FEDERAL COURT OF AUSTRALIA

Blue Cube Developments Pty Ltd v Von Risefer [2022] FCA 1193

ORDERS

THE COURT ORDERS THAT:

1.    The review application of Mrs Von Risefer and Mr Von Risefer dated 19 May 2022 and filed on 8 June 2022 is dismissed.

2.    The sequestration order made by Registrar Edwards on 12 May 2022 is affirmed.

3.    The petitioning creditor’s costs be taxed and paid from the sequestrated estates pursuant to the provisions of the Bankruptcy Act 1966 (Cth).

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

REASONS FOR JUDGMENT

McElwaine J:

1    Acting pursuant to delegated authority, Registrar Edwards of this Court on 12 May 2022 ordered that the estates of George Von Risefer and Elizabeth Von Risefer be sequestrated under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). On 8 June 2022 each of the bankrupts exercised their right of de novo review of those orders pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) by filing an interim application, albeit dated 19 May 2022, pursuant to rule 2.02 of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules).

2    At all times in this Court, Mr and Mrs Von Risefer have acted for themselves, which has caused difficulty in comprehending the grounds of review and the anterior grounds relied upon to resist the creditor’s petition of Blue Cube Developments Pty Ltd (the applicant) that was filed in this Court on 25 November 2021. The creditor’s petition relies upon an act of bankruptcy being the failure of the respondents to comply with the requirements of a bankruptcy notice that was served on 28 August 2021. The bankruptcy notice was issued on 28 June 2021 and is addressed to the respondents jointly. It relies upon a judgment debt entered in the Magistrates’ Court of Victoria on 26 April 2021 in the total amount of $101,938.85. That amount comprises a damages award of $43,564.98, statutory interest of $17,021.37 and costs of $41,352.50.

3    The judgment entered in the Magistrates’ Court followed a protracted hearing that was conducted over nine days (though some were part days) in September and October 2019 and February 2020. There were five defendants to that proceeding: Outdoor Kitchens Group Pty Ltd, Mr Alexander Von Risefer, Mrs Elizabeth Von Risefer, Mr George Von Risefer and Kitchen Labs Pty Ltd. In that proceeding, Mr George Von Risefer acted for himself and was granted leave to act for each of the corporations of which he was the director. Mrs Von Risefer acted for herself, though it is apparent that she was the primary spokesperson for all of the defendants. The claim was not advanced against Mr Alexander Von Risefer because his estate was the subject of a sequestration order made on 27 July 2010 and at the time of the proceeding that remained his status by reason of his failure to provide a statement of affairs.

4    What was in issue in the Magistrates’ Court proceeding was a contract between the applicant and either (or both) of the corporate defendants entered into in October 2016 for the supply and installation of kitchen cabinets with stone bench tops and bathroom vanity cabinets with stone bench tops for a total price of $56,600 to be delivered and installed at a development of 10 semi-detached townhouses that the applicant was developing in Melbourne. A related claim for misleading or deceptive conduct was brought against Mrs Von Risefer and Mr Von Risefer pursuant to s 18 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth). Despite Mrs Von Risefer foreshadowing, on more than one occasion during the course of the Magistrates’ Court proceedings, that she, and/or one of the other defendants, had and intended to prosecute a set-off or a counter-claim, none was ever pleaded and despite several adjournments granted by the magistrate for that to be done.

5    The magistrate at the conclusion of the evidence on 10 February 2020 reserved his decision and made orders for the provision of written submissions by the parties. The applicant’s submissions were provided on 13 February 2020. The defendants’ submissions were not provided until 30 November 2020, a delay that is not explained in the evidence before me. The applicant filed a submission in response on 3 December 2020.

6    The magistrate delivered ex tempore reasons on 20 April 2021. I have the benefit of a summary of what was said as set out in an affidavit of Shao-Ping Gangur, the director of the applicant, made on 2 September 2022 together with a partial transcript of the magistrate’s reasons attached to a document that purports to be an affidavit (but which is not because it has not been affirmed or sworn) made by Mrs Von Risefer on 12 September 2022. The magistrate reasoned that the applicant had completely established its case against the corporate entities for supply of defective products and as against Mrs Von Risefer and Mr Von Risefer for misleading or deceptive conduct. The magistrate further found that the applicant had suffered damage by reason of breach of contract and misleading and deceptive conduct and assessed damages in the amount of $43,567.98. He then received submissions about statutory interest and accepted that the total amount calculated for the period 31 May 2017 to 20 April 2021 was $16,949.73. Submissions were then made about costs. The applicant relied upon two Calderbank offers of settlement whereby it offered to resolve the entirety of its claims for $30,000 and later $25,000 inclusive of costs and interest. The magistrate reasoned that the defendants had unreasonably refused to accept either offer and exercised his discretion on 26 April 2021 to award costs in the amount of $41,352.50.

7    Mrs Von Risefer and Mr Von Risefer were each unhappy with the result in the Magistrates’ Court and on 25 May 2021 filed a notice of appeal to the Supreme Court of Victoria. They did not progress that appeal in a timely way. Various procedural orders were made by a judicial registrar on 24 August 2021 concerning the preparation and filing of appeal books, the provision of an amended notice of appeal and a requirement to file and serve written submissions. Apart from the filing of an amended notice of appeal, those orders were ignored by Mrs Von Risefer and Mr Von Risefer. Accordingly, by an application filed on 12 April 2022 the applicant (being the respondent in the appeal) moved to have the appeal dismissed for non-compliance with the procedural orders. That application was heard by Matthews AsJ on 3 June 2022. In the Other Matters that are set out in the general form of order that was entered on that day, her Honour noted that Mrs Von Risefer and Mr Von Risefer had been made bankrupt on 12 May 2022 and the consequential effect of s 58(1) of the Bankruptcy Act. However, and importantly, her Honour dismissed the appeal because Mrs Von Risefer and Mr Von Risefer had failed to comply with a number of the procedural orders that had been made on 24 August 2021.

8    I heard the review application on 15 and 21 September 2022. I am satisfied that there is no merit in any of the arguments put to me by the respondents and I am further satisfied that the applicant has established each of the matters required to be proved by it pursuant to the Bankruptcy Act. Accordingly, the interim application of the respondents will be dismissed and I affirm the sequestration orders made by Registrar Edwards on 12 May 2022: Bechara v Bates (2021) 286 FCR 166; [2021] FCAFC 34 at [152], Allsop CJ, Markovic and Colvin JJ.

THE REVIEW

9    I am required to determine three matters. First, the merit of the review application which seeks to engage my discretion to look behind the judgment debt in the Magistrates’ Court and if exercised, to determine whether I am satisfied that there is in truth a judgment debt owing to the petitioning creditor: Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132; [2017] HCA 28 (Ramsay) at [54]-[55], Kiefel CJ, Keane and Nettle JJ; [110]-[111], Edelman J. Although jurisprudentially different those steps may in apposite cases be combined: Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 at [34], Bromberg, Mortimer and Lee JJ.

10    Secondly, I must consider the merit of each ground of opposition to the creditor’s petition.

11    Thirdly, I must be independently satisfied that the applicant has established each of the matters required to be established by it pursuant to the Bankruptcy Act, the Bankruptcy Regulations, and the Bankruptcy Rules; and that in the exercise of my discretion a sequestration order should be made (or as in this case that the order as made should be affirmed).

12    I deal with the matters in that order. However, before doing so it is appropriate that I make clear the evidence that I received upon this review, why I rejected the receipt of certain evidence sought to be relied upon by Mrs Von Risefer and Mr Von Risefer and why I do not accept either as a truthful witness.

13    In order to bring some structure to the proceeding, Goodman J made procedural orders on 14 July 2022 which required Mrs Von Risefer and Mr Von Risefer to file and serve any evidence upon which they intend to rely by 28 July 2022 and for the applicant to file and serve any additional evidence to be relied upon by it by 11 August 2022. On 25 August 2022, I made orders setting down the review application for 15 September 2022, requiring any further affidavit material to be relied upon by the applicant to be filed and served by 2 September 2022, and for Mrs Von Risefer and Mr Von Risefer to file and serve any further affidavit material by 9 September 2022. Further, I explicitly required Mrs Von Risefer and Mr Von Risefer to give notice as to which persons they sought to cross-examine at the hearing, such notice to be in writing by email to the lawyers for the petitioning creditor, by 4 pm on 12 September 2022.

14    Certain further affidavits were filed and served in compliance with those orders by the applicant. Generally speaking there was non-compliance by Mrs Von Risefer and Mr Von Risefer. Mrs Von Risefer filed and served documents in the form of affidavits dated respectively 27 July 2022 and 18 August 2022. Mr Von Risefer filed and served a document in the form of an affidavit dated 27 July 2022. Contrary to my orders, Mrs Von Risefer sought at the hearing to rely on a further document in the form of an unsworn affidavit dated 12 September 2022. Despite its defective form, and late delivery, Ms Carruthers, counsel for the applicant, did not object to the receipt of that document. To her credit, she did not take obvious evidentiary objections to a large amount of the material referred to in each of the documents purporting to be affidavits of Mrs Von Risefer and Mr Von Risefer. Rather, she adopted the entirely pragmatic and sensible approach that more time would be saved by not objecting to the admissibility of obviously irrelevant (and sometimes scandalous) evidence.

15    The hearing before me did not conclude as scheduled on 15 September 2022 and was adjourned for continued hearing to 21 September 2022. On that day Mrs Von Risefer sought to rely upon a further document in the form of an affidavit made by her and which was not filed until the morning of the hearing. This time Ms Carruthers objected to the receipt of that document, not only on the ground of its late delivery but also because each party closed their respective cases on 15 September 2022. I made it very clear to Mrs Von Risefer that I would not receive that document in evidence and I would not place any reliance upon it. Regrettably, and despite my clear ruling, Mrs Von Risefer continuously attempted to refer to the document and its content during the course of submissions that she made before me. Mrs Von Risefer should not misunderstand that I have not had regard to the content of that document and the subsequent email correspondence that she sent to my chambers (doubtless in an effort to cause me to change my ruling) will also be ignored by me.

16    I provided procedural advice to Mrs Von Risefer and Mr Von Risefer during the course of the hearing. I explained that upon the de novo hearing, it is the applicant that carries the onus of proof to satisfy me as to each of the requirements of the Bankruptcy Act. I explained that we would receive evidence sequentially by reference to various affidavits relied upon by the applicant. I explained to Mrs Von Risefer and Mr Von Risefer that they may, if they thought fit, take objection to the admissibility of any material contained in the applicant’s affidavits. That simple explanation lead to difficulty at the hearing in that Mrs Von Risefer (who acted as the primary advocate) took multiple objections to the applicant’s affidavits, not based upon the admissibility of the evidence contained therein, but rather by reference to contentions as to disputed facts. Ultimately, and when I dealt with each affidavit sequentially, I was not satisfied that any of the objections articulated by Mrs Von Risefer on purported admissibility grounds were of any merit. I therefore received in evidence and took, as formally read, the following affidavits:

(1)    Kenneth Ramshaw sworn 30 September 2021;

(2)    Kenneth Ramshaw sworn 30 September 2021;

(3)    Justin Paul Hogg sworn 19 November 2021;

(4)    Justin Paul Hogg sworn 19 November 2021;

(5)    Marianne My-Ann Phan affirmed 19 November 2021;

(6)    Yulin Huang affirmed 7 December 2021;

(7)    Marianne My-An Phan affirmed 7 December 2021;

(8)    Justin Paul Hogg sworn 4 March 2022;

(9)    Justin Paul Hogg sworn 4 March 2022;

(10)    Marianne My-Ann Phan affirmed 14 April 2022;

(11)    Shao-Ping Gangur affirmed 4 May 2022;

(12)    Shao-Ping Gangur affirmed 4 May 2022;

(13)    Marianne My-An Phan affirmed 4 May 2022;

(14)    Marianne My-An Phan affirmed 4 May 2022;

(15)    Tina Thi Vo affirmed 3 May 2022;

(16)    Shao-Ping Gangur affirmed 11 August 2022;

(17)    Shao-Ping Gangur affirmed 2 September 2022;

(18)    Marianne My-Ann Phan affirmed 2 September 2022;

(19)    Shao Ping Gangur affirmed 14 September 2022;

(20)    Shao Ping Gangur affirmed 14 September 2022;

(21)    Shao-Ping Gangur made 20 September 2022; and

(22)    Shao-Ping Gangur made 20 September 2022.

17    I did not permit Mrs Von Risefer or Mr Von Risefer to cross-examine any of those witnesses (save for Yulin Huang, a solicitor for the applicant who was present in court) for the reason that each failed to comply with my order which required notice of intended cross-examination to be given to the solicitors for the applicant by no later than 4 pm on 12 September 2022. Rather than comply with that order, Mrs Von Risefer sent email correspondence to the Victorian registry (which was not copied to the solicitors for the applicant) at approximately 5 pm on 13 September 2022. That list includes various references to persons who did not make affidavits to be relied upon by the applicant and included an employee of AFSA in its capacity as the Official Trustee. For obvious reasons that late notice prevented the applicant’s solicitors from having any reasonable opportunity to produce any of the deponents for cross-examination.

18    I then proceeded to invite Mrs Von Risefer and Mr Von Risefer to read into evidence affidavits and other material in the form of affidavits, which they intended to rely upon before me. Without objection I received and took as formally read the following material:

(1)    Affidavit of Elizabeth Von Risefer sworn 23 March 2022;

(2)    Affidavit of Elizabeth Von Risefer dated 5 May 2022;

(3)    Unsworn and unsigned affidavit of Elizabeth Von Risefer dated 5 May 2022;

(4)    Affidavit of Elizabeth Von Risefer sworn 27 May 2022;

(5)    Unsworn affidavit of George Von Risefer dated 27 July 2022;

(6)    Unsworn affidavit of Elizabeth Von Risefer dated 27 July 2022;

(7)    Unsworn affidavit of Elizabeth Von Risefer dated 18 August 2022; and

(8)    Unsworn affidavit of Elizabeth Von Risefer dated 12 September 2022.

19    The applicant’s solicitors gave notice to cross-examine Mrs Von Risefer and Mr Von Risefer and I permitted cross-examination of each. The demeanour of each was assessed by me and in consequence I have concluded that each deliberately gave untruthful evidence in an attempt to mislead me. I now explain why I have reached that conclusion.

20    Dealing first with Mrs Von Risefer, her performance in the witness box in answer to straightforward questions from Ms Carruthers was nothing short of appalling. She was querulous, consistently argumentative, rambling, at times incoherent and displayed a repeated inability to answer simple questions that she perceived were contrary to her interests or those of Mr Von Risefer. She continuously attempted to make speeches and to argue a case of perceived injustice. She exhibited an illogical sense of self-righteousness characterised by repeated attempts at self-justification. Her evidence was utterly evasive. On more than one occasion I was required to direct her to listen carefully to the question and to answer it with the consequential warning: “If you keep engaging in arguments, that’s not assisting me one little bit and may well result in me finding that I cannot accept your evidence.” Despite that warning, she continued as if I had not spoken those words.

21    A few examples as justification for these conclusions will suffice, though there is no substitute for the tedious task of reading the transcript of all of her evidence. In each of her affidavits and documents in the form of affidavits, as filed and served in this proceeding, she stated that her residential address was 21 Oakwood Court, Templestowe (the Templestowe address). That is false. As emerged in the course of the cross-examination of Mr Von Risefer, he lives with his mother and each has lived at 1 Dalkieth Close Wheelers Hill (the Wheelers Hills address) since at least July 2022. It follows that Mrs Von Risefer repeatedly (and I find deliberately) wrongly stated her residential address in each of the affidavits of 27 July, 18 August and 12 September 2022.

22    She gave manifestly untruthful evidence that she had not been served with a bankruptcy notice, as stated in an affidavit made by a process server, on 28 August 2021. Mr Kenneth Ramshaw, on 30 September 2021, deposed that at 2.10 pm on 28 August 2021 he served the bankruptcy notice (and associated documents) upon Mrs Von Risefer by leaving the documents at her last known address (the Templestowe address) in a sealed envelope addressed to her by placing those documents in the letterbox at that address. Conversely, Mrs Von Risefer in an affidavit dated 23 February 2022 (but not filed until 5 May 2022) said ( I do not correct for grammatical, spelling or punctuation errors):

The applicant during the lockdown in Melbourne breached the Covid restrictions against attempt to serve in the house address to another person with out mask which action was reported to the authorities neither was left in the letter box which was not permitted at that time and I have requested documents to be forwarded to us not even replied to a number of emails.

Since we received the bankruptcy notice in relation to the application of VIA 612/2022 communications between us and the requested registry of the federal court registry that we haven’t been served and I was not even aware of the 30 November 2021 was the registrar Hird happy of the applicant action to breach the Covid restrictions in lockdown and excepted service or was substituted order??

23    To the extent that one can make sense of those paragraphs each is a contention by Mrs Von Risefer that, contrary to the sworn evidence of the process server, the bankruptcy notice was not left in an envelope addressed to Mrs Von Risefer and placed in the letterbox of her residence, a claim that she developed with less clarity when cross-examined.

24    Mrs Von Risefer sent email correspondence to a person identified as “Tina” at the law firm Level Playing Field, or in this proceeding LPF. That firm acted in the Magistrates’ Court proceeding for the applicant between 13 October 2017 and 7 May 2018. It replaced the firm P W Sotir & Co which acted between March 2017 and October 2017 and then again from 7 May 2018 to 26 April 2021. Mrs Von Risefer emailed correspondence to Tina at LPF on 18 August 2021 at 11.20 am where she said ( without correcting for grammatical, spelling or punctuation errors):

Tina hi I just want to bring to your attention I been advised by phone with a neighbour that someone knock my door with documents most likely to serve us, now tell me under what section of the Covid guidelines are you able to violate this order and be classified as essential services, I will report you to the local authorities as you need to be fined for your practices placing my families safety at risk during a pandemic. Please provide me the details of your server to report him, he was driving a Toyota turquoise colour, and parked in front of our home, if you don’t provide his details I’ll get the number-plates from the surveillance and forward that to the police to fine him thanks regards Elizabeth Von Risefer.

25    And then on 30 August 2021 at 10.48 am she wrote :

Tina hi is unbelievable to 3 times and special on Saturday the 28 August 2021 you send a private server with out mask in the lockdown despite we warned you about your previous violations of Covid breaches which by the way you never respond back and try to serve a bankruptcy document to another person in my family next your server advise the member of my family that will drop the documents in to the letter box which is not allowed with out any exceptions to drop any thing in the letterbox I came back on Sunday because I do care for my mother who discharged from monash hospital and was nothing on the box please you and any one been instructed by your office are not allowed to come to my door while it’s lockdown in Melbourne, you should be embarrassed every one suffer so much and your concern is to serve bankruptcy notice while we are in the supremes court and a new notice of appeal is coming and investigating your practice don’t hurry there going to be many investigations for your practice with Asic as well and justice commissioner please it doesn’t help you to be so arrogant and aggressive thanks regards (sic).

26    When cross-examined about service of the bankruptcy notice, Mrs Von Risefer gave the following evidence:

Now, it’s your evidence, isn’t it, that when the process server was serving the bankruptcy notice in August 2021 that he wasn’t wearing a mask; is that correct?… Yes.

And could you see him clearly?… We’ve been told by a family member, which was George… This…

I’m asking you if you could see the process server clearly?… He knocked the door. That’s against the regulation.

I’m asking…?… And he was…

… for a third time could you see the process server when he was serving the bankruptcy notice?… No. I haven’t. A member of my family did. He was… In the door.

And it’s your evidence that he wasn’t wearing a mask?… Yes.

But it’s also your evidence that you didn’t see him?… Yes. But a member of my family did and agree he was not…

Well, that’s not what you say affidavit, is it?… My affidavit… it was the recent case being created…

I’m not asking you about an unrelated case, Mrs Von Risefer. It is not in your evidence in this proceeding that a different person from your household saw the process server not wearing a mask; correct?… He… with mask.

Yes or no?… That person here with the mask – I didn’t see it in person. No.

…

But you do know that he attended your property that day?… Yes.

And you do know that he left documents in the letterbox?… Yes. And it was…

When you do know that that was a bankruptcy notice?… He send me a copy and never… it’s on my affidavit. Yes. I wasn’t aware that he left the documents in the box.

…

Mrs Von Risefer, I would like you to answer my questions, please. So it’s your evidence that on 28 August 2021…?… Yes.

… the process server came to your house; correct?… Yes.

And left the documents – left documents in the letterbox?… I left– left the documents, which I haven’t seen, and I have requested a copy of that letter from… from the solicitors to send it to me. I know that fact. I can be very specific with that answer.

I put it to you that you did receive the bankruptcy notice on that day from the letterbox?… No. I haven’t, because I haven’t responded to that document, and because he was not allowed to be there and was not in my possession, and it was denied by… your instructors… the evidence before…

…

I put to you that you wouldn’t have known to ask my instructing solicitor for the documents if the documents hadn’t arrived?… I… From the person who opened the door and alleged that the person who knocked the door – he was going to leave that – the file on the letterbox… Someone I didn’t find the documents in my letterbox and I have to be specific… then I did send – I did request to the instructing solicitor of yours to send me a copy.

…

If you didn’t receive the documents, how do you know that the process server was there in relation to this case?… I didn’t even know. I just complained to the requirement of the restrictions – pandemic… I did state that a person came into the door without mask alleging that left the documents on the letterbox. I never said any name. I was not even aware. That was for the police, because it alleges that there is – that was for the police to disclose that. I never mention any name. I was not aware of that person, only after the… When I have to deal with the – something – you can…

Mrs Von Risefer, I put to you that you are aware of the bankruptcy notice August 2021?… No.

27    A person who takes the time to read this judgment may find that evidence confusing and very difficult to follow. It was more confusing and difficult to follow when given orally before me. And I had the advantage of making close observation of the demeanour of Mrs Von Risefer. What this extract from the transcript fails to adequately convey is just how evasive and argumentative Mrs Von Risefer was in giving this evidence. She manifested the appearance of an individual intent on misleading me. I find that the bankruptcy notice was served as deposed to by the process server when he left it in the letterbox at the Templestowe address on 28 August 2021 at 2:10 pm. There is no reason why a process server would give false evidence in this Court as to that simple fact. In contrast, if as claimed by Mrs Von Risefer that the bankruptcy notice was not left in the letterbox, there is no rational explanation as to why she managed to identify LPF lawyers as acting for the applicant at that time, rather than P W Sotir & Co. The identity of LPF lawyers was disclosed on a covering letter addressed to Mrs Von Risefer dated 4 August 2021 which enclosed by way of service the bankruptcy notice and a sealed copy of the Magistrates’ Court order made on 26 April 2021.

28    I further find that, contrary to the evidence of Mrs Von Risefer, she was present at the Templestowe address on 28 August 2021 and that she was sufficiently diligent to notice that the process server who attended the residence, knocked on the front door and ultimately left whilst driving a turquoise Toyota motor vehicle. I reject as utterly false the claim by Mrs Von Risefer that she only received this information from an undisclosed “family member”.

29    There is also the general impression that I formed about Mrs Von Risefer when she gave evidence. Her querulous and argumentative presentation, combined with her evasiveness in answering simple questions, was redolent of untruthfulness.

30    For these reasons I have concluded that I cannot accept as truthful any evidence proffered by Mrs Von Risefer in this proceeding, save where consistent with the evidence of other (truthful) witnesses.

31    I next deal with the demeanour and credit of Mr Von Risefer, whom I have also concluded was an untruthful witness. Although Mr Von Risefer took a lesser role in this proceeding than his mother, it is clearly the case that he has been manipulated by her into making false statements, signing documents in the form of affidavits without reading them and in generally supporting the incoherent and largely irrational arguments advanced by his mother. He too was cross-examined by Ms Carruthers. Like her, he proved himself incapable of answering simple questions. He obfuscated and attempted to evade. He continuously resorted to that well-known response: “I don’t remember”, to questions that he found inconvenient. Once again I make this assessment based on my observations made during the entirety of his evidence and the following examples are provided simply to reinforce the basis for my conclusion as to his credit.

32    In the first part of his cross-examination, Mr Von Risefer managed to state that his current address is 1 Dalkeith close in Wheelers Hill, which is contrary to the address given in a document, purporting to be an affidavit dated 27 July 2022, when he stated that his address was the Templestowe address. Unsurprisingly, Ms Carruthers pressed Mr Von Risefer with questions as to when his residential address (and that of his mother) changed. His initial evidence was that he had been living at the Wheelers Hill address for “a few months”, but eventually he admitted that he incorrectly stated his address in the document signed on 27 July 2022. He was then evasive in giving answers to simple questions as to when (if at all) his mother commenced living at the Wheelers Hill address. He was taken to the document signed by him on 27 July 2022, which on its face was not made as an affidavit before a qualified witness. Despite this obvious fact, Mr Von Risefer first attempted to say that a person did witness the affidavit, whom he could not recall by reason of the fact that “I’ve been very sick the last few months”. When asked when and where he went to have the affidavit witnessed, he could not recall. Nor could he recall where and when he signed it.

33    Next followed the following series of questions in order to elicit evidence as to whether Mr Von Risefer had ever read the document or, if he had, whether he agreed with its content as correct. The questions and answers were:

When you swear an affidavit or when you sign an affidavit, do you read it first?… I try to.

Did you read this one before you signed it?… As I said, like, this one – like, I’m a bit lost. Like, what date is it?

That’s all right. Maybe take a moment or two to read it?… What would you like me to answer regarding this?

Do you – does that refresh your memory? Do you remember this affidavit now?… Like, I remember writing this. Like, yes.

And did you-you refer to the word ‘write it”. Did you write it?… Like, yes. I did.

And did you type it?... Again, I don’t recall. I might have typed it. Sometimes my wife assists me, sometimes with my mother. Like, as you can see… Like, it’s 1000 pages, just this book.

Well, I’m only asking about this affidavit?… No problems.

This three-page affidavit?… Like, I can confirm it’s my signature. It’s my affidavit.

…

34    Having established at least that much, Ms Carruthers questioned Mr Von Risefer as to why in this document he stated his mother’s telephone number and email address. Apart from stating “for reasons of convenience”, he failed to provide any satisfactory explanation. He was then taken to the first substantive paragraph in the affidavit which reads:

I am the respondent on (sic) this proceeding and I am authorised to make this affidavit on my behalf and the second respondent George Von Risefer’s behalf.

35    The course of questions was then:

Now, you said earlier that you wrote this affidavit. That’s not true, is it?… Sorry?

You said earlier that you wrote this affidavit. That isn’t true, is it?… Like, if you remember, I answered that I don’t remember. Sometimes I type it. Sometimes I get the help of my wife. Sometimes my mother might assist.

Your response, sir, was that you didn’t recall if you typed it but that you had written it?… Pretty much the words and the meaning are mine.

So is this the words and…?… Now…

… The meaning of yours?… And as I mentioned, I am not – I did not remember who typed this.

36    I find that evidence to be preposterously false. What is clear from this series of questions, and others in the course of the cross-examination, is that Mrs Von Risefer was responsible for drafting the document, she placed it before her son and he signed it, probably without even reading it. Regrettably, however, that is not the low point of the evidence given by Mr Von Risefer. He was next taken to another paragraph in the document, concerned the proceeding in the Magistrates’ Court, which included these words:

…the applicant was not happy the magistrate court judge allowed applicant to keep the goods not to return them as the Legislation to use how much they want and disposed the rest including myself as a mother helping my son while he was in China with out to be employee or agent the magistrate court judge included my son second respondent while he manufactured and delivered the goods with out guarantees as directors of the kitchen labs pty ltd.

(sic)

37    And the questions and answers were :

Now, you just didn’t write any of this, did you?… I – it’s probably very bad grammar.

So you think you did write it?… Like, I said that – who typed it could be my wife; it could be my mother – and that I coordinated with my mother. Like, as I said, this is probably very bad grammar, so maybe my wife typed it for me.

…

But are they your words? Did you – are you the person who decided what was put in this affidavit?… Yes. But I thought we also had – it’s joint, like, most of the points. You know, like this – because as I said, it’s probably the grammar.

38    Next Mr Von Risefer was taken to his mother’s unsworn affidavit dated 27 July 2022. It is in almost identical terms to the document signed by Mr Von Risefer, save for the name of the deponent and the signature. By this time most astute witnesses would probably have realised that “the game is up”; but not Mr Von Risefer. It was put to him “you just copied your mother’s affidavit, didn’t you?”, to which his mother then irrelevantly interjected and Mr Von Risefer responded:

I guess I mentioned before – like, I did not recall how this thing was put together. I confirm that its meaning – for my behalf, and as I said, like, me and my mother would share a lot of information. She tries to help me as much as she can, because my knowledge is – is very limited. Like, pretty much this is the first time I’ve been involved in court proceedings. I’m really confused, and I had no idea about it.

39    Counsel immediately corrected the obviously incorrect statement that this is the first court case that Mr Von Risefer had been involved in and the evidence continued:

Is it now your evidence that they’re not your words?… They are my words. Now who typed or who helped me put it together – the meaning is mine. And – yes.

I put to you that you did not – that you were not involved in the creation of that affidavit?… Like, you’re playing with words, trying to confuse me here. So please – I will answer your answer. What was it? Sorry.

I put to you…?… Yes.

… that you did not create that affidavit?… Like, I’ve already answered that.

His Honour: No. You haven’t?… Creating affidavit? It’s, like – like, for example, who typed it? Like there’s an office. Like, the person – like, the plaintiff – there’s a lot of different solicitors, another person preparing that document. She’s a representative. It’s just me and my mother. We’re allowed to assist each other or help…

His Honour: Mr Von Risefer?… Like, I don’t know what to answer, your Honour.

Would you answer my question?… Yes, your Honour.

Did your mother just tell you to sign the affidavit?… No.

… which she prepared for you?… Your Honour, of course, I’m very involved in this case, and you will determine it later.

40    Mr Von Risefer was at least able to understand that I would make findings of fact based upon his evidence. The finding, which I have summarised above, is that he is not a witness of the truth upon whom I can place reliance in the making of any finding of fact in this proceeding, save as to facts that find support in the evidence of other truthful witnesses. I find that Mr Von Risefer is a person totally without credibility in this matter. He was clearly dishonest when he gave evidence before me. He was evasive and argumentative.

41    Sometimes parties lie under oath or affirmation with impunity. But not in this case. I am positively satisfied that Mrs Von Risefer and Mr Von Risefer have each given knowingly false evidence before me in an attempt to mislead. Their lies were readily exposed, which is due in no small part to the astute cross-examination conducted by Ms Carruthers on behalf of the petitioning creditor.

42    Having made these adverse findings, my task in addressing the de novo review application and each of the grounds of opposition to the creditor’s petition is somewhat less complex than it might otherwise have been. Where Mrs Von Risefer and Mr Von Risefer rely upon their evidence in support of the making of findings of fact in their favour, I simply do not accept that evidence as truthful unless corroborated by the evidence of other truthful witnesses or it is otherwise common ground in the proceeding before me.

THE REVIEW APPLICATION

43    The grounds of the review application read (the grounds commence with number 2):

2.    The order by registrar Hird on 30 November 2021 issued substitute order based on the server of the applicant breach the Covid restrictions during the lockdown in Melbourne he said he left the notice of bankruptcy in the letter box with out to serve both the respondents further refused to provide a copy of the notice despite was requested in a few emails,the matter was reported to the police were being investigated the registrar of the federal circuit court legalised a a breach of Covid restrictions and allowed the applicant to proceed with out service

3.    Registrar EdwardsR refused adjournment which was requested on the 12 May 2022 by the respondents on grounds to seek legal representation as self litigant on the following grounds

a)    Appeal on Supreme Court been ignored by the registrar EdwardsR against bankruptcy act 2021 rule 5.5

b)    Refused adjournment because of time needed rule 4 .10 and 5.4

c)    Refused that the applicants never served the respondents accordingly to the rules of the bankruptcy act

d)    Registrar refused the denial of the debt due to is appealed and terminated in August 2022 neither there any other debts by respondents neither are any other creditors

e)    Registrar ignored the rules for respondents as self litigants were disadvantaged to be bankrupts while there claims for compensation with active cases in vcat and county court against commonwealth bank and Yarra ranges council because of loss and wrong demolition in our property in 132 Belgrave ferny creek road Tecoma in 2019 we win the court in Supreme Court and next county court in Supreme Court was finalised and heard by justice Bell and Victoria attorney general intervention at the time finally the Victoria bar association did a story about our matter in regards how disadvantaged self represented have luck before the justice

4.    We request the review of registrar Hird on 30. November 2021 pending to Supreme Court appeal and stay of notice of bankruptcy due to never been served

5.    Registrars order sequestration be staying pending to the Supreme Court decision

6.    Review registrars decision as unfair and biased division 7.2 review of sequestration order by registrar federal court bankruptcy rules 2016

(sic.)

44    As correctly observed by counsel for the applicant, Mrs Von Risefer and Mr Von Risefer failed to comply with the requirements of rules 7.05 of the Bankruptcy Rules in that it was not served upon the appointed trustee at least 7 days before the date fixed for hearing and no notice was given to creditors of the making of the application. During submissions I suggested to counsel that it might be more efficient to overlook those matters and proceed to the merit of the application and she agreed.

45    The first ground concerns an order made by Registrar Hird on 30 November 2021, which dispensed with personal service of the creditor’s petition and authorised service as follows:

1.    Personal service of the creditor's petition be dispensed with.

2.    The creditor's petition be served on the respondents as follows:

(1)    By posting the following documents (collectively, the Documents) by regular mail address to the respondents at 21 Oakwood Court, Templestowe VIC 3106

(the Address):

(a)    A covering letter;

(b)    A sealed copy of this order;

(c)    A sealed copy of the creditor's petition;

(d)    A copy of the affidavit, or affidavits, verifying the creditor's petition;

(e)    A copy of the affidavit required by r 4.04(1)(a) of the Federal Court (Bankruptcy) Rules 2016;

(f)    A copy of the affidavit, or affidavits, of service of the bankruptcy notice; and

(g)    A copy of any consent to act as trustee;

(2)    By placing the Documents in an envelope addressed to the respondents and handing the envelope to a person apparently over the age of 16 years apparently residing at the Address or, in the event that no such person is in attendance, by placing the envelope in the letter box at the Address;

(3)    By sending an email addressed to the first respondent at vonrisefer@icloud.com which attaches (by way of a PDF electronic document) the Documents and which contains in the subject header of the message the following: "Urgent - Important Legal Message" and which otherwise reads as follows in the body of the email:

EMAIL BY COURT ORDER - Proceeding VID612/2021 has been filed against you, ELIZABETH VON RISEFER and an Order for service has been made. Documents are attached and can be inspected by contacting the Federal Court on 1300 720 980; and

(4)    By sending an email addressed to the second respondent at avgdg@yahoo.com which attaches (by way of a PDF electronic document) the Documents and which contains in the subject header of the message the following: "Urgent - Important Legal Message" and which otherwise reads as follows in the body of the email:

EMAIL BY COURT ORDER - Proceeding VID612/2021 has been filed against you, GEORGE VON RISEFER and an Order for service has been made. Documents are attached and can be inspected by contacting the Federal Court on 1300 720 980.

3.    Service of the creditor's petition be deemed to be effected on 6 January 2022 upon condition that the 4 events referred to in paragraph 2 occur by 13 December 2021.

4.    The costs of this application be reserved.

5.    Liberty to apply.

46    It is difficult to understand what is meant by this ground, although some elucidation was provided in the oral submissions of Mrs Von Risefer. There are two points. One is that the process server failed to comply with the second order made by Registrar Hird in that the documents were not placed in the letterbox at the Templestowe address. I am satisfied in accordance with the two affidavits made by the process server, Mr Hogg dated 4 March 2022, that the creditor’s petition, a copy of the orders made by the registrar, a copy of the bankruptcy notice, copies of the affidavit of service of each bankruptcy notice and a covering letter from the applicant’s lawyers was left by him in an envelopes respectively addressed to Mrs Von Risefer and to Mr Von Risefer by placing those documents in the letterbox at the Templestowe address at 2:09 pm on 2 March 2022 and I reject as untruthful evidence to the contrary from Mrs Von Risefer and Mr Von Risefer.

47    The other is that service by that means was in breach of “Covid restrictions”. What is meant by that? The substituted service orders concern the creditor’s petition. I have found that it was served 2 March 2022. There were no relevant Stay At Home Directions made pursuant to the Public Health and Wellbeing Act 2008 (Vic) that operated on that day. The last such Direction was the Stay at Home Directions (Victoria) (No 8), which ceased at 11.59 pm on 23 September 2021. In any event, it is to be noted that cl. 10 of that Direction carved out from the restrictions imposed on leaving premises: leaving for purposes authorised by law or relating to the administration of justice.

48    It may be that this contention relates to the service of the bankruptcy notices as an anterior step which somehow (which was not explained) infects the substituted order for service of the creditor’s petition. On that view it is of no merit as I find, in accordance with the two affidavits of the process server Mr Ramshaw, that each bankruptcy notice was served on 28 August 2021 at 2.10 pm by leaving the documentation in envelopes respectively addressed to Mrs Von Risefer and to Mr Von Risefer in the letterbox at the Templestowe address. Once again, I reject as untruthful evidence to the contrary from Mrs Von Risefer and Mr Von Risefer.

49    The second ground asserts that Registrar Edwards wrongly exercised her discretion to refuse an adjournment of the hearing of the creditor’s petition on 12 May 2022. Six sub-contentions then follow, which I will assume are intended to address the well-understood House v The King (1936) 55 CLR 499 at 504-505 requirements. At the outset the date referenced is wrong. The request for an adjournment was made and refused on 5 May 2022. I will proceed on that basis.

50    The evidence as to what occurred before Registrar Edwards is set out in detail in the affidavit of Shao-Ping Gangur of 11 August 2022 at [40] – [53], which I accept. I also have the benefit of the sealed orders made by Registrar Edwards. The creditor’s petition was made returnable on 27 January 2022 at 9:30 am. On that day a request to adjourn the hearing of the petition was granted and the proceeding was adjourned to 24 February 2022 at 11 am. It was ordered that if Mrs Von Risefer or Mr Von Risefer intended to oppose the making of a sequestration order, then they must appear at the adjourned hearing. It was also ordered that they provide up-to-date email addresses and telephone numbers and they were warned that a failure to do so may mean that the hearing would proceed in their absence. On 24 February 2022, the hearing was again adjourned, this time to 11 am on 24 March 2022. Mrs Von Risefer and Mr Von Risefer were ordered to file and serve any notice of opposition together with affidavits in support by 14 March 2022, including affidavits that they may seek to rely on which set out their financial position. A further order that was made required that any application for a further adjournment by Mrs Von Risefer or Mr Von Risefer be supported by an affidavit to be filed and served by 22 March 2022.

51    On 24 March 2022, the hearing was again adjourned, this time to 5 May 2022 at 2:15 pm. Inter alia, Mrs Von Risefer and Mr Von Risefer were ordered to file and serve any affidavit in support of the grounds of opposition by 27 April 2022 including, should they seek to do so, affidavits which set out their current financial position. Once again it was ordered that any application for a further adjournment by Mrs Von Risefer or Mr Von Risefer be supported by an affidavit to be filed and served by 3 May 2022.

52    Once again, there was non-compliance in that two documents purporting to be affidavits were filed on 5 May 2022. One is dated 23 February 2022 and the other 5 May 2022. It was asserted that Justice Connect “had promised to assist” at the hearing on 24 February 2022, the service did not provide assistance and for that reason a further adjournment was requested, which from the narrative that I have set out was granted.

53    I accept the evidence of Ms Gangur, and find accordingly, that Registrar Edwards granted an adjournment of the hearing on 24 March 2022 on two grounds. One, to afford an opportunity for Mrs Von Risefer and Mr Von Risefer to file material relevant to their opposition to the creditor’s petition, including establishment of solvency, and the other to file further material about the substituted service contention relating to the orders made by Registrar Hird on 30 November 2021. At no point during that hearing were arguments put to Registrar Edwards to the effect of any of the six points relied upon under this ground.

54    I also accept the evidence of Ms Gangur, and find accordingly, that on 5 May 2022 there was no appearance by Mr Von Risefer, who relied on a medical certificate certifying that he was unfit for work for the period 23 February 2022 to 25 February 2022. That medical certificate patently did not satisfactorily explain his absence. And no application for a further adjournment was made on that day, supported by an affidavit, as required by the orders made on 24 March 2022.

55    I further find in accordance with the evidence of Ms Gangur that the hearing on 5 May 2022 proceeded as follows. Mrs Von Risefer and Mr Von Risefer attempted to file and rely on documents that were transmitted to the Registry on 4 May 2022, but which had not been accepted for filing. Accordingly, the hearing was stood down in order to allow the court staff to locate documentation and to provide an opportunity for consideration by the applicant’s lawyers. Registrar Edwards invited the lawyers for the applicant to either make an application to adjourn the hearing in order to provide a written response to this new material or alternatively to address it by the making of oral submissions. The latter course was elected. On that basis Mrs Von Risefer and Mr Von Risefer were permitted to refer to (and I assume it was received in evidence) two documents, one being an affidavit of Mrs Von Risefer dated 23 February 2022 but filed on 5 May 2022 and the other being a document in the form of an unsworn affidavit filed on 5 May 2022. In general terms the first document agitates arguments to the effect that the process server acted in breach of unspecified COVID-19 restrictions in serving the bankruptcy notices; that an unresolved appeal from the decision in the Magistrates’ Court had been brought in the Supreme Court; that Registrar Hird wrongly made the substituted service orders on 30 November 2021; that a police report had been lodged for “more than 60 illegal intercepted telephone calls"; that some sort of defamation claim was to be brought against the applicant and that an adjournment should be granted pending the resolution of the Supreme Court appeal. The other, in a somewhat unsatisfactory manner, purports to be a list of assets comprising: a house “owned by the family" at Ferny Creek, which was destroyed by arson in 2012; a house on 10 acres of land “that was repossessed by the Commonwealth Bank” and sold in 2015; a claim in the County Court “pending for undervalue sale and wrong possession” by the bank; an unspecified claim for damages against the Yarra Ranges Council and a defamation claim “due to be lodged” against Ms Gangur, that is somehow related to an apparently false insurance claim. Those affidavits are largely unintelligible.

56    Returning to the affidavit of Ms Gangur, I find that the applicant’s lawyers put submissions to Registrar Edwards in response to this material and at the conclusion of the hearing the registrar reserved her decision to 12 May 2022.

57    I am satisfied that Registrar Edwards did not misuse her discretion to refuse to grant a further adjournment of the hearing on 5 May 2022 on any of the grounds now relied upon by Mrs Von Risefer and Mr Von Risefer. As to their inability to obtain legal representation, there was ample time to do so within the period between 27 January 2022 and 5 May 2022. Mrs Von Risefer and Mr Von Risefer failed to provide any satisfactory evidence or explanation as to their inability to obtain legal representation within that period. Further, it must not be overlooked that, according to the evidence of Ms Gangur, each has considerable experience in acting as a self-represented litigant (though usually Mrs Von Risefer is the leading advocate) through nine legal proceedings commencing with a case in the Supreme Court of Queensland in 2001, which ultimately resulted in a failed application for special leave to appeal to the High Court and which I note commenced with an application by Mrs Von Risefer for an adjournment: Von Risefer v Permanent Trustee Co Ltd [2003] HCATrans 354.

58    The next claim is that Registrar Edwards ignored the extant appeal from the decision of the magistrate to the Supreme Court. The history of that appeal is set out in considerable detail in a further affidavit of Ms Gangur dated 2 September 2022, which evidence I accept and I make the following findings of fact. Mrs Von Risefer and Mr Von Risefer filed a notice of appeal on 25 May 2021. A first case management hearing was conducted before a judicial registrar on 4 August 2021. The form of the notice of appeal was the subject of adverse comment. In response, Mrs Von Risefer and Mr Von Risefer requested an adjournment in order to prepare an amended notice of appeal. The directions hearing was adjourned to 24 August 2021. Mrs Von Risefer and Mr Von Risefer did not satisfy the court’s requirements for amended documentation. Instead, they made an application for a stay of the Magistrates’ Court judgment pending the determination of the appeal. That application was adjourned to 24 August 2021, and Mrs Von Risefer and Mr Von Risefer were directed to file and serve any affidavits they intended to rely upon in support by 4 pm on 13 August 2021. . The stay application was dismissed on 24 August 2021. A reason given by the judicial registrar was that:

The court is not satisfied the notice of appeal identifies sufficiently a question of law, or any question of law, on which leave to appeal might be granted and the grounds relied on do not justify the grant of a stay.

59    Procedural orders and directions were then made to advance the appeal. The appeal was listed for hearing on 11 August 2022, and various orders were made requiring Mrs Von Risefer and Mr Von Risefer to prepare a court book, file and serve an outline of submissions and leave was granted to serve an amended notice of appeal on or before 22 September 2021. On 12 April 2022, the lawyers for the applicant (the respondent to the Supreme Court appeal) filed an application that the appeal be dismissed on the grounds that either it had no prospect of success or by reason of various failures to comply with the orders made on 24 August 2021. The hearing of that application was dealt with by Associate Justice Matthews on 3 June 2022. She dismissed the appeal. Her Honour’s reasons are more than adequately summarised in the preamble to the formal order. Her Honour was aware of the making of the sequestration order on 12 May 2022 and the consequential effect of s 58 the Bankruptcy Act. Importantly, her Honour dismissed the appeal for the reason that Mrs Von Risefer and Mr Von Risefer failed to comply with seven of the procedural orders that were made on 24 August 2021.

60    Thus, in the Supreme Court appeal, Mrs Von Risefer and Mr Von Risefer had a very considerable period of time (before the making of the sequestration orders) to prosecute the appeal within the period 25 May 2021 until 12 May 2022. No explanation that is adequate has been proffered by Mrs Von Risefer or Mr Von Risefer to explain that failure. Registrar Edwards was clearly aware of the Supreme Court appeal: it was first brought to her attention by the lawyers for the applicant at the first return date of the hearing of the creditor’s petition on 24 January 2022 which is the evidence of Ms Gangur in her affidavit of 11 August 2022 (which I accept) and I further accept her summary that :

The Second Respondent (Mrs Von Risefer) was unable to articulate the status of the Supreme Court Appeal at the time and therefore Registrar Edwards requested for my solicitors for assistance at the hearing to understand the status of the Supreme Court Appeal.

At the hearing on 24 March 2022, my solicitors informed me that Registrar Edwards advised that she required the Applicant to file material regarding the Supreme Court appeal for her consideration.

Accordingly, my solicitors advised me to file a strike out application in the Supreme Court Appeal to dismiss those proceedings as the Respondents had no prospect of success in those proceedings. This would also assist the Applicant to succeed against the Respondents in the Bankruptcy Proceeding.

61    In submissions before me, Mrs Von Risefer repeatedly emphasised her view that this amounted to improper conduct by the applicant and or by the office of the Official Trustee, the latter in failing to prosecute the Supreme Court appeal. There is evidence that the Official Trustee advised the applicant’s solicitors that the appeal would not be prosecuted. None of that establishes improper conduct. It was a perfectly legitimate decision for the applicant to seek to terminate the Supreme Court appeal because of substantial non-compliance with the procedural orders that were made. Further, it is perfectly normal for a respondent to litigation, following the making of a sequestration order against an applicant, to seek advice from the trustee in bankruptcy as to whether legal proceedings that were commenced by the applicant are to be proceeded with. There is simply no merit in the speculative and unfounded submissions of serious misconduct that were put to me by Mrs Von Risefer concerning how the Supreme Court appeal was ultimately terminated.

62    It also follows from this analysis that there is no merit in the contention that Registrar Edwards ignored the fact of the appeal to the Supreme Court of Victoria.

63    The next ground, 3(b), is unintelligible as there is no rule 4.10 or 5.4 of the Bankruptcy Rules that is concerned with the adjournment of a creditor’s petition. Ms Carruthers submits that this may be an intended reference to a publication of this Court: Bankruptcy Information Sheet 3- Opposing a Creditor’s Petition. Even if one assumes that this is the intended reference, paragraphs 4.10 and 5.4 contain general information relating to adjournment applications, but do not assist the argument that Registrar Edwards in the particular circumstances of the proceeding before her, wrongly exercised her discretion to refuse a further adjournment application at the hearing on 5 May 2022. This contention therefore is of no merit.

64    Ground 3(c), appears to be a contention that Registrar Edwards wrongly concluded that Mrs Von Risefer and Mr Von Risefer were served, one assumes with the bankruptcy notice and or the creditor’s petition, in accordance with the requirements of the Bankruptcy Act. For the reasons that I have set out in detail, I am satisfied that service was lawfully effected for each of the bankruptcy notice and the creditor’s petition and this contention is of no merit.

65    Ground 3(d) would appear to involve two points. One relates to the ending of the Supreme Court appeal, which I have addressed above. The other should be understood to be an application to engage my discretion to look behind the judgment debt in the Magistrates’ Court, in order to be satisfied that there is in truth a judgment debt owing and which founds the bankruptcy notice and the creditor’s petition. I recently had cause to summarise the principles that apply to the exercise of this discretion in Russo v CHEP Australia Ltd [2022] FCA 949, and for convenience I set out the relevant paragraphs from that judgment primarily by reference to Ramsay:

40.    What is sought to be attacked by the appeal grounds is error which infects the exercise of the discretion by the primary judge not to “go behind” the default judgment for the reasons identified at PJ [33]. Before turning to how the discretion was exercised in this matter, it is important to understand the nature of the discretion, the favourable exercise of which was sought by Mr Russo. The plurality reasons of Kiefel CJ, Keane and Nettle JJ in Ramsay addressed the existence and scope of the discretion in the following passages:

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 creditor’s 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....

...

72.    The Full Court was correct to conclude that there was a substantial question as to whether the debt on which Ramsay relied was owing. That being so, the Bankruptcy Court should proceed to investigate this question in order to decide whether it was open to it to make a sequestration order.

(Footnotes omitted.)

41.    In separate concurring reasons, Edelman J at [110] and [111] said in part;

...The circumstances which enliven the discretion to go behind the judgment are not constrained to any categories, even when the judgment debt was obtained after a contested hearing. As for the exercise of the discretion to go behind the judgment and to conduct a hearing into whether the underlying debt existed (which was not in issue on this appeal), Barwick CJ said in Wren v Mahony that the discretion to accept a judgment as satisfactory proof of a debt "is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner". The reference to "substantial reasons" echoed the language of earlier cases including a reference to "a prima facie case impeaching the judgment", by which the courts meant that there were prima facie grounds upon which a court of equity would choose to intervene.

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

(Original emphasis. Footnotes omitted.)

42.    On the evidence that was before the primary judge, the substantial reason or issue that Mr Russo agitated in order to enliven the discretion to inquire into the existence of the underlying debt concerned the authority of Mr Singh to place orders for pallets on behalf of the company. If the primary judge had been satisfied that the circumstances as presented to him justified the exercise of his discretion to inquire into whether he should accept the default judgment as satisfactory proof of the debt relied upon by CHEP, then, as the second step, his Honour was obliged to conduct a hearing into that issue (although in appropriate cases the steps may be combined): Cristovao v Tan & Tan Lawyers Pty Ltd [2018] FCAFC 41 at [34], Bromberg, Mortimer and Lee JJ.

43.    On the first question Mr Russo carried the initial or tactical onus: Ali v Retail Decisions Pty Ltd [2012] FCA 1130 at [20], Bromberg J. Further, as has been frequently remarked, where the judgment relied upon was obtained by default “the court in bankruptcy will more readily look behind” it: Wolff v Donovan [1991] FCA 222; (1991) 29 FCR 480 at 486, Lee and Hill JJ.

66    Further, as Ramsay demonstrates, the fact that a judgment debt has been entered in consequence of a defended hearing is not of itself a reason to refuse to exercise the discretion if the circumstances of the case justify taking that course. When the argument was developed by Mrs Von Risefer, and to a lesser extent Mr Von Risefer, before me various assertions (unsupported by the evidence) were relied upon: in summary, the magistrate was biased, the magistrate failed to afford procedural fairness, the Supreme Court appeal would have succeeded, there were many appeal grounds, the magistrate should not have preferred the evidence given by witnesses for the applicant and the defendants (or some of them) had a counter-claim or set-off which was ignored by the magistrate. I attempted to explain to Mrs Von Risefer that my discretion is not one to review, as if sitting upon an appeal, the reasoning and orders made by the magistrate, particularly by reference to paragraph [54] from the plurality reasons in Ramsay. Despite my attempt at guidance, Mrs Von Risefer persisted with her submissions.

67    I am not satisfied that Mrs Von Risefer and Mr Von Risefer have established any substantial reason or question to exercise my discretion to look behind the judgment entered in the Magistrates’ Court. I reject their submissions as divorced from the evidence, irrational in part and objectively untrue. What must be recalled is that the magistrate conducted a hearing over nine days (although not all full days), received evidence from numerous witnesses, that evidence was tested by cross-examination, conducted largely by Mrs Von Risefer, and from the reasons that have been provided (the summary in the affidavit of Ms Gangur) and the partial transcript attached to the affidavit of Mrs Von Risefer dated 12 September 2022, I am quite satisfied that the magistrate conducted a procedurally fair hearing at which Mrs Von Risefer and Mr Von Risefer had more than adequate opportunity to present their defence. Further, despite the prospect of a set-off or counter-claim being raised in the Magistrates’ Court proceeding (and at least one adjournment having been granted to enable that to be done), the fact is that no set-off or counter-claim was filed in the proceeding.

68    From the partial transcript of the magistrate’s reasons I note that he accepted the plaintiff’s evidence as to the standard of the products to be supplied and installed; accepted that the products as delivered suffered from numerous defects; noted that in an attempt to mitigate its loss the plaintiff used some of the defective products (with the consequence that the quantum of its claim reduced); rejected the defence that despite the defects the plaintiff accepted the goods upon inspection on or about 4 January 2017 and characterised a large number of the arguments and submissions of the defendants as having no merit. The magistrate further found that Mrs Von Risefer and Mr Von Risefer engaged in conduct that was misleading or deceptive or likely to mislead or deceive when they made various misrepresentations about the delivery, installation and quality of the goods to be supplied in order to obtain various pre-payments. None of this supports the submission that in truth the judgment debt is not owing.

69     There is no evidence to support the quite unsubstantiated claim of bias by the magistrate.

70    Although not the subject of any particularised ground in the review application, certain further arguments were put to me, primarily by Mrs Von Risefer. One, is that the costs order is not justified by reference to the scale of costs that applies to this type of proceeding in the Magistrates’ Court. The short answer to that is that the magistrate exercised his discretion to make a costs order by reason of the unreasonable failure by the defendants to accept one of two Calderbank settlement offers that were made before the commencement of the trial. Another is that there is a discrepancy in the interest that was awarded. The partial transcript of the magistrate’s reasons records the total amount of interest claimed of $16,949.73, calculated for the period 31 May 2017 until 20 April 2021. The certified extract of the judgment entered, as attached to the bankruptcy notice, is dated 15 June 2021 and the total amount of interest therein awarded is $17,021.37. In consequence, Mrs Von Risefer submitted to me that either the bankruptcy notice should be set aside as invalid or that I should exercise my discretion to investigate this discrepancy. I am not satisfied that either course should be taken: the simple explanation for the difference is that interest accumulated between the date that the magistrate delivered his reasons and the date that the formal order was taken out.

71    That last submission of Mrs Von Risefer was taken further by submitting that the Magistrates’ Court order endorsed “fraudulent actions” by the plaintiff in that proceeding. When pressed by me to identify the basis of the fraud, I was taken to documents that evidence the settlement of an insurance claim between AIG Australia Ltd and the applicant for an amount of $14,000 in resolution of a claim made by the insured in consequence of the fraudulent conduct of one of its former employees. The recitals to the deed of settlement and release record that the applicant claimed indemnity from the insurer in the amount of $43,031.98 in consequence of an allegedly fraudulent arrangement between one of the applicant’s employees and Outdoor Kitchens Group Pty Ltd. It is further recorded that the applicant commenced a proceeding against the insurer in the Magistrates’ Court in order to recover the indemnified sum. The insurer denied liability, but without admission agreed to pay the applicant $14,000 in full settlement and in exchange for the usual releases.

72    None of that is evidence of fraud. What is not understood by Mrs Von Risefer is that the existence of insurance which indemnifies an insured for defined loss does not extinguish the claim of the insured against a third party, or by the insurer in exercise of the right of subrogation. It is a core principle of insurance law that a third party cannot avoid liability to an insured on the basis that there is a full or partial indemnity for the loss claimed: Bradburn v The Great Western Railway Company (1874) L.R. 10 Ex 1 where Bramwell B was “dismayed” by an argument to the contrary.

73    Finally, under this general group of complaints about in the judgment debt, Mrs Von Risefer submitted that no costs should have been awarded in the Magistrates’ Court proceeding as the solicitors for the applicant in this matter, an incorporated legal practice, was not incorporated until 5 July 2019. I do not accept that for two reasons. One, the solicitor on the record in the Magistrates Court proceeding was the firm P W Sotir & Co. save for the period 13 October 2017 to 7 May 2018. And the other is that self-evidently, the corporate entity could not have acted prior to the date of incorporation: it must be the case that a predecessor firm with the same name or a similar name acted for the applicant as recorded in the magistrate’s reasons.

74    Ground 3(e) contends that Registrar Edwards ignored the apparent fact that Mrs Von Risefer and Mr Von Risefer as self-represented litigants were disadvantaged in that no consideration was given to certain “active cases” in the Victorian Civil and Administrative Tribunal and the County Court of Victoria against the Commonwealth Bank and the Yarra Ranges Shire Council respectively that is somehow related to the loss of a property at Ferny Creek in 2019. In support of that contention I was taken to a decision of Bell J in Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; [2017] VSC 61 where his Honour upon judicial review set aside certain orders made in the County Court of Victoria which had struck out, for non-attendance, appeals lodged to it from a conviction entered in the Magistrates’ Court of Victoria for certain offences contrary to the Building Act 1993 (Vic). The prosecution related to a home that was destroyed by fire on 26 August 2012 at 132 Belgrave-Ferny Creek Road, Tecoma. The responsible municipal authority on 13 September 2012 issued certain orders under the Building Act requiring the damaged building to be secured or demolished. Those orders were addressed to Ms Matsoukatidou and her mother Betty Matsoukatidou.

75    By this point a reader of this judgment might think: what does this case have to do with the bankruptcy proceedings? At an impressionistic level, nothing until one delves deeper as revealed by this extract of the submissions put by Mrs Von Risefer to me on 21 September 2022:

HIS HONOUR: What do you want to hand up now?

MS VON RISEFER: This is a case – my case in the Supreme Court with the loss of my house. I’ve been prosecuted by the Yarra Ranges and I have Bell J at the moment.

HIS HONOUR: So you want to refer me to an authority? Yes, you can refer me to an authority. So - - -

MS VON RISEFER: This is an authority I got to print.

HIS HONOUR: Yes. It’s all right. Well, just - - -

MS VON RISEFER: And I got a copy for – so a fair trial and impartial – it’s everyone’s decision. Because it’s very long, you can go on the back – on the last page where – by the way, Maria – Maria – it’s my daughter. And she suffered – my son – he suffered great abuse from the Magistrate Court because he was ready to say that Maria – she got a disability as a witness. And he attacked my son in – in the courtroom. And that must be - - -

HIS HONOUR: So why are you referring me to a case involving your daughter?

MS VON RISEFER: Your – no, I – to refer to the principles of a fair hearing and….

76    At that point the submissions of Mrs Von Risefer pivoted, and evolved into a contention that I had failed to afford to her a fair hearing in that I rejected her attempt to rely upon further affidavit material filed after the close of the evidence and shortly prior to the resumption of submissions on 21 September 2022. I have explained why I rejected that evidence, and there is no merit in the contention that in doing so I failed to afford procedural fairness.

77    Returning to the Supreme Court decision, Mrs Von Risefer did not explain to me how this case involved her house when the judgment does not record her as a party. She did not lead evidence that she changed her name at some relevant point in time. If she is to be believed that Maria in that decision is her daughter, then by a not inconsiderable speculative pathway it might be said that “Betty” in that decision is a reference to Mrs Von Risefer, perhaps by a former name, or an alias by which she became one of the property owners. I am prepared to assume those facts in her favour. But they do not assist her. In the judgment of Bell J, the applicants successfully established that the County Court judge who heard the appeal failed to afford procedural fairness to each as self-represented litigants, particularly by reference to the obligations cast upon courts and tribunals by the Charter of Human Rights and Responsibilities Act 2006 (Vic), in striking out their respective appeals in their absence. There is no mention in the judgment of any civil claim, actual or proposed, against the Commonwealth Bank or the Yarra Ranges Council.

78    Further, no evidence of the commencement of any claim for damages against the Commonwealth Bank or the Yarra Ranges Council was adduced before me. No factual basis from which one may infer that a damages claim is open was set out in the evidence, save for an oblique assertion in the unsworn document in the form of an affidavit of Mrs Von Risefer dated 5 May 2022 where it is said:

House owned by the family in 132 Belgrave ferny creek road in 2012 was burned by arsonists in August

House and 10 acres of land was repossessed by commonwealth bank and sold in 2015

Claim in county court pending for under value sale and wrong possession by the bank as well

Vcat claim against Yarra ranges city council pending in September 2022 hearing.

Defamation claim is due to be lodged against Ping Gangur against the whole family of wrong claims in her insurance falsely claims $100.000 in the Magistrates Court

(sic.)

79    To the extent that these sentences might be characterised as evidence, they are too vague and imprecise to found factual findings on the question whether Mrs Von Risefer or Mr Von Risefer are able to pay their debts where they carry the onus: s 52(2)(a) of the Bankruptcy Act. An evidentiary basis must be set out in order to conclude that as a fact the debtor has a genuine claim with a likelihood of success and in an amount or amounts that equate or exceed the creditor’s debt: Re Kostezky; Ex parte Milder Elfman Szmerling Kryer Pty (1996) 67 FCR 101 at 105-106, Sundberg J; Ling v Enrobook Pty Ltd (1997) 74 FCR 19 at 25-26, Davies, Wilcox and Branson JJ. These assertions are just that and amount to no more than speculative hyperbole.

80    For these reasons there is no merit in ground 3(e). Arguably there is another ground expressed in the paragraph numbered six in the review application: that the decision of Registrar Edwards was “unfair and biased”. There is simply no evidence to support that contention, and I reject it.

81    Accordingly, there is no merit in the review application.

Grounds of opposition to the creditor’s petition

82    I turn next to the grounds of opposition to the creditor’s petition filed on 18 March 2022 ( without correcting for grammatical, spelling or punctuation errors):

1.    The bankruptcy notice was issued in 28 June 2021 address in 78 Ryelands dr In Narre Warren which was residential address in 2018 in the magistrate court and appeal in Supreme Court our address is 21 Oakwood court Templestowe 3106

2.    Registrar Hird excepted service affidavit only made by the server against the 3.4 bankruptcy information sheet 5 with out the requested by the practice quidence

3.    Server Kenneth Ramsshaw was in breach of the Covid restrictions and required rules not to nock the door during the lockdown in Melbourne with out mask neither to approach any one as he alleged in his affidavit neither given evidence of investigate the matter neither he left any documents in the letter box which by the way wasn't allowed by the Covid restrictions evidence affidavit of Elizabeth Von Risefer sworn on 23 February 2022

4.    The notice of bankruptcy proceedings was never been served before the 28 December 2021 according to the issue date of 28 June 2021 last 6 months further is invalid

5.    Creditors petition was not served with in 5 days from the order of registrar Hird

6.    We denied any debt of the alleged $101*938.38 because there is an appeal in the Supreme Court pending to be heard onl 1 August 2022and summons for the magistrate court judgement be staying pending Supreme Court S ECI 2021/ 01881

7.    Grounds to win the appeal in my affidavit sworn on 15 March 2022

83    Ground one appears to contend invalidity in that the bankruptcy notice wrongly stated the address of Mrs Von Risefer and Mr Von Risefer at 78 Rylands Drive Narre Warren, Victoria, when the correct address was the Templestowe address. I find in accordance with the affidavit of Ms Gangur made on 11 August 2022, that at the time of the making of the application for the bankruptcy notice, the applicant reasonably believed that the respondent’s resided at the Narre Warren address based on an affidavit made in the Magistrates’ Court proceeding. Section 41(2) of the Bankruptcy Act requires the notice to be in accordance with the form prescribed by the Bankruptcy Regulations. Regulation 9 prescribes the form that is set out in the First Schedule. The form requires that an address be stated for the debtor to whom it is addressed, which must be an address in Australia by s 43(1)(b) of the Bankruptcy Act, to found the jurisdiction to make a sequestration order. There is no requirement for the creditor to specify an address that the creditor is unaware of: it is sufficient to state the address last known to the creditor: Mulhern v Official Receiver [2015] FCA 807 at [56], Rangiah J. Although his Honour was concerned with the Bankruptcy Regulations 1996 (Cth), I consider the reasoning as equally applicable to the current provisions. Moreover, this is hardly an invalidating defect within the meaning of s 306(1) of the Bankruptcy Act in that no substantial injustice has been caused. There is no merit in this ground.

84    Ground 2 is unintelligible, was not explained in submissions and for these reasons raises no valid ground of opposition.

85    Ground 3 is a repetition of the COVID-19 service/non-service of the bankruptcy notice point which I have found is of no merit.

86    Ground 4 is a misconceived assertion that the bankruptcy notice was not served within six months as required by r. 10 (1) of the Bankruptcy Regulations 2021. The notice was issued on 28 June 2021 and served on 28 August 2021. The false contention of Mrs Von Risefer rests upon her untruthful evidence that service was not effected on 28 August 2021.

87    Ground 5 rests upon another untruthful factual assertion made by Mrs Von Risefer. Orders were made for substituted service of the creditor’s petition on 30 November 2021, and I find as a fact that service was effected on 2 March 2022 at 2:09 pm by delivery of the required documents to the letterbox at the Templestowe address, which documents were contained in separate envelopes addressed to Mrs Von Risefer and Mr Von Risefer as deposed to in the affidavits of Justin Hogg sworn on 4 March 2022.

88    Ground 6 is a denial of the judgment debt, particularly by reference to the Supreme Court appeal and is of no merit for the reasons I have set out.

89    Ground 7 asserts a likelihood that the Supreme Court appeal would have succeeded. There is no basis for that assertion. The appeal was dismissed by Matthews AsJ on 3 June 2022 for the reason that it was not prosecuted as required by the procedural orders made by Judicial Registrar Keith on 24 August 2021. The dismissal of the appeal is the consequence of the inertia of Mrs Von Risefer and Mr Von Risefer.

90    Despite the length of the grounds set out in the review application and the opposition to the creditor’s petition, even more contentions were advanced, particularly by Mrs Von Risefer at the hearing. They can be shortly dealt with as, once again, none is of any merit:

(a)    It is said that the trustee in bankruptcy should have continued with the Supreme Court appeal. The trustee was not obliged to do so, and frankly one can well understand why the trustee wanted to have nothing to do with the appeal;

(b)    A general assertion fraud is made against the applicant and the trustee in bankruptcy in that each, it is said, colluded to have the Supreme Court appeal dismissed. That is complete nonsense;

(c)    Many submissions were made to the effect that the creditor’s petition is invalid and an abuse of process in that it was first issued in the Federal Circuit Court of Australia. This submission was expanded to embrace a contention that because some of the affidavits of service were titled in that court, it must follow that the entire proceeding is invalid. A creditor’s petition was filed in this Court, but incorrectly titled in the Federal Circuit Court, on 22 October 2021. When that error was noticed an amended and correctly titled petition was filed on 25 November 2021, which is the petition I am concerned with. And the fact that some of the affidavits that were read before me incorrectly referred to the Federal Circuit Court, most certainly does not make the content of those affidavits “invalid”,

(d)    A claim is made that the substituted service order for service of the creditor’s petition made by Registrar Hird on 30 November 2021 is invalid in that it was made upon documents filed “in the wrong court". That is not so: the sealed order was made in this Court. Mrs Von Risefer has managed to completely confuse herself by not appreciating that the applicant does not proceed upon the petition with the incorrect reference to the Federal Circuit Court as explained in the affidavit of Marianne My-An Phan made on 2 September 2022 at paragraphs [18] – [22], which evidence I accept and I find accordingly;

(e)    It is not correct that the applicant failed to disclose the existence of the Supreme Court appeal, before the sequestration orders were made in this Court. I accept the evidence of Ms Gangur in her affidavit of 11 August 2022 at paragraphs [55] – [62] which is to the effect that Registrar Edwards was informed of the fact of the Supreme Court appeal as early as 24 January 2022;

(f)    Some utterly irrelevant assertions were made about a claimed illegal interception of telephone calls made to or from Mrs Von Risefer by Ms Gangur. That claim has nothing whatsoever to do with this proceeding;

(g)    Mrs Von Risefer claims that she and Mr Von Risefer were wrongly named as parties to the Magistrates’ Court proceeding. That assertion cannot be reconciled with what happened in the Magistrates’ Court; and

(h)    As a fact, the creditor’s petition was amended at paragraph 4 so as to substitute 20 September 2021 for the date of 28 June 2022, that being the last day for compliance with the bankruptcy notices served on 28 August 2021. Leave to do so was granted pursuant to an order made by Registrar Edwards on 12 May 2022. The manner in which the amendment was ultimately made is a little confusing in that there appears on the creditor’s petition a strike through of the service date, rather than the wrong date for the commission of the act of bankruptcy. That typographical error is hardly of any consequence in that what is important is the order made by Registrar Edwards. The creditor’s petition is not invalid by reason of that clerical mistake.

91    For these somewhat detailed reasons I have concluded that none of the points or arguments relied upon by Mrs Von Risefer or Mr Von Risefer upon the review and in opposition to the creditor’s petition have any merit.

PROOF OF THE CREDITOR’S PETITION

92    The final matter to be dealt with upon this de novo review concerns proof of the matters required by the applicant both for the making of the sequestration order of 12 May 2022 and now upon the hearing of the creditor’s petition before me.

93    I am satisfied that the creditor’s petition was correctly proved before Registrar Edwards and has been proved before me. I list the statutory requirements (where references to sections, regulations and rules are to the Bankruptcy Act, the Bankruptcy Regulations and the Bankruptcy Rules respectively), the affidavit evidence and my findings of fact as follows:

(1)    the creditor’s petition in this Court was presented on 25 November 2021. It complies with the correct form: s 47(1A) and r 4.02(1);

(2)    the debt claimed is greater than $10,000, being the amount of $101,938.85: s 44(1)(a) and reg 10A;

(3)    the creditor’s petition correctly pleads that date of commission of the act of bankruptcy by each of Mrs Von Risefer and Mr Von Risefer which is 20 September 2021:s 43(1)(a);

(4)    the creditor’s petition was presented within 6 months of the date of commission of the act of bankruptcy: s 44(1)(c);

(5)    the applicant does not hold security for the debt: affidavit of Ms Gangur made on 24 November 2021 at paragraph [3];

(6)    the creditor’s petition is correctly verified by the affidavit of Ms Gangur made on 24 November 2021: s 47(1) and r 4.02(2);

(7)    The affidavits required by r 4.04(1)(a) of search have been provided: Ms Gangur made on 4 May, 14 and 20 September 2022 and each discloses that this is the only petition presented against Mrs Von Risefer and Mr Von Risefer;

(8)    service of the bankruptcy notices is established by each of the affidavits of service of Mr Ramshaw made on 30 September 2021 and I am satisfied that each notice was served on 28 August 2021 at 2.10 pm by placing in an envelope the bankruptcy notice and a copy of the order made in the Magistrates Court on 26 April 2021 and by leaving those documents, respectively, in envelopes addressed to Mrs Von Risefer and Mr Von Risefer that were left in the letterbox at 21 Oakwood Court, Templestowe in the State of Victoria;

(9)    I am satisfied that service of each bankruptcy notice by that method complies with reg 102 when read with s 28A of the Acts Interpretation Act 1901 (Ch) which permits service of a document on a natural person by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document. And I am further satisfied for the reasons that I have set out above that the Templestowe address was, to the knowledge of the applicant, the last known residential address of Mrs Von Risefer and Mr Von Risefer;

(10)    I am satisfied that each of Mrs Von Risefer and Mr Von Risefer committed respective acts of bankruptcy in that they failed to comply, on or before 20 September 2021, with the requirements of each bankruptcy notice served on them on 28 August 2021 and further each failed to satisfy the court that they had a counter-claim, set-off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that they could not have set up in the action in the Magistrates Court. I am satisfied as to each of these matters based on the affidavits of Ms Gangur made on 24 November 2021, 11 August 2022 and 12 September 2022;

(11)    I am satisfied that the bankruptcy notice is in the correct form, was issued on 28 June 2021 and was accompanied with a copy of the final judgment entered in the Magistrates’ Court proceeding on 26 April 2021 which facts I find in accordance with the attachments to each of the affidavits of service of the bankruptcy notice made by Mr Ramshaw on 30 September 2021 and that the requirements of s 41 are met;

(12)    I am satisfied that the creditor’s petition filed in this Court on 25 November 2021 was effected, in accordance with the orders made for substituted service by Registrar Hird on 30 November 2021, on 2 March 2022, more than 5 days before the final hearing of the creditor’s petition in accordance with the affidavits of Marianne My-An Phan made on 7 December 2021 and 2 September 2022, Justin Hogg made on 19 November 2021 and 4 March 2022 and Yulin Huang made on 7 December 2021. I am further satisfied in accordance with each of those affidavits that there was served with the creditor’s petition copies of the orders made by Registrar Hird on 30 November 2021, the bankruptcy notice dated 28 June 2021 and copies of each of the affidavits of service of the bankruptcy notices upon Mrs Von Risefer and Mr Von Risefer;

(13)    at the hearing before Registrar Edwards on 5 May 2022, the applicant provided an affidavit of final debt as made by Ms Gangur on 4 May 2022 which satisfied the requirements of s 44(1) and r 4.06. Further, at the hearing before me, the applicant provided an affidavit of final debt as required by those rules made by Ms Gangur on 20 September 2022. Each of those affidavits satisfies me that the debt relied upon by the petitioning creditor of $101,938.85 was, and is, still due and owing;

(14)    at the hearing before Registrar Edwards on 5 May 2022, the applicant provided the affidavit of final search as required by r 4.06(3) from Ms Gangur made on 4 May 2022 and before me provided a further affidavit to the same effect made by Ms Gangur on 20 September 2022. Based on those affidavits I am satisfied that the statutory search disclosed that the applicant’s proceeding is the only proceeding commenced against Mrs Von Risefer and Mr Von Risefer that following the orders made on 12 May 2022, that each is an undischarged bankrupt; and

(15)    finally, I am satisfied that the creditor’s petition now before me on de novo review has not lapsed pursuant to s 52(4) of the Act.

94    Accordingly, I am satisfied that the applicant established by admissible evidence each of the matters required to be proved in order to found the making of the sequestration order by Registrar Edwards on 12 May 2022. And I am further satisfied, upon this review, that each of those matters has been proven before me.

95    The final matter to be considered is the discretion to make a sequestration order, notwithstanding the satisfaction of each of the above matters pursuant to s 52(1) of the Act. I am satisfied that there is no further matter which would justify a refusal of the making of the sequestration order is sought by the applicant.

CONCLUSION

96    For these reasons I dismiss the review application and I affirm the sequestration order made by Registrar Edwards on 12 May 2022. Costs must follow the event. Accordingly, I order as follows:

(1)    The review application of Mrs Von Risefer and Mr Von Risefer dated 19 May 2022 and filed on 8 June 2022 is dismissed;

(2)    The sequestration order made by Registrar Edwards on 12 May 2022 is affirmed;

(3)    The petitioning creditor’s costs be taxed and paid from the sequestrated estates pursuant to the provisions of the Bankruptcy Act 1966 (Cth).

Associate:

Dated:    6 October 2022