Emanuele, Giuseppe v Grey, Ronald & Ors [1997] FCA 1545

Emanuele, Giuseppe v Grey, Ronald & Ors [1997] FCA 1545

The debtor did not have a counter claim or set-off due in the same right as the bankruptcy notice debt. The notice was founded on a costs order jointly in favour of all eight judgment creditors, whereas the bribery charge costs were payable, if at all, by Mr Dau alone. The Court could not infer that the Commonwealth alone was out of pocket or would indemnify Mr Dau, and even if the Commonwealth had a beneficial interest, the legal right to enforce the civil costs order remained jointly vested in all judgment creditors. Section 41(7) exhaustively dealt with the deemed extension in this form of application, and there was no occasion to further extend time under s 41(6A) after rejecting the...

Jurisdiction
Australia
Judgment Date
17 December 1997
Procedural Posture
Bankruptcy Notice Application / Application to Set Aside Bankruptcy Notice and for Extension of Time for Compliance
Outcome
The Court held that the application to set aside the bankruptcy notice must be dismissed, but would hear the parties as to the orders to be entered.
Legal Topics
['bankruptcy Notice' 'counter Claim or Set Off' 'joint Judgment Creditors' 'costs Orders' 'extension of Time for Compliance With Bankruptcy Notice']
['bankruptcy'] ['bankruptcy Notice' 'counter Claim or Set Off' 'joint Judgment Creditors' 'costs Orders' 'extension of Time for Compliance With Bankruptcy Notice']

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Procedural Posture

Bankruptcy Notice Application / Application to Set Aside Bankruptcy Notice and for Extension of Time for Compliance

Legal Issues

  1. 1 ['Whether the debtor had a counter claim or set-off under ss 40(1)(g) and 41(7) of the Bankruptcy Act 1966 sufficient to set aside the bankruptcy notice.' 'Whether costs orders against Mr Dau in other proceedings were due in the same right as the joint costs order relied on by the judgment creditors in the bankruptcy notice.' 'Whether time for compliance with the bankruptcy notice should be extended under s 41(6A) beyond the deemed extension under s 41(7).']

Ratio Decidendi

The debtor did not have a counter claim or set-off due in the same right as the bankruptcy notice debt. The notice was founded on a costs order jointly in favour of all eight judgment creditors, whereas the bribery charge costs were payable, if at all, by Mr Dau alone. The Court could not infer that the Commonwealth alone was out of pocket or would indemnify Mr Dau, and even if the Commonwealth had a beneficial interest, the legal right to enforce the civil costs order remained jointly vested in all judgment creditors. Section 41(7) exhaustively dealt with the deemed extension in this form of application, and there was no occasion to further extend time under s 41(6A) after rejecting the...

Court Disposition

The Court held that the application to set aside the bankruptcy notice must be dismissed, but would hear the parties as to the orders to be entered.

Orders

  • ['Upon publication of these reasons the Court will hear the parties as to the orders which should be entered.']