Re Hodby, B.P. v. Ex parte Kenny, J. [1986] FCA 448

Re Hodby, B.P. v. Ex parte Kenny, J. [1986] FCA 448

The debtor's affidavit, while sufficient under s.41(7) to extend time for compliance with the bankruptcy notice, failed to establish that the counter-claim could not have been set up in the original Local Court proceedings as required by s.40(1)(g). The right to plead the counter-claim existed, and it was open to the debtor to seek leave to amend or for the creditor to object; there was no demonstrated statutory or procedural bar that precluded its pleading.

Parties
Debtor: Barry Patrick Hodby; Creditor: John Kenny
Jurisdiction
Australia
Judgment Date
14 October 1986
Procedural Posture
Bankruptcy Application / Judgment on Application to Set Aside Bankruptcy Notice
Outcome
Application to set aside bankruptcy notice dismissed
Legal Topics
Bankruptcy Notice, Affidavit Requirements, Counter Claim, Procedural Compliance
Insolvency Bankruptcy Bankruptcy Notice Affidavit Requirements Counter Claim Procedural Compliance

Case Brief

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Parties

Barry Patrick Hodby

Debtor

John Kenny

Creditor

Procedural Posture

Bankruptcy Application / Judgment on Application to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether the debtor's affidavit complied with s.41(7) of the Bankruptcy Act 1966 (Cth) for extending compliance with bankruptcy notice
  2. 2 Whether the alleged counter-claim could not have been set up in the action where judgment was obtained as required by s.40(1)(g) of the Bankruptcy Act 1966 (Cth)

Ratio Decidendi

The debtor's affidavit, while sufficient under s.41(7) to extend time for compliance with the bankruptcy notice, failed to establish that the counter-claim could not have been set up in the original Local Court proceedings as required by s.40(1)(g). The right to plead the counter-claim existed, and it was open to the debtor to seek leave to amend or for the creditor to object; there was no demonstrated statutory or procedural bar that precluded its pleading.

Court Disposition

Application to set aside bankruptcy notice dismissed

Orders

  • Time for compliance with bankruptcy notice extended to and including 14 October 1986
  • Application to set aside bankruptcy notice dismissed