on the issue of the costs of and incidental to the costs of the review application filed on 9 September 2020.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns an application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) for review of a sequestration order made by a Registrar under s 52 of the Bankruptcy Act 1966 (Cth) (the Act). The fate of the review turns on the question of whether the petitioning creditor should be permitted to amend the petition so as to comply with s 44 of the Act.

Factual setting

2    By orders made on 19 August 2020, a Registrar granted the petitioning creditor (who is the applicant in the proceedings) leave to amend the petition and made a sequestration order against the respondent’s estate. The Registrar was satisfied of the following matters:

(a)    the applicant is the executor of the deceased estate of Sabrina Karen Andreazza;

(b)    in 2016, Ms Andreazza had, pursuant to a written loan agreement with the respondent, loaned him $100,000 for use in connection with the purchase and development of land comprised in Certificate of Title Volume 6095 Folio 216, located at Lot 3 Elizabeth Street, Banksia Park, a suburb of Adelaide (the Banksia Park land);

(c)    Ms Andreazza’s loan was secured by a registered mortgage over the Banksia Park land;

(d)    the respondent has not repaid the loan and, on 27 September 2019, the District Court of South Australia had entered judgment by default against him in the sum of $116,166.33 (with costs to be agreed or taxed);

(e)    on 29 November 2019, on the application of the applicant, the Official Receiver had issued a bankruptcy notice (which relied on the District Court judgment) to the respondent;

(f)    the respondent did not comply with the notice and did not apply to set it aside; and

(g)    the applicant filed the bankruptcy petition on 19 March 2020 relying on the respondent’s act of bankruptcy constituted by his failure to comply with the bankruptcy notice.

3    The review proceeded on the basis that each of these factual findings was correct.

4    The applicant’s petition was originally listed for hearing on 12 May 2020. The respondent filed a Notice of Address for Service, but no other document, on 11 May 2020. The Registrar adjourned the hearing to 26 May 2020 and made orders requiring the respondent to file any notice of opposition and supporting affidavits by 19 May 2020 and the applicant to file an affidavit regarding the value of the property over which she held security by 26 May 2020.

5    By his Notice of Opposition filed on 19 May 2020, the respondent stated his intention to oppose the applicant’s petition on the following grounds:

(i)    the Applicant has failed to comply with s 44 Bankruptcy Act 1966 (Cth); and

(ii)    the respondent is solvent and able to meet his debts.

6    The respondent did not provide in the notice any particularisation of those grounds. Nor did he do so in the accompanying affidavit in which he acknowledged his indebtedness to Ms Andreazza, noted the registration of her mortgage over the Banksia Park land and asserted that it had a value of “at least $250,000”.

7    Also on 19 May 2020, the applicant filed an affidavit indicating that she was prepared to surrender her security over the Banksia Park land for the benefit of creditors in the event that a sequestration order was made against the respondent, saying:

[5]    I confirm that in my capacity as Executor of the Deceased’s Estate I am willing to surrender this security for the benefit of creditors generally if a sequestration order is made against the respondent debtor.

8    On 26 May 2020, the Registrar made orders programming the petition to a hearing on 30 July 2020. These included orders with respect to the provision of any further affidavits by the respondent and of any affidavits from the applicant in reply.

9    The respondent filed an outline of submissions on 21 July 2020. That outline contained the first articulation of the basis of the asserted non-compliance with s 44. It commenced by stating:

[3.1]    The Applicant has failed to comply with the formal requirements under Section 44 Subsection (2) of the Act;

[3.2]    In the alternative, the Applicant has failed to comply with the formal requirements under Section 44(3) of the Act; and

[3.3]    The Applicant has failed to demonstrate there is not sufficient value in the Land to satisfy the Judgment Debt.

10    The respondents elaborated the first two of these contentions in the following paragraphs:

B1    Failure to comply with Section 44 subsection (3) of the Act:

[4]    The Applicant failed to comply with Section 44 Subsection (3) of the Act, as regards electing to surrender her security over the Land, by not including that statement in the Petition; a mandatory requirement under the Act. The Applicant subsequently provided the requisite statement by way of affidavit on 15 May 2020, being two months after filing the Petition and only after receiving the benefit of the Court raising that issue with the Respondent.

[5]    The Applicant's attempts to amend the claim are incapable of remedy because she has not given explanation for the change in her position as regards her standing to make the Petition and further has not sought an amendment to same. The Respondent submits an amendment of this kind is not appropriate given the requirements under Subsection (3) are clear. There is no lawful reason to depart from them and only if the Applicant complies with them will she have a right to present the Petition.

B2    Bar from relying on Section 44 Subsection (2) of the Act:

[6]    The Applicant, having elected to forfeit her security in the Land and attempt to later amend the Petition as set out at paragraph 4 herein, should be barred from relying on Section 44 Subsection (2) of the Act in the alternative to Section 44 Subsection (3). The Applicant has taken positive steps toward satisfying Subsection (3) and in that way has done so with eyes open and cognisant of the consequences in electing to proceed with the Petition in that way.

B3    Failure to comply with Section 44 Subsection (2) of the Act:

[7]    If Section 44 Subsection (2) of the Act should apply in any way, the Applicant has not satisfied that Subsection in that she failed to give a value of her security either with some reasonable estimate or at all; justifying not giving a value of her security on alleged difficulties valuing the Property.

[8]    A creditor that relies on Subsection (2) must provide an estimate of the value of their security in good faith. The Applicant submits that does not cure a creditor from the obligation to provide an estimate, and at the least, their best estimate, and which estimate must bear a close relationship to the realities of the matter; such an estimate not provided by the Applicant in the Petition.

(Citations omitted)

11    On 28 July 2020, the applicant filed an interlocutory application seeking leave, pursuant to s 33(1)(b) of the Act, to file an amended creditor’s petition, together with a supporting affidavit. It was evident that the applicant sought to file an amended petition in order to address the issue raised by the respondent concerning her compliance with s 44. The amendments proposed by the applicant were to [2] of the petition. They were as follows:

The applicant creditor holds security in the form of a registered mortgage (dealing number 12680120) over the property of the respondent debtor, being all that land in Certificate of Title Register Book Volume 6095 Folio 216 otherwise known as Lot 3 Elizabeth Street, Banksia Park SA 5091 for the value of the entirety of the debt. The value of the property is unknown as a Caveat (dealing number 13016663) has been lodged over the land by Community Corporation 23459 Inc on the basis that the respondent debtor is obliged to redesignate the property to the common property of Community Corporation 23459 Inc. but the applicant creditor will surrender her security for the benefit of creditors generally in the event of a sequestration order being made against the respondent debtor.

12    The underlining indicates the words which the applicant sought to add to the petition and the striking out the words which she sought to have removed. In substance, the applicant seeks the amendment so as to comply with s 44(3) of the Act, which I will set out shortly.

The decision of the Registrar

13    The Registrar heard submissions on the application to amend, and in support of, the petition on 30 July 2020. He then gave the respondent the opportunity to provide further written submissions. These were filed on 7 August 2020.

14    In the decision published on 19 August 2020, the Registrar addressed four principal questions:

(a)    should the applicant be given leave to amend the petition;

(b)    had the applicant complied with s 44 of the Act;

(c)    had the applicant established the requirements for a sequestration order; and

(d)    had the respondent established his solvency?

15    The Registrar resolved the first three of these questions in favour of the applicant and the fourth adversely to the respondent. He ordered that the amendment to the petition have effect from 19 March 2020. The Registrar then made the sequestration order.

The de novo nature of the review hearing

16    Sections 35A(5) and (6) of the FCA Act provide:

(5)    A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

(6)    The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

17    It was common ground that a review under s 35A(6) requires a hearing de novo. I referred to the relevant principles in Mutton v Living Australia Pty Ltd, in the matter of Living Australia Pty Ltd [2020] FCA 739; (2020) 145 ACSR 82 at [17]-[22] and it is not necessary to repeat them presently.

18    Unassisted by authority, there may have been scope for concluding that, as it is the Registrar’s exercise of power which is to be reviewed, the review requires a de novo consideration of the power in the circumstances which were before the Registrar. So the question would be whether, on a de novo consideration, it was appropriate for a sequestration order to have been made on the day that it was made.

19    However, the position is foreclosed by the decisions in O’Meara v Hitwise Pty Ltd [2007] FCAFC 114, (2007) 160 FCR 518 (Kiefel, Sundberg and Gyles JJ) and Pattinson v Hadjimouratis [2006] FCAFC 153, (2006) 155 FCR 226. In the latter case, Lander J said, at [154]:

The parties are not confined to the evidence which was before the Registrar but both parties may rely on that evidence and any further evidence which is relevant to the issues to be considered on the rehearing. The Federal Magistrate should proceed as if he or she were considering the claim raised in the petitioning creditor’s petition for the first time. If there be in this or any other case an exercise of discretion by the Registrar, the exercise of that discretion by the Registrar does not bind the Federal Magistrate in any way. Because the parties seeking the rehearing had no obligation to show error, the party does not have to establish that the exercise of the Registrar’s discretion miscarried in the sense described in House v The King (1936) 55 CLR 499.

(Emphasis added)

20    The application of O’Meara and Pattison has the consequence that the question of whether a sequestration order should be made should be considered afresh, even though the Registrar’s order is not a nullity and has not been stayed. However, the implications of this do not need to be addressed because the respondent’s counsel conceded that the issue of the amendment was at the heart of the review and that, if in its de novo consideration of the matter, the Court considered that the amendment should be allowed, the review should otherwise be dismissed.

Section 44 of the Bankruptcy Act

21    Section 44 of the Act provides:

44 Conditions on which creditor may petition

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

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

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

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

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

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

(2)    Subject to subsection (3), a secured creditor shall, for the purposes of paragraph (1)(a), be deemed to be a creditor only to the extent, if any, by which the amount of the debt owing to him or her exceeds the value of his or her security.

(3)    A secured creditor may present, or join in presenting, a creditor’s petition as if he or she were an unsecured creditor if he or she includes in the petition a statement that he or she is willing to surrender his or her security for the benefit of creditors generally in the event of a sequestration order being made against the debtor.

(4)    Where a petitioning creditor is a secured creditor, he or she shall set out in the petition particulars of his or her security.

(5)    Where a secured creditor has presented, or joined in presenting, a creditor’s petition as if he or she were an unsecured creditor, he or she shall, upon request in writing by the trustee within 3 months after the making of a sequestration order, surrender his or her security to the trustee for the benefit of the creditors generally.

(6)    A secured creditor to whom subsection (5) applies who fails to surrender his or her security when requested to do so by the trustee in accordance with that subsection is guilty of contempt of court.

22    The effect of s 44(2) is that a secured creditor may be deemed to be a creditor for the purpose of subs (1)(a) only to the extent to which the amount of the debt owing by the debtor exceeds the value of the security.

23    However, s 44(3) qualifies subs (2) by stating that a secured creditor may (relevantly) present a creditor’s petition as if he or she were an unsecured creditor providing that he or she includes in the petition a statement of willingness to surrender the security for the benefit of creditors generally in the event that a sequestration order is made. By subs (5), a secured creditor who has proceeded under subs (3) must, on request in writing by the trustee within three months of the making of the sequestration order, surrender the security to the trustee for the benefit of the creditors generally. It is a contempt of court for a secured creditor to fail to comply with such a request (subs (6)).

24    The combined effect of s 44(2) and (3) is that, for secured creditors to present petitions for bankruptcy, they must either surrender their security for the benefit of all creditors or petition only for the amount by which the debt exceeds their estimated value of the security: Re Wiggins; Ex parte Credit Assistance Pty Ltd (1979) 36 FLR 182; Re O’Leary; Ex parte Bayne (1985) 61 ALR 674 at 678-9; Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 529-30. If a secured creditor is not prepared to surrender the security, that creditor may present a petition only to the extent to which the debt exceeds the value of the security: ibid.

The petition as filed

25    The issue concerning the application of s 44 in this case arises because the applicant is a secured creditor of the respondent, as that expression is defined in s 5 of the Act.

26    In the petition for bankruptcy filed on 19 March 2020, the applicant stated:

2.    The applicant creditor holds a registered mortgage [over the Banksia Park property] for the value of the entirety of the debt. The value of the property is unknown as a Caveat … has been lodged over the land by Community Corporation 23459 Inc on the basis that the respondent debtor is obliged to redesignate the property to the common property of Community Corporation 23459 Inc.

27    The applicant did not include in the petition any statement under s 44(3).

The power to amend

28    By s 33(1)(b) of the Act, the Court may at any time allow the amendment of any written process, proceeding or notice under the Act.

29    It is established that the s 33(1)(b) power may be exercised to allow the amendment of a creditor’s petition, including amendments directed to overcoming omissions to comply with s 44(2) and (3): Re Florance; Ex parte Turimetta Properties Pty Ltd (No 2) (1980) 39 FLR 400 at 402; Re Finn; Ex parte Finn v Amoco Australia Ltd (1982) 58 FLR 54 at 58-60; Re Vassis at 530; MacDonald v Official Trustee in Bankruptcy [2001] FCA 140, (2001) 107 FCR 72 at [25]-[27].

30    Counsel for the respondent accepted that the power to amend granted by s 33(1)(b) was available and that the issue on the review concerned the discretion to exercise that power.

31    The principles bearing upon the exercise of the discretion to allow an amendment to a pleading are settled: see AON Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175 at [5], [24], [30], [93], [95], [102], [108], [112] and [114]; Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter Tamaya Resources Limited (in liq) [2015] FCA 1098 at [127] and on appeal ([2016] FCAFC 2, (2016) 332 ALR 199 at [147]-[160]); Casson Investments Pty Ltd v Cao [2015] FCA 94, (2015) 236 FCR 322; and Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550, (2018) 359 ALR 564 at [25]-[30]. Relevant matters include the nature and importance of the amendments to the party applying for them, the delay and any costs which may be associated with the amendments, the explanation for the timing of the application to amend, the prejudice which might reasonably be assumed to follow from the amendment and that which is shown on the evidence, the choices which the parties have made in the litigation to date and the consequences of those matters, any possible detriment to other litigants in the Court if the amendments are allowed, and the necessity to maintain public confidence in the administration of justice (which may be jeopardised if the Court is seen to accede to applications made without adequate explanation or justification).

The parties’ submissions

32    Counsel for the applicant submitted that the following matters made it appropriate that the amendment be allowed:

(a)    the applicant had given notice in a timely way of the subject matter of the amendment because she had, by her affidavit made on 15 May 2020, confirmed her willingness as executor of the deceased estate to surrender the security for the benefit of creditors generally if a sequestration order was made against the respondent. There was accordingly no prejudice to the respondent;

(b)    the applicant had in the petition stated a lack of knowledge as to the value of the security:

The value of the property is unknown as a caveat (dealing No 13016663) has been lodged over the land by Community Corporation 23459 Inc on the basis that the respondent debtor is obliged to redesignate the property to the common property of Community Corporation 23459 Inc.

Counsel submitted that this was, effectively, a description of the value of the security as “nil” and, in that circumstance, there was no need for the applicant to have included a statement in the petition when lodged to the effect that she was prepared to surrender the security;

(c)    there was potential prejudice to third parties if the amendment was not allowed arising from the public interest in the Court protecting the public generally against insolvents continuing to incur liabilities: Wright Designed Pty Ltd v McClymont [2006] FCA 999; (2006) 232 ALR 683 at [46].

33    The respondent submitted that the discretion to amend should not be exercised to the applicant’s favour by reason of the following:

(a)    the applicant’s failure to comply with s 44(3) is not capable of remedy by amendment;

(b)    the Court should not exercise the power of amendment to permit substantial defects in a petition to be remedied, and the defect in this case was more than formal;

(c)    the respondent would be prejudiced by the amendment because he did not know, and was not fully aware of, the applicant’s position with respect to the security.

34    In the support of the second of these matters, the respondent referred to Re Walsh (1982) 65 FLR 87 in which Lockhart J said at 90 that “if a defect in a bankruptcy notice is of such a kind as could reasonably mislead a debtor upon whom it is served, it invalidates the notice and cannot be validated by s 306”. Counsel also referred to Re Wong; Ex parte Kitson (1979) 38 FLR 207 in which Lockhart J said at 217:

A debtor is not required to engage in the task of construing a bankruptcy notice and resolving questions of doubt or ambiguity. A bankruptcy notice ought be clear and unambiguous.

Consideration

35    I am persuaded that it is appropriate to exercise the s 33(1)(b) discretion in favour of the applicant in the present circumstances. A number of matters indicate why that is appropriate.

36    The application to amend was made in a timely way, and is important to the applicant’s petition. That importance is indicated by the respondent’s acknowledgement that, if the amendment is allowed, the review of the Registrar’s decision must fail.

37    There is no prejudice to the respondent from the amendment being allowed. Despite the opportunities which he has had, including by filing a further affidavit on the review, the respondent has not deposed to any matter of prejudice. He has known of the applicant’s willingness to surrender the security since on or shortly after 19 May 2020 when the applicant’s affidavit of 15 May 2020 was filed. If the respondent had been prejudiced, one would expect to have seen him depose to a factual circumstance arising from conduct (or an omission) occurring between 19 May 2020, when the petition was lodged, and on or about 19 May 2020 when the applicant made plain her willingness to surrender the security. Alternatively, the respondent could have deposed to some factual circumstance arising even after 19 May 2020 giving rise to prejudice by reason of the statement of willingness to surrender not having been included in the petition when filed. He has done neither. In particular, the respondent has not pointed to any action which he has taken which would not have been taken, or which would have been taken differently, had the statement concerning the surrender of the security been included in the petition at the time of filing. Nor he has pointed to any omission to act in a particular way which may have been influenced in part by the absence of any reference in the petition when lodged of the applicant’s willingness the surrender the security.

38    This is not a case in which some form of prejudice may be assumed even in the absence of evidence.

39    The decisions in Re Walsh and Re Wong do not assist the respondent. In neither case was the Court considering the exercise of the discretion under s 33(1)(b). Moreover, each of Re Walsh and Re Wong concerned defects in bankruptcy notices and not in petitions.

40    As to the respondent’s submission that the shortcoming in the petition is incapable of being remedied by amendment, counsel did not refer to any authority to support the contention. I note that the discretion granted by s 33(1)(b) is in unrestricted terms. It would not be appropriate for this Court to impose some fetter on the exercise of the discretion by regarding it as capable of being exercised only in respect of particular types of defects.

41    It is apparent in any event that, at the time the petition was lodged, there was considerable uncertainty as to the value of the applicant’s security. It is understandable that the applicant deposed at that time that she did not know the value of the security. Moreover, it now seems that the value of the security is nil. The Banksia Park land has been sold by the Corporation of the City of Tea Tree Gully in order to recover outstanding rates owed by the respondent to it. The sale proceeds of $58,000 were not sufficient to discharge the respondent’s indebtedness to the Corporation of $62,000.

42    These circumstances are pertinent in two ways: first, to the respondent’s claims of prejudice; and, secondly, to the applicant’s submission that the effect of her statement that the value of the Banksia Park land was unknown was, in effect, a statement that the value of the security was nil.

43    This is not a case in which the Court ought be concerned that allowing the amendment may have a detrimental effect on other litigants or undermine confidence in the administration of justice. On the contrary, the refusal of an otherwise meritorious amendment (such as the present) is likely to undermine that confidence.

44    For these reasons, the amendment is allowed.

45    As noted earlier, counsel for the respondent conceded that if the amendment was allowed, the application for review should otherwise fail. I am satisfied that that is an appropriate course.

46    The respondent has not in any event proved his solvency. His affidavit made on 19 October 2020 suggested an attempt to do so by providing evidence that he had, on Monday, 19 October 2020, entered into a consultancy agreement concerning land development. Had it been necessary to consider that consultancy agreement, I would not have been willing to place any weight on it: first, the Court has not been provided with an executed copy; secondly, the copy of the consultancy agreement provided to the Court is incomplete, and that deficiency was not remedied even after the applicant’s solicitors had pointed it out to the respondent well before the hearing; and both the circumstances in which the consultancy agreement was made (in particular, its timing), and the content available to the Court, raise real questions as to its bona fides.

Conclusion

47    For the reasons given above, on the review application lodged by the respondent on 9 September 2020, I make the same orders as were made by the Registrar on 19 August 2020, namely:

(a)    The Applicant be given leave with effect from 19 March 2020 to amend the Creditor’s Petition in the form set out in Annexure CRW21 to the affidavit of Caitlin Rose Walkington filed 28 July 2020.

(b)    The requirement to file and re-verify the Amended Creditor’s Petition be dispensed with.

(c)    The estate of AGOSTINO DE ANGELIS be sequestrated under the Bankruptcy Act 1966 (Cth).

(d)    The Applicant Creditor’s costs (other than those of and incidental to the application for review) be fixed in the sum of $5,389.00 and be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966 (Cth).

48    I will hear from the parties as to the costs on the review.

Associate:

Dated:    23 December 2020