Re Shoreline Currencies (Australia) Pty Ltd v Ex parte Morrison, P.

[1987] FCA 205

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	1

BANKRUPTCY DISTRICT OF THE STATE OF 1 No. P.2085 of 1986

NEW SOUTH WALES AND THE	)
AUSTRALIAN CAPITAL TERRITORY	)
- RE :

PHILLIP MORRISON and

ELIZABETH MORRISON

Debtors

EX PARTE:

SHORELINE CURRENCIES

(AUSTRALIA) PTY

LIMITED (IN

LIQUIDATION)

Creditor

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

Mr. Gullotta, appearing for the debtor, seeks to read an

affidavit of Phillip Morrison, one of the debtors, sworn 6

February 1987. It is accepted that adequate notice, to comply

with rule 135 of the Bankruptcy Rules, was given

Morrison was required for cross-examination.

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Sub-rule ( 2 ) of that rule provides:

! C FEDERA'. COURT

"Where a notice under sub-rule (1) has affidavit. "

served on a party who filed an affidavit,

affidavit shall not be used as evidence

unless the deponent is produced for

cross-examination before the Court or the

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I 2.

i I have been referred to a number of cases concerning

i comparable rules, and in particular to Re O'Neill [l9721 V.R. 327

at 333; Re a Debtor (1979) 1 All E.R. 434 at 439; Re a Debtor

(1980) Ch. 565 at 570; Re Constantine (1947) S.A.S.R. 415 at 424

to 425; The Parisian (1887) 13 P.D.	16; and Re Lucas [l9521 1 All
E.R. 102.

I have, by consent of both parties, looked at the

affidavit to see if anything arises from its contents bearing on the application of the rule. The only matter that clearly does arise from its contents is that it fails to comply with rule

132(l)(b), that is to say it does not state the address and

occupation of the deponent. However, the witness is shown as a

notary public at London, England, and his address is indicated as

3 Albermarhl Street, London. I instanced in argument the

possibility that the contents of an affidavit might, on the face

of them, reveal a powerful reason why the deponent could not

attend within the jurisdiction, which might be relevant to the

exercise of the Court's power to give special leave. That does

not apply on the face of the material in this affidavit.

Having regard to the sums of money which the evidence

thus far put before me shows the deponent has been able to conclude other than that the deponent could have arranged to

dispose of, and the circumstances of modern travel, though the

former factor has to be considered in the light of the fact that

a receiver has been appointed and in England there has been a

attend had he wished. There is no suggestion he has applled to

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obtain any variation of the requirements of the Mareva order to

realize any funds for the purpose of attending. In all the

circumstances, I think the proper ruling under rule 135 is that I

will not receive the affidavit.

I certify that this and the

preceding two ( 2 ) pages are a true copy of the Reasons for Judgment herein of his Honour

Mr. Justice Burchett.

1

I C2L2 &' Associate

Dated: 26 March, 1987. v

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