Re Vijay Nath Ex parte Vijay Nath v Nationwide News Pty Ltd trading as Quest Community Newspapers

[1995] FCA 852

CATCHWORDS

BANKRUPTCY - application to set aside bankruptcy notice - counter-claim set off or cross demand - requirement to produce evidence - requirement of amount at least equal to the judgment debt - applicant unable to bring proceedings due to personal reasons

Bankruptcy Act 1966 s.41(g)

Ebert v The Union Trustee Company of Australia Limited (1960-61) 104 CLR 346 Refd

Re Vijay Nath Ex parte The Abovenamed v Nationwide News Pty Ltd trading as Quest Community Newspapers
No QN 1101 of 1995

Kiefel J  Brisbane 17 October 1995

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND  No. QN 1101 of 1995

RE:VIJAY NATH

EX PARTE:THE ABOVENAMED

Applicant

AND:NATIONWIDE NEWS PTY LTD trading as QUEST COMMUNITY NEWSPAPERS

Respondent

JUDGE MAKING ORDER:        Kiefel J.

DATE OF ORDER:  17 October 1995

WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND  No. QN 1101 of 1995

RE:VIJAY NATH

EX PARTE:THE ABOVENAMED

Applicant

AND:NATIONWIDE NEWS PTY LTD trading as QUEST COMMUNITY NEWSPAPERS

Respondent

CORAM:  Kiefel J.

DATE:  17 October 1995

PLACE:  Brisbane

REASONS FOR JUDGMENT

Mr Nath applies to set aside a bankruptcy notice served on him and which is based upon a judgment obtained against him in the Magistrates Court in Brisbane on 2 December 1994 for the sum of $6622.99.

Mr Nath says that he should not have to pay all of the sum claimed since the advertisements he was charged for were inaccurate and therefore not worth the amount of the charge, and further that not all of the orders for advertisements were authorised by him.  As to the latter ground, although Mr Nath is not required to now produce all admissible evidence upon which he would ultimately rely (see Ebert v The Union Trustee Company of Australia Limited (1960-61) 104 CLR 346), his affidavit contains only a mere assertion. To an extent, the same may be said of the firstmentioned ground which
might amount to a breach of contract if there was evidence as to what the contract was for and what advertisements had been ordered.

But assuming for the moment that the claims amount to a counter-claim set off or cross demand within the meaning of s.41(g) of the Bankruptcy Act 1966, there is nothing to suggest that they would be of an amount at least equal to the amount of the judgment debt and it is abundantly clear that they could have been brought in the Magistrates Court proceedings. In this respect, Mr Nath explained that he was unable because of personal reasons and not for reasons related to legal efficacy to bring the cross-claim. For these reasons the application must be dismissed.

There will be a further order that the applicant pay the respondent's costs of the application.

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

Associate

Date:17 October 1995

Applicant:In Person

Solicitors for the respondent:  M J Murray & Associates

Date of Hearing:  16 October 1995

Place of Hearing:  Brisbane

Date of Judgment:  17 October 1995