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 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 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 Mareva injunction granted, it seems to me that it is difficult to conclude other than that the deponent could have arranged to attend had he wished. There is no suggestion he has applied to 3. 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. Con Cabs Associate Dated: 26 March, 1987.