Re Aprile, T. v Ex parte Commonwealth Bank of Australia

[1994] FCA 912

912 q4

JUDGMENT NO. ........ ....m J u...r.r

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY	No NP 2430 of 1994
GENERAL DIVISION

RE :

THERESE APRILE

Debtor

RECEIVED	EX PARTE:
FUNRAL COURT CIF	COMMO-TH BANK OF AUSTRALIA

AUSTRALIA

PRINCIPAL REQISTRV

Creditor

C O W :	SACKVILLE J.
PLACE :	SYDNEY
DATE:	22 NOVEMBER 1994

REASONS FOR JUDGWENT

HIS HONOUR: This is a matter in which the debtor applies for

an adjournment of the creditor's petition. The matter was apparently before the Registrar on 18 November 1994, but has been referred to me to deal with the question of adjournment.

The petition is based upon failure to comply with a bankruptcy notice served on 15 July 1994. That notice required payment of the sum of $19,557.10, being the balance due under a judgment of the District Court obtained on 2 April 1992, together wlth interest thereon. As at 21 November 1994 the amount due was

$20,640.39.

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The application is made by Mr Sisinnl on behalf of the debtor. His application is that the matter should be adjourned until 6 February 1995. The basis of that application is essentially a letter dated 15 November 1994 from a company called Rothesay Investments Pty Limited. The letter is signed by R. M. Aprile. Mrs Aprile gave oral evidence and identified Mr Aprile as her son. Mr Aprile is a director of the company. In the letter Mr Aprile states that "we, [presumably meaning the company], intend to pay Mr and Mrs Aprile $A200,000". The reference to Australian dollars is apparently because the company, although incorporated in Australia, carries on business in Arkansas in the United States of America.

The letter goes on to say that "we will attempt to pay the amount as soon as possible, but no later than 31 January 1995." It also states that, at Mrs Aprile's direction, the sum of $20,000 is irrevocably directed toward payment of the abovementioned debt.

Mrs Aprile gave evidence in the box that she was owed certain money by Rothesay Investments Pty Limited. There is, however, no evidence whatsoever that Rothesay Investments Pty Limited is in a position to pay all or any of the sum of $20,000 referred to in the letter. No evidence has been adduced concerning the financial position of the company. Indeed, the letter itself does not assert that the moneys will be paid. It merely states that "we will attempt" to pay the amount as soon as possible, but not later than 31 January 1995. In her oral evidence, Mrs Aprile indicated that she had been told, presumably by her son, that

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there were difficulties in the company paying the sum

immediately.

The evidence adduced in the affidavit of Mr Savage, read by MS Stiel on behalf of the petitioning creditor, shows that there was at least one other arrangement entered into for payment of the moneys due to the petitioning creditor. That arrangement, which was to pay off the amount of a judgment debt due to the petitioning creditor, was not adhered to by the debtor. A further proposal put by the debtor in August 1994 was not accepted by the petitioning creditor. I do not think that the application for the adjournment can be advanced by the fact that the creditor chose not to accept that proposal. The creditor has of course expressed its opposition to the adjournment application.

A letter written by the debtor's solicitor, dated 17 November

1994, stated that the debtor would be unable to pay the debt by the next day, 18 November 1994, when the matter was next before the Court. The letter indicated that the debtor was endeavouring to borrow money from private sources and attached the letter from Rothesay Investments Pty Ltd, to which I have already referred. It is clear from the evidence that unless the debtor is able to obtain the funds from that company, she is very unlikely to be able to pay the debt due to the creditor. Indeed I did not understand Mr Sisinni to suggest otherwise.

The matter of an adjournment is in the discretion of the Court,

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although of course the discretion must be exercised judicially. If there were reasonably strong evidence that the debtor would be able to pay the outstanding debt within a relatively short time, that might be a good reason for an adjournment: compare & Erahame: Ex Darte White (1940) 11 ABC 141, at 144. Even then care must be taken not to overlook the fact that the object of the Bankru~tcv Act is to ensure the equal distribution of assets among creditors: Re Millican: Ex Darte Oueensland Trustees Ltd

(1932) 5 ABC 143. In my view the evidence before me is quite

inadequate to establish that the sum of $20,000 is likely to be paid to the debtor no later than 31 January 1995, or indeed at all. I do not think that in all the circumstances it is appropriate to grant an adjournment of the creditor's application, especially having regard to the unsatisfactory nature of the evidence as to the payment of the $20,000.

Accordingly, I reject the application for adjournment and I think the appropriate course is to refer the matter back to the Registrar to be dealt with on that basis and I so direct that the matter be referred today to the Registrar to be dealt with in accordance with my ruling.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated: 29 November, 1994

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Heard:	22 November, 1994
Placer	Sydney
Decision :	22 November, 1994
Appearances:	Mr A. Sisinni of Dominic A. Sisinni,
Solicitors, appeared for the creditor.
Miss Stiel of Abbott Tout Russell Kennedy, Solicitors, appeared for the petitioning creditor.