Re Racheha, Selah Said Ex parte Antonios, Anthony [1980] FCA 172

Re Racheha, Selah Said Ex parte Antonios, Anthony [1980] FCA 172

The debtor could have invoked the procedure in s.12(2) of the Courts of Petty Sessions (Civil Claims) Act to transfer the action to the District Court and set up the counter-claim in the same action. Therefore, the counter-claim could have been set up in the action in which judgment was obtained, and the debtor does not satisfy the requirements of s.40(1)(g) of the Bankruptcy Act 1966.

Parties
Judgment Debtor: Selah Said Racheha; Judgment Creditor: Anthony Antonios
Jurisdiction
Australia
Judgment Date
11 November 1980
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice
Outcome
Application to set aside bankruptcy notice dismissed; costs awarded to judgment creditor.
Legal Topics
Bankruptcy Notice, Counter Claim, Set Off or Cross Demand, Meaning of 'action' in Bankruptcy Context, Jurisdiction of Courts of Petty Sessions
Bankruptcy Bankruptcy Notice Counter Claim, Set Off or Cross Demand Meaning of 'action' in Bankruptcy Context Jurisdiction of Courts of Petty Sessions

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Parties

Selah Said Racheha

Judgment Debtor

Anthony Antonios

Judgment Creditor

Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether the affidavit filed by the debtor was of the kind mentioned in s.41(7) of the Bankruptcy Act 1966
  2. 2 Whether the counter-claim, set-off or cross demand could not have been set up in the action in which the judgment was obtained
  3. 3 Interpretation of 'action' in s.40(1)(g) of the Bankruptcy Act 1966

Ratio Decidendi

The debtor could have invoked the procedure in s.12(2) of the Courts of Petty Sessions (Civil Claims) Act to transfer the action to the District Court and set up the counter-claim in the same action. Therefore, the counter-claim could have been set up in the action in which judgment was obtained, and the debtor does not satisfy the requirements of s.40(1)(g) of the Bankruptcy Act 1966.

Court Disposition

Application to set aside bankruptcy notice dismissed; costs awarded to judgment creditor.

Orders

  • The Court is not satisfied that the debtor has the requisite counter-claim, set-off or cross demand within the meaning of s.40(1)(g) of the Bankruptcy Act 1966.
  • The judgment debtor pay the costs of the judgment creditor of this matter including reserved costs.