Killen v Hamilton; in the Matter of Bryce Geoffrey Lyle Killen [2008] FCA 1872

Killen v Hamilton; in the Matter of Bryce Geoffrey Lyle Killen [2008] FCA 1872

The application to set aside the Bankruptcy Notice failed because the applicant did not establish any counter-claim, set-off or cross demand available to him personally against the respondent. The material showed only possible claims by Pinata Pty Limited, partnership members, Castanair Pty Limited or associated entities concerning the respondent's conduct as receiver, and such claims could not be relied on by the applicant for the purposes of s 40(1)(g). The adjournment was refused because the applicant had ample opportunity to obtain representation and the respondent was entitled to have the application heard without further delay.

Jurisdiction
Australia
Judgment Date
09 December 2008
Procedural Posture
Bankruptcy Application to Set Aside Bankruptcy Notice No Nn2786/08 / Hearing of Application and Application for Adjournment
Outcome
Application for adjournment refused; application to set aside Bankruptcy Notice dismissed; applicant ordered to pay the respondent's costs.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'adjournment' 'costs Order' 'joint and Several Liability']
['bankruptcy' 'civil Procedure' 'costs'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'adjournment' 'costs Order' 'joint and Several Liability']

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Procedural Posture

Bankruptcy Application to Set Aside Bankruptcy Notice No Nn2786/08 / Hearing of Application and Application for Adjournment

Legal Issues

  1. 1 ['Whether the applicant should be granted an adjournment to obtain legal representation.' 'Whether the applicant had a counter-claim, set-off or cross demand equal to or exceeding the amount in the Bankruptcy Notice that he could not have set up in the original proceedings.' 'Whether claims said to be available to Pinata Pty Limited, its shareholder, associated trusts or partnership members could be relied on by the applicant personally to set aside the Bankruptcy Notice.' "Whether the applicant should pay the respondent's costs of the application."]

Ratio Decidendi

The application to set aside the Bankruptcy Notice failed because the applicant did not establish any counter-claim, set-off or cross demand available to him personally against the respondent. The material showed only possible claims by Pinata Pty Limited, partnership members, Castanair Pty Limited or associated entities concerning the respondent's conduct as receiver, and such claims could not be relied on by the applicant for the purposes of s 40(1)(g). The adjournment was refused because the applicant had ample opportunity to obtain representation and the respondent was entitled to have the application heard without further delay.

Court Disposition

Application for adjournment refused; application to set aside Bankruptcy Notice dismissed; applicant ordered to pay the respondent's costs.

Orders

  • ['The application for an adjournment be refused.' 'The Application to set aside Bankruptcy Notice No NN2786/08 dated 28 July 2008 be dismissed.' "The applicant pay the respondent's costs of and incidental to this Application, including any reserved costs."]