Greenhill, Ronald David & Anor v Berney, Ronald Martin & Ors [1984] FCA 333

Greenhill, Ronald David & Anor v Berney, Ronald Martin & Ors [1984] FCA 333

The debtors had not established any basis to set aside the bankruptcy notice: the cheque and instalment application were strong evidence of admission of the debt, any objection to counsel's fees failed because the debtors used and ratified counsel's services, and the alleged breach of confidence was at most technical with no evidence of compensable damage. However, because the underlying judgment was a default judgment and insolvency was not shown or apprehended, time for compliance was extended and dismissal was suspended to allow the debtors to pursue their Court of Petty Sessions application.

Jurisdiction
Australia
Judgment Date
18 October 1984
Procedural Posture
Federal Court Bankruptcy Proceeding / Debtors' Application to Set Aside a Bankruptcy Notice, Alternatively to Extend Time for Compliance
Outcome
Application to set aside the bankruptcy notice dismissed, but operation of the dismissal was suspended and time for compliance was extended to 5 November 1984; debtors ordered to pay one-half of the judgment creditors' costs.
Legal Topics
['bankruptcy Notice' 'default Judgment' 'application to Set Aside Judgment' 'extension of Time for Compliance' "counsel's Fees" 'breach of Confidence' 'counter Claim Damages' 'costs']
['bankruptcy' 'civil Procedure' 'equity' "solicitors' Costs"] ['bankruptcy Notice' 'default Judgment' 'application to Set Aside Judgment' 'extension of Time for Compliance' "counsel's Fees" 'breach of Confidence' 'counter Claim Damages' 'costs']

Case Brief

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Procedural Posture

Federal Court Bankruptcy Proceeding / Debtors' Application to Set Aside a Bankruptcy Notice, Alternatively to Extend Time for Compliance

Legal Issues

  1. 1 ['Whether the bankruptcy notice based on the Hornsby Court of Petty Sessions default judgment should be set aside.' "Whether the debtors showed an arguable defence to the solicitors' claim for costs and disbursements, including counsel's fees." 'Whether an alleged breach of confidence provided a sufficient cross-claim or set-off against the judgment debt.' 'Whether time for compliance with the bankruptcy notice should be extended pending the Court of Petty Sessions application to set aside the default judgment.']

Ratio Decidendi

The debtors had not established any basis to set aside the bankruptcy notice: the cheque and instalment application were strong evidence of admission of the debt, any objection to counsel's fees failed because the debtors used and ratified counsel's services, and the alleged breach of confidence was at most technical with no evidence of compensable damage. However, because the underlying judgment was a default judgment and insolvency was not shown or apprehended, time for compliance was extended and dismissal was suspended to allow the debtors to pursue their Court of Petty Sessions application.

Court Disposition

Application to set aside the bankruptcy notice dismissed, but operation of the dismissal was suspended and time for compliance was extended to 5 November 1984; debtors ordered to pay one-half of the judgment creditors' costs.

Orders

  • ['I dismiss the application to set aside the bankruptcy notice served herein.' 'I suspend the operation of order 1 until 4 p.m. on 5 November 1984.' "I reserve liberty to the debtors to apply, on or before 4 p.m. on 1 November 1984, on giving 48 hours' notice to the judgment creditors in that behalf, to discharge or...