Morton, Jeffery Roy Charles v Mitchell Products Pty Ltd (formerly Truefeat Pty Ltd) [1995] FCA 912

LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) GENERAL DIVISION ) No. NP 898 of 1995 BANKRUPTCY DISTRICT ) OF THE STATE OF NEW SOUTH WALES RE: JEFFREY ROY CHARLES MORTON Applicant/Debtor EX PARTE: MITCHELL PRODUCTS PTY LIMITED (formerly TRUEFEAT PTY LIMITED) (ACN 053 664 010) Respondent/Creditor CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 2 NOVEMBER 1995 REASONS FOR JUDGMENT TAMBERLIN J In this matter the applicant Mitchell Products Pty Limited formerly known as Truefeat Pty Limited seeks an order that it be substituted as petitioning creditor in bankruptcy proceedings against Mr Morton who is the respondent to the application. At the hearing this morning, Mr Morton appeared in person by way of a video-link. Mr Morton sought an adjournment on medical grounds. He also stated that he was not in a position to proceed as he is heavily involved in other complex and time consuming litigation in this court and therefore has not had an opportunity to properly prepare his case. He says that resolution of the determination of the present application is inextricably tied to other complex legal proceedings which have consumed his time and a decision on this application should not be made in isolation. I have given careful consideration to the medical material shown to me and also to the detailed affidavit in the bankruptcy proceedings number QG100 of 1995 which Mr Morton asked me to read. In the course of submissions on the adjournment application, Mr Morton has raised a large number of questions and issues. Many of these matters may be raised and could bear on the hearing of the bankruptcy petition. I do not consider that there is any denial of procedural fairness to Mr Morton if the present application is proceeded with today. He has had a considerable period within which to prepare his evidence and formulate his case in opposition to the present substitution application. I note that he has had the difficulties of the type which I have already mentioned but nevertheless, I consider that the matter should proceed today and be determined in relation to this matter which is in fairly narrow compass and which, in my view, is discrete from the multitude of other matters in respect of which Mr Morton is engaged. I am satisfied that the application which was made on 26 July 1991, over four years ago, was served on Mr Morton and that the affidavits relied on by the applicant were served after the dates the bear with the exception of an affidavit filed today as to the present status of the outstanding debt. Mr Morton has filed in these proceedings three substantial affidavits pursuant to directions given by the court. These are the affidavits of 17 August 1995 of which there are two and the further affidavit of 28 September. Mr Morton has submitted that he should be entitled to rely in this application on a large number of other affidavits filed in other proceedings. Having regard to the directions which have been made in the past, I am not prepared to open up these proceedings to take in all the other material which Mr Morton wishes to raise before the court in relation to the application today. In my view, it is important in this matter to bear in mind precisely what is being sought on this application. It is as I have said, a matter which is not of a wide scope and the matters to be taken into account are set out in section 49 of the Bankruptcy Act. I do not accede to the application for an adjournment of the hearing of this application for substitution. In relation to the substantial application, I wish at the outset to refer to section 49 of the Bankruptcy Act which is in these terms. I will read it: " Where a creditor' petition is not prosecuted with due diligence ... " which is not this case ‑