Re Hayes, John Robert Ex parte Hayes, John Robert & Anor [1996] FCA 407

Re Hayes, John Robert Ex parte Hayes, John Robert & Anor [1996] FCA 407

Mr Hayes showed a fair chance of success in his County Court claim because Wensley Bray, as a co-surety, had at least an arguable right of contribution from Ms Watts after paying the ANZ Bank debt, that right was validly assigned to Mr Hayes, and Mr Hayes could not have set up the claim in the Magistrates' Court because the Nature's Source debt had not then been fully repaid and the right of contribution had not yet been assigned to him.

Jurisdiction
Australia
Judgment Date
14 May 1996
Procedural Posture
Bankruptcy Notice Application / Application Under S 40(1)(g) and S 41(7) of the Bankruptcy Act 1966 (cth) Concerning a Bankruptcy Notice Served on the Applicant
Outcome
Application allowed; declaration made and costs ordered for the applicant.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'co Surety Contribution' 'assignment of Chose in Action' 'guarantee']
['bankruptcy' 'suretyship' 'equity' 'assignment'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'co Surety Contribution' 'assignment of Chose in Action' 'guarantee']

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Procedural Posture

Bankruptcy Notice Application / Application Under S 40(1)(g) and S 41(7) of the Bankruptcy Act 1966 (cth) Concerning a Bankruptcy Notice Served on the Applicant

Legal Issues

  1. 1 ['Whether the applicant had a counter-claim, set-off or cross demand equal to or exceeding the judgment debt the subject of the bankruptcy notice.' 'Whether the claimed right of contribution as between co-sureties depended on a demand by the creditor bank.' "Whether Wensley Bray's right of contribution from Ms Watts was validly assigned to Mr Hayes." "Whether Mr Hayes could have set up the counter-claim, set-off or cross demand in the Magistrates' Court proceeding in which Ms Watts obtained judgment."]

Ratio Decidendi

Mr Hayes showed a fair chance of success in his County Court claim because Wensley Bray, as a co-surety, had at least an arguable right of contribution from Ms Watts after paying the ANZ Bank debt, that right was validly assigned to Mr Hayes, and Mr Hayes could not have set up the claim in the Magistrates' Court because the Nature's Source debt had not then been fully repaid and the right of contribution had not yet been assigned to him.

Court Disposition

Application allowed; declaration made and costs ordered for the applicant.

Orders

  • ['Declare that the Court is satisfied that the applicant John Robert Hayes has a counter-claim, set-off or cross demand exceeding the amount of the judgment debt the subject of the bankruptcy notice dated 9 August 1995, being a counter-claim, set-off or cross demand that he could not have set up in the action or...