Re Mary Elizabeth Latona Ex Parte: Yvonne May Leslie [1983] FCA 8 (4 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: MARY ELIZABETH LATONA
Ex parte: YVONNE MAY LESLIE
No. P1036 of 1982
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
GENERAL DIVISION
Ellicott J.

CATCHWORDS

Bankruptcy - Petition based on default judgment - Power of Court to go behind judgment - Test in determining whether there was a true debt - Whether satisfied there was a debt in substantially same amount as claimed in judgment - Court not satisfied of existence of debt.

Bankruptcy Act 1966, s.52

HEARING

CANBERRA
4:2:1983

ORDER

1. The petition be dismissed.

2. The petitioner pay one half of the costs of Mary Elizabeth Latona of these proceedings.

DECISION

Yvonne May Leslie (Mrs Leslie) seeks a sequestration order against the estate of Mary Elizabeth Latona (Mrs Latona) for non-compliance with a bankruptcy notice served on Mrs Latona and based on a debt of $6574.47, being the amount due under a final judgment recovered by Mrs Leslie against Mrs Latona, her husband, and a company, The Trees Service Centre Pty. Limited, in the District Court of New South Wales on 1 June 1982. The consideration for the judgment debt is alleged to be wages due and not paid.

Mrs Latona resists the making of a sequestration order claiming (inter alia) that no amount is due by her to Mrs Leslie for unpaid wages.

The initial judgment in the District Court was obtained by default. In the action, the Statement of Liquidated Claim claimed $6459.44 as arrears of wages, salary and annual leave for work done and services rendered by Mrs Leslie as an employee for the defendants or one of them.

The particulars given were:-
(a) Wages and overtime from 2 May
1981 to 31 July 1981 - 13 weeks
at $479.16 per week $6,299.08
(b) Accrued annual leave - 18 weeks
at 3.08 hours per week, i.e.
55.44 hours at $4.15 per hour 230.36

_________
$6,459.44

Interest was also claimed from 31 July 1981 at 10%.

On 4 February 1982, Mrs Latona and her co-defendants moved to have the

judgment set aside and for the purposes of those proceedings, grounds of defence were filed which alleged that there was no contract of employment and that Mrs Leslie and her husband were friends of Mr and Mrs Latona who gave them certain assistance as she was in receipt of a pension and was not able to be employed. It was also alleged that at no stage was there an agreement to pay Mrs Leslie wages as claimed. The motion was heard by Ford D.C.J. on 28 April 1982 who ordered that the judgment be set aside and that the matter proceed to trial purely and simply on the basis of quantum but on condition that Mr Latona pay into Court within 28 days $1,000 as security for Mrs Leslie's costs. In default, Mrs Leslie was to have leave to sign judgment forthwith upon filing an affidavit verifying the quantum of her claim. No moneys were paid into Court and Mrs Leslie signed judgment on 1 June 1982.

On 10 September 1982, Mrs Latona moved to set aside the judgment of 1 June. In support of that application, she claimed that she was not and never had been indebted in the amount claimed and she sought to excuse non-compliance with the orders of Ford D.C.J. on the basis of her involvement in many other cases and her consequent confusion. This application came before the District Court at Penrith on 27 September 1982 and was dismissed.

The judgment therefore remains and Mrs Leslie, who served the bankruptcy notice on 15 July 1982 and filed her petition on 3 September 1982 continues to rely on it.

I have been asked by Mrs Latona to go behind the judgment debt and to hold that there was no consideration for it.

Section 52(1) of the Bankruptcy Act 1966 ("the Act") provides that at the hearing of a creditor's petition, the Court shall require proof of the matters stated in the petition, service of the petition and of the fact that the debt relied on is still owing. If not so satisfied it may dismiss the petition (s.52(2)).

It is well established that this Court, sitting in bankruptcy, has jurisdiction to go behind a judgment debt relied upon by a petitioner. In Corney v. Brien [1951] HCA 31; (1951) 84 C.L.R. 343 at p.347, the principle was stated by Dixon J. (as he then was) and Williams, Webb and Kitto JJ. as follows:-
"Section 56(2) (a) of the Bankruptcy Act 1924-1950 provides that the court at the hearing shall require proof of the debt of the petitioning creditor. Under this provision the Court of Bankruptcy has undoubted jurisdiction to go behind a judgment obtained by default or compromise or where fraud or collusion is alleged and inquire whether the judgment is founded on a real debt."

In Wren v. Mahony [1972] HCA 5; (1972) 126 C.L.R. 212 at p.224, Barwick C.J., after referring to what was said by Lord Esher in Re Flatau (1888) 22 Q.B.D. 83 said:-
"His Lordship, in using this expression, was not intending, in my opinion, to weaken the emphasis he had always placed on the need for the Court of Bankruptcy to be satisfied of the existence of the petitioning creditor's debt. Rather, if one reads all his expressions in the several cases I have cited, he was pointing out that the Bankruptcy Court could in general accept a judgment debt as sufficient proof of that debt particularly where it resulted from a fully heard contest between parties but that it always had the power to go behind the judgment and if the case was a proper one, should do so. The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor's debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof."

When this matter initially came before me, evidence was given which, if accepted, would have meant that Mrs Leslie, although employed, had been paid. That evidence suggested, in part, that she had been employed by the company, The Trees Service Centre Pty. Limited, had been so employed under an assumed name and had been paid. On the basis of this, I indicated to the parties that I was prepared to consider whether Mrs Latona was in truth indebted to Mrs Leslie as the judgment appeared to suggest and both parties proceeded to put further evidence before me.

I think it is clear that s.52 of the Act requires me to be satisfied that Mrs Latona is indebted to Mrs Leslie for the amount claimed. In forming a view, I must give due weight to the fact that judgment was signed for the amount in question and it might even be regarded as prima facie evidence of the existence of a debt. However, I am entitled to consider the whole of the evidence placed before me and if, having done so, I am not satisfied that Mrs Latona is indebted to Mrs Leslie for the debt relied on, I should dismiss the petition.

This approach, I consider to be consistent with the authorities. In taking it, I should look at it as a matter of substance, that is to say, if Mrs Leslie is to obtain a sequestration order I should be satisfied that Mrs Latona is indebted to Mrs Leslie for an amount of $6459.44 or an amount approximating that sum for wages and overtime between 2 May 1981 and 31 July 19819

I shall put aside at the outset Mrs Latona's claim that Mrs Leslie was employed not by her but by the company, The Trees Service Centre Pty. Limited. Some evidence was adduced in an attempt to establish the existence of the company, its ownership of the business known as "The Trees Service Centre" and the employment by it of people including Mrs Leslie, in the course of that business. For instance, there is evidence that wages books relating to people employed at The Trees Service Centre were kept in the name of the company and that group certificates were issued to employees in its name. There is also evidence that "With Compliments" slips and a letterhead with the company's name on them were used and that its name appeared on the door of the office used in the business. However, notwithstanding this, I am not satisfied that it was brought home to Mrs Leslie that she was being employed by the company and not by Mr and Mrs Latona.

I will subsequently refer to the conversations out of which her employment arose. Nothing occurred in those conversations to indicate that it was the company that was employing her and she was entitled to assume that Mr and Mrs Latona were themselves offering her employment. Furthermore, there was no satisfactory evidence adduced to show that the company acquired the business. For instance, the minute book, bank account, cheque books and other relevant documents which might indicate that the company was the owner of the business and the employer, were not produced. The existence of such books should have been within Mrs Latona's knowledge and it was for her to cause them to be produced. In the circumstances, I am not prepared to hold that the company was the employer.

Mrs Latona's other ground admits that Mrs Leslie was employed but asserts that she was in fact paid and that at least for a period she was employed under an assumed name. Mrs Leslie, on the other hand, says that she was employed for $200 per week clear, that she worked for long hours and that her employment stretched from 2 May 1981 to early in September 1981 and that she did not receive one cent in respect of it.

It will be immediately apparent that Mrs Leslie's assertion is not, on the face of it, in line with the Statement of Liquidated Claim on which the judgment is based. for that Statement claims wages and overtime for a different period, 2 May 1981 to 31 July 1981, and for a different amount. $479.16 per week.

Needless to say, as is apparent from the authorities, when this Court looks behind a judgment debt, it is important to take into account what took place in the Court in which judgment was entered. As already indicated, in this case, it was initially by default. There followed an application to set it aside which came before Ford D.C.J. He decided that it should be set aside in relation to quantum and in so doing made the following observations:-
"One thing that has concerned me is that in the Statement of Claim there is no sufficient particularisation of the basis on which the wages are compiled. Wages and overtime are claimed for thirteen weeks at $479.16 per week, and there is no statement of the work alleged to have been done. Whether the claim is made pursuant to some award I do not know. The position so far as the defendant is concerned I think is most unsatisfactory, but I consider that there is at least some merit in the submission made to me: the quantum of the plaintiff's claim is open to question - perhaps serious question."

His Honour made it a condition of his order that $1,000 be paid into Court by Mr Latona. It was not paid and judgment was entered.

Although I have the transcript and copy of the judgment of the proceedings before Ford D.C.J., I have none in relation to the second motion taken out before the District Court which was heard on 27 September 1982 and dismissed.

However, when the matter was debated between the parties before Ford D.C.J., far from judgment being confirmed in favour of Mrs Leslie, his Honour made the pertinent observation that the quantum of Mrs Leslie's claim for which judgment was entered was "open to question - perhaps serious question". On the basis, therefore, of what is known to me about the proceedings in the District Court, that Court seems to have had some doubts about the extent of Mrs Leslie's claim.

Having given due weight to what transpired before the District Court, including the fact that judgment was entered and remained in effect after two applications to set it aside, but taking into account all the evidence now before me, I am not satisfied that Mrs Latona is indebted to Mrs Leslie for the amount for which judgment was entered or anything like it. I have had no evidence put before me to justify the precise amount of $479.16 per week, nor am I able to find any basis in the evidence for arriving at such a figure. Indeed, Mrs Leslie's evidence supports a different figure. She says that the arrangement was she would receive $200 per week clear, which, before tax, is approximately $260 per week. She gave no evidence of also being entitled to overtime and even if she was so entitled, by implication, I have insufficient before me to justify a figure of approximately $479 per week.

On the evidence, putting her case at its highest, I am unable to conclude that she is entitled to anything beyond $260 per week for the period from 2 May 1981 to 31 July 1981, an amount of approximately $3380. However, I am not prepared to find this as a fact because, having considered the evidence, I am satisfied, for reasons I will explain, that she received amounts on account of wages during the period of her employment. Because of the unsatisfactory state of the evidence, I am unable to find precisely what that amount was. However, this inability does not matter because it is sufficient ground for dismissing the petition if I am not satisfied that Mrs Latona is indebted to Mrs Leslie for wages for the period in question, in an amount approximating that claimed in the judgment. As I am not so satisfied, I propose to exercise my power under s.52(2) and dismiss the petition.

Having stated my conclusion, I propose now to set out briefly the facts which are somewhat complex and in so doing deal with a number of issues raised by the parties.

Mrs Leslie says that on 26 April 1981 she and her husband visited the Latonas and Mr Latona asked her to come and work for them. He said "Come and work for us and we'll give you $200 a week clear". She replied that she did not really want to work for him to which he said "We're short staffed". She asked "What sort of work do you want me to do" and he said "You can have office work, garage work, restaurant or horses". Mrs Leslie then said she would think it over. On 30 April she telephoned him and said she had thought it over and would accept. They then arranged for her to start on 1 May.

Mrs Latona agrees that this was the substance of the conversation and that no mention was made about Mrs Leslie working for The Trees Service Centre Pty. Limited. Both she and Mr Latona say that Mrs Leslie was employed from 26 April. Mr Latona's evidence was that Mrs Leslie was to receive the award rate, not $200 per week. His version was that he said "We'll give you a job. You pick which entity in the business you want to work at and you will be paid the award rate". I am satisfied, having heard the evidence, that the arrangement was that Mrs Leslie would receive $200 per week clear. However, as I indicated earlier, nothing was said with regard to hours of work or overtime.

At this time the Leslies and Latonas were friendly and in the previous year Mr and Mrs Latona had agreed to guarantee a loan of $20,000 to Mrs Leslie by the Bank of New South Wales Savings Bank Limited which was to enable Mrs Leslie to acquire land and have a house moved onto it which she and her husband were to occupy. At the time the guarantee was executed, Mr Latona says the Bank manager asked them if they could give Mrs Leslie a job to help her pay for the land and that this is how it finally came about that they employed her. Mrs Leslie did not recall the conversation but did not deny it and admitted in evidence that the reason she originally went to work at The Trees Service Centre was because she wished to obtain income so she could pay off the loan.

On the evidence, I think it is clear that the reason why she went to work was to obtain money to pay off the loan.

At the time she was first employed she and her husband were pensioners, each of them receiving approximately $128 a fortnight. They had no other income out of which to pay off the loan. Because they were pensioners she was not able to earn $200 a week without it affecting the amount of the pension.

Mrs Latona alleges that, at Mrs Leslie's request, she was actually employed under the name "Robin Woodgood". She says Mrs Leslie said to her "I don't want to be in the wages book and if I do I don't want to be under my own name". Mrs Latona said "Why" and she says Mrs Leslie replied "Because my husband told me not to. Put me in the wages book but I can't go under my own name."

Mr Latona gave a similar account of the conversation and each of them says that Mrs Leslie was then entered in the wages book under the name "Robin Woodgood". They produced the wages books and the entry in question. It purports to show that a person known as "Robin Woodgood" worked there from the week ended 4 May 1981 to the week ended 29 June 1981 at a gross wage of $158 per week and a net wage after tax of $130.75. It also contains signatures. Seven of them are "R. Woodgood" and two of them are "R. Woodwood". There is also a copy of a group certificate in the name "Robin Woodgood" for the same period.

The name "Robin Woodgood" is written into the wages book over part of a page where what had been there was covered by a white substance. There is sufficient appearing of what was covered to leave it open to the inference that the name "Leslie" previously appeared. Mrs Latona says the name "Leslie" was originally there and that Mrs Stackpool whited it out and wrote in "Robin Woodgood".

Mrs Leslie strenuously denies the conversation or any use of the name "Robin Woodgood" or "Robin Woodwood" or any similar name in the books of The Trees Service Centre Pty. Limited as referring to her. Mr and Mrs Latona both asserted that Mrs Leslie had been paid in full for the work she did and each of them said that on several occasions they were actually present when Mrs Leslie was handed money representing her wages. Mrs Leslie, as I have previously stated, says that she did not receive anything.

Mrs Hanney was the accounts clerk at The Trees Service Centre during the period Mrs Leslie was there and she says that she never paid wages to Mrs Leslie or saw her paid. She was aware of the name "Robin Woodgood" being in the book at a stage when only the name appeared. She says she asked Mrs Latona who it was and she replied "It's nothing to do with you". Although I accept Mrs Hanney as a basically truthful witness, for reasons I will give, I think it possible, notwithstanding her contrary evidence, that she was present when Mrs Leslie was paid money which was on account of wages. I would not expect her to remember all occasions on which employees were paid in her presence over a period of four to five months.

A form of sworn statement is in evidence by Mrs Eileen Stackpool, now deceased, who worked in the office and who was said to be a close friend of the Latonas. She also was there in the capacity of a wages clerk and secretary. She said that Mr Latona told her that Mrs Leslie was to receive $200 per week clear, together with petrol and oil and food from the restaurant free. She also says that she did not see her receive any pay nor did she make up any for her. Mr Latona says Mrs Stackpool finished in May 1981. In view of her death, it is difficult to place a great deal of weight on her statements, particularly as "Robin Woodgood" is alleged to be in her handwriting on the whited out page in the wages book and she could not be cross-examined about it.

The only other explanation put forward as to the identity of the person "Robin Woodgood" was in an affidavit by Mrs Stackpool's daughter Debbie Stackpool, who said she overheard a conversation between Mr Latona and her mother after which her mother had said to her "Terri Duddington's working again. She is working under an assumed name of "Woodgood"'. The person then known as Terri Duddington, now Mrs Shung, also gave evidence. She denied working there under the name "Woodgood" and she denied signing the page in the wages book referring to "Robin Woodgood". Mrs Shung also seemed to me to be a truthful witness and I accept her evidence that she did not adopt the name "Robin Woodgood".

Although Debbie Stackpool's affidavit was read she was not available for cross-examination and I do not propose to accept her evidence. I think it is relevant to bear in mind, however, that it was Mrs Leslie who tendered her evidence and put forward what turned out to be a false explanation.

There is evidence from a number of employees that they were not paid their wages in full during the period from May to September 1981, that in some cases they later took proceedings against Mrs Latona for the amount outstanding and that she accepted liability. Mrs Latona agreed that she had done so. It also appears that on several occasions during the period, the employees saw letters from finance companies indicating that a large amount would be made available to the business and seeking their agreement not to press for wages. On one occasion, at least, they signed a document to this effect. They were also given I.O.U's.

There is also evidence that employees were asked to sign the wages book even though they had not been paid so that it could be established that the wages book was being properly kept if the Departmental officer called. Some of them, on occasions, complained about non-payment to the Latonas and were then paid.

I accept the substance of this evidence from former employees. It establishes that during the period the business was going through difficult times, that cash was short, that the wages book was signed when the wages signed for had not been paid and that employees were left unpaid. On the other hand it does establish that in a number of cases employees were in fact paid when they pressed for payment either wholly or substantially. Mrs Leslie said she pressed for payment but was not paid.

An attempt was made, by evidence, to link the signatures "R. Woodgood" and "R. Woodwood" in the wages book with Mrs Leslie. Mr Humphrey-Reeve, a consultant graphologist, who is skilled in the science of handwriting, was asked to compare the handwriting of these signatures with the handwriting on certain pages of a day book which it was said were written by Mrs Leslie. He concluded that they were written by the same person.

Mr and Mrs Latona gave evidence that they had seen Mrs Leslie sign the wages book and that she had also written what was on the pages in the day book which were shown to Mr Humphrey-Reeve. Mrs Leslie denies that she signed the wages book under the name "Robin Woodgood". When she was confronted with the pages in the day book and was asked "Is that your writing" she said "I do not think so, no". She was asked:-

"Did you write that there?---No, I was not in the office then.
What date did you go into the office?--- 13 or 14 July around about then."

Subsequently she was asked whether any of the pages in the book were her

handwriting and she answered "It is hard to say because I can't remember these messages, you see." Subsequently I asked her "Why do you say it is not your handwriting?---It just does not look like it, and besides you should recollect some messages you took down, you would think, would you not, in an office."

She was also asked about two signatures "Y. Leslie" in a receipt book and she denied that they were her signatures. She said - "No because I never sign for anything like this". These were for amounts of $130 and $50 and were dated in May 1981. There are a number of dockets and receipts which are signed "Y. Leslie" in evidence which she does agree were signed by her. These were for petrol which she admits receiving.

I am not satisfied that Mrs Leslie was frank in her evidence with regard to her handwriting. It seemed to me she was reconstructing on the basis of what was likely to have happened consistent with her own case, rather than giving direct evidence as to whether what she was asked to identify was in fact her handwriting. I would expect her to know her own handwriting.

I do not accept her denial that the two signatures "Y. Leslie" were not her signatures. When compared with admitted signatures, including those on affidavits, I have little doubt in my mind that they are her signatures. I also think it possible that the pages in the day book upon which Mr Humphrey-Reeve relied to express his opinion, are in her handwriting. I was not convinced by the manner in which she gave her evidence on these matters.

However, the evidence relied on to establish that the first 7 pages of the day book are in the handwriting of Mrs Leslie is that of Mr and Mrs Latona and they have been far from consistent or accurate in their assertions regarding Mrs Leslie's employment. For instance, in the hearing before Ford D.C.J., there was no mention by them that Mrs Leslie had been employed under the name "Woodgood". Indeed, Mr Latona said there was no contract of employment. It was also suggested that towards the end of June an officer of the Social Security Department visited The Trees Service Centre and asked whether Mrs Leslie was being employed there under the name "Woodgood". Mr Latona says he denied, contrary to the fact, that she was. He says that thereafter "Robin Woodgood" was not entered in the wages book, that Mrs Leslie was not employed at the Centre on other than a casual basis and that she chose to come to the premises as it suited her. This is inconsistent in two respects with other evidence. First, Mr Johnston, a Social Security Officer, gave evidence and he said that his visit to the Centre took place on 29 July 1981. He said that Mr Latona indicated that Mrs Leslie was employed there but that she and Robin Woodgood were not one and the same person. Mr Latona also told him that Mrs Leslie was working for no remuneration. This visit resulted from some anonymous information received on 30 June 1981. He also gave evidence that, at the time, Mrs Leslie was receiving a wife's pension, her husband being an invalid pensioner. Mr Johnston says he went to the Centre on three occasions. On the second occasion (28 July 1981) he had a conversation with a person who was the assistant manager who said there was a "Robin Woodgood" employed there but said Mr Latona was not in and could he come back the following day.

There is therefore an inconsistency between Mr Latona's evidence and Mr Johnston's evidence as to when the visit took place. I am satisfied it took place at the end of July and not the end of June. If Mrs Leslie was employed full time till the visit from Mr Johnston, as Mr Latona suggests, this would have been till the end of July, not June.

On the question whether Mrs Leslie worked on a casual basis after July, I am satisfied from the evidence of other employees such as Mrs Glendenning, who was there at the time, that she probably worked full time during the whole of July and August. However, why she did not claim for wages during August and part of September in the District Court was not explained.

Because of this other evidence, however, I do not accept Mr Latona's explanation of why the name "Woodgood" ceased to be used after 29 June 1981 or his evidence that thereafter Mrs Leslie was only employed on a casual basis.

Having regard to inconsistencies in Mr and Mrs Latona's evidence and conduct in this matter, I am not prepared to rely on their evidence alone to find that Mrs Leslie adopted the name "Woodgood" or "Woodwood". No other witness was called to substantiate it. At the same time I am not convinced by Mrs Leslie's explanation as to handwriting. I am therefore left in a state of doubt as to whether she used the name "Woodgood" or "Woodwood" or not. An explanation was put forward by her that it was Terri Duddington, but I find that to be false. Having regard to the possible effect on her pension, there was a motive for Mrs Leslie to adopt another name for the purpose of her pension and there was a suggestion late in June 1981 to Social Security that she was using it.

It is also possible that some special arrangement was made between Mrs Leslie and the Latonas as to her employment and payment because of the fact that she was a pensioner and the receipt of wages could affect her pension. It would also seem that Mrs Stackpool wrote the name "Robin Woodgood" in the wages book over her name. However, these are matters of speculation and I am not prepared to find positively, on the evidence, that Mrs Leslie did adopt the name "Woodgood".

I am, however, satisfied that Mrs Leslie received moneys on account of wages from the Latonas during the period of her employment. I am not able to find, on the evidence, precisely how much that was. If I accept Mr and Mrs Latona as to occasions when they paid her, as I do, it was at least $1200. However, it could have been more. On the balance of probabilities, I think it is most unlikely, having regard to the limited income available to her, the loan and the fact that she took the job to pay it off, that she would have stood by and worked without payment for four months.

Mr and Mrs Latona say that she was paid moneys on occasions and their evidence on this is supported, I think, by the probabilities. In the ordinary course, one would have expected her to have insisted on payment or left. She was not anxious to work and the purpose was to pay off the loan. It raises the question-why would she have continued to work long hours if she was receiving nothing for it. Furthermore, early in her employment, at least, she was friendly with the Latonas. Although money was short, other employees were, in fact, paid and there seems to be good reason why the Latonas would have paid her something before they paid others. Indeed, they had an interest to do so because they had guaranteed the debt and they would no doubt have wanted her to pay it off.

It follows that in all the circumstances, and in the light of these findings, that I am not satisfied that the judgment of the District Court truly reflects the indebtedness of Mrs Latona to Mrs Leslie in respect of wages during the period 2 May to 31 July 1981. It is not consistent with Mrs Leslie's own evidence as to what she was to be paid, nor does it give credit for amounts which I am satisfied were paid by the Latonas to Mrs Leslie during this period. I therefore propose to dismiss the petition.

Two other issues were raised on behalf of Mrs Latona. First, it was submitted that the proceedings were an abuse of the process of the Court and, secondly, that because the guarantee had been called upon by the bank, Mrs Latona had a set-off. In view of my decision to dismiss the petition, it is unnecessary to consider these matters.

I have given consideration to the question of costs. On some issues I have found in favour of Mrs Leslie and on others in favour of Mrs Latona. On some raised by Mrs Latona, I have not been satisfied. In the circumstances, taking all these factors into account, I think the appropriate order is that Mrs Leslie pay one-half of Mrs Latona's costs.