Eterovic, B. v Pavlovic, J. [1995] FCA 344

Eterovic, B. v Pavlovic, J. [1995] FCA 344

The judgment debtor's affidavit did not assert that he had a cross-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt; it said only that the costs claim would most likely fully set off the amount claimed. It therefore was not an affidavit to the effect required by s 41(7), the time for compliance was not extended, there was no useful purpose in adjourning the matter pending taxation, and an act of bankruptcy was committed at the expiration of 14 days from service of the bankruptcy notice.

Jurisdiction
Australia
Judgment Date
29 May 1995
Procedural Posture
Bankruptcy Notice Proceeding / Application by Judgment Debtor to Set Aside Bankruptcy Notice
Outcome
The judgment debtor's application to set aside the bankruptcy notice was dismissed with costs.
Legal Topics
['bankruptcy Notice' 'act of Bankruptcy' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance' 'costs']
['bankruptcy' 'insolvency Procedure'] ['bankruptcy Notice' 'act of Bankruptcy' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance' 'costs']

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Procedural Posture

Bankruptcy Notice Proceeding / Application by Judgment Debtor to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 ["Whether the judgment debtor's affidavit was to the effect that he had a counter-claim, set-off or cross demand equal to or exceeding the judgment debt within s 40(1)(g) of the Bankruptcy Act." 'Whether filing the affidavit activated the extension of time for compliance with the bankruptcy notice under s 41(7) of the Bankruptcy Act.' "Whether the matter should be adjourned pending taxation of the judgment debtor's costs in the Supreme Court proceeding." 'Whether, for s 40(1)(g), a counter-claim, set-off or cross demand must be against the judgment creditor solely rather than against the judgment creditor jointly with others.']

Ratio Decidendi

The judgment debtor's affidavit did not assert that he had a cross-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt; it said only that the costs claim would most likely fully set off the amount claimed. It therefore was not an affidavit to the effect required by s 41(7), the time for compliance was not extended, there was no useful purpose in adjourning the matter pending taxation, and an act of bankruptcy was committed at the expiration of 14 days from service of the bankruptcy notice.

Court Disposition

The judgment debtor's application to set aside the bankruptcy notice was dismissed with costs.

Orders

  • ["The judgment debtor's application to set aside the bankruptcy notice issued herein on 20 March 1995 be dismissed." "The judgment creditor's costs of and incidental to the application be taxed and paid by the judgment debtor and in the event that a sequestration order is made upon a petition founded on the act of...