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Re Dingle; Westpac Banking Corporation v Worrell

Re Dingle; Westpac Banking Corporation v Worrell

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Case Copied 30 August 1993 27 min read

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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…

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.

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Details

Case: [1993] FCA 619
Decision Date: 30 AUGUST 1993

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Dingle; Westpac Banking Corporation v Worrell concerned a dispute over a bankruptcy notice served by the Westpac Banking Corporation on the debtor, Worrell. The bank sought to have the debtor declared bankrupt following the debtor's failure to comply with the notice. The debtor, in turn, sought to contest the matter by raising a counterclaim, set-off, or cross-demand against the bank.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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