Re Camilleri, Colin Michael James Ex Parte Maguire, Michael [1996] FCA 328

Re Camilleri, Colin Michael James Ex Parte Maguire, Michael [1996] FCA 328

The Court was not satisfied that the judgment debtor had a set-off, counter-claim or cross demand within s 40(1)(g) of the Bankruptcy Act 1966 because the County Court claim was a joint claim by the judgment debtor and his wife against the judgment creditor and others jointly, not a separate personal claim against the judgment creditor, and such a joint cross demand is not a sufficient answer to a bankruptcy notice. Although the cross demand could not have been set up in the costs proceeding, the joint nature of the claim was fatal.

Jurisdiction
Australia
Judgment Date
08 May 1996
Procedural Posture
Bankruptcy Proceeding Concerning a Bankruptcy Notice and Alleged Set Off, Counter Claim or Cross Demand / Determination After Judgment Reserved on Whether the Court Was Satisfied Under S 40(1)(g) of the Bankruptcy Act 1966
Outcome
The Court was not satisfied that the judgment debtor had a set-off, counter-claim or cross demand as referred to in s 40(1)(g) of the Bankruptcy Act 1966.
Legal Topics
['bankruptcy Notice' 'set Off, Counter Claim or Cross Demand' 'judgment Debt for Costs' 'joint Cross Claim']
['bankruptcy Law' 'civil Procedure'] ['bankruptcy Notice' 'set Off, Counter Claim or Cross Demand' 'judgment Debt for Costs' 'joint Cross Claim']

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Procedural Posture

Bankruptcy Proceeding Concerning a Bankruptcy Notice and Alleged Set Off, Counter Claim or Cross Demand / Determination After Judgment Reserved on Whether the Court Was Satisfied Under S 40(1)(g) of the Bankruptcy Act 1966

Legal Issues

  1. 1 ['Whether the judgment debtor had a set-off, counter-claim or cross demand as referred to in s 40(1)(g) of the Bankruptcy Act 1966.' 'Whether the County Court claim could have been set up in the proceeding in which the judgment debt was obtained.' 'Whether a joint claim by the judgment debtor and his wife against the judgment creditor and other defendants jointly was a sufficient answer to the bankruptcy notice.']

Ratio Decidendi

The Court was not satisfied that the judgment debtor had a set-off, counter-claim or cross demand within s 40(1)(g) of the Bankruptcy Act 1966 because the County Court claim was a joint claim by the judgment debtor and his wife against the judgment creditor and others jointly, not a separate personal claim against the judgment creditor, and such a joint cross demand is not a sufficient answer to a bankruptcy notice. Although the cross demand could not have been set up in the costs proceeding, the joint nature of the claim was fatal.

Court Disposition

The Court was not satisfied that the judgment debtor had a set-off, counter-claim or cross demand as referred to in s 40(1)(g) of the Bankruptcy Act 1966.

Orders

  • ["The judgment debtor pay the judgment creditor's costs of this proceeding." 'In the event that a sequestration order is made against the estate of the judgment debtor based on an act of bankruptcy committed by him as a result of his failure to comply with the demand contained in the bankruptcy notice herein, the...