Re Del Vecchio, Fernando Ex Parte Lewenberg, Alex [1995] FCA 901

Re Del Vecchio, Fernando Ex Parte Lewenberg, Alex [1995] FCA 901

The debtor did not establish that the cross demand could not by law have been set up in the proceeding in which judgment was obtained. Precise quantification was not required to apply for transfer; the debtor had information sufficient to decide whether the claim exceeded the County Court limit, and any difficulty in assessing the precise loss was practical rather than a legal obstacle or positive inhibition. Accordingly the affidavits did not satisfy s.41(7) of the Bankruptcy Act 1966.

Jurisdiction
Australia
Judgment Date
13 November 1995
Procedural Posture
Bankruptcy Notice Proceeding / Determination Whether the Judgment Debtor's Affidavits Satisfied S.41(7) of the Bankruptcy Act 1966
Outcome
The Court declared that the affidavits filed on behalf of the judgment debtor do not satisfy the description in s.41(7) of the Bankruptcy Act 1966 and ordered the judgment debtor to pay the judgment creditor's costs.
Legal Topics
['bankruptcy Notice' 'counter Claim Set Off or Cross Demand' 'affidavit Under S.41(7) of the Bankruptcy Act 1966' 'transfer of Proceedings']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'counter Claim Set Off or Cross Demand' 'affidavit Under S.41(7) of the Bankruptcy Act 1966' 'transfer of Proceedings']

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Procedural Posture

Bankruptcy Notice Proceeding / Determination Whether the Judgment Debtor's Affidavits Satisfied S.41(7) of the Bankruptcy Act 1966

Legal Issues

  1. 1 ['Whether the affidavits filed on behalf of the judgment debtor were to the effect required by s.41(7) of the Bankruptcy Act 1966.' "Whether the judgment debtor's cross demand was one which he could not have set up in the Magistrates' Court proceeding in which judgment was obtained." 'Whether difficulty in quantifying the cross demand for the purpose of identifying a transferee court amounted to a positive inhibition against setting up the cross demand.']

Ratio Decidendi

The debtor did not establish that the cross demand could not by law have been set up in the proceeding in which judgment was obtained. Precise quantification was not required to apply for transfer; the debtor had information sufficient to decide whether the claim exceeded the County Court limit, and any difficulty in assessing the precise loss was practical rather than a legal obstacle or positive inhibition. Accordingly the affidavits did not satisfy s.41(7) of the Bankruptcy Act 1966.

Court Disposition

The Court declared that the affidavits filed on behalf of the judgment debtor do not satisfy the description in s.41(7) of the Bankruptcy Act 1966 and ordered the judgment debtor to pay the judgment creditor's costs.

Orders

  • ['The Court declares that the affidavits filed on behalf of the judgment debtor do not satisfy the description in s.41(7) of the Bankruptcy Act.' "The Court orders that the judgment debtor pay the judgment creditor's costs of the proceedings."]