Re McKellar, Ian Bruce & Anor Ex Parte L & T Croker Pty Ltd [1996] FCA 322

Re McKellar, Ian Bruce & Anor Ex Parte L & T Croker Pty Ltd [1996] FCA 322

The affidavits filed by the debtors did not establish any real or effective cross-claims, and even if such claims existed, they could have been set up in the Supreme Court action. The affidavits also failed to establish that any counter-claim, set-off or cross demand would equal or exceed the judgment debt. Therefore, they did not meet the requirements of s.41(7) of the Bankruptcy Act.

Parties
Debtor: Ian Bruce McKellar; Debtor: Peter Jacobus Botman; Creditor: L & T Croker Pty Ltd
Jurisdiction
Australia
Judgment Date
01 May 1996
Procedural Posture
Application for Review of Registrar's Decision (bankruptcy) / Final Judgment
Outcome
application dismissed
Legal Topics
Counter Claim, Set Off, Cross Demand, Compliance With Bankruptcy Notice, Affidavit Requirements Under Bankruptcy Act
Bankruptcy Counter Claim Set Off Cross Demand Compliance With Bankruptcy Notice Affidavit Requirements Under Bankruptcy Act

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Parties

Ian Bruce McKellar

Debtor

Peter Jacobus Botman

Debtor

L & T Croker Pty Ltd

Creditor

Procedural Posture

Application for Review of Registrar's Decision (bankruptcy) / Final Judgment

Legal Issues

  1. 1 Whether the debtors' affidavits satisfy the requirements of s.41(7) of the Bankruptcy Act
  2. 2 Whether the debtors have a counter-claim, set-off or cross demand under s.40(1)(g) of the Bankruptcy Act
  3. 3 Whether such counter-claim, set-off or cross demand could have been set up in the Supreme Court action

Ratio Decidendi

The affidavits filed by the debtors did not establish any real or effective cross-claims, and even if such claims existed, they could have been set up in the Supreme Court action. The affidavits also failed to establish that any counter-claim, set-off or cross demand would equal or exceed the judgment debt. Therefore, they did not meet the requirements of s.41(7) of the Bankruptcy Act.

Court Disposition

application dismissed

Orders

  • The application be dismissed.
  • The affidavits filed on behalf of the judgment debtors do not answer the description of affidavits required by s.41(7) of the Bankruptcy Act.