Re Gomm, R.D. v. Ex parte Police Credit Society of W.A. Ltd [1987] FCA 731

Re Gomm, R.D. v. Ex parte Police Credit Society of W.A. Ltd [1987] FCA 731

The debtor failed to lay a sufficient evidentiary basis in her affidavit for a counter-claim, set-off or cross demand under para.40(1)(g) of the Bankruptcy Act because the allegations regarding breach of mortgagee's duty and sale at undervalue were unsupported by sufficient detail or evidence, and the uncontradicted evidence from the creditor negated the key allegations.

Parties
Debtor: Rema Dolores Gomm; Creditor: Police Credit Society of W.A. Limited
Jurisdiction
Australia
Judgment Date
17 December 1987
Procedural Posture
Bankruptcy / Application to Set Aside/extend Bankruptcy Notice; Hearing to Determine Existence of Counter Claim Under Para.40(1)(g) of Bankruptcy Act
Outcome
The Court was not satisfied the debtor had a counter-claim, set-off or cross demand under para.40(1)(g) of the Bankruptcy Act. The time for compliance with the bankruptcy notice was extended to midnight on 24 December 1987. The debtor was ordered to pay the creditor’s costs of the hearing.
Legal Topics
Counter Claim Under Bankruptcy Act S.40(1)(g), Mortgagee's Duty on Power of Sale
Bankruptcy Property Law Counter Claim Under Bankruptcy Act S.40(1)(g) Mortgagee's Duty on Power of Sale

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 2 Authorities cited 8 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

Rema Dolores Gomm

Debtor

Police Credit Society of W.A. Limited

Creditor

Procedural Posture

Bankruptcy / Application to Set Aside/extend Bankruptcy Notice; Hearing to Determine Existence of Counter Claim Under Para.40(1)(g) of Bankruptcy Act

Legal Issues

  1. 1 Whether the debtor (Mrs Gomm) has a counter-claim, set-off or cross demand equal to or exceeding the judgment debt, of the kind contemplated by para.40(1)(g) of the Bankruptcy Act, that she could not have set up in the previous proceedings
  2. 2 Whether the mortgagee (Police Credit Society) breached its duty on sale of mortgaged property

Ratio Decidendi

The debtor failed to lay a sufficient evidentiary basis in her affidavit for a counter-claim, set-off or cross demand under para.40(1)(g) of the Bankruptcy Act because the allegations regarding breach of mortgagee's duty and sale at undervalue were unsupported by sufficient detail or evidence, and the uncontradicted evidence from the creditor negated the key allegations.

Court Disposition

The Court was not satisfied the debtor had a counter-claim, set-off or cross demand under para.40(1)(g) of the Bankruptcy Act. The time for compliance with the bankruptcy notice was extended to midnight on 24 December 1987. The debtor was ordered to pay the creditor’s costs of the hearing.

Orders

  • Court not satisfied debtor has counter-claim, set-off or cross demand under para.40(1)(g) Bankruptcy Act
  • Time for compliance with bankruptcy notice extended to midnight on 24 December 1987