Commonwealth Bank of Australia v Ison

[2006] FCA 321

FEDERAL COURT OF AUSTRALIA

Commonwealth Bank of Australia v Ison [2006] FCA 321

COMMONWEALTH BANK OF AUSTRALIA v JOHN DAVID ISON
NSD 2274 of 2005

ALLSOP J
28 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2274 of 2006

BETWEEN:	COMMONWEALTH BANK OF AUSTRALIA APPLICANT
AND:	JOHN DAVID ISON RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	28 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)the creditor's petition be stood over to 9.15 am, Wednesday, 29 March 2006 before the Registrar dealing with bankruptcy.

(2)The creditor's costs of the adjournment application including 14 March 2006, 24 March 2006 and 28 March 2006 before me and the preparation of evidence and steps taken to verify the existence of parties be the creditor's costs in the petition.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2274 of 2006

BETWEEN:	COMMONWEALTH BANK OF AUSTRALIA APPLICANT
AND:	JOHN DAVID ISON RESPONDENT

JUDGE:	ALLSOP J
DATE:	28 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an adjournment of a creditor's petition.  The matter came before me on 14 March 2006 by way of reference from the Registrar handling the bankruptcy list.  The Registrar had refused an adjournment of the petition on the ground that the evidence was inadequate.  The matter came before me by way of review.  On 14 March after looking at the evidence available it appeared to me that it was important for the Court to have some understanding as to whether some of the documentation that had been placed before it was genuine. 

2. The judgment debt upon which the bankruptcy of Mr Ison is sought is some $22,000 or slightly more.  The precise amount is not important for today's purposes. It is under $30,000.  Mr Ison claims to have due to him through related corporate entities some millions of dollars in Australian dollars to the value of over $1 million in US dollars.  The precise nature of the claimed entitlement is not clear, however, it appears to be in the nature of a transfer from what are said to be banking entities in Africa.

3. On 14 March I had before me an affidavit of Mr Ison sworn on 10 March seeking an adjournment of 30 days to allow funds from the Reserve Bank of South Africa amounting to $US1.174.  Mr Ison attached to that affidavit an email from TS Minerals to the Office of the Governor of the South African Reserve Bank at a yahoo.com email address.  It also attached a document purporting to be from the South African Reserve Bank sent by facsimile to Mr Ison.  I will not set out the full text of the facsimile but from some of its form I was led to question the genuineness of the document. 

4. There was also annexed to the affidavit a document apparently sent from the South African High Court in Pretoria dealing with a case involving Mr Ison and related to the money in question.  I will not set out the form of this document but, once again, it raised concerns as to its legitimacy.  I note that each document appeared to come from the same facsimile number.

5. On that day I made directions standing the matter over to Friday 24 March, that is last Friday.  I indicated to the parties that what should occur was that there should be cooperation in creating and sending communications to the Reserve Bank of South Africa and to the South African High Court in Pretoria to ascertain the legitimacy of the communications, or either of them and the parties were to report back to me on the return date of 24 March.

6. Mr Tilley swore an affidavit on Thursday 23 March 2006 setting out comprehensively what had happened.  Mr Ison, as I had requested, had cooperated with Mr Tilley in the sending of communications to the South African Reserve Bank and the High Court in Pretoria.  Relevant bona fide addresses were obtained from the South African Embassy in Australia.  As of the time of the swearing of that affidavit there was no response from the South African Reserve Bank and nor is there still.  However there was a response from the Pretoria Registry of the High Court indicating that the document was not genuine.

7. I then stood the matter over to today for further agitation of the adjournment application. Mr Ison has asked for a further two weeks. He has provided an affidavit with various emails from different parties, they being from a Mr Peter Eze of the Economic and Financial Crime Commission in Nigeria, at an email address at yahoo.com; the Platinum Bank Limited from Dr Williams Chukwu, at an email address at yahoo.com; from Chief Uffort Ekaette said to be the Secretary of the Federal Government of Nigeria, also coming from a yahoo.com address.  Those emails indicate that there has been further delay but given further time there will be a sending of money.

8. Mr Tilley has filed another affidavit sworn today which deposes to the ease with which a yahoo.com email address can be created without any identification checks.  For instance, he created for the purpose of only disclosing to me today the ease with which the matter could be done, an email address, “Chief Secretary Nigeria”. 

9. Taking into account all the material, though Mr Ison only seeks two weeks, there is a public interest in dealing with insolvency matters promptly, I am not persuaded from the evidence that there is reasonable likelihood that any money will be available in the near future or at all.

10. If there does flow to interests associated with Mr Ison in the near future sums of the character and in the order referred to there should be little difficulty in applying to the Trustee if Mr Ison is made bankrupt for an early termination of the bankruptcy, if that is what occurs.  It is not my task at the moment to deal with the creditor's petition, it is only my task at the moment to decide whether Mr Ison should have two further weeks to deal with the matter prior to the hearing of the creditor's petition.  I am not persuaded that should be the case and I refer the matter to the Registrar for the hearing of the creditor's petition.

11. On a prior occasion, as Mr Ison points out, I expressed a concern of overly eager steps to bankrupt people who could demonstrate clear capacity to pay in the future even though they may, on ordinary principles, be not solvent.  I have born that in mind in the exercise of my discretion.  Looking at the material, I am not persuaded of the reality of the likelihood of the funds being made available.

12. Mr Ison has made a further amended application to have an adjournment for seven days because he says the money will come through today African time.  I am not prepared to grant an adjournment for seven days.  The Registrar will be hearing bankruptcy matters at 9.15 am tomorrow.  I am prepared to adjourn the matter but only until 9.15 am tomorrow morning before the Registrar.

13. The orders that I make today are:

    (1)Stand the creditor's petition over to 9.15 am, Wednesday, 29 March 2006 before the Registrar dealing with bankruptcy.

    (2)The creditor's costs of the adjournment application including 14 March 2006, 24 March 2006 and 28 March 2006 before me and the preparation of evidence and steps taken to verify the existence of parties be the creditor's costs in the petition.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            4 April 2006

Solicitor for the Creditor:	Mr C Tilley
The Debtor appeared in person.
Date of Hearing:	14, 24 and 28 March 2006
Date of Judgment:	28 March 2006