Vicini, Aldo v E.A. Sealey & Company [1982] FCA 156

Vicini, Aldo v E.A. Sealey & Company [1982] FCA 156

The debtor was not legally inhibited from setting up the counter-claim in the original Local Court action and in fact did so by filing an amended defence and counter-claim; inability to produce supporting evidence at the time did not constitute inability in law to set up the counter-claim, so the affidavit did not meet the requirements of s.41(7) of the Bankruptcy Act 1966.

Parties
Judgment Debtor: MR. ALDO VICINI; Judgment Creditor: E.A. SEALEY & CO
Jurisdiction
Australia
Judgment Date
03 August 1982
Procedural Posture
Bankruptcy / Application Under S.41(7) of Bankruptcy Act 1966
Outcome
Application dismissed
Legal Topics
Bankruptcy Notice, Counter Claim, Affidavit Requirements, Extension of Time
Bankruptcy Law Bankruptcy Notice Counter Claim Affidavit Requirements Extension of Time

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Parties

MR. ALDO VICINI

Judgment Debtor

E.A. SEALEY & CO

Judgment Creditor

Procedural Posture

Bankruptcy / Application Under S.41(7) of Bankruptcy Act 1966

Legal Issues

  1. 1 Whether the debtor could have set up a counter-claim in the action in which the judgment was obtained for the purposes of s.40(1)(g) and s.41(7) of the Bankruptcy Act 1966

Ratio Decidendi

The debtor was not legally inhibited from setting up the counter-claim in the original Local Court action and in fact did so by filing an amended defence and counter-claim; inability to produce supporting evidence at the time did not constitute inability in law to set up the counter-claim, so the affidavit did not meet the requirements of s.41(7) of the Bankruptcy Act 1966.

Court Disposition

Application dismissed

Orders

  • There be no deemed extension of time to comply with the requirements of the bankruptcy notice.
  • The application under s.41(7) be dismissed.