JUDGMENT No. oun Oal th. NOT F DISTRIBUTI FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NP 907 of 1994 GENERAL DIVISION BETWEEN: LLOYD CLIVE McDERMOTT AND: EX PARTE: COMMONWEALTH BANK OF AUSTRALIA CORAM: SACKVILLE J. RECEIVED PLACE: SYDNEY DATE: 8 NOVEMBER 1994 16 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REASONS FOR JUDGMENT REGISTRY HIS HONOUR: This matter comes before me for the purpose of determining in the first instance whether an adjournment of two weeks ought to be granted. The application for the adjournment is made by Mr Pollack who appears on behalf of the debtor Mr Courtenay appears on behalf of the petitioning creditor, the Commonwealth Bank of Australia, who resists the application for adjournment There appears to be no dispute as to the course of events that the matter has taken, It appears that an order for substituted service of the creditor's petition was made and complied with. The matter was before the court on 29 August 1994 and was adjourned until 26 September 1994, On 26 September 1994 it was adjourned until today's date. Both adjournments were by way of consent of the parties. The petition was based upon what 1s sard to be a final judgment recovered in the District Court on 22 September 1993 in the sum of $57,280.29 plus interest. The act of bankruptcy 1s sard to be the failure on or before 31 January 1994 to comply with the requirements of a bankruptcy notice served on the debtor on 17 January 1994 or to satisfy the court that there was a counter claim set off or cross demand equal to or exceeding the sum specified in the bankruptcy notice The evidence before the court indicates that on 26 September 1994 the solicitors for the creditor wrote to the solicitors for the debtor noting that the matter had been adjourned until today's date The letter noted also an agreement that $10,000 was to be paid by bank cheque by 4 pm on Friday 30 September 1994. A further $15,000 was to be received by 4 pm on 1 November 1994. The letter went on to state that if those requirements were comphed with the creditor's petition would be dismissed on 8 November 1994, On 7 November 1994 the debtor's solicitors wrote to the creditor's solicitors. In that letter the debtor's solicitors confirmed that the earlier letter of 26 September 1994 accurately reflected the agreement between the parties. The letter went on to say that the debtor had intended to provide by the date of the letters a bank cheque in the sum of $25,000 The letter goes on to say that the debtor had been ill over the last week or so and enclosed a copy of a certificate from Dr Golda Leiberman which set out the condition. The letter states that by reason of that illness the debtor has not been able to make arrangements to provide the bank cheque but says that he can do so rf the petition 1s adjourned for a further 14 days. The letter asked for instructions to be obtained on this issue The enclosed certificate is dated 4 November 1994 and it states that the debtor, Mr McDermott, 1s 1n the opinion of the medical practitioner suffering from extreme stress, chest infection and hypertension It says, "unfit 4 November 1994 and will be" - and this is presumably intended to be "unfit until 18 November 1994" No explanation has been provided by the debtor as to how the illness might have affected the ability to pay under the agreement, assuming that such illness might be a factor warranting a further adjournment. Indeed, the medical certificate merely states that the debtor 1s unfit on 4 November 1994 and, 1f I have read it correctly, will be unfit untsl] 18 November 1994. The first payment under the agreement, referred to in the letter of 26 September 1994, was to be made on 30 September 1994, a date which of course predates the illness in respect of which a certificate has been obtained. Even the letter from the debtor's solicitors of 7 November 1994 only refers to an tllness over the last week or so; that 1s, a period commencing on about the date the first payment was meant to be made. In any event, the fact of the matter 1s that if it be relevant that there was an agreement in place, the terms of the agreement have not been satisfied. The creditor's attitude indicates, again if it be relevant, that the creditor 1s not disposed to allow further time for the payment of the amounts that have been agreed. The creditor wishes the matter to be determined If the only basis upon which the matter 1s to be adjourned 1s, as I understand it, that there might be an opportunity to pay further moneys when the debtor regains his health, that does not seem to me to be a matter that warrants the petition being adjourned for a further two weeks. The debtor has not complied with the arrangement and there 1s no 1adication that any other arrangement is available. It may be that there 1s a separate question as to whether the health of the debtor warrants the petition being adjourned simply because the debtor should have the opportunity of being present before the court when the matter 1s dealt with. So far Mr Pollack has said nothing about that issue and I will give him an opportunity to say something on it but insofar as the application 1s based upon the need for further time to meet the requirements of the agreement, then I would reject the application for adjournment. RECORDED : NOT TRANSCRIBED HIS HONOUR: I do not think I would, on that basis, be disposed to grant an adjournment because there is no indication and I understand your position that the debtor would even wish to avail himself of an opportunity in that respect. So, in the absence of some factual foundation for an adjournment on an additional basis, | am not disposed to grant that adjournment. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: k Je. fot Dated: 16 November, 1994 Heard. 8 November, 1994 Place: Sydney Deciston: 8 November, 1994 Appearances Mr Pollack of Messrs P J. Pollack & Co, Solicitors, appeared for the debtor Mr Courtney, instructed by Shaw McDonald, Solicitors, appeared for the creditor