Re McDermott, L.C. v Ex parte Commonwealth Bank of Australia

[1994] FCA 850

8 ~ 0 9ct-

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

NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY	No NP 907 of 1994
GENERAL DIVISION

BETWEEN:

LLOYD CLIVE McDERMOTT

AND:

EX PARTE: COMMONWEALTH BANK

OF AUSTRALIA

CORAM:	SACKVILLE J.
!---------  RECEIVED
PLACE:	SYDNEY
B NnVEMRER 1004  W 16 NOV 1994
HIS HONOUR	This matter comes before me for the purpose of determining

in the ftrst Instance whether an adjournment of two weeks ought to be

granted. The application for the adjournmenl 1s made by Mr Pollack who

appears on behalf of the debtor Mr Courtenay appears on behalf of the

petltionrng creditor, the Commonwealth Bank of Australia, who resists the

application for adjournment There appears 10 be no dlspute as to the course

of events that the matter has taken. It appears that an order for substituted
service of the creditor's petltlon was made and complied w~th . The matter was

before the court on 29 August 1994 and wss adjourned untll 26 September

1994. On 26 September 1994 it was ad~ourned untll today's date. Both

adjournments were by way of consent of the parties.

The petit~on was based upon what 1s s a ~ d 10 be a flnal judgment recovered in

the Dlstrrct Court on 22 September 1993 in the sum of $57,280.29 plus interest.

The act of bankruptcy 1s s a ~ d to be the fallure on or before 31 January 1994 to

comply with the requirements of a bankruptcy notlce served on the debtor on

17 January 1994 or to satisfy the court that there was a counter c l am set off

or cross demand equal to or exceeding the sum specified in the bankruptcy

notlce	The evidence before the court indicates that on 26 September 1994 the
soliertors for the credltor wrote to the solic~tors	for the debtor noting that the
matter had been adjourned until today's date	The letter noted also an

agreement that $10,000 was to be pald by bank cheque by 4 pm on Frlday 30

September 1994. A further $15,000 was to be recelved by 4 pm on 1

November 1994. The letter went on to state that if those requirements were

complred with the creditor's petitlon would be dismissed on 8 November 1994.

On 7 November 1994 the debtor's sol~citors	wrote to the credrtor's solicitors.
In that letter the debtor's sol~citors	confirmed that the earlier letter of 26

September 1994 accurately reflected the agreement between the partres. The

letter went on to say that the debtor had Intended to provlde by the date of the

letters a bank cheque in the sum of $25,000

The letter goes on to say that the debtor had been ill over the last week or so
and enclosed a copy of a certlficate from Dr C;olda	Le~berman whlch set out
the condition. The letter states that by reason of that ~llness	the debtor has not

been able to make arrangements to provide the bank cheque but says that he

can do so if the petitlon 1s adjourned for a further 14 days. The letter asked for instructions to be obtained on thls issue Thc enclosed certlficate is dated

4 November 1994 and it states that the debtor, Mr McDermott, 1s In the

oplnion of the medrcal practltroner suffering from extreme stress, chest

infection and hypertension It says, "unfit 4 November 1994 and will be" -

and this is presumably intended to be "unfit until 18 November 1994"

No explanation has been provided by the debtor as to how the illness might

have affected the ability to pay under the agreement, assuming that such

illness might be a factor warranting a further adjournment. Indeed, the

medical certificate merely states that the debtor is unfit on 4 November 1994

and, if I have read it correctly, will be unfit u n t ~ l 18 November 1994. The

first payment under the agreement, referred to in the letter of 26 September

1994, was to be made on 30 September 1994, a date which of course predates

the illness in respect of which a certificate has been obtained. Even the letter from the debtor's solicitors of 7 November 1994 only refers to an illness over

the last week or so; that is, a period commencing on about the date the first

payment was meant to be made.

In any event, the fact of the matter is that i f it be relevant that there was an

agreement in place, the terms of the agreement have not been satlsfled. The

creditor's attitude indicates, agaln if i t be relevant, that the creditor is not

disposed to allow further time for the payment of the amounts that have been
agreed. The creditor wishes the matter to be determined	If the only basis

upon which the matter is to be adjourned is, as I understand it, that there
might be an opportunity to pay further moneys when the debtor regdlns his

health, that does not seem to me to be a matter that warrants the petition being

adjourned for a further two weeks. The debtor has not complied wlth the
arrangement and there 1s no lirrtlration that dny other arrangement is available.

It may be that there 1s a separate questlon as to whether the health of the

debtor warrants the petition being adjourned slmply because the debtor should

have the opportunrty of berng present before the court when the matter IS

dealt wlth. So far Mr Pollack has said nothlng about that Issue and I will give

him an opportunity to say something on it but insofar as the application 1s

based upon the need for further tlme to meet the requrrements of the

agreement, then I would reject the applrcatron for adjournment.

RECORDED : NOT TRANSCRIBED

HIS HONOUR. I do not think I would, on that basls, be disposed to grant an

adjournment because there is no indrcatlon and I understand your positlon that
the debtor would even wish to avarl himself of an opportunrty in that respect.

So, in the absence of some factual foundatron for an adjournment on an additional basrs, 1 am not disposed to grant that adjournment.

I certify that thrs and the preceding 3 pages are a true copy of the Reasons for Judgment of the

Honourable Justlce Sackville.

Dated 16 November, 1994

Heard.	8 November. 1994
Place.	Sydney
Decisron.	8 November. 1994
Appearances	Mr Pollack of Messrs P J. Pollack & CO, Sollcrtors, appeared for the debtor
Mr Courlney, rnstructed by Shaw McDonald, Solicrtors, appeared for the credltor