Re Shoreline Currencies (Australia) Pty Ltd v. Ex parte Morrison, P. & Anor [1987] FCA 205

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE STATE OF

NEW SOUTH WALES AND THE

AUSTRALIAN CAPITAL TERRITORY

No. P.2085 of 1986

wee ww

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,

affidavit of Phillip Morrison,

February 1987.

one of the debtors,

It is accepted that adequate notice,

seeks to read an sworn 6

to comply

with rule 135 of the Bankruptcy Rules, was given trad; MFos

Morrison was required for cross~examination.

Sub-rule (2) of that rule provides:

"Where a notice under sub-rule (1) has béen-,

served on a party who filed an affidavit, shall

affidavit

unless the

not deponent

be

o3e7

oe we li

{

i}

uel

Vet AUSTRALIA PAUISIPAL REGISTRY the 7} used as evidence is produced for

cross-~examination before the Court or the

Court gives affidavit."

special

leave to

use the

wre 1987

24 FEDERA. COURT OF

I have been referred to a number of cases concerning comparable rules, and in particular to Re O'Neill [1972] 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 [1952] 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(1)(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