Re Gould; Gould v Day

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, cited

IN 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 1999

N 8023 of 1999:

BETWEEN:

STEPHEN GOULD
Applicant

AND:

JULIAN DAY
First Respondent

ALAN MANLY
Second Respondent

N 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 1999

N 8023 of 1999:

BETWEEN:

STEPHEN GOULD
Applicant

AND:

JULIAN DAY
First Respondent

ALAN MANLY
Second Respondent

N 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

1. 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

2. 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…