Re Jones, Paul Richard Ex Parte Commonwealth Bank of Australia [1996] FCA 673

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION, BANKRUPTCY DISTRICT ) OF THE STATE OF NEW SOUTH WALES ) No. NN 3776 of 1995 RE: PAUL RICHARD JONES Applicant/Debtor EX PARTE: COMMONWEALTH BANK OF AUSTRALIA Respondent/Creditor CORAM: Lehane J PLACE: Sydney DATE: 25 June 1996 EXTEMPORE REASONS FOR JUDGMENT LEHANE J: The application before me is one to review a decision of the Deputy Registrar made on 14 May 1996 dismissing an application to set aside a bankruptcy notice and apparently also, though it is not entirely clear from the material before me, refusing an application for an extension of time to comply with the bankruptcy notice. The ground on which review is sought, and on which it is contended that I should exercise the jurisdiction of the Court to extend the time for compliance with the bankruptcy notice, is that an appeal has been lodged against the judgment on which the bankruptcy notice is based; the debtor contends that I should not form the opinion that the appeal proceedings have not been instituted bona fide or that they are not being pursued with due diligence: see the Bankruptcy Act, 1966 para 41(6C)(b).

It is plain, I think, and well established that the Court will not grant an extension of time in circumstances where there is no material before it on which the relevant opinion can be formed. The only material before me today is evidence of the debtor and his solicitor explaining to some extent the difficulties which have arisen in the previous course of the proceedings leading to the appeal and the reasons why there is no material before me today as to the substance of the appeal or on the basis of which I could form any view as to its prospects of success. That being the case, the ordinary course would be, I believe, simply to refuse the application for review. I suggested during argument that an alternative course might be to adjourn the application for a relatively short time to enable further material to be filed. That suggestion was, perhaps not surprisingly, embraced by the solicitor for the debtor. It was opposed, however, by the solicitor for the creditor on the ground that the application is before me today, the material in support is insufficient to justify a grant of extension of time for compliance and no substantial injustice would be caused to the debtor by the refusal of an extension: the same grounds on which the debtor now seeks an extension of time for compliance with the bankruptcy notice would be available by way of opposition on the hearing of the petition.