Re Baddeley Ex parte Emil Lux (Australia) Pty Ltd [1995] FCA 800

Re Baddeley Ex parte Emil Lux (Australia) Pty Ltd [1995] FCA 800

Although the Supreme Court claim for damages for misleading and deceptive conduct was capable of being a counter-claim, set-off or cross-demand and could not have been raised in the Local Court or before Bryson J on the costs order, the evidence before the Court did not provide prima facie material that the claim against Emilux equalled or exceeded the $22,429 judgment debt. The Court therefore was not satisfied that Mr Baddeley had a counter-claim, set-off or cross-demand within s.40(1)(g).

Jurisdiction
Australia
Judgment Date
26 July 1995
Procedural Posture
Bankruptcy Notice Application Concerning Alleged Counter Claim, Set Off or Cross Demand / Determination Under S.41(7) of the Bankruptcy Act 1966 (cth) After Referral by the Registrar Under R.10(4) of the Bankruptcy Rules
Outcome
Application failed; the Court declared it was not satisfied that the firstnamed judgment debtor had the relevant counter-claim, set-off or cross-demand, refused an adjournment for further evidence as to quantum, and ordered costs against the firstnamed judgment debtor.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance With Bankruptcy Notice' 'costs']
['bankruptcy'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance With Bankruptcy Notice' 'costs']

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Procedural Posture

Bankruptcy Notice Application Concerning Alleged Counter Claim, Set Off or Cross Demand / Determination Under S.41(7) of the Bankruptcy Act 1966 (cth) After Referral by the Registrar Under R.10(4) of the Bankruptcy Rules

Legal Issues

  1. 1 ['Whether the Court was satisfied that the firstnamed judgment debtor had a counter-claim, set-off or cross-demand as referred to in s.40(1)(g) of the Bankruptcy Act 1966 (Cth).' 'Whether the alleged counter-claim, set-off or cross-demand equalled or exceeded the judgment debt.' 'Whether the hearing should be adjourned so further evidence as to quantum could be adduced.']

Ratio Decidendi

Although the Supreme Court claim for damages for misleading and deceptive conduct was capable of being a counter-claim, set-off or cross-demand and could not have been raised in the Local Court or before Bryson J on the costs order, the evidence before the Court did not provide prima facie material that the claim against Emilux equalled or exceeded the $22,429 judgment debt. The Court therefore was not satisfied that Mr Baddeley had a counter-claim, set-off or cross-demand within s.40(1)(g).

Court Disposition

Application failed; the Court declared it was not satisfied that the firstnamed judgment debtor had the relevant counter-claim, set-off or cross-demand, refused an adjournment for further evidence as to quantum, and ordered costs against the firstnamed judgment debtor.

Orders

  • ['It is not satisfied that the firstnamed judgment debtor has a counter-claim, set-off or cross-demand as referred to in s.40(1)(g) Bankruptcy Act 1966 (Cth).' 'The application of the firstnamed judgment debtor to adjourn the hearing of the application in order that further evidence as to quantum might be adduced is...