Re: Jonson; Ex Parte

[1994] FCA 242

ava 9r-

JUDGMENT No. ...,,-.J -,

NOT SUTTAl3T.F: FOR DISTRTRIITTON

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE STATE	) NN 3465 of 1993
OF NEW SOUTH WALES	)

RE :  KEITH MICHAEL JONSON

A Debtor

EX PARTE:  WESTPAC BANKING CORPORATION

A Creditor

CORAM: Burchett S.
PLACE: Sydney

DATE : 29 March 1994

REASONS FOR JUDGMENT

BURCHETT J.:

In this matter it has been fairly pointed out by counsel for the petitioning creditor that there are cases which do say that the court may exercise its discretion at this stage under a provision such as S. 41 subs. (6A) para. (a). However, I am of the view, and this without resort to subs. (6C) which is relied on in opposition to the present application, that this is not an appropriate case in which to exercise my discretion so as to grant any extension of the bankruptcy notice.

issue. On such an application, he would be able to rely upon

In my opinion the circumstances of this case are such as to require, as a proper exercise of discretion, that the debtor be left to his remedy of making an application for an adjournment of any creditor's petition which may ultimately

the principles set out in Ahern v. -Deputy Commissioner of Taxation (Old) (1987) 76 ALR 137 and in Adamopoulos v. Olympic Airwavs SA (1990) 95 ALR 525, and with the further lapse of time it may be that he will be in a position to show, as he cannot now show, just when his appeal to the Court of Appeal Division of the Supreme Court of New South Wales is likely to be dealt with.

It seems to me that even assuming, as I do assume for the purposes of this judgment, that he is able to overcome subs. (6C) in relation to the matter, the fact is that there has been a considerable period of delay slnce the judgment delivered at the end of the contested hearing, and the date of any appeal hearing is still quite uncertain. The sensible exercise of a discretion in a manner favourable to the debtor does, it seems to me, require that there be some knowledge of at least the approximate date of hearing of the appeal.

In all the circumstances, the debtor's application is dismissed, with costs.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour 1-k Justice Burchett.

Associate:

Date :

Counsel f o r t h e Debtor: Mr T. S tua r t

S o l i c i t o r s f o r t h e Debtor: Messrs James Dive & CO

Counsel f o r t h e Creditor:  M r S.A. Gregory

S o l i c i t o r s f o r t he	Creditor:	Messrs	Henry	Davis
York

Date of hearing: 2 9 March 1 9 9 4