RE Andrews, Bevan Lloyd Ex Parte National Australia Bank Ltd & Anor [1996] FCA 249

RE Andrews, Bevan Lloyd Ex Parte National Australia Bank Ltd & Anor [1996] FCA 249

The Supreme Court claims could not have been made at the interlocutory relief hearing from which the costs order arose, their quantum considerably exceeded the bankruptcy notice debt, and the correspondence and delay did not show that the proceedings were a sham or not bona fide. The Court was therefore satisfied that Mr Andrews had a counter-claim, set-off or cross demand within s40(1)(g), so the bankruptcy notice was spent.

Jurisdiction
Australia
Judgment Date
18 March 1996
Procedural Posture
Bankruptcy Application Concerning Bankruptcy Notice No 1316 of 1995 / Hearing of Judgment Debtor's Application on 18 March 1996
Outcome
Application allowed; the Court declared that the judgment debtor had a counter-claim, set-off or cross demand and that the bankruptcy notice was spent.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'costs' 'supreme Court Proceedings']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'costs' 'supreme Court Proceedings']

Case Brief

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Procedural Posture

Bankruptcy Application Concerning Bankruptcy Notice No 1316 of 1995 / Hearing of Judgment Debtor's Application on 18 March 1996

Legal Issues

  1. 1 ['Whether the Court should be satisfied that the judgment debtor had a counter-claim, set-off or cross demand within s40(1)(g) of the Bankruptcy Act 1966.' 'Whether the Supreme Court proceedings relied on by the judgment debtor were a sham or not advanced bona fide.' 'Whether the bankruptcy notice was spent under s 41(7).' "Whether the judgment creditors should pay the judgment debtor's costs of the hearing."]

Ratio Decidendi

The Supreme Court claims could not have been made at the interlocutory relief hearing from which the costs order arose, their quantum considerably exceeded the bankruptcy notice debt, and the correspondence and delay did not show that the proceedings were a sham or not bona fide. The Court was therefore satisfied that Mr Andrews had a counter-claim, set-off or cross demand within s40(1)(g), so the bankruptcy notice was spent.

Court Disposition

Application allowed; the Court declared that the judgment debtor had a counter-claim, set-off or cross demand and that the bankruptcy notice was spent.

Orders

  • ['The Court declares that the judgment debtor has a counter-claim, set-off or cross demand such as is referred to in s40(1)(g) of the Bankruptcy Act 1966 and the bankruptcy notice of 27 October 1995 is spent.' 'The costs of the judgment debtor of the hearing on 18 March 1996 be paid by the judgment creditors, to be...