Clarke, Re B.F. Sheehy, Ex Parte P. & Anor [1986] FCA 197

Clarke, Re B.F. Sheehy, Ex Parte P. & Anor [1986] FCA 197

The applicants did not establish a fair chance of proving that Peter Sheehy departed from proper professional standards in the conduct of the Supreme Court litigation, and in any event did not establish a prima facie case that any breach caused them loss equal to or exceeding the judgment debt in the Bankruptcy Notice. The Court was therefore not satisfied that they had the requisite counter-claim, set-off or cross demand.

Jurisdiction
Australia
Judgment Date
22 May 1986
Procedural Posture
Bankruptcy Notice Proceeding / Determination of Whether the Court Is Satisfied Under S.41(7) of the Bankruptcy Act 1966 of a Counter Claim, Set Off or Cross Demand
Outcome
The Court was not satisfied that the applicants had a counter-claim, set-off or cross demand as referred to in the Act; the judge indicated he would hear from the parties as to the appropriate orders.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' "solicitor's Retainer" 'professional Standards' 'prima Facie Case']
['bankruptcy' 'professional Negligence' 'contract'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' "solicitor's Retainer" 'professional Standards' 'prima Facie Case']

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 Notice Proceeding / Determination of Whether the Court Is Satisfied Under S.41(7) of the Bankruptcy Act 1966 of a Counter Claim, Set Off or Cross Demand

Legal Issues

  1. 1 ['Whether the applicants had a counter-claim, set-off or cross demand equal to or exceeding the judgment debt on which the Bankruptcy Notice was founded.' 'Whether the applicants had a prima facie case, in the sense of a fair chance of success, in their claim against Peter Sheehy for professional negligence and/or breach of contract.' 'Whether any alleged breach by Peter Sheehy caused the applicants loss equal to or exceeding the judgment debt.' "Whether the applicants had to show a counter-claim, set-off or cross demand exceeding both the Bankruptcy Notice amount and Peter Sheehy's separate claim for professional costs."]

Ratio Decidendi

The applicants did not establish a fair chance of proving that Peter Sheehy departed from proper professional standards in the conduct of the Supreme Court litigation, and in any event did not establish a prima facie case that any breach caused them loss equal to or exceeding the judgment debt in the Bankruptcy Notice. The Court was therefore not satisfied that they had the requisite counter-claim, set-off or cross demand.

Court Disposition

The Court was not satisfied that the applicants had a counter-claim, set-off or cross demand as referred to in the Act; the judge indicated he would hear from the parties as to the appropriate orders.

Orders

  • []