Federal Court of Australia

Toyota Finance Australia Limited v Youssef Berro [2022] FCA 497

ORDERS

THE COURT ORDERS THAT:

1.    The Respondent’s interim application dated 21 March 2022 be dismissed.

2.    The Respondent pay the Applicant’s costs of the interim application dated 21 March 2022, they being costs of the administration of the bankrupt estate.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1.1    The proceedings

1    In these proceedings the respondent, Youssef Berro, seeks, pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) (FCA Act), to set aside orders made by a Registrar on 30 November 2021 pursuant to the terms of the Bankruptcy Act 1966 (Cth) that his estate be sequestrated (sequestration orders), that the creditor’s petition dated 13 July 2021 be dismissed and that orders made by the Court in his absence on 14 February 2022 also be set aside.

2    Mr Berro was initially represented by solicitors and counsel in the proceedings, but they ceased to act for him on 1 February 2022, after which Mr Berro represented himself.

3    The applicant in the proceedings is Toyota Finance Australia Ltd. The trustee appointed following the sequestration order is Michael Jones, managing principal at Jones Partners, Chartered Accountants. Toyota and the trustee are both represented by David Farrar of Farrar Lawyers. Toyota and the trustee oppose the orders sought by Mr Berro.

4    Mr Berro commenced the present proceedings when he moved the Court urgently on 23 December 2021, seeking to set aside the sequestration order and the creditor’s petition. On that occasion the duty judge, upon the giving of an undertaking by Mr Berro not to damage his property or dispose of or encumber his property except for certain allowed expenses, made orders:

(1)    Staying proceedings under the sequestration order until 13 January 2022; and

(2)    Noting that such stay was made without affecting:

(a)    The requirement for Mr Berro to complete a statement of his affairs pursuant to s 54 of the Act; or

(b)    The vesting of property pursuant to ss 58 and 116 of the Act, subject to the allowed expenses.

5    On 12 January 2022, the parties agreed to consent orders, extending the stay until further order and standing over Mr Berro’s application to be heard on a date to be fixed upon allocation of the matter to a docket judge. The matter was returned before me on 14 February 2022, by which time Mr Berro had become self-represented. He did not appear on that occasion and, upon the provision of evidence that Mr Berro had been notified of the return date, orders were made dismissing his application of 21 December 2021, lifting the stay ordered on 23 December 2021 and providing that Mr Berro may, by 21 February 2022, apply to set aside those orders by filing and serving an application supported by an affidavit given by him.

6    On 21 March 2022, Mr Berro filed an interlocutory application dated the same day seeking, inter alia, to set aside the bankruptcy and other orders. He supported this application with an unsworn affidavit dated 20 March 2022.

7    The proceedings were listed for hearing on 8 April 2022. At the outset of the hearing Mr Berro clarified that, despite the form of his interlocutory applications, the substantive issues were whether the Court should:

(1)    Set aside the orders of 14 February 2022; and

(2)    Set aside the sequestration order or creditor’s petition on any of the following three grounds:

(a)    That he did not owe the judgment debt;

(b)    That he was not served with the documents relevant to the judgment, the Bankruptcy Notice or the creditor’s petition; and

(c)    That he is not insolvent.

8    As to (1), the question of whether or not the orders that lift the stay and dismiss Mr Berro’s application of 21 December 2021 should be set aside substantively concerns whether Mr Berro establishes entitlement pursuant to rule 39.05(a) of the Federal Court Rules 2011 (Cth) (FCR) to set aside orders made in his absence. That is a matter for the discretion of the Court, which must be exercised judicially.

9    The issues raised in (2) arise under s 35A(5) of the FCA Act in relation to a review of the Registrar’s decision. In Bechara v Bates [2021] FCAFC 34; 388 ALR 414 (Allsop CJ, Markovic and Colvin JJ), the Full Court at [27] identified the nature of such a review:

(a)    The application for review leads to a hearing de novo of the creditor’s petition.

(b)    The hearing (or rehearing) of the creditor’s petition is not prosecuted by the debtor (applicant for review) but by the creditor in the proceeding in which the registrar’s order was made.

(c)    The application for review is a demand that the claim for relief (the sequestration order) be heard by a judge.

(d)    The onus is upon the creditor to prosecute its petition. The only onus of the debtor/bankrupt against whose estate a sequestration order has been made is to prove either solvency or any other sufficient cause under s 52(2) of the Bankruptcy Act 1966 (Cth).

1.2    The evidence

10    Mr Berro relied on affidavits sworn by him on 21 December 2021, 20 March 2022, 4 April 2022 and 26 April 2022. He was cross examined. Mr Berro also called the evidence of his nephew, who also bears the name Yousef Berro. He was also cross examined.

11    Toyota and the trustee relied on affidavits of: (a) Perry Gamsby, process server, sworn on 23 September 2021 and 11 January 2022; (b) Huy Nguyen, head of legal at Toyota, sworn on 15 November 2021, 30 November 2021 and 8 April 2022; (c) Isaiah Soriano, legal secretary at the applicant’s solicitors, sworn on 20 July 2021, 15 November 2021, 19 November 2021, 29 November 2021, 30 November 2021, 31 March 2022 and 5 April 2022; (d) Mr Farrar, sworn on 20 July 2021, 2 December 2021 and 9 December 2021; and (e) Nicolle Greentree, accountant at Jones Partners, sworn on 11 January 2022,6 April 2022 and 29 April 2022. Mr Berro was given an opportunity to cross examine each of those witnesses, and elected to cross examine Mr Gamsby, Ms Greentree and Mr Farrar. The hearing was conducted on 8 April, 14 April and 2 May 2022. In large part, the fragmented hearing arose because Mr Berro sought additional time to obtain evidence to prove his case and was granted two adjournments.

1.3    Background

12    A brief chronology of events is set out below.

13    On 10 June 2021, Toyota Finance Australia Ltd obtained judgment from the Local Court of New South Wales in amounts of $37,894.88 and $2,664.75 against Mr Berro.

14    16 June 2021 was the date recorded in the creditor’s petition upon which the Bankruptcy Notice No BN 253326 was served on Mr Berro.

15    The date of commission of the act of bankruptcy by Mr Berro was found by the Registrar to be 16 July 2021.

16    The creditor’s petition, in which Toyota contends that Mr Berro is the judgment debtor in the amount of $40,559.63 from a Local Court judgment on 10 June 2021 and a further $2,664.74 from a judgment of the same day, is dated 13 July 2021.

17    Mr Gamsby contends that on 18 September 2021 he served the correct Youssef Berro with the creditor’s petition.

18    On 30 November 2021, the Registrar ordered that the estate of Youssef Berro be sequestrated under the Act.

19    The date when Mr Berro contends he first heard about the sequestration proceedings is 11 December 2021 when a person delivered a letter from Jones Partners telling him that he had been bankrupted and that Michael Jones had been appointed as his trustee in bankruptcy.

20    On 21 December 2021, Mr Berro filed an interlocutory application pursuant to s 35A(5) of the FCA Act for the review of the decision of the Registrar and orders that the creditor’s petition be dismissed with costs. Mr Berro filed an affidavit on the same day, sworn on 21 December 2021. In this affidavit, Mr Berro claims not to have been served and that he had no knowledge of the judgment debt, the bankruptcy notice or creditor’s petition. Mr Berro further claims that the first he heard of the proceedings was on 11 December 2021 when he was delivered a letter from a process server telling him he had been made a bankrupt, and that he had not previously been served with a bankruptcy notice or a creditor’s petition. Mr Berro gives evidence that he did not know of the judgment debt entered by Toyota. Mr Berro gives evidence that he has resources to pay any debt by reason of owning his own home worth $1 million, with a mortgage of about $780,000, a car worth $35,000 and self-employed earnings of about $100,000 per annum.

21    Mr Berro’s interlocutory application was heard before Rares J on 23 December 2021. Mr Berro was represented by counsel and a solicitor. The trustee appeared, but Toyota, the petitioning creditor, had not been served as required by the Federal Court (Bankruptcy) Rules 2016 rule 7.05. The trustee accepted that Mr Berro may be solvent, but noted that he had no visibility of the state of Mr Berro’s assets and liabilities because Mr Berro had not completed a statement of affairs. The Court made the orders summarised in [4] above.

22    On 12 January 2022, orders were made by consent extending the stay of the operation of the sequestration order until further order, and allocating the matter to a docket judge for listing.

23    On 1 February 2022, Blackwattle Legal, the solicitors acting for Mr Berro, filed a notice of intention to cease to act dated 25 January 2022.

24    On 1 February 2022, Blackwattle Legal filed a notice of ceasing to act.

25    On 11 February 2022, Blackwattle Legal provided confirmation to Mr Farrar by email that on 2 February 2022 they informed Mr Berro by SMS and email of the hearing date on 14 February 2022.

26    On 14 February 2022, the proceedings were listed for hearing. Mr Berro did not appear. The trustee and Mr Farrar appeared. They confirmed that no statement of affairs had been filed and read affidavits from the process server and Ms Greentree. I made orders:

(1)    Dismissing the interim application of 21 December 2021;

(2)    Lifting the stay;

(3)    Ordering costs;

(4)    Allowing Mr Berro 7 days to apply to set aside orders 1-3; and

(5)    Permitting service of those orders by delivery to an address by registered post and an email address.

27    On 21 March 2022, Mr Berro sought to file an interlocutory application to set aside the bankruptcy notice and for the return of his car and other things. Mr Berro provided an accompanying affidavit dated 20 March 2022.

28    On 8 April 2022. Mr Farrar informed the Court that, despite the lifting of the stay, the trustee had taken minimal steps in the bankruptcy pending the determination of Mr Berro’s application.

2.    APPLICATION TO REVIEW THE SEQUESTRATION ORDER

2.1    Introduction

29    It is convenient to consider the application to review the sequestration order before addressing Mr Berro’s application to set aside the orders made on 14 February 2022.

30    Mr Berro contends that the sequestration order should be set aside because:

(1)    He was not served with the Bankruptcy Notice or the sequestration order, or with notice of the proceedings;

(2)    He does not owe a debt to Toyota;

(3)    He is solvent.

2.2    Relevant principles

31    In Totev v Sfar [2008] FCAFC 35; 167 FCR 193 at [13]-[15], Emmett J (citing Harris v Caladine [1991] HCA 9; 172 CLR 84 at 124 (Dawson J), cited with approval in Bechara at [21]) said:

[13]    … the judge reviewing the order begins afresh and exercises for himself or herself any discretion exercised by the registrar. The parties commence the proceeding again, subject to any rules concerning the use of evidence adduced before the registrar. The hearing de novo involves the exercise of the original jurisdiction and the petitioner, in the case of a bankruptcy petition, must start again, call witnesses and make out the petitioner’s case.

[14]    … The judge who hears the review application must hear the petition afresh and must be satisfied as to the matters referred to in s 52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of:

•    the matters stated in the petition;

•    the service of the petition; and

•    the fact that the debt or debts on which the petitioning creditor relies is or are still owing.

The reviewing judge must also exercise afresh the discretions conferred by s 52(2).

[15]    In particular, unless the Bankruptcy Rules are waived, the judge must have the affidavits referred to in r 4.06 of the Bankruptcy Rules, which must be sworn shortly before the hearing. Except in the case of a review on the same day as the sequestration order was made, the affidavits relied upon before the registrar would not satisfy r 4.06.

32    Section 52(1) of the Act provides that the Court may make a sequestration order against the estate of a debtor if it is satisfied with proof of:

(a)    the matters stated in the petition …;

(b)    service of the petition; and

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

33    The petitioning creditor has a prima facie right to a sequestration order once proof of the matters required by s 52(1) has been satisfied: Cain v Whyte [1933] HCA 6; 48 CLR 639 at 646 and 648 (Rich J, Starke, Dixon, Evatt and McTiernan JJ agreeing); Rozenbes v Kronhill [1956] HCA 65; 95 CLR 407 at 414 (Dixon CJ, Webb and Fullagar JJ).

34    Nevertheless, the Court retains a discretion to refuse such an order if the debtor is able to pay their debts (s 52(2)(a)) or for “other sufficient cause” (s 52(2)(b)). The onus is on the debtor, Mr Berro, to establish either or both of the preconditions. The circumstances which may constitute “other sufficient cause” are variable, and it is inappropriate to catalogue or circumscribe them: Clyne v Deputy Commissioner of Taxation [1985] FCA 4; 5 FCR 1 at 5 (Fisher, Morling and Wilcox JJ); Liang v LV Property Investments Pty Ltd [2015] FCA 1057 at [52] (Beach J).

35    The requirement that the creditor prove that the debt relied upon is still owing will ordinarily be easier to fulfil in respect of a judgment debt, the judgment being prima facie evidence of the debt: Wolff v Donovan [1991] FCA 222; 29 FCR 480 at 487 (Davies J).

36    One relevant matter is that the Court has power to go “round the judgment”, to enquire into its subject matter, so as to satisfy itself that the creditor’s petition is founded on a “good debt”: Shaw v Yarranova Pty Ltd [2017] FCAFC 88; 252 FCR 267 at [16] (North, Perry and Charlesworth JJ). The scrutiny required by s 52, which includes consideration of “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”: Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 at [55] (Kiefel CJ, Keane and Nettle JJ).

37    Even if “other sufficient cause” has been shown, that merely enlivens the court’s discretion to refuse to make a sequestration order. “The power in s 52(2) is permissive, not mandatory. Even if a debtor can bring himself or herself within s 52(2)(b), that does not entitle him or her to have a sequestration order refused”: Endresz v Australian Securities and Investments Commission (No 2) [2015] FCAFC 33; 228 FCR 334 at [37] (Edmonds, Gordon and Beach JJ); Russell v Polites Investments Pty Ltd [2012] FCA 11 at [24] (Flick J); Liang at [53] (Beach J).

2.3    Service of the Bankruptcy Notice and the creditor’s petition

38    Mr Berro contends in his first affidavit that he was not served with the Bankruptcy Notice. Toyota contends that the Bankruptcy Notice was served on 16 June 2021, with the result that the Bankruptcy Regulations 2021 (Cth) apply (superseding the former 1996 Regulations).

39    Regulation 102 relevantly provides:

(1)    Unless the contrary intention appears, if a document is required or permitted by the Act or this instrument to be given or sent to, or served on, a person (other than the Inspector-General, the Official Receiver or the Official Trustee), the document may be:

(a)    sent by a courier service to the person at the address of the person last known to the person serving the document; or

…

Note: See also section 28A of the Acts Interpretation Act 1901.

(2)    In the absence of proof to the contrary, the document is taken to have been received by, or served on, the person when the document would, in the due course of business practice, be delivered to that address or document exchange.

40    Toyota relies on reg 102(1)(a). The affidavits of Mr Soriano of 22 June 2021 and 19 November 2021 establish that the Bankruptcy Notice was sent by post to an address in Villawood, NSW (Villawood address). Mr Soriano’s affidavits also establish that the Bankruptcy Notice was sent by email, but the Regulations no longer permit service of bankruptcy notices by email.

41    Regulation 102(1)(a) provides that the document may be sent by a courier service to the address “last known to the person serving the document”. This has been taken to mean, in the context of the similarly worded reg 16.01(1)(a) of the 1996 Regulations, “the last known address of the person … made known by the debtor”, a matter that is to be determined objectively on all of the facts of the case: Civic Video Pty Ltd v Warburton [2013] FCA 934; 216 FCR 61 at [74]-[80] (Jacobson J).

42    In the present case, Toyota relies upon two matters in support of service at the Villawood address. First, that, in a defence dated 5 July 2019 filed in Local Court proceedings between Mr Berro and Toyota, the Villawood address is the address given for service by Mr Berro. Secondly, that Mr Ngyuen, who is an employee of Toyota and concerned with the loan to Mr Berro from Toyota, gave evidence that this was the last address known to Toyota at the time of service. He supports this contention with evidence of the loan documentation, that provides the Villawood address for Mr Berro.

43    In cross examination Mr Berro accepted that this was the address that he supplied to Toyota on his loan application on 22 January 2018, and on the Loan Offer of the same date, and that he did not notify Toyota of any change in his address when he moved. In cross examination he disputed any obligation on his part to notify Toyota of any change.

44    In Civic Video the Court considered that (at [78]):

...since the purpose of the rule is that the bankruptcy notice should be brought to the debtor’s attention, it seems to me that ordinarily the creditor is under an obligation to take steps to ascertain the debtor’s most recent address as made known by him or her in readily accessible public records.

45    I am satisfied that the combined effect of the address given in the loan documents and that given in the defence to the Local Court proceedings is sufficient to meet the requirement placed on Toyota. As noted in Civic Video at [80], it does not matter under the regulations whether the debtor is in fact living at the address which is the “last known address of the person”.

46    The Bankruptcy Notice was sent by Mr Soriano to the Villawood address by post on 16 June 2021. By operation of s 29(1) of the Acts Interpretations Act 1901 (Cth) and s 160 of the Evidence Act 1995 (Cth), it is deemed to have arrived by 25 June 2021, with the result that Mr Berro had until 16 July 2021 to comply with the Bankruptcy Notice or apply to set it aside. As he failed to do so, he committed an act of bankruptcy pursuant to s 40(1)(g) of the Act.

47    Mr Berro also contends that he was not served with the creditor’s petition.

48    Mr Gamsby gave evidence by affidavit dated 23 September 2021 that he is a licensed process server, who on 18 September 2021 at approximately 5.34 pm served Mr Berro with: the creditor’s petition; an affidavit sworn by Mr Farrar on 20 July 2021; an affidavit of service of the Bankruptcy Notice from Mr Soriano sworn on 22 June 2021; and a Trustee Consent to Act Declaration dated 20 July 2021. He gives evidence that he served the documents at an address in Chester Hill, NSW (Chester Hill address).

49    Mr Berro denies service. He gives evidence in his first affidavit that it was not he, but his nephew, also named Youssef Berro, who received service. He gave evidence that he did not at the time live at the Chester Hill address.

50    In a subsequent affidavit dated 11 January 2022, Mr Gamsby provides more detail of his service of the creditor’s petition. He deposes to attempting to serve Mr Berro on 3 September 2021 and that in the process of doing so he met Mr Berro’s nephew, who informed him that he was not his uncle, and that his uncle would be home later that day. Mr Gamsby gives evidence that he subsequently returned to the premises on 18 September 2021 and served a person who was significantly older than the nephew. He gives evidence that for the purpose of his later affidavit he was given photographs of Mr Berro and his nephew, and from those photographs he was able to confirm that on 18 September 2021 he had served the correct person.

51    Mr Berro cross examined Mr Gamsby, suggesting to him that he was giving false evidence, which Mr Gamsby denied.

52    Mr Berro vehemently denied being served, and contended that he could adduce affirmative evidence in the form of CCTV footage that he was not served at the time and place alleged. I granted an adjournment of the hearing to give Mr Berro an opportunity to adduce such evidence, but he did not do so. After a further adjournment (given in order for Mr Berro to obtain evidence of proof that he had paid his debt to Toyota, and also for him to establish that he is able to pay his debts), on 2 May 2022 Mr Berro called his nephew to give evidence regarding the service of documents. His nephew recalled that he was handed some documents at some time in September 2021 and that he signed for them, thinking that they concerned some business he had with Toyota. He then left for Melbourne for 6 months or so and did not tell his uncle about the documents. While he was in Melbourne, he learnt that the trustee had frozen his bank accounts, and contacted his office to report the error. Ms Greentree gives evidence that on 2 December 2021 she was informed by the younger Youssef Berro that his accounts had been frozen, and obtained instructions from the trustee for the freeze on the accounts to be lifted.

53    Mr Berro submits that this chain of events demonstrates that he was not served with the creditor’s petition. I do not consider that the evidence of Mr Berro’s nephew to be of assistance in addressing this question, because the evidence of Mr Gamsby is that he realised that on 3 September 2018 he had incorrectly served the nephew and that on 18 September 2021 he effected personal service on Mr Berro. The nephew then left for Melbourne, and so was in no position to give evidence, one way or the other, as to the location of Mr Berro on 18 September 2021.

54    Having regard to the whole of the evidence, I accept the evidence of Mr Gamsby, who credibly adhered to his evidence and explained why, in his first affidavit, he had confined his evidence to that which was necessary to establish service, without elaborating on the earlier failed attempt to serve. Furthermore, Mr Gamsby’s first error in service is likely to have caused him to pay greater attention to the second attempt. There is no reason to consider that he was other than a disinterested witness, who performed a routine function in effecting service. On the other hand, Mr Berro has a keen interest in the outcome of the proceedings and was acutely aware of the benefit to his case in disputing service of the creditor’s petition. I considered that his evidence was unreliable in several respects, particularly with regard to the documents that he sent, received and read. One instance concerns his evidence of the email addresses that he used, to which I refer in section 3 below. Another is his evidence that although he received documents from the Trustee, he did not read them, despite being aware of their importance. In my view Mr Berro demonstrated a regrettable tendency to disregard important matters of detail when they are not to his liking.

55    The consequence is that I find that Mr Berro was personally served with the creditor’s petition on 18 September 2021.

2.4    Formal matters to be established by Toyota

56    Section 43 of the Act confers jurisdiction on the Court to make sequestration orders. I am satisfied that Mr Berro committed an act of bankruptcy on the date alleged in the amended creditor’s petition by failing to comply with the requirements of the Bankruptcy Notice on or before 16 July 2021. I am also satisfied that the creditor’s petition satisfies the requirements of s 44(1). Furthermore, the creditor’s petition was verified by Mr Nguyen on 13 July 2021, a person who knows the relevant facts in accordance with s 47 of the Act.

2.5    Application of s 52(1) of the Act

57    I have summarised in section 2.2 the requirements of s 52(1) of the Act. For the reasons given above I am satisfied (a) that the creditor’s petition has been verified by affidavit as required by s 52(1)(a), and (b) that Toyota has established that it served the creditor’s petition. Furthermore, in affidavits dated 15 November 2021, 30 November 2021 and 8 April 2021 Mr Nguyen has established that the debts on which Toyota relies are still owing, which meets the requirements of s 52(1)(c).

2.6    Application of s 52(2) of the Act

58    Section 52(2) of the Act additionally provides that if the Court is satisfied by (relevantly here) Mr Berro (a) that he is able to pay his debtors; or (b) that for other sufficient cause a sequestration order ought not to be made, it may dismiss the petition.

59    Mr Berro advanced two submissions which arise under s 52(2). The first is that he does not owe any debt to Toyota. The second is that he is able to pay his debtors. Section 52(2) places the onus on Mr Berro to establish these matters.

2.6.1    Does Mr Berro owe a debt to Toyota?

60    In his affidavit of 21 December 2021, Mr Berro accepts that he was involved in Local Court proceedings against Toyota in 2019-2020, but contends that the loan to Toyota was paid off in full in the course of the proceedings. He recalls that a costs order of about $2,000 was made at the end of the proceedings but that he never received anything about it, and never received anything about a debt of $40,559.63, which is the amount specified in the Bankruptcy Notice as outstanding. He states that while he will need to find out more about the judgments relied upon by Toyota, he believes that he does not owe what they claim. He repeats these contentions in his 20 March 2022 affidavit.

61    The matters raised by Mr Berro in his affidavit evidence do not rise above assertion. His evidence indicates that he believes that he does not owe Toyota money as claimed in the judgment debt, but provides no evidence to support his contention that the money claimed has been paid. During the course of the hearing of the proceedings on 8 April 2022 Mr Berro raised this point in his closing submissions. He contended that an insurance company had made a payout for damage to a vehicle he owned directly to Toyota in satisfaction of the debt.

62    Upon Mr Berro’s application, the proceedings were adjourned until 14 April 2022 in part to enable him to obtain documents to support his contention that payment had been made. On 14 April 2022, Mr Berro submitted that he had sought the relevant documents but had been unable to find them. The matter was further adjourned until 2 May 2022. On that occasion Mr Berro sought leave to rely on a document in the form of an affidavit that he had signed, dated 26 April 2022. It attaches a letter dated 19 April 2020 from GIO Claims Team to Mr Berro, which confirms that an insurance payout of $28,500 will be made to him. Mr Berro also annexes a screenshot of an electronic funds transfer made on 19 April 2020 to Toyota Finance Australia Ltd of $25,929.81, which was the remaining sum of the insurance payout less the Excess payment and less the Premium Deduction payment.

63    Mr Berro submits that this is evidence that he had paid his debt to Toyota.

64    Toyota submitted that the evidence of payment of a debt to Toyota does not address the judgment debt, which concerns orders made in the Local Court totalling $40,559.63 comprised of $37,894.88 in proceedings No 2021/00167351 and $2,664.75 in proceedings No 2021/00167353, both ordered in the Local Court of New South Wales on 10 June 2021.

65    Mr Berro provides no evidence that those judgment debts have been paid. Moreover, the affidavits of Mr Nguyen are to the effect (updated from time to time) that these amounts remain outstanding. Mr Berro submitted that he does not know anything about how the debt of $40,559.63 came to be accrued in respect of costs arising from the proceedings that he resolved by payment of the sum of $25,929.81. However, that submission falls well short of providing a basis upon which the judgment debt that is the subject of the Bankruptcy Notice is not, in truth and reality, a debt owing to the petitioning creditor; Ramsay Health at [55] (Kiefel CJ, Keane and Nettle JJ).

66    Accordingly, I am not satisfied that Mr Berro has established this aspect of his challenge on the basis of s 52(2) of the Act.

2.6.2    Can Mr Berro prove solvency?

67    The question of solvency is central to the jurisdiction of the court in bankruptcy matters. In Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; 343 ALR 632 the Full Court (Allsop CJ, Dowsett and Besanko JJ) relevantly said, citing Re Sarina; Ex parte Wollondilly Shire Council [1980] FCA 66; 30 ALR 266:

[43]    Re Sarina demonstrates the centrality of the question of solvency to the jurisdiction of bankruptcy. Whilst one must recognise the permissive “may” in s 52(2), the circumstances where a sequestration order would be made if the debtor satisfied the Court of his or her solvency are difficult to imagine. Proof of solvency may not necessitate dismissal of the petition; an adjournment may be the appropriate course.

[44]    Whilst it is legitimate for a creditor to proceed in bankruptcy for the purpose of recovering a debt, that does not mean that bankruptcy should be viewed in its essential character as part of the process of execution of judgment debts. It is the changing of the status of an insolvent person: O’Mara Constructions Pty Ltd v Avery [2006] FCAFC 55; 151 FCR 196 at [53] (and the cases there discussed) and see also O’Farrell v Palicave Pty Ltd [2009] FCAFC 64; 176 FCR 134 at [24]. A sequestration order, as demonstrated by Re Sarina, will not be made against the estate of someone who refuses to pay a debt if that person can prove (the onus being on him or her) that he or she is solvent.

[45]    The centrality of the question of solvency or insolvency might, in a given case, be why an adjournment is not granted when solvency is asserted. If material before the Court gives rise to the inference that further time to prove solvency is unlikely to be of utility, there may be a risk of further prejudice to creditors generally if there is delay in making the order. On the other hand, if the evidence reveals the real possibility that there is further material that may prove the debtor is solvent, attention should generally be given to the question whether some time or opportunity should be afforded to the debtor. Whether it is afforded will depend upon all the circumstances.

68    In Hardaker v Phair trading as Proctor Phair & Associates, in the matter of Hardaker [2002] FCA 1176 at [6]-[23], Jacobson J noted, in light of the decision in Re Sarina, that it would not be a proper exercise of discretion under s 52(2) to make a sequestration order where the evidence established that the debtor was able to pay the debt due but was unwilling to pay it. He accepted that on the basis of the evidence before him, the bankrupt would have been able to pay the debt, and that it was inconceivable that the Court would, in the proper exercise of its discretion, have made a sequestration order if that evidence had been before it. He noted that the discretion to make an order under s 153B (which concerns the annulment by the Court of a bankruptcy) is not ordinarily exercised unless all of the provable debts have been paid in full. His Honour considered it a prudent exercise of his discretion to make an order for annulment on the basis that the bankrupt undertook to pay the debts owed to the creditors.

69    When Mr Berro had the benefit of legal representation, he filed his first affidavit in which he deposed that he:

(1)    Owns his own home at an address in Carramar, NSW (property), which is “worth about $1 million and mortgaged to a value of approximately $780,000”;

(2)    Owns a car “worth about $35,000 and unencumbered”; and

(3)    Is self-employed, earning about $100,000 per annum.

70    During the hearing on 8 April 2022, Mr Berro was informed of the need to provide documentation and evidence to support these assertions. The adjournment given until 14 April 2022 was in part granted for this purpose. On that occasion, Mr Berro sought a further adjournment. Mr Farrar informed the Court (and Mr Berro) that if Mr Berro could establish solvency, the Trustee would of his own volition take steps to annul the bankruptcy pursuant to s 153A, provided that the bankrupt’s debts are paid in full. As a result, and in order to give Mr Berro a further opportunity to establish solvency, the proceedings were further adjourned until 2 May 2022.

71    When the hearing was resumed on 2 May 2022, Mr Berro relied upon a letter of 15 February 2022 from the Commonwealth Bank of Australia, informing him that it had decided to close his accounts with the bank. He provided no further documentation.

72    Toyota and the trustee submit that Mr Berro has not established solvency. They rely on the affidavit of Ms Greentree of 6 April 2022 which establishes that Mr Berro has cash in bank in the amount of about $4,800 and vehicle valued at an estimated amount of about $40,000.

73    Ms Greentree gives evidence that the trustee has identified that in addition to Toyota being a creditor of Mr Berro in the amount of $41,739.09, a further known creditor is the Commonwealth Bank of Australia in the amount of $25,823.45.

74    Ms Greentree exhibits a letter from the ATO dated 11 January 2022 that indicates that Mr Berro has not filed tax returns for the years 2001, 2008, 2009, 2011, 2013-2022 and that the annual GST report for the year ended 30 June 2012 and activity statements for quarters July to September 2015, April to June 2016 and July to September 2016 are lodged and issued.

75    Toyota submits that given Mr Berro’s evidence that he is earning about $100,000 per year, it is conceivable that he has a liability to the ATO.

76    Ms Greentree gives evidence that the property is subject to a mortgage in favour of the ANZ Bank which has an account balance of $809,464.26 as at 7 December 2021 and an outstanding amount of $93,835.03. Ms Greentree exhibits a letter from the solicitors for the ANZ dated 22 February 2022 that refers to a default notice issued by the ANZ to Mr Berro on 1 April 2021 and a letter of demand issued by the ANZ to Mr Berro on 14 February 2022. She gives evidence that a kerbside appraisal for the property values it at between $900,000 and $950,000.

77    Ms Greentree gives evidence that Mr Berro is recorded as owning shares in four companies with an estimated total value of about $29,000.

78    As I have noted, the onus lies on Mr Berro to establish solvency.

79    Mr Berro provided an assertion that he is self-employed and has an income of about $100,000 a year. He provided no income tax returns or other documents to support this assertion. He submitted that he owns a house in which he holds equity of about $200,000 and that even if he did owe a debt of $40,000, he could pay that out of his equity. He also submitted that he could pay from about $30,000 in shares. The trustee has sold the shares with Commsec, but upon receiving Mr Berro’s further court application, the trustee provided an undertaking that he will not disburse the sale proceeds until a decision is made by the Court. Mr Berro submitted that before the sequestration order was made he was paying his credit card debts, but that the Commonwealth Bank of Australia has, as a result of the order, closed his accounts. He submits that even if he is in arrears on his mortgage, this was as a result of COVID-19 for which he should be protected and regarding which he had made an agreement with the ANZ.

80    Correspondence from the ANZ, who is the mortgagee over the property, indicates that Mr Berro is liable to pay $3,342.83 monthly and that payments are overdue.

81    In a letter dated 14 February 2022 sent by the solicitors for the ANZ to Mr Berro they demanded the sum of $101,470.50 to be paid within 14 days, failing which they may commence proceedings against him. In a further letter dated 22 February 2022, the solicitors referred to default notices issued to Mr Berro on 8 October 2019 and 1 April 2021 and to the 14 February 2022 letter. The evidence that has been adduced of the ANZ’s continued requests for payment does not support Mr Berro’s submission that he has an ongoing agreement with the ANZ regarding COVID-19-related deferral of payments.

82    The evidence available discloses Mr Berro’s asset position to be that:

(1)    He owns his own house valued at about $950,000;

(2)    He owned shares in the amount of about $29,200, which have since been sold by the trustee as identified above at [79] for an undisclosed sum;

(3)    He owns a vehicle worth about $40,000; and

(4)    He has cash in hand in the amount of about $4,800.

Total assets about $1,024,000

It appears from a record of a conversation between Mr Berro and Jones Partners within Ms Greentree’s affidavit of 11 January 2022 that Mr Berro may also have a coin collection that may have some value. However, neither the applicant nor Mr Berro pressed this when outlining Mr Berro’s asset position, and no evidence of the coin collection’s existence or value was given.

83    Mr Berro’s liability position appears to be:

(1)    Outstanding mortgage of about $809,500;

(2)    Known debts of about $169,100, comprising of:

(a)    $41,739.09 for which Toyota is a creditor;

(b)    $25,823.45 for which the Commonwealth Bank of Australia is a creditor; and

(c)    $101,470.50 in arrears for which the ANZ is a creditor, with an additional $110 claimed by the ANZ on account of legal fees incurred to date; and

(3)    Unknown tax liabilities.

Total known liabilities about $978,600

84    Mr Berro has not filed a statement of affairs, despite being obliged to do so since at least early December 2021. Although in his oral evidence he initially denied having an understanding of the need for him to do so, I am satisfied on the basis of the correspondence provided to him that his obligations were clearly set out. On 2 May 2022, Toyota read a further affidavit from Ms Greentree sworn on 29 April 2022. In it, she provided details of the attempts made on the part of the trustee to obtain a statement from Mr Berro of his affairs. This included sending him five letters in the period from 1 December 2021 until 14 April 2022, the last attaching a pdf version of the Bankruptcy Form including the form for the statement of affairs.

85    Although Mr Berro submits that he did not understand or know how to fill in such forms, I do not accept that submission. Mr Berro earlier gave evidence that he was a web developer and internet marketer. He is plainly literate and capable of understanding documents sent to him. Mr Berro also submitted on 2 May 2022 that he had not been able to access his phone service or internet in “the last week or two” due to his services being restricted as a result of steps taken by the trustee, and that prevented him from filling out the statement of affairs. However, as outlined above, he had ample opportunity to fill out the statement of affairs prior to this occurring.

86    The reality is that Mr Berro has steadfastly refused to provide a completed statement setting out his financial affairs to Farrar Lawyers or the trustee since the documentation was first provided to him. Furthermore, the Orders of 23 December 2021 provided no dispensation to him from this obligation, which was drawn to his attention during the hearings conducted on 6 April and 14 April 2022.

87    Having regard to the available evidence, it would appear that whilst Mr Berro may have a small excess of assets over liabilities, it is plain that he has substantial liabilities. He has indicated no preparedness to liquidate his assets, and particularly his real estate, to pay his debts. Furthermore, he has given no evidence of his income, beyond mere assertion.

88    Having regard to the matters to which I have referred above, including the debt that he owes to Toyota, the correspondence from the solicitors for the ANZ and the information supplied by the ATO as to an absence of tax returns lodged for many years, I am not satisfied that Mr Berro is able to pay his debts.

89    Furthermore, having regard to the matters to which I have referred above, including Mr Berro’s failure to provide a completed statement setting out his financial position to the trustee, I am not satisfied that there is another or sufficient cause for setting aside the sequestration order.

90    Accordingly, I do not consider that the sequestration order should be set aside.

3.    THE APPLICATION TO SET ASIDE THE ORDERS OF 14 FEBRUARY 2022

91    Mr Berro contends that the orders made on 14 February 2022 ought to be set aside because he was not notified by his former solicitors of the return date.

92    Rule 39.05(a) of the FCR empowers the Court to vary or set aside an order once entered if it is made in the absence of a party. The power under FCR 39.05(a) is discretionary and to be exercised with caution; Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6] (Gordon J).

93    During the hearing on 14 February 2022, Toyota relied on the evidence filed prior to that date, to which I have referred above in section 1.2, in support of making the orders on that date upon the failure of Mr Berro to appear. It relied on evidence of Ms Greentree to the effect that Mr Berro had failed to file a statement of affairs, and upon correspondence from Mr Berro’s solicitors to the effect that he had been informed of the return date before the Court.

94    Mr Berro contends that he did not receive notice of the hearing on that date. In this regard he provided an unconvincing narrative in his evidence. He gave evidence that his former solicitors did not inform him of the return date. However, by email dated 2 February 2022, his solicitors notified him of the date and time of the hearing in clear terms, at the same time confirming that they had ceased to act for him.

95    Mr Berro claimed in his evidence not to access or review certain of his email addresses, including the two used by his former solicitors. However, Mr Berro had himself sent correspondence to his solicitors from one of those addresses and copied himself using the other several weeks earlier. Mr Berro next sought to assert that the emails were misdirected, because of the use of an errant “.au” suffix. However, that contention is not supported by the evidence. When confronted with this, Mr Berro conceded that he did in fact receive the email correspondence but claimed that he had informed Toyota that it should use a different email address because he did not monitor the others unless he expected an email. However, that is not supported by his own use of the same email addresses. Nor does it answer the evidence that indicates that Mr Berro was also provided details of the return date by voicemail and also by SMS message from his former solicitors, and that Mr Berro sent a reply to these SMS messages.

96    I conclude that Mr Berro did in fact receive notice of the hearing. Furthermore, after those orders were made on 14 February 2022, they were provided to Mr Berro by registered mail to his address and also by email. Even so, he made no application to set them aside within the requisite 7 days.

97    Having regard to these matters, and more substantively to the views that I have expressed in section 2 above that the sequestration orders were properly made, I do not consider that it is in the interests of justice to set aside the orders made on 14 February 2022.

98    The consequence is that the interlocutory application brought by Mr Berro must be dismissed.

4.    DISPOSITION

99    I have found that Mr Berro’s application to review the sequestration order is unsuccessful. I have separately found that Mr Berro’s application to set aside the orders made on 14 February 2022 also is unsuccessful. The consequence is that his interlocutory application of 21 March 2022 must be dismissed with costs.

Associate:

Dated:    6 May 2022