PETER CAMERON PAUL HALLIDAY
Ex parte: PETER CAMERON PAUL HALLIDAY and A.C.N. 003 075 394 PTY LTD
(formerly NINE NETWORK PTY LTD)
No. VN273 of 1993
FED No. 619
Number of pages - 12
Bankruptcy
(1993) 44 FCR 349
COURT
IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
GENERAL DIVISION
OLNEY J
CATCHWORDS
Bankruptcy - bankruptcy notice - claim by debtor to have counter claim, set-off or cross demand - whether counter-claim could be set up in proceedings in which judgment obtained.
Bankruptcy - bankruptcy notice - debtor subject to injunction in family Court proceedings - application to transfer proceedings to Family Court.
Bankruptcy Act, ss 35A, 40, 41
Judgment Debts Recovery Act 1984 (Vic), ss 5(8), 6(5), 6(7)
County Court Act 1958 (Vic), s 74
Judiciary Act 1903, s 77U
County Court Rules, Rule 63A.17(B), Order 21 (r 21.07)
Re Lentini (1991) 29 FCR 363
Gould : Ex parte Skinner and Smith (1983) 72 ALR 393
Schekeloff : Ex parte Schekeloff v The Hopkins Group Pty Ltd 22 FCR 407
Trade Practices Commission v Manfal Pty Ltd and others (1990) 27 FCR 284
HEARING
MELBOURNE, 4 and 5 August 1993
#DATE 30:8:1993
The applicant (debtor) appeared in person.
Counsel for the respondent: H W Fraser
Solicitors for the respondent: Hall and Wilcox
ORDER
THE COURT DETERMINES:
That it is not satisfied that debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(l)(g) of the Bankruptcy Act.
AND ORDERS THAT:
1. The debtor's application dated 23 March 1993 and his amended application dated 2 August 1993 be dismissed.
2. The debtor pay the creditor's costs of the application and amended application and any reserved costs and in the event that the debtor becomes bankrupt upon the petition of the respondent as a result of an act of bankruptcy constituted by failure to comply with the bankruptcy notice such costs be deemed to form part of the petitioner's costs of the petition.
3. Time to comply with bankruptcy notice be extended to 30 August 1993.
Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.
JUDGE1
OLNEY J The applicant debtor seeks orders that a bankruptcy notice issued by the respondent creditor be declared void or be set aside or alternatively that the time for compliance with the notice be extended. The debtor also seeks to have further proceedings in relation to the bankruptcy notice transferred to the Family Court of Australia.
THE ATTACK ON THE BANKRUPTCY NOTICE
(a) The statutory regime
2. A debtor commits an act of bankruptcy if a creditor who has obtained a final judgment or order, execution of which has not been stayed, serves a bankruptcy notice on the debtor and the debtor fails, within the time specified in the notice, to comply with the requirements of the notice or satisfies the Court that he has a counter-claim, set-off or cross demand equal to or exceeding the amount of…
Keep reading for free
Create a free CaseChat account to read Re Dingle; Westpac Banking Corporation v Worrell and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [1993] FCA 619
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the debtor had a valid counterclaim, set-off, or cross-demand that could be set up in the proceedings in which the judgment was obtained. This issue hinged on the interpretation of paragraph 40(l)(g) of the Bankruptcy Act, which governs the circumstances under which a debtor may contest a bankruptcy notice.
The court concluded that the debtor did not have a valid counterclaim, set-off, or cross-demand that could be set up in the proceedings. The court held that the debtor's claims were not relevant to the question of whether the debtor had failed to comply with the bankruptcy notice. Consequently, the court dismissed the debtor's application and ordered that the debtor pay the creditor's costs. The court also extended the time for the debtor to comply with the bankruptcy notice to 30 August 1993.
Orders
Orders of the court
THE COURT DETERMINES:
That it is not satisfied that debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(l)(g) of the Bankruptcy Act.
AND ORDERS THAT:
1. The debtor's application dated 23 March 1993 and his amended application dated 2 August 1993 be dismissed.
2. The debtor pay the creditor's costs of the application and amended application and any reserved costs and in the event that the debtor becomes bankrupt upon the petition of the respondent as a result of an act of bankruptcy constituted by failure to comply with the bankruptcy notice such costs be deemed to form part of the petitioner's costs of the petition.
3. Time to comply with bankruptcy notice be extended to 30 August 1993.
Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.