Re O'Connor, P.J. v Ex parte O'Connor, P.J.

[1994] FCA 755

7ss 99

JUDGMENT No. ......,...,. , , J , . ,

IN THE FEDERAL COURT OF AUSTRALIA )

NWKRUPTCY DISTRICT OF THE STATE )	No. NN 182 of 1994
QF NEW SOUTH WALES	1

Re:  PATRICK JOSEPH O'CONNOR

Debtor

EX parte:  PATRICK JOSEPH O'CONNOR

Applicant

RECEIVED And :

LIMITED MIDLAlJD MONTAGU AUSTRALIA
Respondent Creditor

FE- COURT OF

PRINCIPAL REGISTRY

REASONS FOR JUDGMENT

EINFELD J SYDNEY 19 JULY 1994

The debtor applies for the settmg as~de of a bankruptcy notice, amended on 3 June 1994, on the ground that the debtor has a counter-claim which w ~ l l exceed the amount of the judgment debt obtained in the Commercial Division of the Supreme Court of New South Wales on 18 November 1993 for just over $3,225,000. It is now larger as a result of interest. Following upon the judgment, the judgment creditor went into possession of a country property of the debtor pursuant to an order of Smart J in the Supreme Court. That order has been appealed and is expected to be heard In the Court of Appeal in something of the order of 15 to 18 months. In an affidavit supporting an extension of time for compliance with the bankruptcy notice until the determination of

the appeal, the debtor said that if he is successful in the appeal, he will be unable to obtain back the property because it

has since been sold, but that he will be able to sue the judgment creditor for damages. He says that the damages will exceed the amount of the judgment debt.

There is absolutely no evidence to support or corroborate that assertion and, in fact, on the little information I do have, it seems quite unlikely to be the case. In any event, this is far from sufficient to have the bankruptcy notlce set aside. The debtor does not seek today an extension of time for compliance with the bankruptcy notice but the setting aside of the bankruptcy notice. He produces not the slightest evidence to suggest that his supposed counter-claim has any real chance of success, including anything to suggest that he would be likely to win the appeal against the judgment of Smart J.

This is all speculation of the highest order. The application is dismissed with costs.

--..

h