Van Reesema, E. [v Australia Growth Resources Corporation Pty Ltd 1987] FCA 129

Van Reesema, E. [v Australia Growth Resources Corporation Pty Ltd 1987] FCA 129

The debtor cannot set off his alleged counter-claim in conversion against the judgment creditor because the claim lacks mutuality, is not in the same right, could have been brought in the original proceedings, and does not have a reasonable probability of success.

Parties
Judgment Debtor: Ernst Abraham Siewertsz Van Reesema; Judgment Creditor: Australian Growth Resources Corporation Pty. Ltd. (Receivers and Managers Appointed)
Jurisdiction
Australia
Judgment Date
27 March 1987
Procedural Posture
Application to Set Aside Bankruptcy Notices / Final Judgment
Outcome
Applications to set aside the bankruptcy notices dismissed with costs.
Legal Topics
Bankruptcy Notice, Counter Claim, Receivers and Managers, Conversion, Mutuality of Debt
Bankruptcy Bankruptcy Notice Counter Claim Receivers and Managers Conversion Mutuality of Debt

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Parties

Ernst Abraham Siewertsz Van Reesema

Judgment Debtor

Australian Growth Resources Corporation Pty. Ltd. (Receivers and Managers Appointed)

Judgment Creditor

Procedural Posture

Application to Set Aside Bankruptcy Notices / Final Judgment

Legal Issues

  1. 1 Whether the debtor has a counter-claim, set-off or cross demand against the judgment creditor that could not have been set up in the action in which the judgments were obtained
  2. 2 Whether the counter-claim is mutual and due in the same right
  3. 3 Whether the counter-claim is bona fide and has a reasonable probability of success

Ratio Decidendi

The debtor cannot set off his alleged counter-claim in conversion against the judgment creditor because the claim lacks mutuality, is not in the same right, could have been brought in the original proceedings, and does not have a reasonable probability of success.

Court Disposition

Applications to set aside the bankruptcy notices dismissed with costs.

Orders

  • The applications to set aside the bankruptcy notices be dismissed.
  • Pursuant to s.41(7) Bankruptcy Act 1966 (Cth), time for compliance with the bankruptcy notices be extended to and including 27 March 1987.