Sweeney v Moss [1999] FCA 1069 (4 August 1999)

Last Updated: 10 August 1999

FEDERAL COURT OF AUSTRALIA

Sweeney v Moss [1999] FCA 1069

PAUL DESMOND SWEENEY v GEOFF MOSS

Q 7135 OF 1999

KIEFEL J

BRISBANE

4 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7135 OF 1999

BETWEEN:	PAUL DESMOND SWEENEY Applicant
AND:	GEOFF MOSS Respondent
JUDGE:	KIEFEL J
DATE OF ORDER:	4 AUGUST 1999
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1. Geoffrey Leonard Wilberforce Moss who appeared in these proceedings is Geoff Moss referred to in the judgment of the Magistrates Court at Brisbane of 21 March 1995 and Geoff Moss referred to in the sequestration order made on 18 October 1995.

THE COURT ORDERS THAT:

2. The motion brought by Mr Moss will otherwise be dismissed

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7135 OF 1999

BETWEEN:	PAUL DESMOND SWEENEY Applicant
AND:	GEOFF MOSS Respondent
JUDGE:	KIEFEL J
DATE:	4 AUGUST 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Ex Tempore

1 In this matter Mr Moss has received a summons calling upon him to attend for public examination. He seeks to discharge it on the basis that it is directed to the wrong person. That contention comes about, as I understand it, because Mr Moss says that he did not engage or authorise the work of the petitioning creditor, and should not therefore be held responsible for it. He extrapolates from there that he cannot be said to be the person named in the judgment on which the petition was founded.

2 The difficulties for Mr Moss are that he needs to annul the sequestration order in order that the summons requiring him for examination could be discharged. He carries the onus of establishing strong grounds for an annulment of a sequestration order, particularly one which was made so long ago - on 18 October 1995. He faces further difficulties because the judgment upon which the original bankruptcy notice was based, which was entered on 27 October 1994 in the Magistrates Court in Brisbane, was based upon a deed of settlement signed by him with legal advice, and a copy of it is produced here.

3 The basis for which Mr Moss contends conflicts clearly with the acceptance of liability contained in the deed of settlement. The letter from his solicitor which followed on the deed of settlement, and which is dated 7 October 1994, confirms that Mr Moss would be meeting his obligations under the deed of settlement. He didn't and judgment was entered. In the absence of other independent evidence supporting his contentions about who engaged the petitioning creditor, or who didn't, I am unable to accept that the deed of settlement was wrongly executed and that the judgment was therefore wrongly entered.

4 Mr Moss faces further difficulties in any event. It appears that at the time that the petition was heard he had other solicitors acting for him, and there was no contention put forward with respect to the petition. Rather the prospect of alternative arrangements with his creditors were then being discussed. Through all of this period no step was taken by him, or those acting for him. He points to the solicitor who acted for him at the time that the judgment was entered, Mr Mead, who was subsequently struck off for other reasons not connected with his matter, as having not followed his instructions. But it subsequently appears that he did have other lawyers available to him and for a period of almost four years has had the chance to engage other solicitors if any of these points were to be seriously argued.

5 Mr Moss has also sought an adjournment, and for similar reasons I intend to refuse it. He has had a long time to do something about this matter, and it would appear that it is only at the point where he is to be brought forward to be examined about his affairs since he has not provided the information requested by his trustee, that he has seen fit to act. If he is unable to attend for the examination tomorrow, he would need to contact the Deputy District Registrar in Brisbane.

6 Given the point attempted to be made by Mr Moss about the description of Geoff Moss as the bankrupt in the proceedings, and the subject of the summons, I propose to make and do make a declaration that Geoffrey Leonard Wilberforce Moss who appeared in these proceedings is Geoff Moss referred to in the judgment of the Magistrates Court dated 21 March 1995 and Geoff Moss referred to in the sequestration order made on 18 October 1995. The motion brought by Mr Moss will otherwise be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 4 August 1999

Solicitor for the Applicant:	SJ Gurnsey & Company
Solicitor for the Respondent:	In Person
Date of Hearing:	4 August 1999
Date of Judgment:	4 August 1999