Myers v Commonwealth Bank of Australia [1995] FCA 1201

JUDGMENT No, sun22<eeull eneteuee

NOT FOR DISTRIBUTIO

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) BANKRUPTCY DISTRICT OF NEW SOUTH WALES ) No NB 2739 of 1995

RE: MELVYN RICHARD MYERS Debtor

EX PARTE: COMMONWEALTH BANK OF AUSTRALIA Creditor

CORAM: Lehane J PLACE: Sydney DATE: 7 November 1995

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J: In this matter the debtor seeks an adjournment of the hearing of the petition and a special fixture with a view, as deposed to in his affidavit, to calling evidence in support of his claim that substantially greater income would be available to him outside bankruptcy than within it, and with a view also to cross-examining the deponents of affidavits in support of the petition. Ordinarily one would be disposed to take a liberal view towards an application of this sort, particularly where it is made

by a debtor appearing in person.

In this case, however, I have come to the conclusion that I ought to exercise my discretion in favour of refusing the adjournment. My reasons are principally that

although the petition has been on foot for several months - it has been before the

court on I believe three occasions - the substantial opposition to the petition has been put by the debtor, and previously by counsel for the debtor, on a footing which as a matter of law is, as I think I may fairly describe it, clearly hopeless. It is plainly established by a course of decision in this court that the existence of an order of a local court for payment of a debt by instalments, and for a stay of execution meantime, if made after the issue and service of a bankruptcy notice does not deprive

that bankruptcy notice of effect.

I am forced to conclude, therefore, that if there were other material likely to be available in support of opposition to the petition, including opposition directed to its dismissal on discretionary grounds, the need to obtain that material must have been