Re Guss, Joseph Ex Parte Guss, Joseph v Johnstone, Raymond Marshall [1996] FCA 457

Re Guss, Joseph Ex Parte Guss, Joseph v Johnstone, Raymond Marshall [1996] FCA 457

The affidavit filed on behalf of the applicant did not provide evidence of a real or effective cross-claim or set-off, but merely made assertions. Thus, it did not satisfy s 41(7) of the Bankruptcy Act 1966, and the act of bankruptcy is deemed to have occurred at the expiration of the bankruptcy notice.

Jurisdiction
Australia
Judgment Date
29 May 1996
Procedural Posture
Bankruptcy / Hearing of Objection to Bankruptcy Notice Under S 41(7) Bankruptcy Act 1966
Outcome
Affidavit held non-compliant with s 41(7); act of bankruptcy to stand as at expiration of the notice.
Legal Topics
['bankruptcy Notice' 'counter Claim' 'affidavit Requirements' 'act of Bankruptcy']
['bankruptcy'] ['bankruptcy Notice' 'counter Claim' 'affidavit Requirements' 'act of Bankruptcy']

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Procedural Posture

Bankruptcy / Hearing of Objection to Bankruptcy Notice Under S 41(7) Bankruptcy Act 1966

Legal Issues

  1. 1 ['Whether the affidavit filed satisfied the requirements of subsection 41(7) of the Bankruptcy Act 1966' 'Whether a cross-claim, set-off or cross demand was sufficiently established to suspend or terminate the operation of the bankruptcy notice']

Ratio Decidendi

The affidavit filed on behalf of the applicant did not provide evidence of a real or effective cross-claim or set-off, but merely made assertions. Thus, it did not satisfy s 41(7) of the Bankruptcy Act 1966, and the act of bankruptcy is deemed to have occurred at the expiration of the bankruptcy notice.

Court Disposition

Affidavit held non-compliant with s 41(7); act of bankruptcy to stand as at expiration of the notice.

Orders

  • ['It is ordered and declared that the affidavit filed on behalf of the judgment debtor does not answer the description of an affidavit required by subsection 41(7) of the Bankruptcy Act 1966.' 'The act of bankruptcy is deemed to have occurred at the expiration of the bankruptcy notice.']