Johnstone, Raymond v Guss, Joseph [1997] FCA 484

Johnstone, Raymond v Guss, Joseph [1997] FCA 484

The judgment debtor did not demonstrate a prima facie case that he had a cross-demand, set-off, or counter-claim of the type referred to in s40(1)(g) of the Bankruptcy Act 1966. The debtor's claims were either unsubstantiated, insufficient in amount, or did not show a causal connection between the alleged negligence and the losses claimed. Delay in bringing the alleged claims contributed to the court's lack of satisfaction.

Parties
Judgment Creditor: Raymond Johnstone; Judgment Debtor: Joseph Guss
Jurisdiction
Australia
Judgment Date
30 May 1997
Procedural Posture
Bankruptcy Application / Application to Determine Whether Judgment Debtor Possesses a Counter Claim, Set Off or Cross Demand Under S40(1)(g) of the Bankruptcy Act 1966
Outcome
Application dismissed. Declaration made that the court is not satisfied the judgment debtor possesses a counter-claim, set-off or cross demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966.
Legal Topics
Counter Claim, Set Off, Cross Demand, Satisfaction of Court, Delay in Prosecuting Claim
Bankruptcy Counter Claim Set Off Cross Demand Satisfaction of Court Delay in Prosecuting Claim

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Parties

Raymond Johnstone

Judgment Creditor

Joseph Guss

Judgment Debtor

Procedural Posture

Bankruptcy Application / Application to Determine Whether Judgment Debtor Possesses a Counter Claim, Set Off or Cross Demand Under S40(1)(g) of the Bankruptcy Act 1966

Legal Issues

  1. 1 Whether the judgment debtor possesses a counter-claim, set-off or cross demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966
  2. 2 Whether delay in prosecuting a cross demand affects its validity for the purposes of s40(1)(g)

Ratio Decidendi

The judgment debtor did not demonstrate a prima facie case that he had a cross-demand, set-off, or counter-claim of the type referred to in s40(1)(g) of the Bankruptcy Act 1966. The debtor's claims were either unsubstantiated, insufficient in amount, or did not show a causal connection between the alleged negligence and the losses claimed. Delay in bringing the alleged claims contributed to the court's lack of satisfaction.

Court Disposition

Application dismissed. Declaration made that the court is not satisfied the judgment debtor possesses a counter-claim, set-off or cross demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966.

Orders

  • The Court declares that it is not satisfied that the judgment debtor possesses a counter-claim, set-off or cross demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966.
  • The Court orders that the judgment debtor pay the judgment creditor's costs of the application.