Re Komesaroff, Morris Ex Parte Law Institute of Victoria [1996] FCA 327

Re Komesaroff, Morris Ex Parte Law Institute of Victoria [1996] FCA 327

The judgment debtor failed to demonstrate a prima facie case of a cross demand against the Institute as judgment creditor and merely asserting the claim is insufficient; furthermore, the claim for damages was not solely against the Institute as required by s 40(1)(g) of the Bankruptcy Act.

Parties
Judgment Debtor: Morris Komesaroff; Judgment Creditor: Law Institute of Victoria
Jurisdiction
Australia
Judgment Date
08 May 1996
Procedural Posture
Bankruptcy Proceeding / Application to Set Aside Bankruptcy Notice Based on Alleged Cross Demand
Outcome
Application to set aside bankruptcy notice based on cross demand dismissed.
Legal Topics
Bankruptcy Notice, Cross Demand, Set Off, Counter Claim, Legal Profession Practice Act
Bankruptcy Bankruptcy Notice Cross Demand Set Off Counter Claim Legal Profession Practice Act

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Parties

Morris Komesaroff

Judgment Debtor

Law Institute of Victoria

Judgment Creditor

Procedural Posture

Bankruptcy Proceeding / Application to Set Aside Bankruptcy Notice Based on Alleged Cross Demand

Legal Issues

  1. 1 Whether the judgment debtor has a set-off, counter-claim or cross demand against the judgment creditor as referred to in s 40(1)(g) of the Bankruptcy Act 1966

Ratio Decidendi

The judgment debtor failed to demonstrate a prima facie case of a cross demand against the Institute as judgment creditor and merely asserting the claim is insufficient; furthermore, the claim for damages was not solely against the Institute as required by s 40(1)(g) of the Bankruptcy Act.

Court Disposition

Application to set aside bankruptcy notice based on cross demand dismissed.

Orders

  • The judgment debtor pay the judgment creditor's costs of this proceeding.
  • If a sequestration order is made against the estate of the judgment debtor based on an act of bankruptcy resulting from his failure to comply with the demand contained in the bankruptcy notice, the costs referred to in paragraph 1 are deemed to be costs in the administration of the bankruptcy.