Re Smith, Philip Mark (Judgment debtor) Ex parte Faggotter, Clive (Judgment creditor) [1995] FCA 830

Re Smith, Philip Mark (Judgment debtor) Ex parte Faggotter, Clive (Judgment creditor) [1995] FCA 830

The debtor's affidavits did not address whether the alleged counter-claim, set-off or cross demand could not have been set up in the action in which the judgment was obtained, and the material before the Court indicated that it could have been set up in that action. The debtor therefore failed to satisfy the Court that he had a counter-claim, set-off or cross demand of the kind referred to in s40(1)(g), and because the affidavit did not fall within s41(7), time for compliance was not extended; an act of bankruptcy was committed on 17 July 1995.

Jurisdiction
Australia
Judgment Date
10 October 1995
Procedural Posture
Bankruptcy / Determination of Whether Debtor's Affidavit Established a Counter Claim, Set Off or Cross Demand for Purposes of Bankruptcy Notice Compliance
Outcome
Time for compliance with the bankruptcy notice declared to have expired on 17 July 1995; debtor ordered to pay the creditor's costs of and incidental to filing the debtor's affidavit of 14 July 1995.
Legal Topics
['bankruptcy Notice' 'act of Bankruptcy' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance']
['bankruptcy'] ['bankruptcy Notice' 'act of Bankruptcy' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance']

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Procedural Posture

Bankruptcy / Determination of Whether Debtor's Affidavit Established a Counter Claim, Set Off or Cross Demand for Purposes of Bankruptcy Notice Compliance

Legal Issues

  1. 1 ["Whether the debtor's affidavit amounted to an assertion of a counter-claim, set-off or cross demand of the kind referred to in s40(1)(g) of the Bankruptcy Act 1966 (Cth)." 'Whether the affidavit fell within s41(7) of the Bankruptcy Act 1966 (Cth) so as to extend the time for compliance with the bankruptcy notice.']

Ratio Decidendi

The debtor's affidavits did not address whether the alleged counter-claim, set-off or cross demand could not have been set up in the action in which the judgment was obtained, and the material before the Court indicated that it could have been set up in that action. The debtor therefore failed to satisfy the Court that he had a counter-claim, set-off or cross demand of the kind referred to in s40(1)(g), and because the affidavit did not fall within s41(7), time for compliance was not extended; an act of bankruptcy was committed on 17 July 1995.

Court Disposition

Time for compliance with the bankruptcy notice declared to have expired on 17 July 1995; debtor ordered to pay the creditor's costs of and incidental to filing the debtor's affidavit of 14 July 1995.

Orders

  • ['It is declared that the time for compliance with the bankruptcy notice expired on 17 July 1995.' "The debtor is to pay the creditor's costs of and incidental to the filing by the debtor of his affidavit of 14 July 1995. Should the debtor become bankrupt as a consequence of his failure to comply with the bankruptcy...