Barnes, R.J. v Fitz-Alan, J

[1988] FCA 623

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

DIVISION GENERAL 1

BANKRUPTCY DISTRICT OF THE STATE

OF NEW SOUTH WALES AND THE 1 NO. B 370 Of 1988

AUSTRALIAN	CAPITAL	TERRITORY	1
RE:  ROBERT JOHN BARNES, I .
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ROBERT JOHN BARNES

Debtor

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-V- , -

JOAN ANN FITZ-ALAN

Creditor

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This matter has come before the court upon an affidavit

filed by the debtor, In response to a bankruptcy notice, which is

headed “Affidavit Under Section 41(7)“. What was initially

sought was a declaration pursuant to the combined operation of

s.4O(l)(g) and s.41(7).

received notice of the proceedings for assessment of damages

When the affidavits had been read, however, counsel for

the debtor informed me that the affidavit could not be supported

as raising a counter-claim, set off or cross demand within the

meaning of those provisions - either as being such a

counter-claim, set off or cross demand as they provide for, or at

all - but that the debtor would press for an order setting aside
the bankruptcy notice on the basis that he claimed he had not

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which gave rise to the ]udgment on which it was based. I am

completely satisfied that it is unarguably clear that the

provisions of s.41(7) have no application at all in this case,

and accordingly the bankruptcy notice was not extended. It

follows that it did expire without compliance, and an act of	. ,
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bankruptcy was committed.

However, the proceedings in relation to the affidavit

filed on behalf of the debtor have proved unfortunately

protracted, with the result that the petitloning creditor would

now be out of time to petition in respect of that act of

bankruptcy. I think the appropriate course, th in

circumstances, is for me to declare that the affidavit filed	29
March 1988 of Robert John Barnes, sworn	25 March 1988, is not an
affidavit complying with the terms of	s.41(7), and that the time

for compliance with the bankruptcy notice was not extended by its

filing. I so declare.

In all the circumstances, I think it a proper exercise

of my discretion to order that the debtor, who has brought the

creditor here to meet a claim that he complied with s.41(7), do

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pay the creditor's costs, and	I make that order also.
I certify that this and the
preceding page are	a true copy

of the Reasons for Judgment

herein of his Honour Mr.

.Justice Burchett.

, i

I

Associate . .'

Dated: 25 October, 1988. I