Re Deen M.H.K. Ex parte Deen v Muller [1995] FCA 633

Re Deen M.H.K. Ex parte Deen v Muller [1995] FCA 633

The debtor had a counter-claim, set-off or cross demand of the kind referred to in s. 40(1)(g) because, at the time of the earlier proceeding, he had no legal entitlement to set up the assigned debt as a counter-claim, and the later assignment was not invalid on the grounds advanced by the creditor.

Jurisdiction
Australia
Judgment Date
11 August 1995
Procedural Posture
Bankruptcy Notice Application / Application by Judgment Debtor to Set Aside a Bankruptcy Notice
Outcome
Applicant succeeded; the Court declared that the applicant judgment debtor had a counter-claim, set-off or cross demand of the kind referred to in s. 40(1)(g) of the Bankruptcy Act 1966 (Cth), and ordered costs against the respondent judgment creditor.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'assignment of Debt After Judgment' 'bankruptcy Act 1966 (cth) Ss 40(1)(g) and 41(7)']
['bankruptcy'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'assignment of Debt After Judgment' 'bankruptcy Act 1966 (cth) Ss 40(1)(g) and 41(7)']

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Procedural Posture

Bankruptcy Notice Application / Application by Judgment Debtor to Set Aside a Bankruptcy Notice

Legal Issues

  1. 1 ['Whether the debtor had a counter-claim, set-off or cross demand of the kind referred to in s. 40(1)(g) of the Bankruptcy Act 1966 (Cth).' 'Whether an assignment to the debtor, made after judgment but within the time allowed by s. 41(7), could support a counter-claim sufficient to defeat the bankruptcy notice.' 'Whether the assignment was invalid because it breached clause 13 of the Deen Family Trust Deed.' 'Whether the deed of assignment failed because of the consideration provision in clause 3.' 'Whether wording differences between the English and Australian legislation prevented application of In re A Debtor [1914] 3 K.B. 726.']

Ratio Decidendi

The debtor had a counter-claim, set-off or cross demand of the kind referred to in s. 40(1)(g) because, at the time of the earlier proceeding, he had no legal entitlement to set up the assigned debt as a counter-claim, and the later assignment was not invalid on the grounds advanced by the creditor.

Court Disposition

Applicant succeeded; the Court declared that the applicant judgment debtor had a counter-claim, set-off or cross demand of the kind referred to in s. 40(1)(g) of the Bankruptcy Act 1966 (Cth), and ordered costs against the respondent judgment creditor.

Orders

  • ['The applicant judgment debtor has a counter-claim, set-off or cross demand of the kind referred to in s. 40(1)(g) the Bankruptcy Act 1966 (Cth).' "The respondent judgment creditor pay the applicant judgment debtor's costs of and incidental to today's hearing."]