Re Thomas, M.A. Ex parte Hong Kong and Shanghai Banking Corporation

[1992] FCA 369

3L9 92

JUDGMENT No. ...,.,... I ........ ....

IN THE FEDERAL COURT )

OF AUSTRALIA	1
GENERAL DIVISION	1
BANKRUPTCY DISTRICT	)
O F THE STATE OF
WESTERN AUSTRALIA	) No. P505 of 1992

RE: MARTIN ALLEN THOMAS

Debtor

EX PARTE: THE HONG KONG
AND SHANGHAI BANKING

CORPORATION

Creditor

CORAM:  FRENCH J.

21 May 1992

EX TEMPORE REASONS FOR JUDGMENT

ON APPLICATION TO ADJOURN CREDlTORS PETITION

I have come to the vlew that I should not grant the adjo~rninent. I

have regard in reaching that conclusion to a number of matters. An important factor

IS that the proposal which it is sought to put before the creditors tomorrow would

REOIETRV

~nvolve the payment of an amount which, on any view of Mr Thomas' total indebtedness, whether his company, Deakln's, debt is taken into account or not, could
hardly be said to constitute a comil~ercial benefit to the creditors. And there 1s

nothing to suggest that such lnvestigatlve processes as illay be available to creditors in the way of questioning Mr Thonlas tomorrow is going to yield a full plcture upon which they could make a properly informed dec~s~on.

09 JUN 1992
FEDERAL COURT OF

AUSTRAUA PRINCIPAL

I do not propose to explore the details of the various matters ralsed by

the petitioner 111 opposition to the adjournment beyond saying that I think there are a number of aspects of the arrangements that Mr Thomas has made that whilst they may be perfectly proper in every respect may nevertheless bear further investigation. I have regard to some of the trust arrangements, the fact that certain somewhat

lnexplicable allotments of shares have been made and the fact that there is currently a

slgnlficant debt which arises froin his commercial activ~tles payable to his trustee company, Martln Thomas Nominees. in 1993, m respect of a trust of whlch he 1s not a beneficiary.

All these matters ralse questions. I do not purport to answer them but I

do think they are of a lund that could not adequately be addressed by the facility of

the creditors' meeting. Now, ~t 1s put in opposition to that approach that it was really for the petitlonlng creditor to cross-examine Mr Thoinas on hls affidavit and to elicit

from him either explanations or lack of explanatlon of the varlous matters referred to.

In my view, however, that approach misplaces the onus. The debtor here 1s seelang

ready to go to hearing. It is the debtor's task to persuade the court that it is in the	an adjournment in the face of a petltlon whlch is apparently properly brought and
Interests of the creditors and 111 the public interest that there should be an
adjournment. It is plain that the authorltles to which reference has been made by counsel on both sldes, do not confer any right on a debtor to an adjournment of a creditor's petltlon by reason of the calling of a creditors' meeting. There is no presumption in favour of such an approach. The onus as I have said, lies upon the debtor to justify it. In thls case, I am not satisfied that he has justifled the application to adjourn the matter and I wlll proceed to hear and deal wlth the petition.

I certify that this and the preceding two (2) pages are a true copy

of the Ex Teinpore Reasons ior Judgment ot his Honour Justice French.

Date:  i v c y Iqqz

Counsel for the Petitioning Credltor: Mrs K. Banks-Smith

Solicitors for the Pet~tion~ng Credltor: Parker and Parker

Counsel for the Supporting Creditor: Mr J. Muller

Solicitors for the Supporting Credltor: Mullers

Counsel for the Debtor: Mr L. Chr~stensen

Solicitors for the Debtor: Phillips Fox

Date of Hearing: 21 May 1992

Date of Judgment: 21 May 1992