Crimmins v Glenview Home Units

FEDERAL COURT OF AUSTRALIA

Crimmins v Glenview Home Units [1999] FCA 515

BANKRUPTCY – Bankruptcy Act 1966 (Cth) – application to set aside bankruptcy notice of on the basis of counter-claim, set-off or cross demand – significance of requirements of O 77 r 13 of the Federal Court Rules - whether affidavits accompanying application to set aside bankruptcy notice contain full details and of the counter-claim, set-off or cross demand - whether affidavits accompanying application to set aside bankruptcy notice contain the amount of the counter-claim, set-off or cross demand and the amount by which it exceeds the amount claimed in the bankruptcy notice

PRACTICE AND PROCEDURE – Federal Court Rules – applicability of Federal Court Rules in bankruptcy proceedings – requirement to comply with Rules where dispensation not sought

Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(7)
Federal Court Rules, O 77 r 13

Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433, cited
Re Donkin; Ex parte AGC Advances Ltd (1994) 125 ALR 293, cited
Ebert v The Union Trustee of Australia Ltd (1960) 104 CLR 346, cited

PATRICIA CRIMMINS v GLENVIEW HOME UNITS PTY LTD (ACN: 000-232-075)
No. NG 8398 of 1998

BRANSON J
SYDNEY
29 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8398 of 1998

IN THE MATTER OF PATRICIA LOUISE CRIMMINS

BETWEEN:

PATRICIA LOUISE CRIMMINS
A debtor

PATRICIA LOUISE CRIMMINS
Applicant

AND:

GLENVIEW HOME UNITS PTY LTD
(ACN: 000-232-075)
Respondent

JUDGE:

BRANSON J

DATE OF ORDER:

29 APRIL 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8398 of 1998

IN THE MATTER OF PATRICIA LOUISE CRIMMINS

BETWEEN:

PATRICIA LOUISE CRIMMINS
A debtor

PATRICIA LOUISE CRIMMINS
Applicant

AND:

GLENVIEW HOME UNITS PTY LTD
(ACN: 000-232-075)
Respondent

JUDGE:	BRANSON J
DATE:	29 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks to have set aside a bankruptcy notice (“the Notice”) served on her on 22 November 1998. The Notice claims that the applicant owes the respondent a debt of $19,129.45. The amount claimed by the Notice is based on a certificate of judgment issued in respect of the costs of a Supreme Court proceeding commenced by the applicant against the respondent and eight shareholders of the respondent. By that proceeding the applicant sought declaratory and other relief concerning the home unit building owned by the respondent in which the applicant lives. The applicant claims to have a counter-claim, set-off or cross demand of the kind referred to in s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Act”). Although a notice was given pursuant to s41(5) of the Act, the applicant chose not to pursue the issue of an alleged misstatement of the amount due to the creditor.

2. Section 40(1)(g) provides, so far as is here relevant, as…