Correia Fishing Company (WA) Pty Ltd v. Momber, R.C. [1987] FCA 177

Correia Fishing Company (WA) Pty Ltd v. Momber, R.C. [1987] FCA 177

The debtor’s counterclaim could have been pleaded in the original District Court action; failure to do so because solicitors did not appear does not satisfy the statutory requirement that the counterclaim 'could not have been set up in the action', so the application to set aside the bankruptcy notice must be dismissed.

Parties
Debtor: Renwick Charles Momber; Creditor: Correia Fishing Co (WA) Pty Ltd
Jurisdiction
Australia
Judgment Date
23 March 1987
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice
Outcome
Application dismissed
Legal Topics
Bankruptcy Notice, Counterclaim, Act of Bankruptcy
Bankruptcy Bankruptcy Notice Counterclaim Act of Bankruptcy

Case Brief

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Parties

Renwick Charles Momber

Debtor

Correia Fishing Co (WA) Pty Ltd

Creditor

Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether the debtor can satisfy the Court he has a counterclaim, set-off or cross demand that could not have been set up in the action in which the judgment was obtained

Ratio Decidendi

The debtor’s counterclaim could have been pleaded in the original District Court action; failure to do so because solicitors did not appear does not satisfy the statutory requirement that the counterclaim 'could not have been set up in the action', so the application to set aside the bankruptcy notice must be dismissed.

Court Disposition

Application dismissed

Orders

  • Application to set aside bankruptcy notice dismissed
  • Debtor to pay creditor's costs of the application