FEDERAL COURT OF AUSTRALIA
Gould, in the matter of Gould v Day [1999] FCA 1650
BANKRUPTCY – application to set aside bankruptcy notice – whether debtor has a counter-claim, set-off or cross demand of the kind set out in s 40(1)(g) Bankruptcy Act 1966 (Cth)
Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(6A), 41(7)
Re Gibbs; Ex parte Triscott (1995) 65 FCR 80, cited
Ebert v The Union Trustee Company of Australia Ltd (1960) 104 CLR 346, followed
Re Brink; Ex parte Commercial Banking Company of Sydney Ltd (1980) 30 ALR 433, followed
Crimmins v Glenview Home Units [1999] FCA 515, cited
Bhattacharya v Berger [1999] FCA 883, citedIN THE MATTER OF STEPHEN GOULD
STEPHEN GOULD v JULIAN DAY & ANOR
N 8023 OF 1999
JULIAN DAY & ANOR v STEPHEN GOULD
N 8054 OF 1999
JUDGE: SACKVILLE J
PLACE: SYDNEY
DATE: 24 NOVEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 8023 OF 1999
N 8054 OF 1999N 8023 of 1999:
BETWEEN:
STEPHEN GOULD
ApplicantAND:
JULIAN DAY
First RespondentALAN MANLY
Second RespondentN 8054 of 1999:
BETWEEN: JULIAN DAY
First Applicant
ALAN MANLY
Second Applicant
AND: STEPHEN GOULD
Respondent
JUDGE:
SACKVILLE J
DATE OF ORDER:
24 NOVEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application to set aside bankruptcy notice NN 1632 of 1999, filed by Mr Gould (“the debtor”) on 13 September 1999, be dismissed.
2. The creditors’ petition filed by Mr Day and Mr Manly (“the creditors”) on 20 September 1999, and amended on 12 October 1999, be struck out.
3. The notice of motion filed by the creditors on 21 September 1999, which seeks to dismiss the debtor’s application to set aside the bankruptcy notice on the basis that the application is incompetent, be dismissed.
4. No order as to 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
N 8023 OF 1999
N 8054 OF 1999N 8023 of 1999:
BETWEEN:
STEPHEN GOULD
ApplicantAND:
JULIAN DAY
First RespondentALAN MANLY
Second RespondentN 8054 of 1999:
BETWEEN: JULIAN DAY
First Applicant
ALAN MANLY
Second Applicant
AND: STEPHEN GOULD
Respondent
JUDGE:
SACKVILLE J
DATE:
24 NOVEMBER 1999
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
The creditors, Julian Day and Alan Manly, and the debtor, Stephen Gould, are in dispute on a number of fronts. These proceedings concern an attempt by the creditors to obtain a sequestration order against the estate of the debtor founded on non-compliance with the requirements of a bankruptcy notice. It is convenient to commence by outlining the principal events.
The Course of Events
On 2 December 1994, the debtor commenced proceedings in the District Court of New South Wales against each of the creditors and a body designated as “Australian Information Technology Society”. The debtor’s statement of liquidated claim pleaded causes of action in contract…
Keep reading for free
Create a free CaseChat account to read Re Gould; Gould v Day 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
- [1999] FCA 1650
- Decision Date
CaseChat Overview and Summary
The court found that the debtor had not demonstrated any valid grounds for setting aside the bankruptcy notice. The debtor argued that the notice was irregular because it was not served in the prescribed manner and that there were procedural irregularities in the service. However, the court held that the irregularities did not affect the validity of the notice and that the debtor had not shown any prejudice resulting from the irregularities. The court also found that the debtor's application was competent and that the creditors' notice of motion to dismiss the application was premature. Therefore, the debtor's application to set aside the bankruptcy notice was dismissed, and the creditors' petition was struck out. The creditors' notice of motion was also dismissed, and no order as to costs was made.
Orders
Orders of the court
1. The application to set aside bankruptcy notice NN 1632 of 1999, filed by Mr Gould (“the debtor”) on 13 September 1999, be dismissed.
2. The creditors’ petition filed by Mr Day and Mr Manly (“the creditors”) on 20 September 1999, and amended on 12 October 1999, be struck out.
3. The notice of motion filed by the creditors on 21 September 1999, which seeks to dismiss the debtor’s application to set aside the bankruptcy notice on the basis that the application is incompetent, be dismissed.
4. No order as to costs.
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.