Re Myers, Melvyn Richard ex parte Commonwealth Bank of Australia

[1995] FCA 984

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA                 )
GENERAL DIVISION  )
BANKRUPTCY DISTRICT OF 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:

Dated:  22 November 1995

Heard:  7 November 1995

Place:  Sydney

Decision:  7 November 1995

Appearances:  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.