Re Doneley, John Justin Ex Parte Australian Guarantee Corp Ltd

[1996] FCA 614

IN THE FEDERAL COURT OF AUSTRALIA     )
GENERAL DIVISION  )
   No. QN 506 of 1996
BANKRUPTCY DISTRICT OF THE             )
STATE OF QUEENSLAND  )

RE:JOHN JUSTIN DONELEY

EX PARTE:AUSTRALIAN GUARANTEE CORPORATION LIMITED

ACN 000 015 485

MINUTES OF ORDER

JUDGE MAKING ORDER:     Spender J

DATE OF ORDER:          15 July 1996

WHERE MADE:              Brisbane

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The debtor is to pay the costs of this application, including any reserved costs.

NOTE:     Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )
GENERAL DIVISION  )
   No. QN 506 of 1996
BANKRUPTCY DISTRICT OF THE             )
STATE OF QUEENSLAND  )

RE:JOHN JUSTIN DONELEY

EX PARTE:AUSTRALIAN GUARANTEE CORPORATION LIMITED

ACN 000 015 485

CORAM:    Spender J
DATE:     15 July 1996
PLACE:    Brisbane

REASONS FOR JUDGMENT

This is an application filed on 11 June 1996 seeking an order that the bankruptcy notice which is bankruptcy notice No 506 of 1996 be set aside on the grounds set out in the affidavit of John Justin Doneley sworn 7 June 1996 and the affidavit of Barry Edward Atkins sworn 7 June 1996. It appears that that bankruptcy notice was served on Mr Doneley on 14 May 1996 on his property at Beadie, St George.  On 11 June 1996, the application I have just referred to was filed, as were the affidavits of Mr Doneley and Mr Atkins.

When the application was called on for hearing today, there was no appearance by Mr Doneley or by Mr Atkins on his behalf, and I am told from the bar table that Mr Atkins had indicated that he would not be appearing on Mr Doneley's behalf today.  Notwithstanding that non-appearance and an earlier non-appearance, I have looked at the affidavit of Mr Doneley to see whether it is an affidavit of the kind

referred to in s 41(7) of the Bankruptcy Act 1966 ('the Act'). A careful reading of all the material filed on behalf of Mr Doneley satisfies me that Mr Doneley is not asserting a cross-claim of the kind referred to in s 41(7) and, therefore, I should indicate that I am not satisfied that the debtor has not filed an affidavit to the effect that he has a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g) of the Act.

It seems to me that the material there refers to details, matters particularly concerning the National Australia Bank and prospective litigation in that regard, as well as asserting that there is a possibility of the claim of AGC being able to be met with funds that are dependent on a number of matters referred to in Mr Doneley's affidavit. Those considerations are not relevant to the present application. In those circumstances the application filed on 11 June 1996 is dismissed and the court indicates that it is not satisfied that the affidavit filed by Mr Doneley on 11 June 1996 is an affidavit of the kind referred to in s 41(7) of the Act.

The debtor is to pay the costs, including reserved costs of this application.

I certify that this and the  preceding page are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate
  Date: 15 July 1996

No appearance for the debtor.  

Solicitors for the

petitioning creditor:      Clayton Utz

Date of Hearing:               15 July 1996