Patten, Errol & Anor v Raadlund, Ida Agnes [1995] FCA 1145

Patten, Errol & Anor v Raadlund, Ida Agnes [1995] FCA 1145

The asserted counter-claim or cross-demand was based on facts existing before the original local court hearing at Gosford and could have been set up in those proceedings; therefore it ought to have been raised then, and the affidavits filed under s. 41(7) were not compliant.

Jurisdiction
Australia
Judgment Date
05 December 1995
Procedural Posture
Bankruptcy Matter Concerning Bankruptcy Notices and Affidavits Under S. 41(7) / Hearing on Whether Affidavits Filed by the Debtors Complied With S. 41(7)
Outcome
The debtors' application failed; the Court declared that the affidavits did not comply with s. 41(7).
Legal Topics
['bankruptcy Notice' 'affidavit Under S. 41(7)' 'counter Claim or Cross Demand' 'judgment Debt' 'service of Bankruptcy Notice']
['bankruptcy'] ['bankruptcy Notice' 'affidavit Under S. 41(7)' 'counter Claim or Cross Demand' 'judgment Debt' 'service of Bankruptcy Notice']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Matter Concerning Bankruptcy Notices and Affidavits Under S. 41(7) / Hearing on Whether Affidavits Filed by the Debtors Complied With S. 41(7)

Legal Issues

  1. 1 ['Whether the affidavits filed by Mr and Mrs Patten fell within s. 40(1)(g) and s. 41(7) of the Bankruptcy Act 1966.' 'Whether the asserted counter-claim or cross-demand equalled or exceeded the judgment debt and could properly support the affidavits.' 'Whether the asserted counter-claim or cross-demand ought to have been set up in the original local court proceedings.']

Ratio Decidendi

The asserted counter-claim or cross-demand was based on facts existing before the original local court hearing at Gosford and could have been set up in those proceedings; therefore it ought to have been raised then, and the affidavits filed under s. 41(7) were not compliant.

Court Disposition

The debtors' application failed; the Court declared that the affidavits did not comply with s. 41(7).

Orders

  • ['The Court declares that the affidavits filed by Mr and Mrs Patten under s. 41(7) are not affidavits complying with that subsection.' "Mr and Mrs Patten are to pay the creditor's costs of the s. 41(7) affidavits and of today."]