RE Lee, Andrew Charles Robert EX PARTE Lee, Andrew Charles Robert and Anor [1996] FCA 998

RE Lee, Andrew Charles Robert EX PARTE Lee, Andrew Charles Robert and Anor [1996] FCA 998

The affidavit filed on 18 September 1996 did not do more than assert the existence of a counter-claim, set-off or cross demand. It did not provide evidence of a prima facie relevant cross-claim, did not show that the amount equalled or exceeded the judgment debt, and did not address whether the claim was unavailable in the proceeding in which judgment was entered. Section 41(7) was therefore not enlivened, the time for compliance with the bankruptcy notice expired after 19 September 1996, and the extension application had no basis.

Jurisdiction
Australia
Judgment Date
08 October 1996
Procedural Posture
Bankruptcy Application for Extension of Time for Compliance With a Bankruptcy Notice / Extempore Reasons for Judgment on Preliminary Point and Application
Outcome
Application dismissed with costs.
Legal Topics
['bankruptcy Notice' 'extension of Time for Compliance' 'counter Claim, Set Off or Cross Demand' 'statutory Deemed Extension Under S 41(7)']
['bankruptcy' 'insolvency'] ['bankruptcy Notice' 'extension of Time for Compliance' 'counter Claim, Set Off or Cross Demand' 'statutory Deemed Extension Under S 41(7)']

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Procedural Posture

Bankruptcy Application for Extension of Time for Compliance With a Bankruptcy Notice / Extempore Reasons for Judgment on Preliminary Point and Application

Legal Issues

  1. 1 ["Whether s 41(7) of the Bankruptcy Act 1966 (Cth) was enlivened by the debtor's affidavit filed before expiry of the extended time for compliance with the bankruptcy notice." 'Whether the affidavit showed a counter-claim, set-off or cross demand equal to or exceeding the judgment debt within s 40(1)(g) of the Bankruptcy Act 1966 (Cth).' 'Whether the time for compliance with the bankruptcy notice had already expired, leaving no basis for the extension application.']

Ratio Decidendi

The affidavit filed on 18 September 1996 did not do more than assert the existence of a counter-claim, set-off or cross demand. It did not provide evidence of a prima facie relevant cross-claim, did not show that the amount equalled or exceeded the judgment debt, and did not address whether the claim was unavailable in the proceeding in which judgment was entered. Section 41(7) was therefore not enlivened, the time for compliance with the bankruptcy notice expired after 19 September 1996, and the extension application had no basis.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs."]