Gould, in the matter of Gould v Day [1999] FCA 1650

Gould, in the matter of Gould v Day [1999] FCA 1650

The debtor failed to establish a counter-claim, set-off or cross demand to the requisite standard under s 40(1)(g) of the Bankruptcy Act; there was no evidence justifying going behind the judgment or that the costs order was made against the wrong party. Accordingly, the application to set aside the bankruptcy notice was dismissed.

Parties
Applicant/debtor/respondent: Stephen Gould; First Respondent/creditor/first Applicant: Julian Day; Second Respondent/creditor/second Applicant: Alan Manly
Jurisdiction
Australia
Judgment Date
24 November 1999
Procedural Posture
Bankruptcy / Hearing and Determination of Applications to Set Aside Bankruptcy Notice and Creditors' Petition
Outcome
Application to set aside bankruptcy notice dismissed; creditors' petition struck out; creditors' notice of motion dismissed; no order as to costs.
Legal Topics
Application to Set Aside Bankruptcy Notice, Counter Claim, Set Off or Cross Demand Under Bankruptcy Act S 40(1)(g), Costs in Litigation, Sequestration Order
Bankruptcy Application to Set Aside Bankruptcy Notice Counter Claim, Set Off or Cross Demand Under Bankruptcy Act S 40(1)(g) Costs in Litigation Sequestration Order

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Parties

Stephen Gould

Applicant/debtor/respondent

Julian Day

First Respondent/creditor/first Applicant

Alan Manly

Second Respondent/creditor/second Applicant

Procedural Posture

Bankruptcy / Hearing and Determination of Applications to Set Aside Bankruptcy Notice and Creditors' Petition

Legal Issues

  1. 1 Whether the debtor has a counter-claim, set-off or cross demand of the kind set out in s 40(1)(g) Bankruptcy Act 1966 (Cth) to set aside a bankruptcy notice
  2. 2 Whether there is basis to go behind the judgment or the costs assessment
  3. 3 Whether the costs order was against the proper party

Ratio Decidendi

The debtor failed to establish a counter-claim, set-off or cross demand to the requisite standard under s 40(1)(g) of the Bankruptcy Act; there was no evidence justifying going behind the judgment or that the costs order was made against the wrong party. Accordingly, the application to set aside the bankruptcy notice was dismissed.

Court Disposition

Application to set aside bankruptcy notice dismissed; creditors' petition struck out; creditors' notice of motion dismissed; no order as to costs.

Orders

  • The application to set aside bankruptcy notice NN 1632 of 1999 be dismissed.
  • The creditors' petition filed on 20 September 1999, as amended on 12 October 1999, be struck out.