Re Annette, Edward & Anor [1981] FCA 129

Re Annette, Edward & Anor [1981] FCA 129

The debtors have not established a prima facie counter-claim, set-off, or cross demand of the kind required by s. 40(1)(g) and s. 41(7) of the Bankruptcy Act 1966. The evidence is insufficient, and the case for the creditor is more consistent with the probabilities and documentary material. The debtors failed to discharge the onus to prove their alleged arrangement.

Parties
Debtor: Edward Annette; Debtor: Gloria Annette; Creditor: Mutual Acceptance Limited
Jurisdiction
Australia
Judgment Date
12 August 1981
Procedural Posture
Bankruptcy Proceedings / Application Under S.41(7) Bankruptcy Act 1966
Outcome
Application dismissed. Declaration made.
Legal Topics
Counter Claim, Set Off, Cross Demand, Bankruptcy Notice, Bankruptcy Act S.40(1)(g) and S.41(7)
Bankruptcy Counter Claim Set Off Cross Demand Bankruptcy Notice Bankruptcy Act S.40(1)(g) and S.41(7)

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 9 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Edward Annette

Debtor

Gloria Annette

Debtor

Mutual Acceptance Limited

Creditor

Procedural Posture

Bankruptcy Proceedings / Application Under S.41(7) Bankruptcy Act 1966

Legal Issues

  1. 1 Whether the debtors have a counter-claim, set-off or cross demand of the type required by ss 40(1)(g) and 41(7) of the Bankruptcy Act 1966
  2. 2 Whether the affidavits filed are of the required type under the Act

Ratio Decidendi

The debtors have not established a prima facie counter-claim, set-off, or cross demand of the kind required by s. 40(1)(g) and s. 41(7) of the Bankruptcy Act 1966. The evidence is insufficient, and the case for the creditor is more consistent with the probabilities and documentary material. The debtors failed to discharge the onus to prove their alleged arrangement.

Court Disposition

Application dismissed. Declaration made.

Orders

  • It be declared that the Court is not satisfied that the debtors possess a counter-claim, set-off or cross demand of the type referred to in s. 40(1)(g) of the Bankruptcy Act 1966.
  • The debtors pay the costs of the proceedings including any reserved costs.