Re Johnson Ex parte Equus Financial Services Ltd Phillip Arthur Hennessy Michael Joseph Dwyer Nick Russo and Alexander Robert Mackay Macintosh [1995] FCA 715

Re Johnson Ex parte Equus Financial Services Ltd Phillip Arthur Hennessy Michael Joseph Dwyer Nick Russo and Alexander Robert Mackay Macintosh [1995] FCA 715

The first set of bankruptcy notices had to be answered by a counter-claim, set-off or cross demand against all joint judgment creditors, but the applicants did not show a prima facie personal claim against the receivers or loss caused by them. The receivers owed only limited duties arising from their appointment and no fraud, actionable concealment, or causative loss to the applicants personally was shown. For the second and third sets of notices, although an arguable case against Equus and Russo was not disputed, the applicants did not show a personal loss capable of founding the alleged cross-demand. Alleged payments, receivables, trust monies, securities, or company losses did not...

Jurisdiction
Australia
Judgment Date
07 September 1995
Procedural Posture
Bankruptcy Application to Set Aside Bankruptcy Notices / Determination of Applications After Hearing
Outcome
Applications dismissed.
Legal Topics
['bankruptcy Notices' 'counter Claim Set Off or Cross Demand' 'joint Judgment Creditors' 'prima Facie Case' "receivers' Duties" 'discharge of Judgment Debts']
['bankruptcy' 'corporations' 'receivership' 'contract' 'misrepresentation'] ['bankruptcy Notices' 'counter Claim Set Off or Cross Demand' 'joint Judgment Creditors' 'prima Facie Case' "receivers' Duties" 'discharge of Judgment Debts']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Bankruptcy Application to Set Aside Bankruptcy Notices / Determination of Applications After Hearing

Legal Issues

  1. 1 ['Whether the judgment debtors had a counter-claim, set-off or cross demand within s 40(1)(g) of the Bankruptcy Act 1966 which they could not have set up in the proceedings in which the costs orders were made.' 'Whether, for the first set of bankruptcy notices, the alleged counter-claim, set-off or cross demand was against all joint judgment creditors, including the receivers.' "Whether the judgment debtors showed a prima facie case against the receivers personally, including fraud, misrepresentation, breach of duty, or failure to ascertain Rural Finance's true financial position." 'Whether the alleged non-payment of finance by Equus and alleged misrepresentations caused loss to the judgment debtors personally sufficient to found a cross-demand.' 'Whether the judgment debts had been discharged or paid by monies or securities said to be held or received by Equus or the receivers.']

Ratio Decidendi

The first set of bankruptcy notices had to be answered by a counter-claim, set-off or cross demand against all joint judgment creditors, but the applicants did not show a prima facie personal claim against the receivers or loss caused by them. The receivers owed only limited duties arising from their appointment and no fraud, actionable concealment, or causative loss to the applicants personally was shown. For the second and third sets of notices, although an arguable case against Equus and Russo was not disputed, the applicants did not show a personal loss capable of founding the alleged cross-demand. Alleged payments, receivables, trust monies, securities, or company losses did not...

Court Disposition

Applications dismissed.

Orders

  • ['The applications numbered BN 686 and BN 686A of 1995 be dismissed.' 'The applications numbered BN 683 and BN 684 of 1995 be dismissed.' 'The applications numbered BN 99 and BN 132 of 1995 be dismissed.']