McLaughlin, Re W.H. Ex Parte Tooth & Co. Ltd [1986] FCA 210

McLaughlin, Re W.H. Ex Parte Tooth & Co. Ltd [1986] FCA 210

The debtor's affidavit under s.41(7) does not satisfy the requirement to properly disclose a quantified counter-claim, set-off or cross demand under s.40(1)(g) capable of meeting or exceeding the judgment debt, nor is there sufficient evidence that the Industrial Commission proceedings are likely to result in a monetary award; therefore, the application must be dismissed.

Parties
Debtor: William Henry McLaughlin; Judgment Creditor: Tooth & Co. Ltd
Jurisdiction
Australia
Judgment Date
30 May 1986
Procedural Posture
Bankruptcy / Application Under S.41(7) of the Bankruptcy Act 1966
Outcome
Application dismissed
Legal Topics
Affidavit Under S.41(7) Bankruptcy Act, Counter Claim, Set Off or Cross Demand Under S.40(1)(g), Effect of Industrial Commission Proceedings on Bankruptcy, Quantification of Claims for Set Off
Bankruptcy Affidavit Under S.41(7) Bankruptcy Act Counter Claim, Set Off or Cross Demand Under S.40(1)(g) Effect of Industrial Commission Proceedings on Bankruptcy Quantification of Claims for Set Off

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Parties

William Henry McLaughlin

Debtor

Tooth & Co. Ltd

Judgment Creditor

Procedural Posture

Bankruptcy / Application Under S.41(7) of the Bankruptcy Act 1966

Legal Issues

  1. 1 Whether debtor's affidavit under s.41(7) of the Bankruptcy Act 1966 discloses a counter-claim, set-off or cross demand under s.40(1)(g)
  2. 2 Whether the claim before the Industrial Commission of NSW constitutes a valid counter-claim, set-off or cross demand for the purposes of bankruptcy
  3. 3 Whether the alleged claim is capable of being quantified in terms of money as required by the Act

Ratio Decidendi

The debtor's affidavit under s.41(7) does not satisfy the requirement to properly disclose a quantified counter-claim, set-off or cross demand under s.40(1)(g) capable of meeting or exceeding the judgment debt, nor is there sufficient evidence that the Industrial Commission proceedings are likely to result in a monetary award; therefore, the application must be dismissed.

Court Disposition

Application dismissed

Orders

  • The application under s.41(7) of the Bankruptcy Act 1966 is dismissed.
  • Costs reserved.