Federal Court of Australia

Ganesh v Dobrowolski [2021] FCA 909

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Within seven days, the respondents file and serve a proposed form of order as to costs and a written submission (of no more than two pages) in support of the order sought.

3.    If the appellant takes issue with the respondents’ proposed form of order:

(a)    Within a further seven days, the appellant file and serve a proposed form of order as to costs and a written submission (of no more than two pages) in support of the order sought.

(b)    Subject to further order, the issue of costs be determined on the papers.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, Ms Anandavalli Ganesh (Ms Ganesh) appeals from a judgment and orders of the Federal Circuit Court of Australia dated 1 May 2020. The Federal Circuit Court dismissed an application for review filed by Ms Ganesh, seeking review of a sequestration order made in respect of her estate by a Registrar of the Federal Circuit Court. The primary judge ordered that the estate of Ms Ganesh be sequestrated under the Bankruptcy Act 1966 (Cth). His Honour also ordered that the costs of the petitioning creditor, Walter Dobrowolski (Mr Dobrowolski) and of the trustees in bankruptcy, Matthew Gallant and Norman Jones (the Trustees) be paid from Ms Ganesh’s estate in accordance with Pt 40 of the Federal Court Rules 2011, to be fixed in default of agreement.

2    Ms Ganesh, who represented herself in the proceeding in the Federal Circuit Court and is representing herself in the proceeding in this Court, relies on twelve grounds of appeal, as set out in her notice of appeal filed on 13 May 2020.

3    The act of bankruptcy relied on by Mr Dobrowolski was Ms Ganesh’s non-compliance with a bankruptcy notice in the sum of $119,676.07. The basis of the bankruptcy notice was a judgment given by the Magistrates’ Court of Victoria on 16 July 2018.

4    At the hearing before the primary judge, Ms Ganesh’s main contention was that the primary judge should go behind the judgment of the Magistrates’ Court and decide for himself whether there was a debt owing to the petitioning creditor, Mr Dobrowolski. The primary judge declined to go behind the judgment of the Magistrates Court. His Honour was not satisfied that sufficient reason had been shown to question whether there was in truth and reality a debt due to Mr Dobrowolski: see Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 (Ramsay) at [55] per Kiefel CJ, Keane and Nettle JJ.

5    On appeal, Ms Ganesh’s main contention is that the primary judge erred in deciding not to go behind the judgment of the Magistrates’ Court.

6    For the reasons that follow, no error has been shown in the judgment or orders of the primary judge. The appeal is therefore to be dismissed.

Background facts

7    The following summary of the background facts is substantially based on the reasons for judgment of the primary judge (the Reasons). I have also drawn on certain documents in the Appeal Book (AB) to which I was taken during the course of the hearing of the appeal.

8    At the hearing of the appeal, Ms Ganesh applied for the Court to receive further evidence on appeal. Specifically, Ms Ganesh applied for the Court to receive five affidavits that were not before the primary judge. I deal with Ms Ganesh’s application for the Court to receive these affidavits later in these reasons. At this stage, in setting out the background facts, I have not drawn on this material.

9    To assist the parties’ consideration of these reasons, I have included references in the following paragraphs to the Reasons or to the Appeal Book to indicate the source of the relevant fact. I note that the Appeal Book was filed in electronic form without pagination on each page. The references are therefore to the page of the PDF document that constitutes the Appeal Book.

10    In 2011, Ms Ganesh and her husband, Mr Ganesh Radhakrishnan (Mr Radhakrishnan), were investors in residential real estate using largely borrowed funds (Reasons, paragraph 6).

11    Mr Dobrowolski is a retired mortgage broker who was retained by Ms Ganesh to raise funds to complete the purchase of a property in Alfredton, a suburb of Ballarat (the Property). In August 2010, Ms Ganesh entered into a contract to purchase the Property for $550,000 (Reasons, paragraph 7).

12    In January 2011 a rescission notice was served by the vendors of the Property and Ms Ganesh retained Mr Dobrowolski to secure finance to complete the purchase. Funds were raised through a loan in the sum of $440,000 from AMP Ltd (AMP), but there remained a shortfall of funds necessary to complete the purchase (Reasons, paragraph 8).

13    In anticipation of the settlement (which took place on 12 April 2011), Mr Dobrowolski provided the sum of $85,000 to enable completion of the purchase to take place (Reasons, paragraph 9).

14    There is an issue between the parties as to the circumstances in which Mr Dobrowolski advanced that sum of money. According to Mr Dobrowolski, there was a conversation between him and Ms Ganesh in which he offered to lend her the money and she accepted his offer. Mr Dobrowolski says that the conversation took place on the same day that he drew a cheque for the amount (see the partial transcript of the hearing in the Magistrates’ Court at AB 117-118). This places the timing of the conversation on or about 8 April 2011. According to Ms Ganesh, no such conversation took place and she was not aware on the date of settlement that the source of these funds was Mr Dobrowolski (see Ms Ganesh’s affidavit dated 15 November 2019 at AB 69-70).

15    On 16 June 2011, Mr Dobrowolski sent an email to Ms Ganesh (AB 121), which stated in part:

I want to discuss the issue of the $85,000. At the last minute, the investor pulled out of giving you the money because she felt that you were too high a risk and had no possible means of paying her back. She felt that she would lose all her money because there had not been time to organise a second mortgage between her and your bank on one of the other properties. So she said NO.

So I decided that I would advance you the money to help you out. You had been stressed out enough. I borrowed the money quickly and sent a cheque to Ballarat to meet settlement. I did this on the basis that I would be able to refinance other properties with enough equity to pay me out. This of course depended on you being able to supply tax returns and Assessment Notices which showed you could service the debt. I assured my wife that you and Ganesh [i.e. Mr Radhakrishnan] – whatever else was happening in your lives – had a commitment to your children and to repaying the debt as soon as we could refinance again.

My wife now believes that we have an $85,000 debt which we will have to pay back because of my trust in you and Ganesh. She knows that no-one – not even your family would have done this for you.

So, it is now your turn to assure and help me, so that I can say to my wife – see my trust and faith – is being rewarded. This is the plan for us to complete the transaction with Ana.

I wanted you to know the real situation so that we can start the process as soon as possible. This may involve us meeting in the next few days to see what is required. One of the things we need to discuss is how I protect my interests since there is no record of me having lent you any money and no agreement in place, should you not be in a position to refinance at all.

(Bold emphasis added.)

16    On the same day, Ms Ganesh sent an email to Mr Dobrowolski (AB 123-124), which stated in part:

It has been very sad reading your email and I am extremely grateful to you and I have no words to describe my feelings at this tremendous sacrifice.

Rest be assured that as soon as we are able to I shall be increasing my limits on GSquare with NAB and to pay youn back the amount of $85K plus will be the very first thing I shall ever do.

Please do not worry at all about that. As with the vendor of Sturt St who also like yourself and your wife have been very patient with this whole deal, my word to my vendor mearnt everything more than life and the same with your help.

As your company’s adage, you have made my dream come true and it has been all your great hardwork.

I pray that you recover completely and please reassure your wife not to worry at all as I shall today endeavour to pay more not less than what you have sacrificed. Do not worry at all.

(Errors in original.)

17    On 28 October 2013, Mr Dobrowolski commenced a proceeding against Ms Ganesh in the Magistrates’ Court of Victoria seeking to recover the $85,000 plus interest. However, this proceeding was later struck out and can be put to one side for present purposes (Reasons, paragraphs 11, 15).

18    In or about 2014, Mr Radhakrishnan, on behalf of Ms Ganesh, made a complaint to the Credit Ombudsman Service Ltd (also referred to as COSL) regarding Mr Dobrowolski’s conduct. In or about November 2014, the Credit Ombudsman Service Ltd was renamed the Credit and Investments Ombudsman Ltd (CIO). The CIO was an external dispute resolution scheme. (I note that it is no longer in existence, having been replaced by the Australian Financial Complaints Authority in November 2018).

19    On or about 26 April 2016, the CIO sent a letter to Ms Ganesh and Mr Dobrowolski outlining its preliminary findings in relation to the complaint (AB 135-149). (Although dated 26 April 2015, it is common ground that the correct date of the letter is 26 April 2016.) I will refer to the letter in some detail as it is relevant to issues raised in the appeal. In the letter, Ms Ganesh was referred to as the “consumer” and Mr Dobrowolski was referred to as the “FSP” (the financial services provider). The summary at the beginning of the letter was as follows:

2.    We find that, based on the information available in this file:

(a)    the consumer was not aware that the FSP would contribute the shortfall amount, however is still obliged to repay this amount to the FSP, and

(b)    the FSP did not comply with his responsible lending obligations, and assisted the consumer to enter into an inappropriate credit contract.

3.    In order for us to continue with our investigation of the complaint, we require further information from the consumer.

20    The CIO outlined the background to the complaint at paragraphs 4-14 of the letter. The CIO then outlined Ms Ganesh’s claims and Mr Dobrowolski’s response:

Consumer’s claims

15.    The consumer says that:

(a)    she was not aware that the FSP would be supplying the shortfall amount from his own funds. The consumer therefore does not consider that she should repay it, and

(b)    the AMP loan was inappropriate to her needs, as she could not afford to repay the loan.

16.    To resolve her complaint, the consumer wants compensation for any financial loss she has suffered as a result of the FSP’s conduct.

FSP’s response

17.    The FSP denies the consumer’s claims, and says that:

(a)    after the private investor declined to give the consumer a loan, the FSP offered to provide the loan instead, to enable the consumer to proceed to settlement. The FSP says that the consumer accepted this offer, and the terms of the loan were verbally agreed to, and

(b)    he was confident was the Sturt St property could be purchased, based on the information provided by the consumer and Mr Radhakrishnan.

(Errors in original; footnotes omitted.)

21    The CIO considered whether Ms Ganesh had been aware that Mr Dobrowolski would contribute the shortfall amount (i.e. the $85,000) at paragraphs 21-37. After setting out the information that had been provided to the CIO (which included Mr Dobrowolski’s email of 16 June 2011), the CIO stated that it considered the available information to support Ms Ganesh’s version of events (at paragraph 32). The CIO stated that it therefore accepted that Ms Ganesh had not been aware that Mr Dobrowolski had lent the shortfall amount to her. However, it found that she had been aware that: (a) funds totalling $85,000 were going to be supplied to ensure that settlement would be completed; and (b) she would be obliged to repay those funds (paragraph 33). The CIO stated that it did not consider that Mr Dobrowolski was entitled to charge interest on the shortfall amount. This was because there was no information to show that: (a) Mr Dobrowolski ever offered to lend Ms Ganesh the shortfall amount; or (b) Ms Ganesh accepted Mr Dobrowolski’s offer, or any of the terms outlined in certain (unsigned) loan deeds. The loan amount was therefore limited to $85,000, the CIO stated (paragraph 35). The CIO concluded this section of the letter:

36.    In view of the above, we find that the consumer:

(a)    was not aware that the FSP was the source of the loan funds of $85,000, but

(b)    received the benefit of those funds, and is therefore obliged to repay it.

37.    We consider that the consumer is obliged to repay the FSP the amount of $85,000, and we cannot consider this claim any further.

(Footnote omitted.)

22    The CIO then considered whether Mr Dobrowolski had assisted Ms Ganesh to obtain an inappropriate loan. This related to the loan from AMP to Ms Ganesh in the sum of $440,000. In connection with this issue, the CIO considered provisions of the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act). In particular, the CIO considered provisions of Ch 3 of that Act, which imposed certain obligations relating to responsible lending conduct on licensees, that is, holders of an Australian credit licence. Mr Dobrowolski was the holder of an Australian credit licence at all material times. The CIO focussed on the provisions of Pt 3-1 of the NCCP Act. That Part was headed “Licensees that provide credit assistance in relation to credit contracts”. The CIO noted that, as part of their obligations, credit assistance providers (such as Mr Dobrowolski) were required to: (a) make inquiries of the prospective consumer; (b) take steps to verify information provided by the consumer; and (c) make an assessment of the unsuitability of a proposed credit contract for the consumer (paragraph 41).

23    The CIO considered whether Mr Dobrowolski had made reasonable inquiries about Ms Ganesh’s and Mr Radhakrishnan’s financial situation at paragraphs 46-52, concluding that it appeared that he had made reasonable inquiries, in compliance with s 117(1)(b) of the NCCP Act.

24    The CIO considered whether Mr Dobrowolski had taken reasonable steps to verify Ms Ganesh’s and Mr Radhakrishnan’s financial situation at paragraphs 53-68, concluding that the CIO did not consider that Mr Dobrowolski had taken reasonable steps to verify Ms Ganesh’s and Mr Radhakrishnan’s financial situation, and that such conduct was in breach of s 117(1)(c) of the NCCP Act.

25    The CIO considered whether the loan from AMP to Ms Ganesh was unsuitable at paragraphs 69-85, concluding that Mr Dobrowolski had not carried out a complete preliminary assessment of unsuitability and that, as a result, he had recommended an unsuitable credit contract to Ms Ganesh, in contravention of s 123 of the NCCP Act. Further, the CIO considered that Mr Dobrowolski had recommended that Ms Ganesh remain in an unsuitable credit contract, in contravention of s 124 of the NCCP Act.

26    The CIO considered what loss Ms Ganesh had suffered as a result of Mr Dobrowolski’s conduct at paragraphs 86-89. The CIO stated that, at that stage, it had no information from Ms Ganesh that would enable it to determine the loss incurred by Ms Ganesh and Mr Radhakrishnan (paragraph 89). The CIO concluded by stating, at paragraph 91, that if Ms Ganesh wanted the CIO to assess loss, it required certain information (as there set out) to be provided by 10 May 2016. No material was provided to the CIO by Ms Ganesh (Reasons, paragraph 14).

27    On 5 April 2017, Mr Dobrowolski commenced a second proceeding in the Magistrates’ Court of Victoria against Ms Ganesh seeking to recover the $85,000 plus interest (Reasons, paragraph 16). A copy of the Complaint is included in the materials before the Court (AB 150-155). Mr Dobrowolski’s claim was primarily based on breach of contract, but also relied on a claim of “money had and received”.

28    Ms Ganesh filed a defence to the claim by which she denied the existence of any loan agreement and said she did not know Mr Dobrowolski had made the advance until after the purchase of the property had been completed. The defence also stated that she had made payments of approximately $3,000 to Mr Dobrowolski out of “kindness and sympathy”. She also made allegations that Mr Dobrowolski had breached the NCCP Act by assisting her to obtain an unsuitable loan (Reasons, paragraph 16).

29    On 16 July 2018, the hearing of the Magistrates’ Court proceeding took place. Ms Ganesh did not appear at the hearing. The matter proceeded in the absence of Ms Ganesh, with Mr Dobrowolski having to prove his claims by giving evidence and tendering documents (Reasons, paragraph 17).

30    The materials before the primary judge included a partial transcript of the hearing in the Magistrates’ Court (AB 114-119). The letter “F” in the transcript stands for “Featherbys”, the firm that was representing Mr Dobrowolski. However, the statements prefaced by “F –” were in fact spoken by Mr Champion, counsel for Mr Dobrowolski.

31    The partial transcript indicates (at AB 117-118) that Mr Champion disclosed to the Magistrate that the CIO had made findings that were adverse to Mr Dobrowolski in its preliminary review. Mr Dobrowolski gave evidence before the Magistrate that he had a conversation with Ms Ganesh about lending her the funds. He said that he did not recall having mentioned interest. He said that the conversation took place on the same day he drew the cheque (which was 8 April 2011). He said that Ms Ganesh proposed that the money be paid back in three months. Mr Dobrowolski identified on his bank account statement the relevant debit from his account. He said that he had been repaid approximately $1,700, but not the balance of the $85,000.

32    The partial transcript indicates that Mr Dobrowolski did not seek interest pursuant to a loan agreement, but only statutory interest from April 2016, the time when the CIO issued its preliminary findings (which included that Ms Ganesh was obliged to repay the $85,000). As this amount of interest took Mr Dobrowolski over the jurisdictional limit of the Magistrates’ Court, not all of the interest calculated on that basis was sought.

33    At the conclusion of the hearing, the Magistrate made orders that Ms Ganesh pay Mr Dobrowolski the following amounts (AB 308):

(a)    an amount of $83,275 in respect of the claim;

(b)    interest of $16,825; and

(c)    costs of $14,670.80.

34    On 13 August 2018, Ms Ganesh made an application for rehearing on the basis that the trial was conducted in her absence. The application was dismissed on 5 November 2018 after Ms Ganesh failed to appear at the hearing of the application (Reasons, paragraph 18).

35    Ms Ganesh did not appeal the orders of the Magistrates’ Court made on 16 July 2018 or 5 November 2018 (Reasons, paragraph 19).

36    On 18 December 2018, Mr Dobrowolski issued a bankruptcy notice. This was served on Ms Ganesh on 20 December 2018. Although the bankruptcy notice was also served by email on 19 December 2018, Mr Dobrowolski relies on the postal service of the bankruptcy notice and pleads 20 December 2018 as the date of service, stating that an act of bankruptcy was committed on 10 January 2019 (Reasons, paragraph 20).

37    On 9 January 2019, Ms Ganesh commenced a proceeding in the Supreme Court of Victoria against Mr Dobrowolski. That proceeding raised claims that Mr Dobrowolski had breached provisions of the NCCP Act and the Financial Services Industry Code of Practice by assisting her to obtain an unsuitable loan (Reasons, paragraph 21).

38    On 11 September 2019, the Supreme Court proceeding was summarily dismissed: Ganesh v Dobrowolski [2019] VSC 577 (Daly AsJ). At [56], her Honour stated:

In my view, this proceeding is an abuse of process, at least insofar as it concerns the claims brought by Ms Ganesh. The matters raised by Ms Ganesh in the statement of claim, insofar as they concern the character of the advance, and the losses said to have been suffered by her as a result of the defendant’s alleged breach of duty were raised in her defence in the Magistrates’ Court proceeding, and could have been and should have been prosecuted in the Magistrates’ Court proceeding. Ms Ganesh’s claims traverse the same factual matters as those contained in her defence in the Magistrates’ Court proceeding. She chose not to attend the trial of the Magistrates’ Court proceeding, or her application for a rehearing. She could have brought a counterclaim seeking relief in relation to the allegations made by her in her defence, but chose not to do so. She could have appealed the decision in the Magistrates’ Court proceeding on a question of law, but chose not to do so.

39    Her Honour noted at [59] that Ms Ganesh’s contentions in her defence in the Magistrates’ Court proceeding exceeded the monetary jurisdiction of the Magistrates’ Court, but noted that Ms Ganesh could have transferred any counterclaim to an appropriate Court.

40    Her Honour found, at [59], that Ms Ganesh had not provided any medical evidence to support claims that she was unable to attend Court. Her Honour also stated:

I appreciate that she has the care of a disabled son to attend to, and her family has faced financial turbulence in recent years, but I note that these difficulties have not prevented her from pursuing further education, pursuing investment opportunities, dealing with COSL, and bringing her claims in this proceeding.

41    On 1 October 2019, Ms Ganesh filed a notice of appeal against the orders of Daly AsJ. Ms Ganesh seeks to set aside those orders. Alternatively, she seeks leave to appeal out of time from the Magistrates’ Court orders of 16 July 2018 (Reasons, paragraph 24). The material before this Court does not make clear the current status of that proceeding.

The proceeding in the Federal Circuit Court

42    On 31 October 2019, a Registrar made a sequestration order in relation to the estate of Ms Ganesh (AB 24).

43    On 19 November 2019, Ms Ganesh filed an application for review of the Registrar’s orders.

44    On 29 April 2020, the application for review was heard by the primary judge.

45    On 1 May 2020, the primary judge gave judgment on the application for review: Ganesh v Dobrowolski [2020] FCCA 1013. As noted above, his Honour dismissed the application for review. He also made an order that the estate of Ms Ganesh be sequestrated.

46    His Honour set out the background facts at [5]-[24] of the Reasons. At [25], his Honour summarised Ms Ganesh’s arguments:

[Ms Ganesh] made submissions that:

(a)    there was no agreement between her and [Mr Dobrowolski] and any finding that she owed a debt to [Mr Dobrowolski] or was under any duty to repay the advance was an error;

(b)    the advance was not to her benefit as it was in support of an unsuitable loan;

(c)    [Mr Dobrowolski] had engaged in deceptive and misleading conduct, both by silence (in failing to advise that he had advance the funds) and by taking a benefit through receiving commissions as a result of procuring loans to support an uneconomic or financially disadvantageous transaction;

(d)    that the Court should exercise the power to look behind the [Magistrates’ Court of Victoria] judgement; and

(e)    an appeal had been filed against the decision of Daly AsJ, and for that reason [Mr Dobrowolski’s] petition should be dismissed or the hearing of the petition should be adjourned.

47    The primary judge noted at [28] that Ms Ganesh submitted that the email from Mr Dobrowolski of 16 June 2011 (set out above) demonstrated that there was no agreement. It was submitted that by making a claim in the Magistrates’ Court based on an agreement, Mr Dobrowolski had committed perjury. It was also submitted that the Magistrates’ Court had been misled because that email had not been placed before the Court.

48    The primary judge found, at [32], that a bundle of documents was tendered before the Magistrates’ Court and this included the email from Mr Dobrowolski of 16 June 2011. The primary judge also found that the chain of correspondence referred to in the partial transcript of the hearing before the Magistrates’ Court showed that Ms Ganesh was actively seeking further funds of $85,000 from sources other than Mr Dobrowolski.

49    The primary judge considered the issue raised by the application for review at [33]-[43] of the Reasons. His Honour referred to s 52(2)(b) of the Bankruptcy Act 1966 (Cth) and Stratten v Bowles (No 2) [2015] FCA 43 at [27]-[30] and [32]-[37] per Beach J, which discussed both s 52(1)(c) and s 52(2)(b).

50    At [35]-[37], the primary judge considered Ms Ganesh’s submissions based on the proceeding in the Supreme Court of Victoria. The primary judge rejected these submissions, noting that Daly AsJ had made a “fundamental finding” that Ms Ganesh was seeking to run arguments in that proceeding that could and should have been run in the Magistrates’ Court of Victoria, or in the appropriate court if Ms Ganesh wished to raise a counterclaim that exceeded the jurisdictional limit of the Magistrates’ Court.

51    The primary judge considered Ms Ganesh’s submission that the Court should go behind the judgment of the Magistrates’ Court. The primary judge reasoned:

38.    Ms Ganesh has not established a substantial reason to go behind the [Magistrates’ Court of Victoria] Order for these reasons:

a)    The transcript, albeit partial, shows at page 3 at lines 29–36, that [Mr Dobrowolski] gave evidence that he had a conversation with Ms Ganesh on or about 8 April 2011 that he would advance a cheque in the sum of $85,000 and that she would pay it back in three months.

b)    There was also evidence before the [Magistrates’ Court of Victoria] that [Mr Dobrowolski] had advanced the sum of $85,000 and this was proved by a copy of a cheque drawn on [Mr Dobrowolski’s] bank account which advanced the $85,000. The payee of the cheque was the vendor of the property. Ms Ganesh became the registered proprietor as purchaser on or about 12 April 2011.

c)    A debit of $85,000 from [Mr Dobrowolski’s] bank account is also evidence of the advance, as is the subsequent admission of the indebtedness in [Ms Ganesh’s] email dated 16 June 2011. There was evidence that she needed those funds in order to complete the purchase of the property. She had committed to the purchase of the property in August 2010 before she retained [Mr Dobrowolski] in 2011.

d)    It was open for the Court to find that [Mr Dobrowolski] had advanced funds and [Ms Ganesh] agreed to pay them back, or alternatively: (i) that even if she did not know where the money came from [Ms Ganesh] would be unjustly enriched if she retained that money; (ii) on the basis of monies had and received.

e)    There was evidence before the [Magistrates’ Court of Victoria] that Ms Ganesh needed funds to settle on the property and that she obtained those funds from [Mr Dobrowolski] and by her letter of 16 June 2011 clearly stated that she would repay that money. Any arguments about whether there was an agreement and illegality and breaches of the [NCCP Act] could have been raised in the [Magistrates’ Court of Victoria] hearing.

39.    [Ms Ganesh] has raised detailed arguments in support of the submissions she makes in written submissions. I have read those submissions but find that the arguments, which I have summarised, do not give rise to a basis for going behind the judgement of the [Magistrates’ Court of Victoria].

40.    [Ms Ganesh] faces a fundamental problem that she could have raised by way of defence in the [Magistrates’ Court of Victoria]. It is significant that [Ms Ganesh] failed to attend both the [Magistrates’ Court of Victoria] hearing and the application for rehearing that she filed. She has put nothing before the Court by way of medical evidence to undermine the findings of Daly AsJ regarding the absence of evidence to explain those non-appearances.

41.    I am not satisfied that a substantial reason has been shown to question whether there is in truth and reality a debt due to [Mr Dobrowolski]: Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132 at [55].

42.    In these circumstances the Court finds that it is satisfied that the debt is still owing under section 52(1)(c) of the Act.

52    There may be some words missing in the first sentence of [40] of the Reasons. Read in context, I take that sentence to be intended to read: “[Ms Ganesh] faces a fundamental problem that the arguments she now raises could have been raised by way of defence in the [Magistrates’ Court of Victoria].”

The appeal to this Court

53    By notice of appeal filed 13 May 2020, Ms Ganesh appeals to this Court from the judgment and orders of the primary judge. The notice of appeal contains the following grounds:

1.    This appeal is made pursuant to s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth).

2.    His Honour has erred by failing to consider that I did not satisfy the jurisdiction criteria for the sequestration order under s43 of the Bankruptcy Act 1966 (“Act”) and the sequestration order ought not to have been made.

3.    His Honour was informed at the hearing that I rely only on Centrelink payments.

4.    His Honour erred in stating that there is no basis for going behind the judgment of the [Magistrates’ Court of Victoria] at [39] of 1 May 2020 Reasons (“Reasons”) when according to the authorities cited at Reasons [34], a court has the discretion to go behind a judgment, which may be exercised where, as shown in my submissions and evidence in this case, the [Magistrates’ Court of Victoria] judgment was procured by or tainted with perjury, judgment was obtained ex parte, the judgment was not obtained following an adjudication on merits and there are substantial reasons for questioning whether there is in substance a legal debt.

5.    Pursuant to s104 of the Federal Circuit Court of Australia Act 1999 (Cth) to review a decision of the Court, His Honour conducted a de novo hearing with a focus on the provenance of the debt but failed to consider all the evidence before the Court and my submissions that proved that the alleged debt was not bona fide both under ‘contract’ and/or alternatively, in ‘restitution’. This is a s 52(1)(c) and/or s 52(2)(b) question.

6.    His Honour has erred at Reasons [10] by concluding without justification that “it is common ground that there was no written loan agreement in existence at the time the funds were advanced” [Emphasis added] when the respondent creditor’s cause of action in the Magistrates Court, Ringwood, Victoria (“MCV”) was for ‘breach of contract’ that was alleged to be partly written and partly oral and allegedly made on 8 April 2011 when the respondent advanced the funds.

a.    The conclusion by His Honour that “there was no written loan agreement” itself requires His Honour to have gone behind the judgment (albeit by only partially accepting our material facts). Having done so, His Honour erred in then stating that there is no basis for going behind the [Magistrates’ Court of Victoria] judgment (Reasons [34]) which is contradictory.

b.    Further, after concluding “there was no written loan agreement in existence at the time the funds were advanced”, His Honour did not then consider that the respondent had obtained orders in the [Magistrates’ Court of Victoria], knowingly and deliberately, through false pleadings of a partly written agreement which is a fraud on the court.

c.    In concluding that there was no written contract at Reasons [10], His Honour then erred by not considering whether in law, there could be an “oral loan agreement” between the respondent and me and failed to consider my submissions and evidence that showed no oral agreement could have taken place on 8 April 2011.

d.    In concluding that there was no written contract at Reasons [10], His Honour then erred in law by not finding that the respondent’s debt agreement should be in writing: s126 Instruments Act 1958.

e.    His Honour erred by not considering that the respondent creditor is estopped in law to change his position to “no written contract” after having obtained judgment on the basis of a “partly written and partly oral contract”. Consequently, I have been unjustly wronged by His Honour’s conclusion of “no written contract” by His Honour then not finding in my favour (that there was no contract).

7.    His Honour at Reasons [41] erred in law by failing to engage in substance and in detail with the following crucial and substantial reasons, or other sufficient cause, adduced by me that question whether there is in truth and reality a legal obligation or debt due to the respondent under s52(2)(b):

a.    That the [Magistrates’ Court of Victoria] order, based as it was on a “breach of contract”, was unsupported by the material facts and evidence in this case and shows that there was no contract (written and/or oral) between the respondent and me. In other words, His Honour did not carefully consider that the [Magistrates’ Court of Victoria] order had been made without proper basis and was more a reflection of how the respondent’s counsel put his case in the ex parte hearing and my self-represented status.

b.    That the alternative allegation of ‘unjust enrichment’/‘money had and received’ cannot also be sustained by only a claim of money was ‘advanced’ (Reasons [38(b) and (d)]). Importantly, His Honour has erred by failing to consider the legal maxim that the respondent creditor cannot make a claim in restitution after having violated the covenant of ‘good faith’ and fair dealing. His Honour has erred in not properly considering the material facts and the law in my defence.

c.    His Honour has erred at Reasons [38(c)] in not concluding that my email of 16 June 2011 (7:44 pm) (Reasons [27]) was nothing but an emotional response due to the personal and financial duress I was in, mingled with compassion for the respondent’s health condition conveyed in the respondent’s email earlier (2:08 pm). The tone of the email is generally emotional and should have been construed as such. This is reflected in my statement “will be the first thing I shall ever do” - with no salaried income, I would never be able to pay the $85,000 and that too, as sworn by the respondent in court, in 3 months i.e. over $28,000 a month.

d.    While His Honour has readily used my emotional email of 16 June 2011 as an “admission of indebtedness” (Reasons [38(c)), His Honour has ignored the respondent’s email (Reasons [26]) wherein the respondent has clearly admitted “no agreement in place”, “the investor pulled out”, “you were too high a risk”, “so I decided that I would advance you the money” without any choice given to me to back out or refuse as the advance on 8 April 2011 was done without disclosure and thereby without any contract or request from me.

e.    Most seriously, ‘perjury’ is a serious and indictable offence in Victoria under s314 of the Crimes Act 1958. His Honour failed to consider my submissions and documents that showed that the respondent creditor had obtained the [Magistrates’ Court of Victoria] order by ‘perjury’ resulting in a miscarriage of justice against a self-represented litigant.

i.    His Honour’s observation at Reasons [32] “... applicant was actively seeking further funding ... from sources other than the respondent” contradicts His Honour’s acceptance of the respondent’s evidence (His Honour also failed to mention that these were made under oath) at Reasons [38 (a)] that (i) he (respondent creditor) had a conversation (for an agreement/contract) with Ms Ganesh (ii) the said conversation occurred on 8 April 2011 (iii) he would advance a cheque in the sum of $85,000, and (iv) she (Ms Ganesh) would pay it back in three (3) months – and then failing to consider the material facts and evidence that the respondent could not have had that conversation on 8 April 2011 and the respondent did not have any evidence that I accepted to pay it back in three months.

ii.    His Honour erred in not carefully considering the material facts showing the multiple counts of perjury committed by the respondent (which is a fraud on the court), in an ex parte situation, and which undermines the [Magistrates’ Court of Victoria] judgment.

iii.    His Honour has erred in overlooking the conduct of the respondent and his counsel by which the [Magistrates’ Court of Victoria] order was obtained. Featherbys Lawyers have been the respondent creditor’s counsel since 2013 including at the [Magistrates’ Court of Victoria] hearing. Both perjury and subornation of perjury (which is also a breach of the counsel’s overarching obligations) are serious offences.

iv.    His Honour having the knowledge and understanding on the manner in which the respondent had obtained the [Magistrates’ Court of Victoria] judgment in his favour, did not give due weight to the seriousness of the offence. On the other hand, His Honour has lowered the standards by which justice is administered by making me a victim consequent to the respondent’s offence of perjury.

8.    His Honour has erred in not considering that under the law, as a consequence of a key admitted material fact of “unsuitable lending”, orders to compensate me for loss and damages under s 178 and s 179 of the National Consumer Credit Protection Act 2009 (NCCP) were required by recognising the legal tenability of the key factual elements (COSL finding) of my claim. His Honour erred in stating that this issue could have been raised in the [Magistrates’ Court of Victoria] hearing (Reasons [38(e)] instead of carefully considering the facts and evidence that showed that the [Magistrates’ Court of Victoria] judgment was based on partial facts and the COSL report was downplayed by the respondent creditor and was completely ignored. This court has the jurisdiction to recognise my cross-claims and that prima facie they exceed the debt claim of the respondent.

9.    His Honour has erred in not also considering the procedural failings of the court, that I encountered as a self-represented litigant:

a.    My Bankruptcy Notice set-aside application was not allowed to be filed on 8/01/2019 per s41(6A)(a) of the Act due to the failings of the registry and judicial staff. Our proceeding in the Supreme Court of Victoria was instituted bona fide (with honest intention) on 7/01/2019. Further, my set aside application also included a request for extension of time, the actioning of which fell within the registry purview (Registrar Stone), but this request was ignored or overlooked. His Honour did not properly consider the impediments imposed by the staff of the Federal Circuit Court registry.

b.    The creditor’s petition was allowed to be presented (filed) on 14 January 2019 in contravention of s44(1)(c) of the Act which states that the creditor’s petition can only be presented after an act of bankruptcy has been determined. His Honour erred in not recognising that, as on 14 January 2019, this action of the registry was procedurally unjust.

c.    Even in a simple matter of getting documents ‘filed’ for the Review hearing (29 April 2020), the other party was allowed to file documents on multiple occasions including on 28 April 2020 (one day before the hearing) while my documents, which were sent on 26 April night, were kept pending (even after we complied with the registry’s requirements). Some two hours after the hearing, around 2:46 pm, we got an email with “Leave was not granted to file the documents”.

10.    His Honour has erred in placing emphasis on AsJ Daly judgment and has unjustly given weight to procedural shortcomings (Reasons [21 – 23, 36 – 37, 40]) as a self-represented litigant, when these are not pertinent considerations to determine the question of whether the respondent’s debt was bona fide in truth and reality for the purpose of s52(2)(b).

11.    His Honour at Reasons [40] has raised the issue of my non-attendance at the [Magistrates’ Court of Victoria] hearings. My ‘Affidavit – Opposing creditors petition’ dated 13 March 2019 alongwith what I state hereof are the reasons for my non-appearance and was not a matter of ‘choice’. The health issues that occurred on the hearing days, over which I had no control, are those that I experience from time to time which I manage through adequate rest. As a self-represented litigant, I am not knowledgeable about each and every protocols and procedures. However, in the serious issue of making an individual bankrupt, His Honour has erred in giving more weight to my non-attendance than the substantial facts and evidence that shows the respondent's wrongdoings in obtaining the [Magistrates’ Court of Victoria] judgment.

12.    The administration of justice can only be achieved by simply and directly ascertaining all the material facts of the alleged debt and applying the law to those facts rather than allowing the other party to benefit from the limitations of a self-represented litigant.

(Errors in original.)

54    The hearing of the appeal was deferred for some time so that it could take place ‘in person’ in Court (rather than by video-conference, as was the case for most hearings last year due to the COVID-19 pandemic).

55    At the hearing, Ms Ganesh sought leave to rely on the following evidence that had not been before the primary judge:

(a)    an affidavit of Ms Ganesh dated 23 December 2020 (AB 747-796);

(b)    an affidavit of Mr Radhakrishnan dated 23 December 2020 (AB 797-798);

(c)    an affidavit of Ms Ganesh dated 17 January 2020 (AB 799-840);

(d)    an affidavit of Ms Ganesh dated 10 March 2021; and

(e)    an affidavit of Ms Ganesh dated 12 April 2021.

56    Pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), the Court has power to receive additional evidence on appeal. Rule 36.57 of the Federal Court Rules 2011 provides that a party may apply for the Court to receive further evidence on appeal and sets out the procedure to do so. The rule provides that the application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating:

(a)    briefly but specifically, the facts on which the application relies;

(b)    the grounds of appeal to which the application relates;

(c)    the evidence that the applicant wants the Court to receive; and

(d)    why the evidence was not adduced in the court appealed from.

57    The principles applicable to an application for the Court to receive further evidence on appeal were discussed in Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465 at [42]-[43] and Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1; [2013] FCAFC 128 at [7].

58    The application by Ms Ganesh for the Court to receive further evidence on appeal was raised at a case management hearing in the proceeding and reflected in procedural orders. In these circumstances, I do not consider it necessary for Ms Ganesh to have filed a formal application.

59    The substantive difficulty with Ms Ganesh’s application for the Court to receive further evidence is the absence of a satisfactory explanation for why the evidence was not adduced in the proceeding before the Federal Circuit Court. A good deal of the further material comprises affidavit evidence of Ms Ganesh or Mr Radhakrishnan about the circumstances of the advance of the $85,000 in April 2011. Plainly, that evidence could have been adduced in the Federal Circuit Court proceeding. Insofar as Ms Ganesh states, in paragraph 25 of her affidavit dated 10 March 2021, that the documents annexed to that affidavit were not provided by Featherbys Lawyers to her and “came to [her] hands” only recently, it is not apparent why these documents (many of which relate to the CIO investigation in the period 2014 to 2016) could not have been sought and obtained earlier, during the course of the Federal Circuit Court proceeding. In any event, the relevance of such documents to the issues on appeal is limited.

60    To the extent that some of the material sought to be relied on by Ms Ganesh post-dates the judgment of the Federal Circuit Court (1 May 2020), and thus was not available to Ms Ganesh at the time of the hearing before the primary judge, I do not consider the material to be relevant to the issues to be determined on appeal.

61    For the above reasons, I refuse Ms Ganesh’s application for the Court to receive further evidence.

62    In addition to the material outlined at [55] above, during the hearing of the appeal Ms Ganesh provided to the Court a CD with an audio recording of the Magistrates’ Court of Victoria hearing on 16 July 2018. This audio recording was not in evidence before the primary judge. (As noted above, a partial transcript of the hearing before the Magistrates’ Court was in evidence before the primary judge.) I am not satisfied that a satisfactory explanation has been provided as to why the audio recording was not adduced in evidence before the primary judge. Accordingly, insofar as Ms Ganesh applies for the Court to receive it into evidence, that application is refused.

63    During the hearing of the appeal, I raised with counsel for Mr Dobrowolski the following issue: whether the primary judge had erred by failing to find, on the basis of arguable breaches by Mr Dobrowolski of the NCCP Act, that a sufficient reason had been shown for questioning whether behind the judgment of the Magistrates’ Court of Victoria there was in truth and reality a debt due to the petitioning creditor. In circumstances where this issue had not been clearly raised in Ms Ganesh’s submissions, I gave Mr Dobrowolski the opportunity to file supplementary submissions in relation to this issue, and Ms Ganesh the opportunity to file submissions in response. Both Mr Dobrowolski and Ms Ganesh have filed supplementary submissions on this issue.

Consideration

64    Although Ms Ganesh’s notice of appeal contains 12 grounds, some of which are lengthy, the substance of her contention on appeal is that the primary judge erred in deciding not to go behind the judgment of the Magistrates’ Court of Victoria.

65    Section 52(1)(c) of the Bankruptcy Act provides that, at the hearing of a creditor’s petition, the Court shall require proof of “the fact that the debt or debts on which the petitioning creditor relies is or are still owing”.

66    Section 52(2)(b) provides that if the Court is not satisfied with the proof of any of those matters (being the matters referred to in subsection (1)) or is satisfied by the debtor “that for other sufficient cause a sequestration order ought not to be made”, it may dismiss the creditor’s petition.

67    The circumstances in which a bankruptcy court exercising jurisdiction under s 52 of the Bankruptcy Act may go behind a judgment were considered by the High Court in Ramsay. In the judgment of Kiefel CJ, Keane and Nettle JJ, their Honours referred at [37] to the submissions of Mr Compton and indicated at [38] their acceptance of those submissions. Their Honours stated:

37    Mr Compton submitted that, by reason of s 52(1)(c) of the Act, and as Wren v Mahony concluded, the question for the Bankruptcy Court was whether the judge was persuaded that there was a debt truly owing to the petitioning creditor. It was said that the Bankruptcy Court should go behind a judgment where sufficient reason is shown for questioning whether behind the judgment there is in truth and reality a debt due to the petitioning creditor, and that sufficient reason was shown in this case.

38    An examination of the competing arguments shows that, both in point of authority and in point of principle, Ramsay’s contentions should be rejected and those advanced for Mr Compton accepted.

(Footnote omitted.)

68    Further, Kiefel CJ and Keane and Nettle JJ set out, at [42], an extract from Wren v Mahony (1972) 126 CLR 212 at 224, and stated, at [43], that there were good reasons why that passage should not be given an artificially narrow application. Their Honours stated at [44], that Wren v Mahony held that a bankruptcy court may go behind a judgment, notwithstanding that the judgment was obtained after a contested hearing. Their Honours stated at [54]-[56]:

54    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.

55    The scrutiny required by s 52 as to whether there is, in truth and reality, a debt owing to the petitioning creditor serves to protect the interests of third parties, particularly other creditors of the debtor. It is of critical importance to appreciate that such persons were not parties to the proceedings that resulted in the judgment debt. It has long been recognised that their interest in being paid their debts in full should not be prejudiced by the making of a sequestration order in reliance on a judgment debt which does not reflect the true indebtedness of the debtor to the petitioning creditor. In In re Fraser; Ex parte Central Bank of London, Lord Esher MR said:

“The decision is based upon the highest ground – viz, that in making a receiving order, the Court is not dealing simply between the petitioning creditor and the debtor, but it is interfering with the rights of his other creditors, who, if the order is made, will not be able to sue the debtor for their debts, and that the Court ought not to exercise this extraordinary power unless it is satisfied that there is a good debt due to the petitioning creditor. The existence of the judgment is no doubt prima facie evidence of a debt; but still the Court of Bankruptcy is entitled to inquire whether there really is a debt due to the petitioning creditor.”

56    Almost a century later, the effect of the authorities on the topic was summarised in similar terms in Ahern v Deputy Commissioner of Taxation (Qld) by Davies, Lockhart and Neaves JJ:

“[B]efore a person can be made bankrupt the court must be satisfied that the debt on which the petitioning creditor relies is due by the debtor and that if any genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before he is made bankrupt. Bankruptcy is not mere inter partes litigation. It involves change of status and has quasi-penal consequences.”

(Footnotes omitted.)

See also at Ramsay at [97]-[98], [110]-[112] per Edelman J.

69    In the present case, having considered Ms Ganesh’s written and oral submissions, no error has been shown in the judgment or orders of the primary judge. In particular, no error has been shown in the decision of the primary judge not to go behind the judgment of the Magistrates’ Court of Victoria.

70    First, insofar as Ms Ganesh contends (and gives evidence) that there was no agreement between her and Mr Dobrowolski, this does not provide a sufficient reason for questioning whether behind the judgment of the Magistrates’ Court there was in truth and reality a debt due to Mr Dobrowolski. In the Magistrates’ Court proceeding, Mr Dobrowolski gave sworn evidence that there was an oral agreement between Mr Dobrowolski and Ms Ganesh, made on or about 8 April 2011, for Mr Dobrowolski to lend $85,000 to Ms Ganesh. That evidence was accepted by the Magistrate at a trial on the merits (albeit one in which Ms Ganesh did not appear). The fact that Ms Ganesh disputes that evidence and has a different version of events, does not itself provide a sufficient reason for questioning whether there was a debt due to Mr Dobrowolski.

71    Further and in any event, there does not appear to be any issue that Mr Dobrowolski advanced the $85,000 to the vendor to enable Ms Ganesh to complete the purchase of the Property. Even if (contrary to Mr Dobrowolski’s evidence in the Magistrates’ Court) no conversation took place between Mr Dobrowolski and Ms Ganesh on or about 8 April 2011 to the effect that he would lend her the $85,000, and thus there was no contract, there is not a sufficient reason to question whether there was a debt due to Mr Dobrowolski. This is because an alternative basis of claim in the Magistrates’ Court proceeding was “money had and received” and, on the face of things, the money was recoverable on that basis. I note ground 7(b) of Ms Ganesh’s notice of appeal, which relies on an absence of good faith and fair dealing in response to the “money had and received” claim. However, in my view, there is insufficient substance to Ms Ganesh’s affidavit material to support that ground.

72    Secondly, insofar as Ms Ganesh contends that Mr Dobrowolski breached his fiduciary duties to her, this does not provide a sufficient reason for questioning whether behind the judgment of the Magistrates’ Court there was in truth and reality a debt due to Mr Dobrowolski. The breach of fiduciary duty contention is not clearly developed in the evidence or the submissions. The main difficulty with the contention is that, even if Mr Dobrowolski did breach his fiduciary duties to Ms Ganesh in connection with the $85,000 loan, it is not sufficiently established that there was any loss or damage flowing from the breach such that Ms Ganesh is not liable to repay the $85,000 to Mr Dobrowolski. The evidence of loss in Ms Ganesh’s affidavit material is expressed in very general terms and is not linked to any breach of fiduciary duty.

73    Thirdly, insofar as Ms Ganesh contends that the judgment of the Magistrates’ Court was obtained by fraud or misconduct by or on behalf of Mr Dobrowolski, the evidence does not establish any such fraud or misconduct. While Mr Dobrowolski gave evidence of a conversation with Ms Ganesh during which it was agreed that he would lend her the $85,000, and Ms Ganesh disputes that version of events, this does not establish fraud or misconduct on the part of Mr Dobrowolski (or the lawyers acting for him). It merely establishes that Mr Dobrowolski and Ms Ganesh have two different versions of events. Ms Ganesh’s evidence (including her documentary evidence, such as the email from Mr Dobrowolski to Ms Ganesh dated 16 June 2011, set out above) does not provide a sufficient basis to conclude that (as she contends) Mr Dobrowolski committed perjury in his evidence in the Magistrates’ Court proceeding.

74    Ms Ganesh also makes submissions about the way the proceeding was conducted in the Magistrates’ Court by Mr Dobrowolski and his lawyers. She refers, in particular, to the pleadings in the Magistrates’ Court (that is, the Complaint filed by Mr Dobrowolski). The fact that the Complaint referred to a request for a loan by Ms Ganesh that was “partially verbal and partially in writing”, but the case as presented at the Magistrates’ Court hearing was based on an oral request, does not suggest misconduct by the lawyers; it merely indicates that the case as ultimately presented in evidence and submissions did not entirely match the case as earlier pleaded. Likewise, the fact that the Complaint sought interest under a loan agreement, but this was not pressed at the hearing, does not suggest misconduct. Insofar as Ms Ganesh contends that relevant documents were not provided, and should have been provided, by Mr Dobrowolski’s lawyers to the Magistrates’ Court, the factual premise of this contention is not established. The primary judge found at [32] that a bundle of documents was tendered before the Magistrates’ Court. The primary judge also accepted that this bundle included the email of 16 June 2011. Further, the partial transcript indicates that counsel for Mr Dobrowolski drew the Magistrate’s attention to the adverse findings of the CIO.

75    Accordingly, I reject Ms Ganesh’s contentions based on fraud or misconduct in connection with the Magistrates’ Court proceeding.

76    Fourthly, insofar as Ms Ganesh contends that Mr Dobrowolski breached provisions of the NCCP Act, while the preliminary findings of the CIO provide some support for these contentions, I am not persuaded that the contentions provide a sufficient reason to question whether there was in truth and reality a debt due to Mr Dobrowolski. It is true that the preliminary findings of the CIO, summarised above, provide some support for Ms Ganesh’s contentions. The CIO found (on a preliminary basis) that Mr Dobrowolski breached a number of provisions of Pt 3-1 of the NCCP Act in relation to the loan from AMP to Ms Ganesh. Although the CIO did not examine whether Mr Dobrowolski had breached provisions of Pt 3-2 of the NCCP Act in relation to the loan from Mr Dobrowolski to Ms Ganesh (Pt 3-2 being the relevant Part for that loan), the CIO’s findings in relation to Pt 3-1 (in relation to the AMP loan) suggest that there may have been comparable breaches of Pt 3-2 (in relation to Mr Dobrowolski’s loan).

77    The difficulty, however, is that for any such breaches to lead to a result where Ms Ganesh was not required to repay all or part of the $85,000, she would need to show that she suffered loss or damage as a result of any contraventions of the NCCP Act by Mr Dobrowolski (see ss 178 and 179 of the NCCP Act). The evidence put forward by Ms Ganesh does not sufficiently establish that she suffered any such loss or damage. While the affidavit material contains some general assertions that Ms Ganesh suffered loss and damage, it is not clearly linked with any contraventions of the NCCP Act by Mr Dobrowolski. Moreover, the context of the situation does not suggest that Ms Ganesh suffered any loss or damage as a result of the loan. Ms Ganesh needed to borrow the $85,000 in order to complete the purchase of the Property (to which she was already committed). The advance by Mr Dobrowolski enabled her to complete the purchase (even if, as she contends, she was unaware of the source of the funds). Ms Ganesh was apparently willing to borrow the same amount from a private party.

78    Insofar as Ms Ganesh relies on other matters in her submissions, I do not consider any of them to suggest error by the primary judge.

79    For the above reasons, no error has been shown in the primary judge’s conclusion that sufficient reason had not been shown for questioning whether behind the judgment of the Magistrates’ Court there was in truth and reality a debt due to Mr Dobrowolski.

Conclusion

80    For these reasons, the appeal is to be dismissed. I will hear from the parties as to the appropriate form of order as to costs, given the bankruptcy of Ms Ganesh.

Associate:

Dated:    6 August 2021