Schmitz, E. v Kodak (Australasia) Pty Ltd [1995] FCA 522

Schmitz, E. v Kodak (Australasia) Pty Ltd [1995] FCA 522

Mr Schmitz did not have a counter-claim, set-off or cross demand within s.40(1)(g) because, had he complied with the Magistrates' Court Rules, he could have set up the counterclaim in the proceeding in which Kodak obtained judgment, and in any event the alleged cross-claim had ceased to exist because he settled the proceeding and abandoned it while represented by a solicitor and barrister.

Jurisdiction
Australia
Judgment Date
24 July 1995
Procedural Posture
Bankruptcy / Application Concerning Whether the Debtor Had a Counter Claim, Set Off or Cross Demand in Response to a Bankruptcy Notice
Outcome
Declaration made that the debtor does not have a counter-claim, set-off or cross demand within the meaning of s.40(1)(g) of the Bankruptcy Act 1966; debtor ordered to pay the creditor's costs.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'section 40(1)(g) of the Bankruptcy Act 1966' 'settlement of Cross Claim']
['bankruptcy' 'insolvency'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'section 40(1)(g) of the Bankruptcy Act 1966' 'settlement of Cross Claim']

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Procedural Posture

Bankruptcy / Application Concerning Whether the Debtor Had a Counter Claim, Set Off or Cross Demand in Response to a Bankruptcy Notice

Legal Issues

  1. 1 ['Whether the debtor had a counter-claim, set-off or cross demand within the meaning of s.40(1)(g) of the Bankruptcy Act 1966' "Whether the alleged cross-claim was one the debtor could not have set up in the Magistrates' Court proceeding in which judgment was obtained" 'Whether the alleged cross-claim ceased to exist as a result of the terms of settlement']

Ratio Decidendi

Mr Schmitz did not have a counter-claim, set-off or cross demand within s.40(1)(g) because, had he complied with the Magistrates' Court Rules, he could have set up the counterclaim in the proceeding in which Kodak obtained judgment, and in any event the alleged cross-claim had ceased to exist because he settled the proceeding and abandoned it while represented by a solicitor and barrister.

Court Disposition

Declaration made that the debtor does not have a counter-claim, set-off or cross demand within the meaning of s.40(1)(g) of the Bankruptcy Act 1966; debtor ordered to pay the creditor's costs.

Orders

  • ['The debtor does not have a counter-claim, set-off or cross demand within the meaning of s.40(1)(g) of the Bankruptcy Act 1966.' "The debtor pay the creditor's costs."]