Melbourne v Relativity Pty Ltd

FEDERAL COURT OF AUSTRALIA

Melbourne v Relativity Pty Ltd [1999] FCA 160

BANKRUPTCY - application to set aside a bankruptcy notice - judgment debt arose from a costs order of a prior proceeding - whether debtor able to demonstrate a counter claim, set-off or cross demand equal to or exceeding the amount of the judgment debt - whether failure of respondent creditor to pay all agreed monies gave rise to a breach of an earlier agreement between the parties - whether the respondent creditor had breached an implied term to cooperate as joint venturer - whether there existed a conspiracy aimed at injuring the debtor - whether respondent creditor committed a trespass to the debtor's property - whether trespass alleged could give rise to an action in tort for unliquidated damages capable of offsetting the judgment debt - question of ownership of the trespassed goods - whether debtor's affidavits demonstrated or quantified the damages arising from the alleged counter claim - whether counter claim had a reasonable prospect of success - consideration of the bona fides of the debtor's claim.

Bankruptcy Act 1966 (Cth) s 40(1)(g) & 41(7)

Ebert v The Union Trustee Co of Australia (1960) 104 CLR 346, foll.
Re Schmidt; Ex parte Angelwood Pty Ltd (1967) 13 FLR 111, cited
Re Phyllis Graves; Ex parte Phyllis Graves v Kevin Seggie [1997] FCA 1154, foll.
Re Bruce William Naghten and Irene Margaret Naghten; Bruce William Naghten and Irene Margaret Naghten v Commonwealth Bank of Australia [1998] FCA 635, foll.

LANCE MELBOURNE v RELATIVITY PTY LTD and MARK HENRY DE COURCY BINGHAM

NG 7250 OF 1998

MOORE J
26 FEBRUARY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7250 OF 1998

BETWEEN:

LANCE MELBOURNE
Applicant

AND:

RELATIVITY PTY LTD
First Respondent

MARK HENRY DE COURCY BINGHAM
Second Respondent

JUDGE:

MOORE J

DATE OF ORDER:

26 FEBRUARY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the respondents’ costs.

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 7250 OF 1998

BETWEEN:

LANCE MELBOURNE
Applicant

AND:

RELATIVITY PTY LTD
First Respondent

MARK HENRY DE COURCY BINGHAM
Second Respondent

JUDGE:	MOORE J
DATE:	26 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application by Mr Lance Melbourne (“the applicant”) to set aside a bankruptcy notice served on him on 16 February 1998.  The notice was served on behalf of Relativity Pty Ltd (“Relativity”) and Mr Mark Henry De Courcy Bingham and related to a judgment debt of $24,272.50 obtained in a Local Court on 7 January 1998.  The judgment concerned costs that had been ordered to be paid to Relativity and Mr Bingham by the applicant and Mr Craig Martin in proceedings in the Supreme Court of New South Wales.

   Background

2. The following is the background against which this application is made.…