Leslie v Bowin Design Pty Ltd [1999] FCA 333

Leslie v Bowin Design Pty Ltd [1999] FCA 333

The application failed because the debtor's claimed counter-claim or cross demand, even if allowed in full on his own submissions, was less than the amount claimed in the bankruptcy notice, and because the defence based on alleged defects in the heaters could have been raised in the contested Manly Local Court proceeding; the parties had chosen and fought their issues there, so the Court declined to go behind the judgment.

Jurisdiction
Australia
Judgment Date
22 March 1999
Procedural Posture
Application to Set Aside a Bankruptcy Notice / Ex Tempore Reasons for Judgment and Orders After Hearing
Outcome
Application dismissed; bankruptcy notice extended by consent to and including 12 April 1999; costs ordered against the debtor with priority in any bankruptcy founded on the notice.
Legal Topics
['bankruptcy Notice' 'set Off, Counter Claim or Cross Demand' 'going Behind Judgment' 'guarantor Liability' 'costs']
['bankruptcy' 'guarantee and Indemnity' 'civil Procedure'] ['bankruptcy Notice' 'set Off, Counter Claim or Cross Demand' 'going Behind Judgment' 'guarantor Liability' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside a Bankruptcy Notice / Ex Tempore Reasons for Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the debtor had a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable within ss 40(1)(g) and 41(7) of the Bankruptcy Act 1966.' 'Whether the Court should go behind a Local Court judgment given after a contested hearing on which the bankruptcy notice was founded.' "Whether a guarantor could have raised a defence based on the principal debtor's claim for defective goods in the Local Court proceeding."]

Ratio Decidendi

The application failed because the debtor's claimed counter-claim or cross demand, even if allowed in full on his own submissions, was less than the amount claimed in the bankruptcy notice, and because the defence based on alleged defects in the heaters could have been raised in the contested Manly Local Court proceeding; the parties had chosen and fought their issues there, so the Court declined to go behind the judgment.

Court Disposition

Application dismissed; bankruptcy notice extended by consent to and including 12 April 1999; costs ordered against the debtor with priority in any bankruptcy founded on the notice.

Orders

  • ['The application be dismissed.' 'The debtor pay the costs of the application, including reserved costs and the costs incurred on the previous occasion that has been mentioned. Should the debtor be made bankrupt upon a petition grounded on the bankruptcy notice the subject of this proceeding, then those costs shall...