Re Jones, Paul Richard Ex Parte Commonwealth Bank of Australia

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
GENERAL DIVISION, BANKRUPTCY DISTRICT                )
OF THE STATE OF NEW SOUTH WALES  )         No. NN 3776 of 1995

RE:PAUL RICHARD JONES
Applicant/Debtor

EX PARTE:COMMONWEALTH BANK OF AUSTRALIA
Respondent/Creditor

CORAM:Lehane J
PLACE:Sydney
DATE:25 June 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: The application before me is one to review a decision of the Deputy Registrar made on 14 May 1996 dismissing an application to set aside a bankruptcy notice and apparently also, though it is not entirely clear from the material before me, refusing an application for an extension of time to comply with the bankruptcy notice.

The ground on which review is sought, and on which it is contended that I should exercise the jurisdiction of the Court to extend the time for compliance with the
bankruptcy notice, is that an appeal has been lodged against the judgment on which the bankruptcy notice is based; the debtor contends that I should not form the opinion that the appeal proceedings have not been instituted bona fide or that they are not being pursued with due diligence: see the Bankruptcy Act, 1966 para 41(6C)(b).

It is plain, I think, and well established that the Court will not grant an extension of time in circumstances where there is no material before it on which the relevant opinion can be formed. The only material before me today is evidence of the debtor and his solicitor explaining to some extent the difficulties which have arisen in the previous course of the proceedings leading to the appeal and the reasons why there is no material before me today as to the substance of the appeal or on the basis of which I could form any view as to its prospects of success. That being the case, the ordinary course would be, I believe, simply to refuse the application for review.

I suggested during argument that an alternative course might be to adjourn the application for a relatively short time to enable further material to be filed. That suggestion was, perhaps not surprisingly, embraced by the solicitor for the debtor. It was opposed, however, by the solicitor for the creditor on the ground that the application is before me today, the material in support is insufficient to justify a grant of extension of time for compliance and no substantial injustice would be caused to the debtor by the refusal of an extension: the same grounds on which the debtor now seeks an extension of time for compliance with the bankruptcy notice would be available by way of opposition on the hearing of the petition.

I think the creditor's contention must prevail. The material before me is, even allowing for the circumstances, in my view insufficient to justify a review of the Registrar's decision. Accordingly, the application for review is dismissed with costs.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:

Dated: 27 July 1996

Heard: 25 June 1996

Place: Sydney

Decision: 25 June 1996

Appearances:
Richard A Licardy & Co appeared for the applicant/debtor.
Abbott Tout appeared for the respondent/creditor.

CaseChat Overview and Summary

The Federal Court of Australia considered an application to review a decision of the Deputy Registrar in the case of Re Jones, Paul Richard Ex Parte Commonwealth Bank of Australia. The applicant, Paul Richard Jones, sought to set aside a bankruptcy notice issued by the Commonwealth Bank of Australia and an extension of time to comply with the notice. The case was heard by Justice Lehane in Sydney, with the matter being decided on 25 June 1996.

The primary legal issue before the Court was whether the Court should exercise its jurisdiction to extend the time for compliance with the bankruptcy notice. The applicant argued that an appeal had been lodged against the judgment on which the bankruptcy notice was based, and contended that the Court should not form the opinion that the appeal proceedings had not been instituted bona fide or were not being pursued with due diligence, as per the Bankruptcy Act 1966. The Court had to decide whether it was appropriate to grant an extension of time in the absence of material evidence regarding the appeal.

Justice Lehane noted that the Court would generally not grant an extension of time in circumstances where there was no material evidence before it to form the necessary opinion. In this case, the Court found that the available material was insufficient to justify a review of the Registrar's decision. The Court dismissed the application for review, finding that the creditor's contention that the material was insufficient to justify a grant of extension of time for compliance, and that no substantial injustice would be caused to the debtor by the refusal of an extension, should prevail. The Court also dismissed the application with costs.

This decision highlights the importance of providing sufficient evidence to the Court when seeking an extension of time in bankruptcy proceedings, and that the Court will not exercise its discretion to grant such an extension in the absence of adequate material.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established