Re: Dwyer

[1990] FCA 845

JUDGMENT No. .,..%'f;~.uu,l,&

:  IN THE FEDERAL COURT OF AUSTRALIA )

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SOUTH AUSTRALIA DISTRICT REGISTRY )

)

GENERAL DIVISION	)	No. 1103 of 1989
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PTCY DISTRICT OF THE STATE.	) )
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Re: PETER MACDONALD DWYER and

SANDRA JOAN DWYER

Debtors

- and -

Ex Parte:

IRODNEY IVAN ARTHUR,
ANTHONY RICHARD O'GRADY,
COASTAL AND RIVER MARINE
:PTY LTD and CITY MAZDA

PTY LIMITED

Creditors

REASONS FOR JUDGMENT

On 23 November 1989 the creditors served the bankruptcy notice in this matter on the judgment debtors, Mr Dwyer and Mrs Dwyer. They are judgment debtors by force of an order for costs that was made against them in this Court in action number SG7 of 1986, those costs having since been taxed.

to determine whether the Court is satisfied that

On 5 December 1989 Mr and Mrs Dwyer filed a joint affidavit to the effect that they had a counter-claim, set-off or cross demand which exceeded the amount of the judgment debt. The present hearing has been listed by direction of the registrar

counter-claim, set-off or cross demand. If there were that

would defeat, effectively, the bankruptcy notice.

I have regard to the original affidavit in opposition filed by Mr and Mrs Dwyer, together with the further affidavits filed on 2 February 1990 and 2 April 1990. I also have some knowledge of the file SG7 of 1986, as I heard a number of

in those proceedings.

In my opinion, Mr and Mrs Dwyer have two hurdles which they are unable to overcome in their endeavour to set up a counter-claim, et cetera, against the judgment creditors.

The first is that the creditors comprise two individuals and two companies. The companies are Coastal and River Marine Pty Ltd and City Mazda Pty Limited - referred to in these proceedings as City Mazda but elsewhere it is identified as a

Those two companies may be associated. I am

prepared, for the purposes of this exercise, to extend the benefit of any doubt to the debtors, and assume that the companies are associated in such a way that a counter-claim against one should be treated as a counter-claim against both.

bn the other hand, the two individuals, Mr Arthur and Mr O'Grady, are, at law, separate legal personalities. That is so even though they are, so it is alleged at least, directors of each of the companies. The order for costs made in the other Proceedings was in favour of each of the judgment creditors. So each of them, including the two individuals in their own right,

relates, in essence, to proceedings which are on foot in the Supreme Court of South Australia. For a time, the Supreme Court Proceedings ran in parallel with the action in this Court. 1n the Supreme Court proceedings, the plaintiff named is only Mrs Dwyer, and the defendant named is only Coastal and River Marine pty Ltd. That claim is for the balance of moneys due under a contract for the sale and purchase of land.

I shall assume for the purpose of the exercise that Mrs Dwyer has, at least prima facie, a claim as alleged in the supreme Court proceedings which is effective as a counter-claim against both the companies. In saying that, I am not intending to pass a view at all on the merits of the case. I merely assume that for the purposes of indicating why I consider the present application cannot succeed. Even making that assumption Mrs Dwyer would have no counter-claim, et cetera against either Mr Arthur or Mr OIGrady, each of whom is entitled to proceed now to enforce his judgment, and to do so by the issue of a

bankruptcy notice.

The other difficulty, which faces Mr Dwyer, is that he was not a party to the contract of sale and purchase for the land, nor is he a plaintiff in the Supreme Court proceedings. Even if it is accepted that the Supreme Court proceedings will Succeed, those proceedings would not give him any counter-claim,

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set-~ff, or cross demand against any of the judgment creditors.

In an affidavit filed today, Mr Dwyer has advanced an argument that he has a cause of action against the judgment creditors because under the arrangements that he had with his wife in relation to the houseboats he would have benefited from the balance of the moneys due under the contract of sale and purchase and that he was deprived of that benefit by the unlawful activities and conspiracy of the four judgment creditors which kept his wife out of that money.

As I endeavoured to explain in argument, even if the substance of those allegations could be made out, it would follow only that Mrs Dwyer had a claim against the company (or possibly against both companies) for the balance of the money. The loss alleged by Mr Dwyer would be too remote in law to enable him to sustain an action in his own right. So it is inevitable that I must hold that he has no counter-claim, et cetera, based on the Supreme Court proceedings against any one of the judgment creditors.

For those reasons I must come to the conclusion that the debtors is not sufficient for me to be satisfied that they have a	information that has been put before the Court by the judgment
counter-claim , set-off or cross demand which can be set up to defeat the bankruptcy notice
The formal order is that the Court declares that it is not satisfied that the judgment debtors or either of them have a

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counter-claim, set-off or cross demand which equals or exceeds

the value of the judgment debt of the judgment creditors. ! l

I order that the judgment debtors pay the costs of the

judgment creditors on this application.

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I certify that this and	l
the 4- preceding pages are a true copy of the Reasons for Judgment of Mr Justice von Doussa.
Associate:

The judgment debtors	In person
Counsel for the judgment
Mr F.M. Bell
Johnsons !

Date of hearing .- 2 April 1990

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