Re Ganke B. Ex parte Ganke, B. v Somerset P.A. & Anor [1995] FCA 195

Re Ganke B. Ex parte Ganke, B. v Somerset P.A. & Anor [1995] FCA 195

The debtor failed to establish a presently existing and quantifiable cross-claim, set-off or cross demand as required by s 40(1)(g) of the Bankruptcy Act 1966 (Cth), since any entitlement to a refund was prospective and dependent on future taxation of costs. The matters relied on did not impeach the judgment debt, which arose from dishonoured cheques, not legal costs. Accordingly, the application to set aside the bankruptcy notice failed, as did any claim for further time to comply.

Jurisdiction
Australia
Judgment Date
05 April 1995
Procedural Posture
Application to Set Aside Bankruptcy Notice / Reasons for Judgment, Final Determination
Outcome
Application dismissed; costs ordered against applicant
Legal Topics
['bankruptcy Notice' 'set Aside' 'counter Claim, Set Off or Cross Demand' 'going Behind Judgment']
['bankruptcy'] ['bankruptcy Notice' 'set Aside' 'counter Claim, Set Off or Cross Demand' 'going Behind Judgment']

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Procedural Posture

Application to Set Aside Bankruptcy Notice / Reasons for Judgment, Final Determination

Legal Issues

  1. 1 ["Whether debtor's claim to a refund from creditor is a counter-claim, set-off or cross demand for purposes of s 40(1)(g) of the Bankruptcy Act 1966 (Cth)" 'Whether the Court should go behind the Local Court judgment founding the bankruptcy notice']

Ratio Decidendi

The debtor failed to establish a presently existing and quantifiable cross-claim, set-off or cross demand as required by s 40(1)(g) of the Bankruptcy Act 1966 (Cth), since any entitlement to a refund was prospective and dependent on future taxation of costs. The matters relied on did not impeach the judgment debt, which arose from dishonoured cheques, not legal costs. Accordingly, the application to set aside the bankruptcy notice failed, as did any claim for further time to comply.

Court Disposition

Application dismissed; costs ordered against applicant

Orders

  • ['The amended application be dismissed.' "The debtor pay the creditors' costs."]