Re McMallan, George Ex Parte Stevens, William James [1997] FCA 394

Re McMallan, George Ex Parte Stevens, William James [1997] FCA 394

The application fails because the applicant did not establish that the counter-claim, set-off or cross-demand could not have been litigated in the proceedings in the Supreme Court of Queensland which gave rise to the judgment debt.

Parties
Judgment Debtor: George McMallan; Judgment Creditor: William James Stevens
Jurisdiction
Australia
Judgment Date
24 February 1997
Procedural Posture
Bankruptcy Application / Motion to Set Aside Bankruptcy Notice
Outcome
Application dismissed
Legal Topics
Setting Aside Bankruptcy Notice, Counter Claim, Set Off or Cross Demand
Bankruptcy Setting Aside Bankruptcy Notice Counter Claim, Set Off or Cross Demand

Case Brief

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Parties

George McMallan

Judgment Debtor

William James Stevens

Judgment Creditor

Procedural Posture

Bankruptcy Application / Motion to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether the applicant can set aside the bankruptcy notice under s 41(7) of the Bankruptcy Act 1966 (Cth) based on an alleged counter-claim, set-off, or cross-demand under s 40(1)(g) of the Act

Ratio Decidendi

The application fails because the applicant did not establish that the counter-claim, set-off or cross-demand could not have been litigated in the proceedings in the Supreme Court of Queensland which gave rise to the judgment debt.

Court Disposition

Application dismissed

Orders

  • The application by the judgment debtor under s 41(7) of the Bankruptcy Act 1966 (Cth) is dismissed.
  • The applicant pay the costs of the respondent for the proceedings on 24 February 1997, but not the costs of the hearing on 10 February 1997.