Maroevic, D.S. v Facy, R

[1987] FCA 441

I

C A T C H W O R D S

BANKRUPTCY - bankruptcy notice - alleged xistence of

counter-claim, set-off or cross	demand	-	vagueness	and
generality of material relied on.

Bankruptcy Act 1966, ss.4O(l)(g) and 41(7)

Daribor Stephan Maroevic

v. Ronald Facv

Qld G15 of 1987

FISHER, SPENDER & PINCUS JJ.

BRISBANE

19 AUGUST 1987

J

IN THE FEDERAL COURT OF AUSTRALIA	)
) QLD G15 of 1987
DUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	)

ON APPERL FROM THE

SUPREME COURT OF

PUEENSLAND

BFIWEEN: DARIBOR STEPHAN MAROEVIC

Appellant

AND: RONALD FACY

Respondent

MINUTES OF ORDER

JUDGES MAKING O R D E R : FISHER, SPENDER AND PINCUS JJ.

DATE OF ORDER:	19 AUGUST 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. The appeal be dismlssed.

2 . The appellant pay the respondent's costs of and

incidental to the appeal to be taxed.

m:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

9UEENSLAND DISTRICT	REGISTRY	)	QLD G15 of 1987
GENERAL DIVISION	)

B?ZCWEEN: DARIBOR STEPHAN MAROEVIC

Appellant

AND: RONALD FACY

Respondent

CORAM: FISHER, SPENDER & PINCUS JJ. 19 AUGUST 1987

REASONS FOR JUDGMENT

This 1s an appeal from the Supreme Court of Queensland

exerclslng ~urisdiction under the Bankruptcy Act. The appellant

challenges an order made by that Court on 4 February 1987 In

respect of a bankruptcy notice served on hlm. The	Court’s order
was as follows:-

“The Court 1s not satisfied that the Judgment Debtor

has a counter-claim, set-off or cross demand equal

to or exceeding the amount of the judgment debt,

being a counter-claim, set-off or cross demand that

the Judgment Debtor could not have set up in the

action in which the judgment was obtained.“

The bankruptcy notice was Issued on a judgment entered

against the appellant In the Magistrates Court of Queensland at

2 .

I .

Bowen in a sum of $5,007.46 by way of damages for personal

in juries.

Section 41(7) of the Bankruptcv Act reads as follows:

"Where, before the expiration of the time fixed for

compliance with the requirements of a bankruptcy

notice, the debtor has filed with the Registrar an

affidavit to the effect that he has such a

counter-claim, set-off or cross demand as 1 s

referred to in paragraph 40(l)(g), and the Court

has not, before the expiration of that time,

determined whether it is satlsf.ied that the debtor

has such a counter-claim, set-off or cross demand,

that time shall be deemed to have been extended,

immediately before its expiration, untll and

including the day on which the Court determines

whether it is so satisfied."

The appellant, who was unrepresented both here and In

the Supreme Court, relied before the learned primary judge on an

affldavit by hlmself dated 29 August 1986. There was no evldence

as to whether that affldavlt was filed I n the tlme prescribed by

s.41(7), but counsel for the respondent was content to argue the

matter on the basis that there had been compllance wlth the tlme

limit.

The expression "such a counter-claim, set-off or cross

demand as is referred to in paragraph 40(l)(g)" may by reference

to that paragraph be seen to mean -

'I... a counter-claim, set-off or cross demand equal

to or exceeding the amount of the judgment debt or

sum payable under the final order, as the case may

be, being a counter-claim, set-off or cross demand

that he could not have set up in the action or

proceeding in which the judgment or order	was
obtained".

5 .

By consent, an affidavit was read before us made by K . J .

Crowdey, a law clerk present at the hearing in the Supreme Court, from which it appears that the learned primary judge regarded the

question before him as being whether there was in truth any

counter-claim, set-off or cross demand. Although no reasons were

given, it seems safe to infer that his Honour decided the matter

on that basis, rather than on the ground that the appellant could

have set up the claim in question.

The latter point appears to be an arguable one,

dependent upon the construction of certain provisions of the

Maqistrates Court Act 1921-1982 (Q.), and rules made thereunder,

and the District Courts Act 1967-1985 (Q.). It seems to us,

however, that the first question to be considered 1s that which

the learned primary ~udge apparently dealt with, namely whether

there was a counter-claim, set-off or cross demand.

We have carefully studled the affldavlt of the appellant

which was before the learned primary ~udge, and do not thlnk it

necessary to set lts terms out In full. In	brief summary, the
effect of that affidavlt is as follows:

The allegatlons of the judgment creditor are said to be

incorrect, as is the judgment of the Magistrates Court. The

appellant believes himself to have been denied his rights and

justice from the beginning of the case. The appellant’s

property is said to have been damaged by one Doyle and

others, including the respondent, Doyle having engaged in

Illegal development work on land neighbouring that of the

4 .

appellant. Damage has been caused, it is said, to the

appellant, his family and his home; he has lost wages and

incurred legal expenses in a total of $33,850. He claims to

have been intimidated and iscrimmated against racially and

otherwise, and claims $500,000 under that head. He also

seeks an additional $20,000 for loss of property, $500,000 in

respect of damage to his health and contributlon to a

dividing fence in the sum of $100.

The respondent also relied on an affidavit which was

before the learned primary judge, suggesting that the appellant's

claim could perhaps be based on an allegation of personal in~ury

caused to him on 12 March 1983. That does not appear to be so.

From perusal of the papers and the appellant's address to us, it

seemed that his deslre is to have some appropriate authorlty

Investigate and compensate him for a number of wrongs he clams

have been done to him.

Counsel for the respondent drew our attention to the

discussion in Re Brlnk; Ex parte The Commercial Bankinq Company of

Svdnev Ltd. (1980) 44 F.L.R. 135 of what must be shown by a

judgment debtor to satisfy the requirements of s.41(7). In that

case Lockhart J. pointed to the variations in the way in whlch the

test has been expressed: it has been sald that it is enough if

there is a genuine claim, it is necessary to show a bona fide

claim, there must be reasonable ground for the claim and other

tests have been suggested. Since the point was argued on one side

only, it is undesirable that this Court express a concluded view

as to the appropriate test. Plainly, the learned primary judge

5.

was not satisfied that the counter-claim, set-off or cross demand

on which the appellant sought to rely before him had sufficient

substance. The onus was on the appellant to satisfy his Honour f

the matters there mentioned and he failed to do so. Before us,

again, it was for the appellant to show that his Honour was in

error in his conclusion. So far from being of that opinion, we

agree, with respect, with the result which was arrived at below. induced the requisite state of satisfaction.

In arriving at our conclusion, we have made allowance

for the fact that the appellant laboured under the disadvantages

of having no legal assistance and a less than perfect command of

written English. However benevolently one reads the material

relied on by the appellant, it is too vague and general to form a

foundation for a finding that the appellant has	a counter-clalm,
set-off or cross demand.

The appeal must be dismissed with costs.

I cer t l fy that th l s and the precedlng

four pages are a true copy of the

reasons for ~udgment hereln of the

Honourable Just lces Flsher, Spender

and Plncus.	“p_L
Assoclate

Dated: 19 August 1987

- + .