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Massih v Esber

Massih v Esber

Case [2008] FCA 1452 24 September 2008

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FEDERAL COURT OF AUSTRALIA
Massih v Esber [2008] FCA 1452
BANKRUPTCY – application to set aside bankruptcy notice – need for Court to be “satisfied” – counter-claim, set-off or cross demand – could not have been set up as a matter of law in the action or proceeding in which judgment or order obtained – application allowed
Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(3)(b), 41(7)
Bankruptcy Regulations1996 (Cth), reg 4.02
Legal Profession Act2004 (NSW), s 368(1), (5)
Uniform Civil Procedure Rules 2005 (NSW), Part 36 r 10
Cassegrain v CTK Engineering [2008] NSWSC 457 cited
Chesson v Smith (1992) 35 FCR 594 considered
Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139 followed
Clark v UDC Finance Ltd [1985] 2 NZLR 636 followed
Dekkan v Evans [2008] FCA 1004 followed
Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 followed
Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308, 239 ALR 330 followed
Esber v Massih [2006] NSWSC 321 cited
Franks v Warringah Council [2003] FCA 1047, 131 FCR 287 followed
Guss v Johnstone [2000] HCA 26, 171 ALR 598 followed
In re A Bankruptcy Notice [1934] 1 Ch 431 considered
In re a Debtor [1914] 3 KB 726 followed
In re Judd, Ex parte Pike (1924) 24 SR (NSW) 537 followed
Lau v Accord Pacific Properties Pty Ltd [2003] FCA 795 followed
Muriniti v Lyons [2004] NSWSC 135 followed
Nath v Clipway Pty Ltd [1999] FCA 625 cited
O’Brien v Doherty [2008] NSWSC 205 cited
Pepper v McNiece (1941) 64 CLR 642 followed
Re Black; Ex parte Jeffery (1932) 4 ABC 157 followed
Re Brinks; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433, 44 FLR 135 followed
Re Brown, Ex parte Peisley Brothers (1892) 3 BC (NSW) 13 followed
Re Cox (1934) 7 ABC 98 followed
Re Deen, Ex parte Deen v Muller (1995) 58 FCR 441 followed
Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 followed
Re Gibbs; Ex parte Triscott (1995) 65 FCR 80, 133 ALR 718 followed
Re Glew; Glew v Harrowell [2003] FCA 373, 198 ALR 331 followed
Re Gould; Ex parte Skinner (1983) 72 FLR 393 considered
Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29 followed
Re Jocumsen (1929) 1 ABC 82 considered
Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129 followed
Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 followed
Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 followed
Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77 followed
Re Stokvis (1934) 7 ABC 53 followed
Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323 followed
Re Willats; Ex parte Nissan Finance Corp Ltd (1991) 31 FCR 206 followed
Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187, 178 ALR 694 followed
Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188, 107 FCR 144 followed
Ryan v Hansen

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Massih v Esber

Details

AGLC: Massih v Esber [2008] FCA 1452
Case: [2008] FCA 1452
Decision Date: 24 September 2008

CaseChat Overview and Summary

Massih v Esber [2008] FCA 1452 involved an application by Charles Massih to set aside a bankruptcy notice served by Marcel Esber. The Bankruptcy Notice was predicated upon a judgment debt which arose out of prior litigation between the parties in the Supreme Court of New South Wales. The Bankruptcy Notice was served on 11 February 2008. The Applicant filed his Application on 29 February 2008. The Applicant claimed that he had a "counter-claim, set-off or cross demand" as referred to in s 40(1)(g) of the Bankruptcy Act 1966 (Cth) which he "could not have set up in the action or proceeding in which the judgment or order was obtained" within the meaning of s 40(1)(g) of that Act. The Applicant sought an order setting aside the Bankruptcy Notice. Flick J found that the Applicant's claim, which was said to be a claim for losses incurred in respect of the development of a property located at Merrylands, was one which "could not have been set up" in the "action or proceeding" in which the judgment debt arose. The Bankruptcy Notice was set aside. Esber was ordered to pay Massih's costs.

Orders