Myers v Commonwealth Bank of Australia

[1995] FCA 1201

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT O F AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT O F NEW SOUTH WALES ) No NB 2739 of 1995

RE: MELVYN RICHARD MYERS

Debtor

EX PARTE: COMMONWEALTH BANK OF AUSTRALIA

Creditor

CORAM:	Lehane J
PLACE:	Sydney
DATE:	7 November 1995

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: In this matter the debtor seeks an adjournment of the hearing of the

petition and a special fixture with a view, as deposed to in his affidavit, to calling

evidence in support of his claim that substantially greater income would be available to him outside bankruptcy than within it, and with a view also to cross-examining the deponents of affidavits in support of the petition. Ordinarily one would be disposed

to take a liberal view towards an application of this sort, particularly where it is made

by a debtor appearing in person.

In this case, however, I have come to the conclusion that I ought to exercise my

discretion in favour of refusing the adjournment. My reasons are principally that although the petition has been on foot for several months - it has been before the

court on I believe three occasions - the substantial opposition to the petition has been put by the debtor, and previously by counsel for the debtor, on a footing which as a

matter of law is, as I think I may fairly describe it, clearly hopeless. It is plainly established by a course of decision in this court that the existence of an order of a local court for payment of a debt by instalments, and for a stay of execution

meantime, if made after the issue and service of a bankruptcy notice does not deprive

that bankruptcy notice of effect.

I am forced to conclude, therefore, that if there were other material likely to be

available in support of opposition to the petition, including opposition directed to its dismissal on discretionary grounds, the need to obtain that material must have been

apparent for quite some time.

In those circumstances, despite the liberality one would ordinarily exercise in a case of

this sort, I am satisfied that the adjournment sought should not be granted. As for the substance of the petition, the material before me establishes, I believe, that the necessary matters have been made out and there is, in my view, nothing in the material filed in opposition to the petition that seriously suggests the contrary. Accordingly I am satisfied that the debtor committed the act of bankruptcy alleged in

the petition, and as to the other matters of which subsection 52(1) of the act requires

proof.

I make a sequestration order against the estate of the debtor and I order that the

~

petitioning creditor's costs, including reserved costs if any, be taxed and paid in

accordance with the Act. I direct that a draft of this order be delivered to the

Registrar within 7 days in accordance with subrule 124(2).

I certify that this and the preceding 2 pages are a true

copy of the Reasons for Judgment of the Honourable

Justice Lehane.

Associate: W *

Dated: 22 November 1995

Heard:	7 November 1995
Place:	Sydney
Decision:	7 November 1995
Ap~earances:	The Debtor appeared in person.

. .

Mr D M Bernie of counsel instructed by Coleman &

Greig appeared for the petitioning creditor.

Mr J Khera of Khera & Associates appeared for the supporting creditor.