Federal Court of Australia

Sandhu v Owen (No 2) [2025] FCA 878

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing an application for review of the orders made by the Registrar on 14 January 2025 is extended to 5 March 2025.

2.    The Registrar's orders are affirmed and the application for review is dismissed.

3.    The reasonable costs of each of the petitioning creditor and of the trustee in bankruptcy, incurred in the application for an extension of time and the application for review, are costs in the bankruptcy.

4.    The trustee in bankruptcy has liberty to apply in relation to paragraph 3 above.

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

REASONS FOR JUDGMENT

JACKSON J:

1    By a creditor's petition dated 4 April 2024, the applicant, Mr Sandhu, sought a sequestration order against the estate of the respondent, Mr Owen. The matter was initially heard by a Registrar of the Court on 22 July 2024, and judgment was delivered on 14 January 2025. The Registrar ordered that the estate of Mr Owen be sequestered.

2    Mr Owen seeks review of that decision. While he does not specify the provision under which he applies, I take the application to be made under s 35A of the Federal Court of Australia Act 1976 (Cth) and r 2.02(3) of the Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules).

3    In accordance with established principle, the hearing of the application for review on 20 May 2025 was conducted as a fresh hearing of the petition, whereby Mr Sandhu was required to establish the necessary requirements for the making of a sequestration order. Mr Owen advanced several grounds of opposition to the petition.

4    For the following reasons, the application for review will be dismissed and the sequestration order made on 14 January 2025 will be affirmed.

Extension of time

5    Mr Owen's application for review was filed out of time on 5 March 2025. He seeks an extension of time. At the hearing of 20 May 2025, Mr Sandhu did not oppose the extension.

6    Mr Owen's affidavit affirmed on 12 February 2025 contains something of an explanation for the delay, which seems to relate in part to the distance Mr Owen lives from Kalgoorlie, in a remote location, and in part to difficulties with communications he experienced because his Telstra and Starlink services were disconnected upon his being made bankrupt. That affidavit and the application for review were not filed until about three weeks after it was affirmed, and that additional delay was unexplained, but I am prepared to infer in Mr Owen's favour that this was because of the same kinds of difficulties.

7    An extension of time to file the application for review will be granted. In any event, I heard full argument on the substantive application for review at the hearing on 20 May 2025.

The manner in which the application for review was advanced

8    It is worth making a preliminary comment about the way in which Mr Owen put his application for review before the Court. I do not mean to be critical of him; he is a litigant in person who obviously has a highly detailed knowledge of the matters canvassed below, and firmly held views that others have been colluding against him. But he sought to rely on over 2,000 pages of affidavit evidence in this proceeding (after eliminating some duplication). And with respect, he did not present that evidence to the Court a manner that allowed the points that he was making to be easily understood.

9    Of course, allowances need to be made for the fact that litigants in person will often lack the experience and legal knowledge to present their arguments effectively and in accordance with the Court's usual practices. But all litigants, whether legally represented or not, should understand that it is not the proper role of the judge hearing the matter to trawl through large amounts of material to investigate whether there is anything in it that justifies making the orders sought. I do not suggest that Mr Owen put it to the Court that this was its role, but it was the practical implication of the way that he put his case.

10    A related point should also be made. Mr Owen seemed to consider that he was entitled to take days to develop orally all the points he wanted to make. But the hearing was listed for one day only, and no party sought any longer time before the hearing. While every litigant is entitled to sufficient time to put their case to the Court, the time of the Court is a scarce public resource: see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [23] (French CJ).

11    So it does not follow from the right to be heard that a litigant is entitled to an indefinite time to make their case, especially if the need for a longer time is a function of the way they have assembled the materials before the Court. For example, in this case Mr Owen's written submissions were very brief and did not put the Court or Mr Sandhu on notice of the nature and extent of the arguments he proposed to make. When Mr Owen then sought to make a large number of points orally, that reflected a misunderstanding of the nature of the opportunity properly afforded by an oral hearing in the circumstances of this proceeding.

History of the bankruptcy petition and formal requirements

12    On 17 September 2021, the Wardens Court at Kalgoorlie dismissed three applications for forfeiture of mining tenements which Mr Owen had brought against Mr Sandhu: Owen v Sandhu [2021] WAMW 15 (Warden's Decision).

13    On 27 October 2021, Mr Sandhu obtained a costs order against Mr Owen consequent on the Warden's Decision. The costs were initially assessed at $103,820.31 in 2021, but a review of the assessment dated 25 October 2022 reduced that figure to $98,123.89. That is the debt which founds the creditor's petition in this matter. It is convenient to call it the petition debt.

14    The revised costs assessment was registered as a judgment of the District Court of Western Australia on 10 July 2023. Under r 168 of the Mining Regulations 1981 (WA), that gave it the force of a judgment of that court.

15    A bankruptcy notice was issued on 25 July 2023 for the revised amount, and for $145.17 in accrued interest, totalling $98,269.06. Subject to the issues raised under ground 3 below, there is evidence that the notice was served on Mr Owen on 1 August 2023.

16    In any event, on 22 August 2023 Mr Owen filed an application to set the bankruptcy notice aside. That application was dismissed by a Registrar and Mr Owen sought review by a judge.

17    On 6 March 2024, Feutrill J affirmed the Registrar's orders in most respects: Owen v Sandhu [2024] FCA 198 (Set Aside Judgment). However, his Honour ordered that service of the bankruptcy notice could be effected by emailing it to a specified email address, and also ordered that if the notice were served in that way, the time for compliance with it would be the later of 2 April 2024 or 21 days after the date of that service.

18    Mr Sandhu claims that the bankruptcy notice was validly served on Mr Owen by email on 6 March 2024, in accordance with Feutrill J's orders although, as will be seen, Mr Sandhu alleges that this did not supersede or replace the earlier date of service, on which he relies. As will be explained below, Mr Sandhu nevertheless proceeded on the basis that the time for compliance with the bankruptcy notice was extended to 2 April 2024. It is common ground that Mr Owen did not comply with it by that date, and has not complied with it since.

19    On 4 April 2024, Mr Sandhu filed a creditor's petition in this Court, accompanied by an affidavit of search by Mr Sandhu's solicitor, William Macdonald, sworn on 4 April 2024 and an affidavit of service of the bankruptcy notice, sworn by Mr Macdonald on the same date. The affidavit of service annexes the bankruptcy notice issued 25 July 2023 as well as email correspondence from Mr Sandhu's solicitor to Mr Owen on 6 March 2024 attaching the bankruptcy notice.

20    The Registrar then made an order for substituted service of the petition on Mr Owen by way of a specified email address. Mr Sandhu claims that on 16 May 2024, Mr Owen was validly served by that method with the creditor's petition, the affidavit of search, the affidavit of service of the bankruptcy notice, and a copy of the signed consent of Joanne Dunn of FTI Consulting to act as trustee. This is attested to in an affidavit of service of the creditor's petition sworn by Mr Macdonald on 20 May 2024.

21    The Registrar heard the creditor's petition on 22 July 2024, and on 14 January 2025 made the order sequestering Mr Owen's estate. Ms Dunn became his trustee in bankruptcy, presumably by operation of s 156A(1)(a) of the Bankruptcy Act 1966 (Cth).

22    As has been said, Mr Owen filed the application for review of the Registrar's decision on 5 March 2025. It is well established that the hearing of an application for review of a Registrar's sequestration order is to be treated as a fresh hearing of the petition: see Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193 at [14]-[15] (Emmett J), quoted with approval in Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [21] (Allsop CJ, Markovic and Colvin JJ). It was, therefore, necessary for Mr Sandhu to present an affidavit of search of the National Insolvency Index and an affidavit verifying the petition debt, both sworn afresh shortly before the hearing of the review, in compliance with r 4.06(3) and r 4.06(4) of the Bankruptcy Rules.

23    Mr Sandhu did not file those fresh affidavits prior to the hearing of the application for review on 20 May 2025. But at that hearing, Mr Owen sensibly did not insist on fresh compliance with the above rules. I therefore made orders dispensing with the need for those affidavits, since Mr Sandhu had previously complied with the rules for the purposes of the original hearing before the Registrar.

24    Subject to the particular grounds advanced by Mr Owen that are addressed below, I was satisfied at the hearing of the review application that Mr Sandhu had established the substantive and procedural requirements for the sequestration order made by the Registrar to be affirmed.

Grounds of opposition to the bankruptcy petition

25    Mr Owen seeks that the sequestration order be set aside on four grounds, which are found in his outline of written submissions filed on 22 April 2025. Consistently with the nature of the Court's function on review as outlined above, I will treat the grounds of review as grounds of opposition to the bankruptcy petition; that is, it is not necessary for error on the part of the Registrar to be established and there will be no need to refer to the Registrar's reasons. The grounds are as follows (the numbering is mine):

(1)    Ground 1 - the bankruptcy notice and creditor's petition have not been issued in good faith because the Warden's Decision was erroneous and outside jurisdiction. As will be seen, at the hearing Mr Owen relied on matters occurring after the Warden's Decision as indicating that Mr Sandhu had colluded with others to prevent Mr Owen from pursuing proceedings to offset the petition debt, and I will consider this allegation of collusion under the general rubric of ground 1. Mr Owen also makes numerous complaints about the evidence before the Warden. Also, while made in the course of a submission principally directed to what I will call ground 2 below, Mr Owen further contends that the fact that a tenement investigator was accompanied by Mr Sandhu's lawyer while he was making his investigations means that 'the applications have not been in good faith'. While it is not abundantly clear what applications Mr Owen has in mind there, I will deal with this contention under ground 1, as an allegation that the judgment on which the costs order should be investigated, because it is tainted by bad faith.

(2)    Ground 2 - the costs order on which the debt is based was erroneous and unreasonable because it included witness fees which should not have been included, in one case because (it is said) Mr Sandhu ended up not relying on the relevant evidence before the Mining Warden, and in the other case because the witness peremptorily terminated his evidence.

(3)    Ground 3 - the service of the bankruptcy notice was invalid because it occurred more than six months after the issue of the notice by the Official Receiver, and so did not comply with s 10 of the Bankruptcy Regulations 2021 (Cth). Mr Owen also appears to complain under this ground that the sequestration order was made more than six months after the bankruptcy notice was served. The parties' respective positions on this ground required some unravelling, and it will be necessary to describe them in more detail below.

(4)    Ground 4 - the creditor's petition was not served on the Official Receiver within two business days of filing in this Court, contrary to s 13 of the Bankruptcy Regulations.

26    Mr Owen also contends that if the creditor's petition is not dismissed on one of the above grounds, the Court should exercise a discretion to extend time for compliance with the bankruptcy notice on the basis that if more time is allowed, Mr Owen will recover funds under a Workcover claim he has made as a result of an injury which he suffered while working on a mine site in December 2023.

27    I will proceed to deal with each of these grounds in turn, as well as a few other contentions Mr Owen made at the hearing.

Ground 1 - going behind the judgment debt

28    Paragraph 5 of Mr Owen's main written submissions advanced the first ground in this way:

Your honour should look behind the reason for the debt on the basis that the bankruptcy notice and subsequent creditors petition has not been issued in good faith due to the circumstances that the decision by Warden Wilson being erroneous and outside of his jurisdiction in accordance within the mining act. Similarly, the Decision by Justice Smith and actions taken during the proceedings before her by opposing counsel that indicates that costs should not be awarded.

29    The reference to the decision of Smith J concerns an application for judicial review of the Warden's Decision. This will be described below, but Mr Owen did not make any submissions identifying error in the judicial review decision so it will not be necessary to address it in detail.

30    In oral submissions Mr Owen framed this ground as an invitation to the Court to look behind the judgment debt. I therefore understood him to be invoking the principles enunciated by a majority of the High Court (Kiefel CJ, Keane and Nettle JJ, Edelman J agreeing) in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132. Before describing Mr Owen's contentions in more detail, it is convenient to set out the approach to be taken when a person resisting a bankruptcy petition relies on those principles.

Principles to be applied

Satisfaction that the fact of the debt has been proved

31    To summarise the principles laid out by the plurality in Ramsay Health Care:

(1)    In some circumstances, a Bankruptcy Court exercising the jurisdiction to make a sequestration order under s 52 of the Bankruptcy Act may, as a necessary foundation for that order, 'go behind' a judgment so as to be satisfied that the debt is truly owing: Ramsay Health Care at [1].

(2)    Section 52 requires the court to be satisfied with the proof of the fact that the debt on which the petitioning creditor relies is still owing: Ramsay Health Care at [14].

(3)    A convenient practice which may be followed in cases where the alleged debtor invites the court to go behind the judgment is to determine first whether the court should take up that invitation, before embarking on any inquiry as to whether the debt is truly owing: see Ramsay Health Care at [16].

(4)    The circumstances in which the court may decide to conduct that inquiry are not confined to cases of fraud or collusion, and nor is the inquiry necessarily precluded by the fact that the judgment relied on was obtained after a contested hearing: Ramsay Health Care at [47].

(5)    Scrutiny by a Bankruptcy Court of the debt propounded by the judgment creditor does not involve impeaching the judgment, such as by an appeal or an application to set the judgment aside. The judgment will still be in place, and give rise to a res judicata, and be enforceable by means of the usual procedures for execution of judgments. The duty of the court to be satisfied of proof that the debt is owing before making a sequestration order protects the interests of third parties, such as other creditors of the debtor. Bankruptcy is not just inter partes litigation, but involves a change in the status of a person, and can have penal consequences: Ramsay Health Care at [54]-[56].

(6)    That being so, it is no answer to an application to go behind a judgment debt to say that the judgment debtor is bound by the way the case was put at trial: Ramsay Health Care at [67].

(7)    The principle that a debt merges in a judgment is not necessarily an impediment to going behind the judgment debt in the sense contemplated: Ramsay Health Care at [57]-[59].

(8)    The authorities have described grounds to go behind the judgment debt in terms of 'substantial reasons … for questioning whether behind [the] judgment there was in truth or reality a debt due to the petitioner' (Wren v Mahony (1972) 126 CLR 212 at 225) or whether 'there was on the face of things a real question as to whether [the alleged debtor] had failed to present his case on its merits at the trial' in the court that gave judgment against him, or whether there was 'a substantial question' as to whether the debt was owing: Ramsay Health Care at [65]-[66], [72].

(9)    The circumstances in which the court will inquire into the validity of the judgment debt are not closed. That said, the court will be reluctant to exercise the discretion where the judgment was obtained after a full investigation of the issues at a trial at which both parties appeared and had ample opportunity to put their respective cases: Ramsay Health Care at [48]-[49], quoting in particular with approval from Simon v Vincent J O'Gorman Pty Ltd (1979) 41 FLR 95 at 111 (Lockhart J).

(10)    In Ramsay Health Care at [68] their Honours said of the significance, in this context, of a judgment obtained after trial (footnote omitted):

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

32    In the case before the High Court in Ramsay Health Care, while the judgment debtor had been represented at a full trial before the Supreme Court of New South Wales, there was an unexplained failure on his part to present evidence of a reconciliation of accounts which, if uncontradicted, would show that in fact the petitioning creditor owed money to him. That was enough, in the opinion of the majority, to mean that the Bankruptcy Court (the Federal Court) should have proceeded to investigate the 'substantial question … in order to decide whether it was open to it to make a sequestration order': Ramsay Health Care at [72].

33    There are other formulations as to when the court may look behind the judgment debt; see for example Barwick CJ's summary in Wren v Mahony at 224 of Lord Esher in Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83: 'the Bankruptcy Court did not go behind a judgment as a matter of course but only if appropriate circumstances were shown to exist'.

34    In Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228 the Full Court (Reeves, Farrell and Colvin JJ) said at [57] that 'there appears to be no magic' in any of the formulations canvassed in that case 'because in each case there must be a contextual consideration as to whether, for the purposes of s 52 of the Bankruptcy Act, the debt has been proven'.

When the judgment debt arises from a costs order

35    It is necessary to consider how these principles apply to a debt of the kind that founds the petition here. It is a debt that arose because the Wardens Court exercised a discretion to order that Mr Owen pay Mr Sandhu's costs of Mr Owen's unsuccessful applications for forfeiture. It is not a debt arising because Mr Sandhu had success in pursuing any underlying monetary claim.

36    In Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 at [33], Colvin J drew a distinction between a debt arising directly from a monetary claim and a debt that arises from a cost order that 'is not any part of a determination in respect of an underlying debt' (at [33]). At [35] his Honour said:

care must be taken in simply assuming the existence of a broad jurisdiction to 'go behind' the decision of the court in which the costs order was made on the basis of the line of authorities considered in Ramsay Health Care. The question is whether a debt has been proved, not whether there should be some review of the exercise of the discretion to make the indemnity costs order or a reconsideration of the assessment undertaken on taxation of the bill of costs presented pursuant to that order.

37    Accordingly, Colvin J focussed on the operation of what is known as the indemnity principle in relation to costs orders, that is, the principle that such orders are made in order to indemnify a party against a liability the party has incurred to pay its legal representatives in relation to the matter. In the making of a costs order and any subsequent assessment of the quantum of the costs liability, the party will have the benefit of a presumption that it is liable to the solicitor who appears on the record for it: see Kitay at [37]. A little later his Honour said:

[41]    So, a taxation involves an assessment as to whether there is indeed a debt at all. If there has been a determination by the court in adversarial proceedings that the indemnity principle was satisfied (rather than the application of the presumption) or an assessment process in which both parties participated in which there was a consideration of the question then it would be expected that a court exercising bankruptcy jurisdiction would act upon the reliability afforded by such adjudications.

[42]    However, if neither of those steps has occurred and there is evidence in the bankruptcy proceedings raising a real question as to whether the indemnity principle was met then that may be a substantial reason why the court would not accept the judgment arising upon assessment pursuant to a costs order as proof of the existence of a debt for the purposes of s 52 of the Bankruptcy Act. Certainly, if a party was seeking to obtain a sequestration order on the basis that a certificate of a taxing officer took effect as a judgment, but it was known to that party that the indemnity principle had not be satisfied then that would be a substantial reason why a court exercising bankruptcy jurisdiction would not allow the judgment to be enforced.

38    Thus, a certificate of taxation that proceeds on the mere application of the presumption will not represent a judgment of a court after a full adversarial process, which the Bankruptcy Court can ordinarily accept as reliable proof of the existence of a debt that founds the petition: cf. Ramsay Health Care at [68]. I understand the Full Court in Lowbeer at [86]-[88] to be making the same point. It does not follow, however, that in such cases, an inquiry into the existence of the debt represented by the costs judgment will occur as a matter of course; there must still be a real question raised on the evidence in the bankruptcy proceeding as to whether the indemnity principle was satisfied.

39    In the present case, Mr Owen has not adduced any evidence that would raise that question, nor has he submitted that Mr Sandhu was not liable to his solicitors in respect of the costs of the forfeiture applications. Subject to the matter he raises under ground 2, he does not impugn the costs order as such. In the main, he impugns the decision of the Wardens Court to dismiss his forfeiture applications, which led to the costs order that led to the petition debt.

40    But that is not the end of the matter. In Waterton v Lafferty, in the matter of Lafferty [2019] FCA 1267 Banks-Smith J was considering a creditor's petition founded on a costs order made in the Supreme Court of Western Australia against the judgment debtor, which followed the debtor's failed proceeding against the judgment creditor seeking orders vindicating an interest in a deceased estate, and certain other property. At [69], her Honour pointed out that if a costs order were to have 'any special protection from investigation':

then a creditor who succeeds at trial and obtains a monetary judgment that might be impugned by fraud, but who also succeeds in obtaining a separate costs order on the basis that costs follow the event, could pursue a sequestration order based solely on the unpaid costs order and avoid any question of the bankruptcy court going behind the monetary judgment.

41    Banks-Smith J thus (at [70]) explained Kitay on the basis that it was a costs order arising from an application to force one of the judgment debtors to deliver up a confidential affidavit, where the 'conduct reflected in the costs order concerned the manner in which the debtor dealt with the confidential affidavit contrary to orders of the Court'. Her Honour similarly explained the case of Psevdos v Commonwealth Bank of Australia (No 2) [2017] FCA 19 on the basis that it concerned the conduct of the debtor in abandoning the claim, leading to an order for costs against him 'made regardless of the determination of the underlying proceedings between the creditor and the debtor': Waterton at [71]. However (Waterton at [73]):

In the case of litigation which is dismissed, leaving a successful defendant with an entitlement to costs on the basis that costs follow the event, it may well be artificial to ignore the connection between a costs order that follows the event and the event itself. The costs order would not have been made against the unsuccessful plaintiff but for the fact that the underlying litigation has been determined in a particular manner. If that underlying judgment itself is open to question as to whether there has been fraud, collusion or a miscarriage of justice then there may be a sufficient connection between the costs and the judgment to justify going behind the costs judgment and the underlying judgment, albeit that the costs liability alone comprises the debt. I do not read Ramsay Health Care or Kitay as denying the potential for such an argument.

42    And, after considering Kitay further, and setting out [43] from that judgment (also set out above) Banks-Smith J observed (at [76]) that Colvin J's:

reasons might be seen as a definitive statement that the court may only consider going behind a judgment that concerns an antecedent debt. However, the conclusion is qualified by his Honour's reference to such being the course in 'the absence of fraud, collusion or miscarriage of justice'. That reasoning seems to me to preserve the potential in the face of an allegation of fraud, collusion or miscarriage of justice for the court to go behind a costs liability where there is not an antecedent debt but where, in contrast to the factual scenarios the subject of Kitay and Pvsedos, there is a link between the underlying determination of issues and costs by way of the exercise of discretion to order that costs follow the event after trial.

43    I will proceed on the basis of the principles just summarised. Neither party made any contrary submission.

The basis on which ground 1 is addressed in this case

44    At the hearing in this case I made it clear to the parties that I proposed first to consider whether an inquiry into the existence of the petition debt was warranted in the circumstances. If it was, it would probably be necessary to hold another hearing for the purposes of that inquiry.

45    At the hearing on 20 May 2025, Mr Owen submitted that in this matter, there are two relevant courses of what he called collusion. Although he put them in reverse order, the first in time involves alleged collusion between Mr Sandhu, Ashcroft Resources Pty Ltd, Gold Tiger Resources (Australia) Limited and Gold Tiger Holdings (Australia) Pty Ltd, which relates to conduct in connection with certain mining tenements. This is said to have taken place after the Warden's Decision but before the revised costs assessment that constitutes the petition debt.

46    The second instance is alleged collusion between Mr Owen's trustee in bankruptcy and Mr Sandhu, to abandon claims on foot by Mr Owen and involving him in the Wardens Court. This is the alleged conduct mentioned above whereby, it is said, Mr Sandhu has colluded with others to prevent Mr Owen from pursuing proceedings that would offset the judgment debt. That alleged conduct occurred after the judgment debt arose.

47    In addition to these allegations of collusion, as his written submission makes clear, Mr Owen impugns the Warden's Decision as the foundation of the petition debt. Mr Sandhu submits on the basis of Waterton at [77] that fraud must be established before the Court can enquire behind the substantive judgment in the context of a debt created by a costs order. I accept that this is the basis on which Banks-Smith J proceeded in Waterton. Mr Sandhu submits that substantial reasons for considering that there may have been fraud, collusion or a miscarriage of justice cannot be established based on the evidence put forward by Mr Owen.

48    It is therefore necessary to consider the allegations raised by Mr Owen in assessing whether they give rise to a substantial reason to go behind the judgment debt on the basis of fraud, collusion or a miscarriage of justice.

History of Wardens Court proceedings

49    Ground 1 centres on the conduct of certain Wardens Court proceedings between Mr Owen and Mr Sandhu, including those in which the Warden's Decision was made. Mr Owen contends that Mr Sandhu's conduct throughout the history of their litigation, and more recently the conduct of the trustee, have been directed at preventing him from pursuing proceedings that would offset the petition debt. Mr Owen also contends more straightforwardly that the Warden's Decision was procured by fraud.

50    To understand these allegations, it is necessary to traverse some of the history of relevant litigation in the Wardens Court. The disorganised way in which Mr Owen has presented his case means that the following represents my best attempt to piece the evidence together to provide a cohesive description of the various proceedings, in so far as they may be relevant now.

51    On 17 October 2018, Mr Owen lodged forfeiture applications in respect of three exploration licenses, numbered 16/415, 16/457 and 16/365, and a mining lease, 16/524. In the case of each of these, Mr Owen was the applicant for forfeiture and Mr Sandhu was the tenement holder. The applications were listed for hearing on 9, 10 and 11 June 2020 by Warden O'Sullivan. On 10 June 2020, during the course of hearing the forfeiture applications, Warden O'Sullivan recused himself from the matter. Thus the hearing of the forfeiture applications before that Warden was not concluded.

52    Mr Sandhu swore an affidavit on 22 November 2019 in the proceedings before Warden O'Sullivan. Mr Owen contends that this affidavit was withdrawn from the proceeding at the beginning of the hearing because of the adverse credibility findings made against Mr Sandhu in a different proceeding, Owen v Sandhu [2020] WAMW 3.

53    That decision was handed down on 10 February 2020. On the application of Mr Owen, Warden Hills-Wright recommended to the Minister that exploration licence 16/458 held by Mr Sandhu be forfeited. That was after hearings on 10 June 2019 and 12 December 2019. Mr Owen relies on it because of findings made about Mr Sandhu such as this one at [83]:

I did not find the evidence of the Respondent impressive or convincing; to the contrary, I found several aspects of his evidence evasive, vague and unreliable. He was on occasions non-responsive to questions counsel were entitled to ask. I found his claim of ignorance as to the usefulness of source documents, particularly in the context of this forfeiture proceeding, to be contrived. Overall I am not satisfied he was a credible or an honest witness.

54    On 20 December 2019, Mr Owen lodged forfeiture applications in respect of exploration licences 16/393, 16/396 and 16/449-I. In the case of each of these, Mr Owen was the applicant for forfeiture and Mr Sandhu was the tenement holder. The applications were heard by Warden Wilson at Kalgoorlie on 12 to 16 July 2021. I will call this the forfeiture hearing. It is the hearing that resulted in the Warden's Decision and so the petition debt.

55    Both parties were legally represented at the forfeiture hearing, Mr Sandhu by senior counsel. Mr Sandhu was the respondent, although it appears that by this time he had agreed to sell the tenements to Gold Tiger Holdings. The sale was finalised on 23 April 2020. However, Mr Sandhu remained the respondent to those three forfeiture applications.

56    Warden Wilson reserved judgment at the end of the forfeiture hearing. He delivered judgment on 17 September 2021, dismissing the three applications of Mr Owen that he had heard. That is the Warden's Decision, in which the Warden delivered detailed reasons. Mr Owen has a number of complaints to make about the Warden's Decision, and the evidence on which Mr Sandhu relied at the forfeiture hearing, which will be described shortly.

57    Soon after the Warden's Decision, Mr Sandhu brought an interlocutory application for security for costs: Tristan David Owen v Tavanth Singh Sandhu [2021] WAMW 18. The substantive proceedings concerned forfeiture applications in respect of exploration licences 16/415, 16/457, 16/365 and mining lease 16/524 (presumably the proceedings referred to above at [51]). The catalyst for the bringing of that application was adverse credibility findings in respect of Mr Owen in the Warden's Decision. On 18 October 2021, Warden Maughan dismissed the application for security for costs. Warden Maughan noted that the hearing of the forfeiture applications was scheduled for 17 to 21 January 2022. However, it is not clear whether that occurred.

58    On 17 April 2023, the Supreme Court of Western Australia heard an application for judicial review of the Warden's Decision. The Court dismissed that application on 26 May 2023: Owen v Wilson [2023] WASC 178 (Judicial Review Decision). This is the decision of Smith J mentioned above. Mr Owen appeared in person at the judicial review application; once again, Mr Sandhu was represented by senior counsel.

59    Mr Owen also contends that he has a costs order against Gold Tiger Resources in two other proceedings before the Wardens Court. The first concerns prospecting licence 16/3089 held by Mr Owen and Bevan Edward Carboon. The second concerns exploration licence 16/539, and prospecting licences 16/3116, 16/3281 and 16/3282. Mr Owen alleges that the Wardens Court made an order that Gold Tiger Resources pay costs to Mr Owen.

60    Mr Owen also appears to claim that he is entitled to costs in each of the proceedings mentioned at [57], and [59] above, as well as in a proceeding for forfeiture of mining lease 25/92. Mr Owen submits that these costs liabilities could offset the petition debt. Mr Owen relies on a list of those applications, from which it appears that he is only claiming those costs. That is, no orders for costs in Mr Owen's favour are in evidence, let alone costs assessments quantifying his alleged entitlements. Further, in two of the four applications in Mr Owen's list (the ones referred to at [59]), the opposing party is Gold Tiger Resources, not Mr Sandhu. Mr Owen also acknowledged that for one of the matters, costs orders were yet to be made. Unfortunately, Mr Owen's evidence and submissions on this aspect of the matter were impossible to understand.

61    Finally, it appears that there are currently relevant proceedings before the Wardens Court in relation to exploration licence 16/598. As will be seen below, the applicant for this tenement is Ashcroft Resources. Mr Owen appears to have been an objector to the grant of the tenement.

Mr Owen's contentions impugning the decision in the forfeiture proceeding

62    It is now necessary to describe a number of contentions Mr Owen makes, to the effect that the Warden's Decision is afflicted by fraud. The essential issue at the forfeiture hearing which provides the context for these contentions was whether Mr Sandhu had met the minimum expenditure requirement for each of EL16/393, EL16/396 and EL16/449-I for expenditure years ending in 2019.

63    Mr Owen refers in particular to an affidavit of Andrew John Hawker sworn on 7 January 2021, which he has annexed to one of his affidavits in this proceeding. Mr Hawker's affidavit was filed in the Wardens Court in the proceeding that resulted in the Warden's Decision, in opposition to Mr Owen's forfeiture applications. Mr Sandhu relied on it at the forfeiture hearing.

Authorisation of exploration activities

64    In oral submissions at the hearing of this matter, Mr Owen referred to a letter from Mr Sandhu to Mr Hawker dated 1 December 2018. In it, Mr Sandhu gave his authority to Gold Tiger Resources 'to undertake exploration and small mining activities' on a series of tenements (TDO p 295). Mr Owen points out that for one of those tenements, prospecting licence 16/2667, a mining tenement register search shows that it was surrendered on 11 July 2018. Mr Owen's oral submissions on this point was not clear, however he appeared to say that this demonstrates that the evidence that is the subject of the petition debt is 'false'.

Invoices

65    Mr Owen refers to invoices issued to Gold Tiger Resources by Hawker Geological Services Pty Ltd (HGS) on 31 August 2017, 30 September 2017 and 30 October 2017 which are annexed to Mr Hawker's affidavit. They appear to relate to exploration or prospecting services that HGS provided to Gold Tiger Resources in relation to certain tenements. These include the tenements that were the subject of the Warden's Decision. I infer that Mr Sandhu relied on these invoices as part of proving that he had met the minimum expenditure requirements. The invoices state that 'Work was unpaid due to Andrew Hawker eventually becoming a director and receiving shares'. Mr Owen submits that the act of issuing an invoice for work conducted on the notion that Mr Hawker would one day become a director of a company is indicative of the invoice being falsified.

66    Mr Owen did acknowledge that this was raised at the forfeiture hearing and that Mr Hawker gave evidence at that hearing in relation to the invoices, but submits that Mr Hawker's explanations were inadequate. Mr Owen did not give any clear reasons as to why I should find that Mr Hawker's explanations were inadequate.

67    Mr Owen made further reference to two of the invoices. The invoice dated 30 September 2017 allocated $140.80 of a total expenditure of $3,520.00 to prospecting licence 16/2790. The invoice dated 28 February 2018 allocated $176.00 of a total of $4,400.00 to the same prospecting licence. Yet according to the register search, that prospecting license had been withdrawn on 16 January 2013. Mr Owen submits that attributing costs to the defunct tenement is evidence of other invoices having been falsified.

68    Mr Hawker gave evidence about these invoices at the forfeiture hearing. He said that allocating time to the defunct prospecting licence in his invoice of 30 September 2017 was embarrassing and the result of him not checking the status of the tenements.

69    In the Warden's Decision at [275], Warden Wilson referred to Mr Hawker's cross-examination on these inconsistencies, observing that 'Mr Hawker struggled to answer that question and he suggested the reason may have been he did not check the status of PL16/2790 in a list given to him by Mr Sandhu'. But he went on to infer that the prospecting licence was located on EL16/393. Presumably the Warden considered that the expenditure was still properly claimed in relation to that exploration licence, despite being attributed to a defunct prospecting licence. Mr Owen advanced no reason before me as to why that inference was not properly drawn.

70    Mr Owen also referred to what he claims are a series of irregularities on the invoices issued by HGS on 1 October 2017 (TDO p 320) and 21 October 2017 (TDO p 320). Both these invoices list an internal reference number beginning with 'EGE' as opposed to 'GTR', as contained in earlier invoices of 30 September 2017 and 30 October 2017. Mr Owen submits that reference to 'EGE' suggests the invoices are doctored from previous years and unrelated companies, given the proper reference should be to Gold Tiger Resources, shortened to 'GTR'. Mr Owen again accepted that this submission was put to Warden Wilson, as part of his allegation that all the invoices created in 2018 and 2019 had been fabricated. The Warden did not accept the submission.

Shallow Mining Gold Project report

71    At the hearing on 20 May 2025, Mr Owen referred to a report prepared by Mr Hawker dated 28 February 2018 as further evidence of falsified documents having been placed before the Warden in the forfeiture hearing. Mr Owen submitted that the report referred to expenditure over expired tenements that was incurred prior to and during 2015, yet was mentioned in a report written in 2018.

72    In the hearing on 20 May 2025, I put to Mr Owen that this submission lacked context and clarity. The reference in the report to past expenditure appears to be a historical account and it was unclear what other inference Mr Owen attempted to draw beyond that. Mr Owen then drew particular attention to six prospecting licenses listed as 'Pending' in the report. He submitted that these licenses were pending in 2015 but granted, according to the register search, on 15 August 2016, prior to the preparation of the report in 2018. Mr Owen claimed that listing those licenses as 'pending' is indicative of a falsified report.

73    This matter, too, was explained in Mr Hawker's evidence at the forfeiture hearing. He agreed that his reference to the prospecting licences as pending was incorrect. He admitted that he had cut and pasted some of the information without checking the status of the tenements. Mr Owen gave no reason before me as to why the Warden should not have accepted that evidence, or why an error of that kind should lead to a conclusion that the Warden's Decision was tainted by fraud on the part of Mr Hawker or Mr Sandhu.

Mr Hawker's credibility

74    Mr Owen did, however, make a broad submission that Warden Wilson did not adequately assess Mr Hawker's credibility and therefore placed too much weight on his evidence. This submission was based on a combination of the alleged fraudulent conduct above and Mr Hawker allegedly having misrepresented that HGS was conducting a drilling program between 12 and 21 December 2018, when he was in fact on a boat cruise. At one point Mr Owen appeared to submit that the Warden had wrongly accepted Mr Hawker's explanation for the evidence, that it was a typographical error, although at another point Mr Owen appeared to accept that this was not the basis of the Warden's findings.

75    In any event, it appears that Warden Wilson did not accept the error was merely a typographical one, but instead relied on other documentary evidence. At paragraph 296 of the Warden's Decision, he said:

I do not accept the error by Mr Hawker could be described as a typographical error. However, I accept he was mistaken as to his memory of his presence on 393 and 396 at that time. I find that error by Mr hawker does not diminish the other documentary and oral evidence produced by him and the oral, documentary and photographic evidence produced by Mr Scattini … as to the 2018 Drilling Program on 393 & 396.

76    Further, as Smith J pointed out in the Judicial Review Decision at [239], Mr Hawker's affidavit attached copies of all the invoices submitted by contractors who actually conducted the drilling program, so whether Mr Hawker was present on the tenements or not is immaterial.

77    Mr Owen went on to allege that the difference in work conducted by Mr Sandhu cited in the 'Form 5 Operations Report - Expenditure on Mining Tenement' and the HGS material before Wardens Court in the forfeiture application meant Mr Hawker was lying when giving evidence. Mr Owen did not specify what the difference in work conducted was, and it is therefore unclear to me what the basis of Mr Owen's allegation is.

78    Mr Owen also relies on a map described as 'Figure 22: Gold grades from Historical drilling identifying the significant geochemical zones (yellow)' in the Credo Gold Project - Review and Recommendations report of Mr Hawker dated 13 March 2018 (TDO p 365). Mr Owen submitted that the reference to parts per million rather than parts per billion in the scale of the map is an example of another mistake made by Mr Hawker. He submits this is inconsistent with a geologist of Mr Hawker's experience, and undermines his credibility.

79    The combined effect of Mr Owen's submission was to allege that fraudulent and misleading evidence was placed before and relied on by Warden Wilson, in which Mr Hawker would perform exploration services for Mr Sandhu and issued doctored invoices for false expenditure claimed by Mr Sandhu.

80    Warden Wilson, however, rejected the allegations made by Mr Owen against Mr Hawker, saying at [311]:

I also reject there has been any credible evidence produced by Mr Owen to suggest Mr Hawker and those called by Mr Sandhu have lied or that the invoices or other documents produced have been fabricated by any person or company.

Mr Owen's activities

81    Mr Owen submits that Warden Wilson unfairly cast aspersions on his own activities at the contested ground. In the Warden's Decision at [309] the Warden said:

I do not accept Mr Owen could properly describe his attendance on 396 or 393 on 16 December 2019 as an extensive on ground field inspection prior to lodging an application for forfeiture. On his own evidence, Mr Owen said he stopped and visited areas he thought people would be working. He said he went to 3 places to try and obtain a mobile phone signal, being 2 near the Coolgardie North Rd and one on top of the waste dump at Nyborg's Pit. On his own evidence, Mr Owen said he took photographs near E 16/415 but made no mention of taking photographs on either 393 or 396 on 16 December 2019 nor did he produce any photographs taken that day. The lack of any photographic or other recorded image of his observations of 393 and 396 on 16 December 2019 is fatal to his application in the face of the evidence produced by Mr Sandhu through Mr Hawker and other witnesses called by him.

82    Mr Owen submitted that the chain of inferences drawn by Warden Wilson was not logically sound. He submitted that since there was, on his observation, no work done on the mining site at the time he inspected, there was no reason for him to take photographic evidence. Mr Owen claims that if work was being conducted, he would have documented it, but it would not be practical to photograph a large area of land on which no work had appeared to be done.

Mr Scattini's evidence

83    In concluding that Mr Owen had not established that there was insufficient expenditure on the exploration licences in the relevant period, the Warden relied in part on evidence about observations of the tenements given by Darren Scattini, a prospector and tenement investigator engaged by Mr Sandhu's solicitors. Initially, Mr Sandhu sought to qualify Mr Scattini as an expert witness. Mr Owen says that Mr Sandhu ended up not relying on Mr Scattini's evidence before the Warden. He therefore complains about Mr Scattini's fee being part of the costs assessed against him in the petition debt, which is considered under ground 2 below. But he also complains that the Warden was wrong to rely on Mr Scattini's evidence at all.

84    Mr Owen relies on the fact that Mr Sandhu's lawyer, Tim Kavenagh, accompanied Mr Scattini on a site visit on 9 November 2020 to inspect various mining tenements. During the forfeiture hearing, Mr Owen gave evidence that he discovered this while driving out to the tenement site to conduct his own investigation:

As I came out of my camp onto the road I came across a vehicle that stopped and as I ride the quad bike up beside them… he told me what he was doing out there and at that point and he asked whether I was with the station or not. At that point, I ascertained that that was Mr Scattini and then I looked in the passenger seat and saw Mr Kavenagh and he said to me that we probably shouldn't be talking and I thought, well, if we shouldn't be talking it definitely shouldn't be talking to a independent expert. So I went about my business… I saw them again from a distance so I went and perched myself up on a hill and watched them for a little while… I just thought it was pretty odd that Mr Kavenagh was with Mr Scattini to make his report so I went back to observing them… I actually filmed to prove my point that that was actually what was happening, so I filmed Mr Scattini and Mr Kavenagh in the car. At the time that I got there it seemed like Mr Scattini was writing notes and stuff.

85    Mr Owen alleges that this shows that Mr Scattini had not complied with his obligation to carry out his instructions independently.

Mr McCarty's evidence

86    Mr Owen also complains of the Warden's treatment of the evidence of Brock McCarty, a provider of mapping services. Mr McCarty gave his evidence by audio link from the United States. When counsel for Mr Owen sought to cross-examine him about where he had acquired a certain satellite image, Mr McCarty terminated the audio link. Mr Owen also alleges that Mr McCarty refused to give him the satellite image when he asked for it, and that this is because Mr Hawker had interfered with Mr Owen's ability to obtain evidence to support his case. As to all this, the Warden found at para 307:

I accept and find the satellite photograph of the costean on 396 taken on 25 November 2019 and downloaded by Mr Hawker from links supplied by Mr McCarty as accurate and credible. I reject any suggestion by Mr Owen he was unable to obtain material from Mr McCarty as a result of actions by Mr Hawker. I accept the evidence of Mr McCarty as blunt and to the point but honest and truthful. I find he simply did not want to deal with Mr Owen as he did not have the time to spend on Mr Owen's … requests.

87    Mr Owen submits that the Warden should not have found Mr McCarty to be a credible witness, given the way he terminated the audio link when challenged in cross-examination.

Alleged collusion occurring after the Warden's Decision

88    Mr Owen also relies on a number of things which occurred after the Warden's Decision, as the substantive decision on which the petition debt is ultimately based.

89    Mr Owen points to the chronology of certain events concerning EL16/365. Mr Sandhu was the holder of that tenement at the time Mr Owen lodged his application for forfeiture, on 17 October 2018. From a mining tenement register search, it appears that on 23 April 2020, a transfer of the tenement from Mr Sandhu to Gold Tiger Holdings occurred. Mr Owen claims that Mr Sandhu is a non-executive director of Gold Tiger Holdings. The only company search in evidence of Gold Tiger Holdings (dated 4 January 2021) does not show Mr Sandhu as a director. However, there is evidence that the bankruptcy notice in this matter was originally served on Mr Owen by email from Mr Hawker, who is identified in the email as being the Managing Director of Gold Tiger Resources, so I am prepared to infer a connection between Mr Sandhu and the two Gold Tiger companies.

90    A second application for forfeiture of EL16/365 was lodged by Ashcroft Resources on 6 December 2021 (TDO p 952). The respondent to Ashcroft Resources' application was Gold Tiger Holdings. There is no evidence as to who controls Ashcroft Resources, other than the fact that on tenement register searches someone called Sean Ashcroft was listed as the contact for the company (with a postal address in Dubbo, New South Wales).

91    On 10 December 2021, EL16/365 was surrendered. Mr Owen submits by reference to mining tenement searches that the same pattern of conduct also occurred in relation to EL16/415, EL16/457, and ML16/524, all of which were subject to the forfeiture applications by Mr Owen that are mentioned at [51] above. Approximately 12 minutes later Ashcroft Resources lodged an application for a new exploration license, 16/598. Mr Owen asserts that this is over the same ground as EL16/365, EL16/415, EL16/457 and ML16/524.

92    Mr Owen submits this is sufficient evidence to infer that Ashcroft Resources was somehow connected to Mr Sandhu and that the surrenders and subsequent application occurred in order to preserve the ground for him.

93    Mr Owen also alleges that his trustee in bankruptcy, Ms Dunn, has been colluding with Mr Sandhu and Ashcroft Resources. The purpose of the alleged collusive conduct, according to him, is to obstruct Mr Owen from winning the right to explore in relation to the ground that is the subject of EL16/598. He relies on what he says is an attempt to abandon a proceeding on foot before the Wardens Court.

94    The proceeding in question concerns EL16/598 where, as has been said, Ashcroft Resources is applying for the tenement and Mr Owen is an objector. I had occasion to describe this aspect of the matter briefly in an interlocutory decision in this matter, Sandhu v Owen [2025] FCA 566, but it is necessary to set the details out here.

95    Ms Dunn became Mr Owen's trustee in bankruptcy on 14 January 2025. On 19 February 2025 she wrote to the Wardens Court saying, relevantly, that pursuant to s 60 of the Bankruptcy Act, she wished to abandon three proceedings before the Wardens Court, which included the proceeding concerning EL16/598.

96    On 2 April 2025, Ms Dunn wrote to this Court providing an undertaking that in her capacity as trustee in bankruptcy of Mr Owen's estate 'assets of the Bankrupt Estate will not be disposed of, pending the review application', that is, the present application for review of the sequestration order.

97    It appears that at a hearing in the Wardens Court on 11 April 2025, Mr Owen raised the effect of the undertaking in relation to the letter of 19 February 2025. While there is no direct evidence of what happened at the hearing, I infer from the orders made and some correspondence that Mr Owen sent to Ms Dunn that Mr Owen suggested that to abandon the proceeding concerning EL16/598 was the disposal of an asset and, while the abandonment letter was sent before the undertaking to the court was given, Ms Dunn's position might require clarification. It appears also from a further letter that is about to be described that the Warden may have expressed doubts about the effect of the abandonment.

98    Orders made by the Wardens Court on 11 April 2025 included a requirement that Ashcroft Resources write to Ms Dunn asking whether her position in respect of the matters referred to in her letter dated 19 February 2025 had altered. Ashcroft Resources' solicitor wrote to Ms Dunn accordingly, and she responded in a letter dated 17 April 2025, relevantly as follows:

•    As set out in my letter of 19 February 2025, I advised that that pursuant to section 60 of the Bankruptcy Act 1966 ('the Act'), I wish to abandon the above proceedings, in my capacity as Trustee of the Bankrupt Estate.

•    I note the Warden's subsequent comments that the abandonment provisions in the Act may not apply in these circumstances and have taken on board his comments.

•    Whilst the exploration licences, the subject of the objections, are not at this stage assets of the Bankrupt Estate. If the Bankrupt's application is successful, the exploration licences may then vest in the bankruptcy trustee pursuant to section 58 of the Act and be available to the creditors of the Bankrupt Estate.

•    At this stage of the bankruptcy, I am currently without funds and therefore will not appear at the hearing. However, I will abide by the Warden's decision.

99    Mr Owen's submissions about this were, with respect, not entirely clear. He made an oral submission at the hearing (ts 23) that:

the action of the trustee in attempting to abandon or vacate proceedings before the Warden's Court right now, it's my - it's my belief that the reason that they are doing this is because they're acting on behalf - now, that tenement that they're abandoning is the tenement that I should have won from Sandhu the tenement, where he swore the affidavit that I just referred to.

100    Then later (ts 27):

we now have the trustee giving away that application for - abandoning the whole proceeding. It has been heard. There's no costs. I've represented myself for the last two years.

101    And at ts 28:

The trustee feels that it's beneficial to give that application away - just gone. So, the application is, obviously, worth a fortune if the ground was successful. It's not costing the trustee any money. They don't have to put anything in. I've been representing myself. It's not costing me any money to represent myself, but they still feel the need to abandon my application.

102    In his affidavit affirmed on 7 May 2025, Mr Owen submitted evidence of his email correspondence with Ms Dunn regarding his applications for EL16/600 and EL16/639:

As I have previously stated, these applications have been heard, and the matters are simply waiting for a supreme court decision to be handed down (please see Richmond v Mcphee & Regis resources) to determine whether or not my application can be progressed and then the Warden will determine whether or not my application will be considered as the priority application or not.

103    I infer from this and from Mr Owen's correspondence with Ms Dunn that his objection proceeding has been heard and the outcome of his applications for EL16/600 and EL16/639 are awaiting a decision in the Supreme Court of Western Australia. He appears to assert that it will cost the administration of his bankrupt estate nothing to permit the objection and the applications to proceed to a conclusion and if the result is that he wins the tenement he is seeking over the relevant ground, that will be a valuable asset of the bankrupt estate (if the current review of the sequestration order is unsuccessful).

104    Mr Owen also relied on the temporary cancellation of his Starlink service, what he says is Ms Dunn's attempt through Telstra to have it reconnected (after a request from the Court) and the freezing of his bank accounts, as further evidence of collusion. The evidence concerning those matters, if there is any, is however impossibly unclear, and I will not attempt to describe them further.

Consideration

105    The threshold question to be answered now is whether the matters advanced by Mr Owen provide sufficient reason to embark on an inquiry into whether the petition debt should not truly be taken to be owing, because the Warden's Decision on which it is based is tainted by fraud, collusion or miscarriage of justice, or because there are other circumstances that have been shown which make it appropriate to conduct an inquiry into the existence of the petition debt. That question needs to be answered in the context of the overall issue being whether Mr Sandhu, on whom the onus rests, has proven that the petition debt is truly owing.

106    That question also needs to be answered in the context of the observations in Ramsay Health Care at [68] about the ability of the Court to rely on the ordinary processes of the adversarial system. In making the Warden's Decision, the Warden was acting in an administrative capacity, not in a judicial one: see Judicial Review Decision at [26]. But neither party submitted to me that anything about the jurisdiction or procedure in the Wardens Court affected the application of the observations from Ramsay Health Care. The transcript of the forfeiture hearing and the Warden's Decision itself reveal that the proceeding was conducted by the Warden and the legal practitioners who appeared before him with the degree of rigour to be expected of formal legal proceedings.

107    In answering the threshold question, I need to consider the matters advanced by Mr Owen as a whole; a matter which would not by itself justify an inquiry into the judgment debt may still provide relevant support when considered with all the other matters relied on. Also, I will proceed on the basis that matters occurring after the Warden's Decision may be taken into account as supporting an inference that fraud, collusion or other improper conduct occurred before the Warden's Decision and so tainted that decision.

108    I have, however, concluded that the matters on which Mr Owen relies, taken together, do not provide good reason to embark on an inquiry into whether the Warden's Decision was affected by fraud, or collusion, or was a miscarriage of justice, or should otherwise not be treated as proper basis for the petition debt. Mr Owen's contentions about the Warden's Decision are palpably an attempt to relitigate the proceeding that was before the Warden. To a large extent, Mr Owen points to minutiae concerning matters such as HGS's invoices or lists of tenements in authorisation letters and tenement reports, and then expands those points into large allegations of fraud. But even taken together, the matters on which he relies do not provide any sound support for such serious allegations. To address them all:

(1)    Mr Sandhu was found not to be an honest witness in the proceeding before Warden Hills-Wright (see above [53]), but he did not give evidence at the forfeiture hearing. What Mr Owen wanted the Court to take from that circumstance was never made clear. An assessment made of a witness in a different proceeding provides a slender basis for impugning the evidence adduced by senior counsel on behalf of that person (not being any testimony by the person himself), and the decision of an impartial and independent Warden after thorough consideration of that evidence.

(2)    One incorrect reference to a prospecting licence in a letter from Mr Sandhu is hardly significant and by no means points to any fraud. What Mr Owen wanted the court to take from that letter was entirely unclear.

(3)    The complaints about the HGS invoices were properly characterised by Mr Sandhu's counsel at the hearing before me as concerning minutiae. Mr Hawker's explanation for them was essentially that he did not check the tenements properly. The Warden appeared to accept that. The minor respects in which the invoices have been shown to have been incorrect do not provide any reason to think that the main body of the expenditure on the existing tenements which they evidenced was never conducted, let alone that the invoices as a whole were fraudulent fabrications. It was not at all clear why the proposition that Mr Hawker was, effectively, being paid for his work in shares was indicative of fraud. If anything, the fact that it was disclosed on the face of the invoices that were put into evidence was suggestive of transparency. If the suggestion was this disclosure was anachronistic or proleptic, that suggestion was never made clear. The Warden took Mr Owen's complaints about the invoices into account but did not find that they showed fraud or dishonesty or that the expenditure relied on had not occurred. To the contrary, the Warden accepted that the activity that it reflected had occurred in relation to the disputed ground, albeit that a small proportion of it had been attributed to an incorrect tenement.

(4)    Mr Owen's complaints about Mr Hawker's report about the Shallow Mining Gold project were unclear. To the extent that they identified that six prospecting licences had been incorrectly identified in the report as pending, it does not follow from that error that the report as a whole was falsified. Mr Hawker explained the error at the forfeiture hearing. Nothing in the nature of the explanation justifies this Court as treating the error as potential evidence of fraud.

(5)    Nor can Mr Owen's broader attack on Mr Hawker's credibility provide support for an inquiry behind the Warden's Decision. The Warden heard all the evidence and was in a position to weigh and assess it, as he did. The main specific matter on which Mr Owen relied in this regard, being Mr Hawker's evidence about a drilling program supposedly conducted in December 2018, was considered by the Warden. The Warden did not rely on Mr Hawker's evidence in that regard; he relied on other evidence produced by Mr Hawker, including documentary evidence, and on oral, documentary and photographic evidence produced by a different witness. An error in referring to parts per million rather than parts per billion is more indicative of inattention than fraud; if, as Mr Owen asserts, an experienced geologist would not make that error, it is a mystery as to what would be gained by deliberately falsifying a report in that way. And, again, the Warden specifically (and emphatically) rejected Mr Owen's claims that evidence had been fabricated.

(6)    Mr Owen's complaint about the Warden's treatment of the evidence about his own activities on the contested ground is merely an expression of disagreement with the Warden. The Warden's line of reasoning was open to him. While Mr Owen may be right to say that he could not have photographed all the ground, he could have taken photographs that could have been presented as samples. I would be slow to look behind the conclusion of an experienced Mining Warden about a matter such as this.

(7)    Mr Owen's submission that Mr Sandhu did not rely on Mr Scattini's evidence before the Warden is inaccurate. The transcript of the forfeiture hearing reveals that, initially, Mr Sandhu sought to adduce Mr Scattini's evidence as expert evidence. Counsel for Mr Owen objected to this, and ultimately the objection was resolved by senior counsel for Mr Sandhu effectively stipulating that he only relied on Mr Scattini as a witness of fact, concerning various observations he had made, and not as an expert witness as to his opinions. Mr Sandhu did not rely on a particular calculation and graph found in Mr Scattini's report. So it was open to the Warden to rely on the rest of Mr Scattini's evidence as to factual observations he had made, and that is what the Warden did: see e.g. Warden's Decision at paras 298 and 300-301.

(8)    Mr Owen's evidence that Mr Kavenagh accompanied Mr Scattini on a visit to relevant tenements does not establish anything untoward. It is commonplace for solicitors to participate in the engagement and briefing of expert witnesses and they have professional obligations not to interfere with the experts' independence when they do so. In any event, Mr Scattini's evidence did not end up as expert evidence. While it is unnecessary to make a finding about what Mr Kavenagh meant when he said 'we probably shouldn't be talking', one obvious explanation is the rule of courtesy that prevents solicitors from talking to legally represented parties on the opposing side without those parties' lawyers present.

(9)    As to Mr McCarty's evidence, the reason why he terminated the audio link during the forfeiture hearing is unclear. The material piece of evidence on which the Warden relied was a satellite image that Mr McCarty had supplied to Mr Hawker. It does not follow from Mr McCarty's conduct in the witness box that the image was fabricated, and it was open to the Warden to accept it as relevant evidence. The reason why Mr McCarty refused to supply the satellite image to Mr Owen is also unclear. Mr McCarty's own explanation was he did not have the time to deal with Mr Owen as a customer. It was open to the Warden to accept that, as he did, and Mr Owen has not advanced any good reason for thinking that anything untoward was behind Mr McCarty's refusal.

109    Overall, I respectfully share the assessment of the Warden's Decision which Smith J gave in the Judicial Review Decision at [228]:

The Warden's reasons were comprehensive and to the point. It is apparent from his reasons that his Honour had regard to the fact there was almost an overwhelming large volume of documentary evidence, including photographs, videographic evidence and the satellite image and data, that directly contradicted Mr Owen's evidence that he had observed that no work had occurred on the exploration licences in August and September 2018 and December 2019. His Honour made it clear when rejecting Mr Owen's evidence that Mr Owen had produced no credible evidence that contradicted any of that evidence and that there was no basis to find that any of the evidence adduced on behalf of Mr Sandhu was fabricated.

110    Mr Owen's attempts to impugn the Warden's Decision amount to expressions of strong disagreement, indeed incredulity, about certain aspects of the evidence before the Warden, and a submission, on that basis, that the evidence adduced on behalf of Mr Sandhu as a whole was fabricated. But the matters he pointed to were, at most, examples of 'things not lining up', as he himself put it in the hearing before me (ts 37). Further, Mr Owen does not engage with the large volume of evidence Smith J describes, and if he did he would be attempting to relitigate the matter as a whole.

111    At another point in the hearing on 20 May 2025 Mr Owen described his case in overview this way: 'There's so much little stuff put together you have to go, "Obviously, something's not right, here"' (ts 76). He was correct to describe it as 'little stuff', but I do not share the conclusion he reached, that there was 'so much' of it that the Court should think that 'something is not right'. I do not consider that the matters canvassed above, even taken together, provide reason to think that the Warden's Decision may be wrong.

112    Turning to Mr Owen's allegations about collusion that is said to have taken place after the Warden's Decision, I will assume, favourably to him, that Ashcroft Resources, Gold Tiger Resources, Gold Tiger Holdings and Mr Sandhu have been acting in concert to retain control of the contested ground. But Mr Owen did not establish that this should somehow cast doubt on the Warden's Decision. As has said above at [62], the issue in that decision was whether the minimum expenditure conditions for EL16/393, EL16/396 and EL16/449-I had been met during the relevant expenditure periods. The fact that Mr Sandhu may have been part of a subsequent arrangement with others to keep control of the ground provides no cogent reason to doubt the correctness of the Warden's Decision, reached after a four day hearing where witnesses were cross examined and both parties were legally represented, based on detailed written reasons. So while I have accepted as a general proposition that evidence of collusion, bad faith or fraud occurring after the petition debt arose can support an inference that such things occurred before it arose, and so tainted it, Mr Owen has not established that here.

113    As for Mr Owen's allegations that his trustee in bankruptcy has been involved in that collusion, he has provided no cogent basis to think that might be so. His allegations about his Starlink and Telstra accounts being disconnected were difficult to understand. There was evidence that the trustee in bankruptcy had taken steps at the beginning of her appointment to inform service providers of the bankruptcy and asking them to liaise with him to open a new account in his name, noting that there should be no disruption to the services. Even in the face of such a request, it is unsurprising, if regrettable, that banks and utility providers will stop access to an account or service due to a drastic event such as bankruptcy (even if the service is prepaid). There is no need to posit collusion to explain what happened. In any event, the services were soon reconnected.

114    As for Ms Dunn's correspondence with the Wardens Court, her initial abandonment of Mr Owen's objection proceeding was a commonplace step often taken by a bankruptcy trustee without funding who has made a judgment that it is unlikely to be in the interests of creditors to pursue litigation. It occurred before Ms Dunn gave her undertaking to this Court not to dispose of assets pending the current review. Her correspondence with the Wardens Court on 17 April 2025 certainly could have been clearer, but it does not evidence an intention to breach that undertaking by abandoning any claim. Rather, Ms Dunn indicates that she has 'taken on board' the Warden's comments at the hearing of 11 April 2025 doubting that the abandonment provisions of the Bankruptcy Act applied. And in contemplating that Mr Owen's objection may be successful and may result in EL16/598 vesting in the bankrupt estate, Ms Dunn is implying that she is not abandoning Mr Owen's claim.

115    The evidence adduced by Mr Owen provides no cogent reason for thinking that Ms Dunn might be colluding with Mr Sandhu and others to frustrate Mr Owen's claims. That is a very serious allegation to make and Mr Owen had no substantial basis on which to make it.

116    As for what may be Mr Owen's submission that the trustee in bankruptcy will lose nothing by allowing his applications to remain stayed while awaiting the handing down of the Supreme Court decision, as I have said Ms Dunn is not, in fact, abandoning the proceedings. And even if she were, that would be her decision to make (once the undertaking expires) within the scope of her proper functions as bankruptcy trustee. Given that there is no basis to infer collusion, that decision could not be a reason to dismiss the creditor's petition in this case.

Conclusion on ground 1

117    Mr Owen's complaints about the evidence before the Warden at the forfeiture hearing and the way the Warden treated that evidence do not establish any sound basis to inquire into whether the petition debt is truly owing. His allegations about collusion (based events after the Warden's Decision) also provide no such basis, and at least in the case of Ms Dunn, are based on no cogent evidence at all.

118    Taking all of the matters canvassed above together, Mr Owen has not established any good reason to look behind the Warden's Decision, in the sense of embarking on an inquiry into the soundness of the Warden's conclusion that Mr Owen's forfeiture applications should be dismissed. There has been no challenge to the discretion as to costs exercised as a result of that conclusion and (subject to ground 2) no challenge to the costs assessment itself. I am satisfied that Mr Sandhu has proven that the petition debt is properly owing.

119    It follows that I will not dismiss Mr Sandhu's petition on the basis of Mr Owen's ground 1.

Ground 2 - complaint about items in costs assessment

120    The revised costs assessment which became an order of the District Court included two items which Mr Owen disputes. Under ground 2, he challenges two fees charged by witnesses, namely $1,200.21 charged by Mr McCarty (trading as Apollo Mapping) and $6,000 (reduced on assessment from $10,000) charged by Mr Scattini trading as Independent Tenement Investigations. Mr Owen submitted that given that Mr Scattini's evidence was not relied on, and given that Mr McCarty terminated his evidence as described above, those amounts should not have been charged.

121    Under ground 1 above I have already found against Mr Owen in relation to the factual basis of these submissions. But even without those findings, this ground would have no merit. In Katter v Melhem (No 2) [2014] FCA 1176 at [77], Wigney J said (the several authorities cited by his Honour are omitted here) that:

the Court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced and would not support a finding that there was, in truth, no debt at all.

122    The two amounts just mentioned make up a fraction of the overall judgment debt of $98,123.89. Even if Mr Owen's complaints about them were to be made out, that could provide no basis to conclude that the debt does not exist, or that it is less than the statutory minimum of $10,000 required for the purposes of creditors' petitions: Bankruptcy Act s 44(1)(a).

123    I will not dismiss Mr Sandhu's petition on the basis of Mr Owen's ground 2.

Ground 3 - service of bankruptcy notice and date of presentation of creditor's petition

124    The contention by Mr Owen which I have labelled as ground 3 appears in his outline of written submissions as follows (para 7):

Your Honour should dismiss the creditors petition based on the fact it was not filed accompanied by a valid affidavit of service. The affidavit of service indicates service via email from Mr Macdonald on the 6th of March 2024. The act requires that a creditors petition be served within 6 months of the bankruptcy notice being issued by the official receiver. Justice Feutrill extended time for compliance with the bankruptcy notice and did not extend time for service of the bankruptcy notice.

125    The points that each of Mr Sandhu and Mr Owen was making here were not clear. It is necessary to summarise how those points emerged.

126    Section 10 of the Bankruptcy Regulations provides:

(1)    A bankruptcy notice in relation to a debtor must be served on the debtor within:

(a)    the 6 month period beginning on the day that the Official Receiver issues the notice; or

(b)    any additional period that the Official Receiver determines in writing for the purposes of this paragraph.

(2)    A bankruptcy notice in relation to a debtor that is served on the debtor outside of a period mentioned in subsection (1) is not valid.

127    The bankruptcy notice on which Mr Sandhu relies here was issued by the Official Receiver on 25 July 2023. No evidence of any extension of that time by the Official Receiver is before the Court. It appears on the face of these matters that the time for service as required by s 10(1)(a) ended on 25 January 2024.

128    In an affidavit sworn on 23 May 2024 in this proceeding, Mr Macdonald deposed to his belief that the bankruptcy notice was served on Mr Owen on 1 August 2023 and no later than 22 August 2023. He also annexed affidavit evidence filed in proceeding WAD196 of 2023, to the effect that the bankruptcy notice was left in Mr Owen's presence and also emailed to Mr Owen on 1 August 2023.

129    In the Set Aside Judgment at [33], Feutrill J found that the bankruptcy notice had been validly served on Mr Owen by email on or about 1 August 2023 and no later than 22 August 2023. At [75], his Honour said that for the avoidance of doubt he would make an order permitting Mr Sandhu 'to re-serve the bankruptcy notice' on Mr Owen by email at a specified email address. Orders reflecting this were made.

130    Paragraph 4 of the creditors' petition commencing this proceeding relied on service of the bankruptcy notice on 1 August 2023 as the basis for the alleged act of bankruptcy that founds the petition.

131    However the affidavit of service of the bankruptcy notice sworn by Mr Macdonald on 4 April 2024 specified 6 March 2024 as the date of service of the bankruptcy notice. This is said to be pursuant to the orders made in the Set Aside Judgment. No reference was made in that affidavit to 1 August 2023 as the date of service.

132    Mr Sandhu's written submissions dated 6 May 2025 (para 6) appeared to submit that the bankruptcy notice was served on 1 August 2023, relying on the Set Aside Judgment at [17] but also on Mr Macdonald's affidavit sworn 23 May 2024 in this proceeding. They also say that the bankruptcy notice was 'again served on 6 March 2024' and that Feutrill J's order in WAD196 of 2023 'was clearly facultative and did not detract from his Honour's finding that the notice had already been served within 6 months of its issue'.

133    Although, with respect, it is not clear, Mr Owen's written submission reproduced above appears to say that the time for service of the bankruptcy notice had not been validly extended, so that service on 6 March 2024 meant that the notice was invalid.

134    Mr Owen did not invoke s 10 of the Bankruptcy Regulations in his written submission, but he did invoke it orally at the hearing when he sought to raise this ground. He also sought clarification as to which date of service of the bankruptcy notice was the date on which Mr Sandhu relied for the purposes of the creditor's petition.

135    Mr Owen also submitted that if Mr Sandhu relied on the earlier date of 1 August 2023, then 'the sequestration order must be made within six months of that being served. If they intend to rely upon that one, the sequestration order is not within six months.': ts 18. By that, I understood Mr Owen to be relying on s 44(1)(c) of the Bankruptcy Act, which requires the creditor's petition to be presented within six months of the act of bankruptcy. Here, that act was Mr Owen's failure to comply with the bankruptcy notice. So the creditor's petition needed to be filed with the Court within six months of the first date of that non-compliance.

136    When given an opportunity to confirm his client's position at the hearing, Mr Macdonald relied on an act of bankruptcy having occurred by failure to comply with the notice of bankruptcy as served on 6 March 2024: see ts 58. But he also relied on the finding in the Set Aside Judgment at [17] that the bankruptcy notice was served on 1 August 2023 as well as evidence of email service in this proceeding. Mr Macdonald submitted that while Feutrill J found that the bankruptcy notice had been served on 1 August 2023, his orders providing for service after 6 April 2024 were facultative and did not detract from the earlier finding.

137    Immediately after that, Mr Macdonald agreed that the act of bankruptcy on which Mr Sandhu relied occurred on 2 April 2024.

138    So, to the extent that Mr Sandhu relies on an act of bankruptcy occurring on 2 April 2024, his position was ambiguous. It was not clear whether that reliance meant that for the purposes of s 10 of the Bankruptcy Regulations, he relied on service of the bankruptcy notice as having taken place on 6 March 2024. That understanding was open, in particular, in view of the act of service that was the subject of the affidavit of service of the bankruptcy notice sworn on 4 April 2024.

139    In view of all the above, on 10 July 2025 (so after the hearing on 20 May 2025) my Chambers corresponded with the parties to confirm my understanding of Mr Sandhu's position as follows:

(1)    The bankruptcy notice issued on 25 July 2023 was served on Mr Owen on 1 August 2023.

(2)    Because of Mr Owen's application for the bankruptcy notice to be set aside, the time for compliance with it was extended on 22 August 2023 (the last date for compliance) and on further occasions thereafter, with the last such extension being the orders that Feutrill J made in WAD196 of 2023.

(3)    The 're-service' of the notice on 6 March 2024 is relevant because it fixes the last date for compliance with the bankruptcy notice as 2 April 2024. But in view of the 'facultative' nature of the relevant orders, it does not mean that the notice was served any later than 1 August 2023.

(4)    Therefore, Mr Sandhu does not contend that for the purposes of s 10 of the Bankruptcy Regulations, the bankruptcy notice was served on 6 March 2024. Rather, it was served on 1 August 2023, but the time for compliance with it was extended until 2 April 2024, so the act of bankruptcy relied on occurred on that later date.

(5)    As a consequence, s 10 of the Bankruptcy Regulations has been complied with, because the bankruptcy notice was served before 25 January 2024.

(6)    Also, s 44(1)(c) of the Bankruptcy Act has been complied with, because the act of bankruptcy occurred on 2 April 2024 and the creditors' petition was presented on 4 April 2024.

140    Mr Sandhu's solicitors confirmed that this was their client's position. They further submitted that the reference in the affidavit of service of the bankruptcy notice to service on 6 March 2025 does not invalidate the creditor's petition. Section 52(1) of the Bankruptcy Act relevantly requires the Court to be satisfied of service of the matters stated in the petition as a precondition to making a sequestration order. Those matters include the relevant act of bankruptcy. Where, as here, the relevant act of bankruptcy is failure to comply with a bankruptcy notice, service of that notice must be proved.

141    As a matter of substance, Mr Sandhu submits, service of the notice on 1 August 2023 has been proved here. Relying on Daly v Watson (1994) 50 FCR 544, Mr Sandhu submits that it was open to him to supplement the evidence in the affidavit of service of the bankruptcy notice, which he has done here with the evidence about service that is in Mr Macdonald's affidavit of 23 May 2024. To the extent that a different date for service is specified in the affidavit of service of the bankruptcy notice dated 4 April 2024, that is a formal defect only which has not caused any substantial injustice and so does not invalidate the petition: see Bankruptcy Act s 306(1).

142    Mr Owen emailed submissions in reply. He submits that service of the bankruptcy notice on 1 August 2023 'makes the creditors petition fatal' as it has not been filed within the six month period prescribed by s 10 of the Bankruptcy Regulations, there has been no extension of time filed, and the Official Receiver has not been notified of the filing of the petition as required by s 13 of the Bankruptcy Regulations. However, but with respect they were difficult to follow and appeared to mix up the different requirements I have sought to tease out above. To the extent that they can be understood, they simply reiterate Mr Owen's initial points without engaging with Mr Sandhu's position on them as set out above.

143    In the Set Aside decision, Feutrill J held that a bankruptcy notice could be served by email. Mr Owen made no submission to me that his Honour was incorrect to so hold, and I accept that he was correct, for the reasons his Honour gives at [27]-[33]. While s 91 of the Evidence Act 1995 (Cth) precludes me from accepting his Honour's factual findings as evidence of service in this case, that evidence has been adduced before me independently.

144    I therefore accept that Mr Sandhu has established, relevantly, that Mr Owen was served with the bankruptcy notice on 1 August 2023. An extension of time to comply with that notice was first given on 22 August 2023, that is, just within the original 21 days that Mr Owen had to comply with it. Further extensions were granted until the orders made by Feutrill J on 6 March 2024. The further service contemplated by those orders took place on that day, meaning that the time for compliance with the bankruptcy notice was extended one last time until 4.15 pm on 2 April 2024.

145    It is, as Mr Sandhu submits, abundantly clear from the Set Aside Decision that by permitting service of the bankruptcy notice in the manner specified in the orders, Feutrill J was not derogating from or somehow supplanting his finding that service had, in fact, taken place on 1 August 2023. I find that the purpose of providing for subsequent service on or after 6 March 2024 was to avoid doubt and to set a date for compliance with the bankruptcy notice, that is, to give Mr Owen at least 21 days more to comply in view of his lack of success in having the notice set aside.

146    For the purposes of compliance with the relevant provisions of the Bankruptcy Act and the Bankruptcy Rules, then:

(a)    the bankruptcy notice was served on 1 August 2023, that is less than six months after it was issued on 23 July 2023, in compliance with s 10 of the Bankruptcy Regulations; and

(b)    the act of bankruptcy (of the kind provided for in s 40(1)(g) of the Bankruptcy Act) occurred at 4.15 pm on 2 April 2024, that is less than six months before the creditor's petition was presented on 4 April 2024, in compliance with s 44(1)(c) of the Bankruptcy Act.

147    Mr Sandhu has, however, not complied with r 4.04(1)(b) of the Bankruptcy Rules, because the creditors' petition was not accompanied by an affidavit of service of the relevant bankruptcy notice. While it was accompanied by an affidavit verifying service of the notice on 6 March 2024, if meaningful content is to be given to that rule, it must be referring to the act of service on which the petitioning creditor relies as founding the act of bankruptcy.

148    However, that is a requirement of rules of court, not of the Bankruptcy Act. The filing of the correct affidavit of service of the bankruptcy notice is not one of the matters which, under s 52(1) of the Act, must be proved to the satisfaction of the Court if the power to make a sequestration order is to be enlivened. Relevantly for that purpose, what must be proved is one of the matters stated in the petition, namely that Mr Owen failed to comply by the required time with 'the requirements of a bankruptcy notice served on him on 1 August 2023'.

149    It is well established that, while s 52(1)(a) provides that the Court may accept the affidavit verifying the petition as sufficient proof of the matters stated in the petition, the petitioning creditor may supplement the formal affidavit material: Daly v Watson at 552 and the authorities referred to there (Beaumont and Gummow JJ, Davies J generally agreeing): see also de Robillard v Carver [2007] FCAFC 73; (2007) 159 FCR 38 at [94] (Buchanan J). As set out above, it is so supplemented here.

150    At most, then, the failure to file an affidavit in accordance with r 4.04(b) verifying the act of service of the bankruptcy notice on which Mr Sandhu relies here is a formal defect or an irregularity where substantial injustice has not been caused. There has been no substantial injustice because the correspondence from my Chambers on 10 July 2025 put Mr Owen clearly on notice of what Mr Sandhu was relying on in this regard, and Mr Owen had took the opportunity to make submissions on the subject, which have been taken into account. It follows that under s 306(1) of the Bankruptcy Act, the formal defect or irregularity does not invalidate the creditor's petition: see Daly v Watson at 553.

151    No sound basis to oppose the creditor's petition has been established under ground 3.

Ground 4 - notification of Official Receiver

152    Mr Owen's written submissions filed on 22 April 2025 say (para 8):

As required by the act, the creditors petition was not served upon the Official Receiver within two business days of being filed with the court. Other sections of the act treat this error as committing an offence. Registrar Trott ex-parte granted the applicant an extension of time to serve the Official Receiver but still as to this time this has not been complied with.

153    Mr Owen relies on s 13 of the Bankruptcy Regulations, which requires a creditor who presents a petition to the Court to give to the Official Receiver 'a copy of the petition within 2 business days after the Court files the petition'.

154    In oral submissions Mr Owen acknowledged that, according to an affidavit of Mr MacDonald sworn on 22 July 2024, the Official Receiver was notified of the presentation of the creditor's petition on that date. But he said that he had never been notified that the Official Receiver had been notified, and submitted that the sequestration order was invalid for that reason too.

155    Mr Sandhu submits that a copy of the petition was given to the Official Receiver in accordance with an order of the Registrar made on 22 July 2024, which required Mr McDonald to notify the Official Receiver of the presentation of the petition forthwith. At the hearing on 20 May 2025, Mr Owen submitted that the Registrar 'allowed' this 'extension of time, even though no extension of time was officially requested - was verbally requested upon the hearing for that to take place. I still don't have any notification of that having taken place' (ts 8).

156    In fact, the only order the Registrar on 22 July 2024 was that his decision on the petition for sequestration was reserved. The orders made noted (but did not order) that Mr Macdonald was to notify the Official Receiver of the presentation of the petition forthwith. I do not construe that as granting any extension of time. I therefore accept that Mr Sandhu did not comply with r 13 of the Bankruptcy Regulations.

157    But it does not follow that the petition is invalid. Whether it is depends upon whether a legislative purpose to invalidate it because of this instance of non-compliance can be discerned in the Act or Regulations: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] (McHugh, Gummow, Kirby and Hayne JJ).

158    The Bankruptcy Regulations and the Bankruptcy Act do not say that the invalidity of the creditors' petition is a consequence of failing to give a copy of it to the Official Receiver. The contrast between that and, say, s 10(2) of the Bankruptcy Regulations quoted above at [126] suggests that it does not have that consequence. I infer that the purpose of s 13 relates to the Official Receiver's functions including the maintenance of the National Personal Insolvency Index: see s 73(4) of the Bankruptcy Regulations. It would be surprising if non-compliance with a requirement of that kind would have the drastic consequence, as between a debtor and a petitioning creditor, that the petition is invalid.

159    Mr Owen referred me to no authority that non-compliance with s 13 does have that consequence, and nor did my own researches reveal any. He did not refer me to any provision making non-compliance an offence (compare, in that regard, ss 66(3), 67(3), 68(3), 70(6) and 72(4)). Even if it were an offence, that would not necessarily assist Mr Owen, as that might indicate a legislative intention to compel compliance by means of penalising non-compliance, not by means of the threat of the invalidity of the petition.

160    Mr Owen has not persuaded me that Mr Sadhu's temporary non-compliance with s 13 means that the creditor's petition should be dismissed. For completeness, nor does any omission to serve Mr Owen with the notification to the Official Receiver, which is not required by any statutory provision.

161    Ground 4 provides no basis to dismiss the petition.

Other matters raised by Mr Owen

162    I have mentioned above (at [52]) that Mr Owen claims that he is entitled to costs as a result of the outcome of various interlocutory applications before the Wardens Court. As is said above, his submissions were difficult to understand. Only two claimed costs liabilities out of the four he listed were in proceedings to which Mr Sandhu was a party, and there was no evidence that either of those claimed liabilities were the subject of costs orders that had actually been made, let alone costs assessments that had occurred. It may be that these alleged costs liabilities are relied on as counterclaims offsetting the petition debt, but there is no basis to find that Mr Sandhu is in debt to Mr Owen for any amount.

163    It appeared that Mr Owen also relied on the costs he was seeking against Mr Sandhu and Gold Tiger Resources as part of the factual basis for a submission that his bankruptcy is part of a plan to frustrate his pursuit of those amounts. But for the reasons given above, there was no cogent evidence advanced to support any inference of that kind.

Conclusion on review of bankruptcy order

164    Mr Owen has not established any of the grounds on which he seeks to resist a sequestration order. Approaching this review as a fresh hearing of the bankruptcy petition, I would have granted the sequestration order on the basis of the petition. It follows that the Registrar's decision on to make the sequestration order against Mr Owen's estate on 14 January 2025 will be affirmed.

Possible workers compensation award

165    Mr Owen submits that if he is unsuccessful in having the whole of the debt set aside on the above grounds, the existence of a possible workers compensation award should be a basis to suspend the operation of the sequestration order. The purpose of this would be to afford Mr Owen a period of time to obtain a sum of money to meet the petition debt.

166    At the hearing on 20 May 2025, Mr Owen was unable or unwilling to specify the amount of time that was being sought or the amount that might be realised if he were successful in his workers compensation claim. There was a document annexed to Mr Owen's affidavit of 22 April 2025 showing that his workers compensation matter was before the Workers Compensation Arbitration Service, but nothing to indicate the merits or quantum of the claim.

167    There is no sufficient evidentiary basis to suspend the operation of the suspension order to permit Mr Owen to seek to obtain funds to pay the judgment debt by pursuing his workers compensation claim.

Conclusion and orders

168    An extension of time to apply for review of the orders of the Registrar made on 14 January 2025 will be granted, but the application for review will be dismissed so that the Registrar's orders are affirmed. Mr Sandhu submitted that in the event the sequestration order be affirmed, the costs of the review proceeding should be awarded as additional to the costs of the creditor's petition that were awarded by the Registrar. Those costs will be costs in the bankruptcy.

169    Given the nature of some of Mr Owen's allegations, the trustee in bankruptcy was also represented at the hearing by counsel. The trustee's costs of the hearing will also be costs in the bankruptcy.

170    Since the trustee has not had an opportunity to make any submissions about the appropriate costs order, it is appropriate to provide for liberty to apply in that respect.

Associate:

Dated:    1 August 2025