Jeffrey, in the matter of Bankruptcy Act 1966 (1977, FCA)

by Bernard Blomfield Riley

THE BANKRUPTCY ACT 1966

IN THE FEDERAL COURT OF BANKRUPTCY BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY	N.S.W. 78 of 1976
IN MATTER OF BANKRUPTCY ACT 1966 AND THE MATTER OF AN APPLICATION FOR ANNULEMENT
RE:	TONY JEFFREY
EX PARTE:	TONY JEFFREY
JUDGEMENT
JUDGE:	B.B. Riley
DATE OF JUDGEMENT:	25th February, 1977
DATES OF HEARING:	17th December, 1976 9th February, 1977
COUNSEL FOR THE RESPONDENT:	R. Urquhart
CLAUDE NEON CO.
INSTRUCTING SOLICITORS:	Cutler Hughes, Harrig and Garvin
COUNSEL FOR BANKRUPT:	J.S. Purdy
INSTRUCTING SOLICITORS:	J.W. Ward of D.J. Fischer Associates.

IN THE FEDERAL COURT OF BANKRUPTCY BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY	N.S.W. 78 of 1976
	In the matter of - BANKRUPTCY ACT 1966 AND IN THE MATTER OF - AN APPLICATION FOR ANNULMENT Re: TONY JEFFREY Ex parte: TONY JEFFREY

REASONS FOR JUDGMENT

Riley J.
25 February 1977

On 25 February 1976, on the petition of Claude Neon Limited, a sequestration order was made against the estate of Tony Jeffrey. The present applicant, whose name is Tony Jeffrey, asks in his application dated 26 August 1976 for an order that "the bankruptcy in this matter" be annulled. The application is opposed by the petitioning creditor.

The petition alleged that the debtor "Tony Jeffrey" had committed an act of bankruptcy consisting of non-compliance with a bankruptcy notice based on a default judgment obtained in the District Court of New South Wales by the petitioning creditor against "Tony Jeffrey trading as All Diggers Floral Service". It is common ground that the applicant has a son named Anthony George Jeffrey, and that the applicant has never been served with any document in any relevant proceedings either in the District Court or in the Federal Court of Bankruptcy. Therefore, if the applicant is the person who was made bankrupt, his application should succeed. But the petitioning creditor opposes his application on the ground that it was not the applicant but his son Anthony George Jeffrey who was made bankrupt.

It was somewhat faintly submitted on behalf of the applicant that the application should succeed even if that were so. I reject that suggestion. In the first place, the applicant could apply for annulment of his son's bankruptcy only if he were a person "aggrieved by or interested in" the matter: ss. 154(1)(a), 303; and I cannot accept the applicant's proposition that the possibility that a person will be confused with a bankrupt because they have the same or similar names entitles that person to apply for annulment of the bankruptcy. Secondly, though the application is for an order that "the bankruptcy in this matter" be annulled, the applicant's contention was that it was he who had been made bankrupt; and in his affidavit sworn 25 August 1976 in support of his application he requests that "my bankruptcy" be annulled on the grounds "(i) that it was based on a judgment debt incurred by default resulting from non-receipt of the initiating process; (ii) that I was not served with a bankruptcy notice; (iii) that I was not served with a bankruptcy petition; (iv) that I have never committed any act of bankruptcy"; and in my view he has not in fact applied for annulment of any bankruptcy other than that to which he claims he is himself subject. Thirdly, it is not disputed that non-service of documents would not be available as a ground for annulment of the son's bankruptcy, and the only other such ground suggested by the applicant is that the debt on which the relevant bankruptcy notice was founded was not the son's debt but the father's. It will appear later that I do not accept that proposition.

The applicant's son did not give any evidence. The applicant swore the affidavit I have mentioned and was examined and cross-examined before me. He said that his full name is Tony Jeffrey: he has no "given" name other than Tony. He writes and signs his name "Tony Jeffrey", and is never called Anthony except occasionally by mistaken strangers. Certainly his Statement of Service (Exhibit B) issued on 3 September 1965 by the Central Army Records Office and showing military service in 1943–44 was "issued in respect of Private Tony Jeffrey" and bears the specimen signature "Tony Jeffrey". He has a son named Anthony George Jeffrey, now aged 28, whom he calls Anthony. He has heard others call that son Tony; he would not say a lot of people do so, and would go no further than to admit that it was "possible" that his son has friends who do so.

The applicant was anxious to establish that the name and signature Tony Jeffrey pointed infallibly to him and not to his son and the name and signature Anthony Jeffrey or A, Jeffrey to his son and not to him. His own evidence militated against the acceptance of that suggestion. His statement that the signature A. Jeffrey on Exhibit 4 "could not be mine" would, if accurate, mean that it was his son's, that his son was carrying on business in New South Wales under the business name "All Diggers Floral Service" in 1958 at the age of about ten, and that his son signed the form in 1966 at the age of about eighteen without giving the information required by the form of a person aged under twenty-one. Similarly, by his assertion that the signature "Tony Jeffrey" on Exhibit 5 could be his but could be his son's too, he impliedly accepted the latter possibility.

I shall, now set out the events leading up to the sequestration order.

In November 1971 a Mr. De Havilland, then a sales representative employed by Claude Neon Limited, went to a florist's shop at Stanmore where he had a conversation with a man who said he was Tony Jeffrey and that his father ran the All Diggers Floral Service but that after a disagreement with his father he was branching off on his own and was going to run the shop at Stanmore and shops at Homebush and Campsie and wanted Neon signs at all three. After negotiations, a Lease and Maintenance Agreement dated 11 January 1972 (Exhibit 3) was concluded. The parties were Claude Neon Limited as lessor and "Tony Jeffrey, t/as All Diggers Floral Service, 216 Parramatta Road, Stanmore, N.S.W. 2048" as lessee. It bears the lessee's signature "Tony Jeffrey" under the typed description "Tony Jeffrey t/as All Diggers Floral Service", Mr. De Havilland cannot remember whether the lessee signed in his presence or handed the document to him already signed. The applicant did not recognise the signature when shown it in the witness box. I have no doubt that it is the signature of his son Anthony George Jeffrey. By 6 August 1974 $5,570.33 had become due and owing under that agreement, and Claude Neon Limited on that date issued out of the District Court of New South Wales a statement of liquidated claim (No. 34610 of 1974) for that amount and costs against "Tony Jeffrey Trading as All Diggers Floral Service unregistered business name of 216 Parramatta Road, Stanmore N.S.W.". On 19 December 1974 an affidavit (Exhibit 1) sworn on 13 December 1974 by "Anthony George Jeffrey" of 617–621 King Street, Newtown and signed "Anthony George Jeffrey" was filed by solicitors in matter No. 34610 of 1974. It verified annexed grounds of defence, and stated "I am the defendant herein". The applicant identified the signature "certainly" as his son's, and I accept that it is. A default judgment for $5,570.33 and $112 for costs (a total of $5,682.33) was recovered by Claude Neon Limited in this matter on 23 May 1975.

Early in 1972 Mr. De Havilland had another conversation with the same person known to him as Tony Jeffrey, who this time said that he and his father had settled their differences and wanted some Neon signs fer shops at Kogarah and Redfern. He asked for the agreement to be put in the names of Tony Jeffrey and Anthony Jeffrey. Eventually a Lease and Maintenance Agreement dated 14 September 1972 (Exhibit 2) was concluded, Claude Neon Limited being the lessor and "Tony & Anthony Jeffrey t/as All Diggers Floral Service, 8 Station Street, Kogarah 2217" the lessees, In the space for the lessees' signatures there appear the typed words "Tony and Anthony Jeffrey t/as All Diggers Floral Service", the signature "Tony Jeffrey" and the typed word "(Partner)". Again Mr. De Havilland cannot remember whether the document was signed in his presence. The applicant says that the signature is his.

The Tony Jeffrey with whom Mr. De Havilland had dealings was undoubtedly the son. He introduced Mr. De Havilland early in 1972 to a man he referred to as his father, but 1t was the son "Tony", as Mr. De Havilland called him, who negotiated with Mr. De Havilland.

Claude Leon Limited instituted proceedings in the District Court of New South Wales (No. 3611 of 1974) against "Tony Jeffrey and Anthony Jeffrey trading as All Diggers Floral Service" to recover the amount then due under the agreement of 14 September 1972, and on 19 May 1975 recovered a default judgment for $402.32 and $44 for costs ($446.32 in all).

On 19 August 1975 Claude Neon Limited caused two bankruptcy notices to be issued against "Tony Jeffrey, Shop Proprietor, of 18 Railway Street, Kogarah." One was based on a judgment in matter No. 3610, the other on the judgment in Matter No. 3611. It is not disputed that the former was duly served on the son Anthony George Jeffrey at 617 King Street, St. Peters on 18 September 1975. It was not complied with and on 24 November 1975 Claude Neon Limited filed a creditor's petition against "Tony Jeffrey who resides at unknown (and carries on business at 617 King Street, St. Peters) and whose occupation is Shop Proprietor". The petition alleged a debt of $6,270.18, being the total of the amounts due under the two judgments mentioned above, with interest added. It is not disputed that this petition was duly served on the son Anthony George Jeffrey at 617 King Street, St. Peters on a 27 November 1975.

As I have said, a sequestration order was made against the estate of Tony Jeffrey on 25 February 1976.

To the foregoing recital of events I should add a few other facts of which the applicant gave evidence. He retired from active business life as a florist in July 1973, and therefore ceased to occupy the shops in which the business had been conducted. When the petition was filed in November 1975 he was not a shop proprietor and was not carrying on any business from premises at 617 King Street, St. Peters. He never instructed solicitors to act for him in any District Court proceedings taken by Claude Neon Limited.

From the whole of the evidence I think the only possible conclusion is that the sequestration order was made against the applicant's son Anthony George Jeffrey and not against the applicant. I accordingly dismiss the application and order the applicant to pay the costs of the respondent Claude Neon Limited.