Re Dossel, Bruce Frederick & Anor v Ex Parte Stonemaster Quarries Pty Ltd & Anor [1995] FCA 945

Re Dossel, Bruce Frederick & Anor v Ex Parte Stonemaster Quarries Pty Ltd & Anor [1995] FCA 945

The application was dismissed because the Federal Court could not set aside the Magistrates Court summary judgment in this proceeding, and the judgment debtors did not show a relevant counterclaim, set-off or cross-demand within s.41(7) of the Bankruptcy Act 1966 (Cth) that was unavailable to them at the time of the Magistrates Court judgment and equalled or exceeded the judgment debt.

Jurisdiction
Australia
Judgment Date
17 November 1995
Procedural Posture
Bankruptcy Application to Set Aside a Bankruptcy Notice and Related Relief / Hearing of Application Before Cooper J
Outcome
Application dismissed with costs.
Legal Topics
['bankruptcy Notice' 'counterclaim, Set Off or Cross Demand' 'summary Judgment' 'jurisdiction to Set Aside Magistrates Court Judgment' 'guarantees']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'counterclaim, Set Off or Cross Demand' 'summary Judgment' 'jurisdiction to Set Aside Magistrates Court Judgment' 'guarantees']

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Procedural Posture

Bankruptcy Application to Set Aside a Bankruptcy Notice and Related Relief / Hearing of Application Before Cooper J

Legal Issues

  1. 1 ['Whether the Federal Court could set aside the Magistrates Court judgments on which the bankruptcy notice was founded.' 'Whether, within s.41(7) of the Bankruptcy Act 1966 (Cth), the judgment debtors had a counterclaim, set-off or cross-demand at the time the judgment arose which they were unable to set up at that time.' 'Whether arrangements said to involve securities over real property amounted to a counterclaim, set-off or cross-demand equalling or exceeding the judgment debt.']

Ratio Decidendi

The application was dismissed because the Federal Court could not set aside the Magistrates Court summary judgment in this proceeding, and the judgment debtors did not show a relevant counterclaim, set-off or cross-demand within s.41(7) of the Bankruptcy Act 1966 (Cth) that was unavailable to them at the time of the Magistrates Court judgment and equalled or exceeded the judgment debt.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicants pay the respondent's costs of and incidental to the application to be taxed if not agreed."]