FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARINA v O'SHANNASSY | [2020] FCCA 1625 |
| Catchwords: BANKRUPTCY – Determination of question whether the time for complying with the requirements of a bankruptcy notice should be extended to the time there is determined the counter-claim, set-off, or cross demand the debtor claims he has against the creditor and on which he relies as a ground for applying to set aside a bankruptcy notice – whether debtor has complied with the requirements for making an application to set aside a bankruptcy notice on the ground that the debtor has a counter-claim, set-off, or cross demand that exceeds the judgment debt so as to have engaged s.41(7) of the Bankruptcy Act 1966 (Cth) (Act) – debtor has not complied –– extension of time to be granted in aid of other grounds on which debtor relies for setting aside bankruptcy notice. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.27(1), 30(1)(b), 40(1)(g), 41(6A), 41(7) Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r.3.02(3) |
| Cases cited: Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449 Ex p Ruffle; In re Dummelow (1873) LR 8 Ch App 997 Glew v Harrowell, in the matter of Glew [2003] FCA 373 Guss v Johnstone [2000] HCA 26 Olivieri v Stafford (1989) 24 FCR 413 Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd [1980] FCA 78; (1980) 44 FLR 135 Re Sterling, Ex parte Esanda Ltd [1980] FCA 61; 44 FLR 125 Jagatramka v Coeclerici Asia (PTE) Limited (No.2) [2015] FCCA 2743 |
| Applicant: | CLINTON SARINA |
| Respondent: | JOHN O'SHANNASSY |
| File Number: | SYG 1345 of 2020 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 June 2020 |
| Date of Last Submission: | 12 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Bolger, by video |
| Solicitors for the Applicant: | Kalantzis Lawyers |
| Respondent in person, by video |
ORDERS
The question whether the time for compliance with the requirements of bankruptcy notice BN249223 served on the applicant either on 9 or 11 March 2020 be extended up to and including the day Judge Manousaridis gives judgment in matter number SYG1339/2018 is answered in the negative.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1345 of 2020
| CLINTON SARINA |
Applicant
And
| JOHN O'SHANNASSY |
Respondent
REASONS FOR JUDGMENT
Introduction
In these reasons for judgment I consider whether the time for compliance with the requirements of bankruptcy notice BN249223 the respondent, Mr O’Shannassy, served on the applicant, Mr Sarina, should be extended up to and including the day on which I give judgment in a proceeding (Proceeding) that is pending before me in which Mr Sarina claims Mr O’Shannassy defamed him (Defamation Claim).
Background
The bankruptcy notice, which was…
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- Case
- [2020] FCCA 1625
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether Mr Sarina had complied with the requirements for making an application to set aside a bankruptcy notice on the ground that he possessed a counter-claim, set-off, or cross demand exceeding the judgment debt, as contemplated by s.41(7) of the *Bankruptcy Act*. Additionally, the Court was required to determine whether to grant an extension of time for compliance with the bankruptcy notice, in aid of other grounds relied upon by Mr Sarina for setting aside the notice.
The Court found that Mr Sarina had not complied with the specific requirements for establishing a counter-claim, set-off, or cross demand under s.41(7) of the *Bankruptcy Act*. However, the Court acknowledged its jurisdiction in bankruptcy, derived from s.27(1) and s.30(1)(b) of the Act, to make necessary orders, including setting aside a bankruptcy notice. Furthermore, the Court possessed the power under s.41(6A) of the Act to extend the time for compliance with a bankruptcy notice, provided an application to set aside had been made within the prescribed period. This power to extend time was considered to carry with it the power to set aside the notice itself.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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