Harris ex parte Niemann

Harris ex parte Niemann

An affidavit filed by the debtor alleging only a partial set-off or cross demand less than the amount claimed does not constitute an affidavit of the kind contemplated by ss.41(7) and 40(1)(g) of the Bankruptcy Act 1966. The grounds of opposition did not establish sufficient cause to refuse a sequestration order, and the creditor's petition was upheld.

Parties
Debtor: Winifred Anne Madelaine Harris; Creditor: Ernest Harding Niemann; Debtor's Solicitor: Mr Walker; Debtor's Solicitor (for Adjournment Application Only): Mr Rees Jones
Jurisdiction
Australia
Judgment Date
19 December 1979
Procedural Posture
Bankruptcy Creditor's Petition / Final Hearing of Petition and Debtor's Application
Outcome
Sequestration order made on creditor's petition. Debtor's application for enlargement of time dismissed. Costs awarded to petitioning creditor in accordance with statute.
Legal Topics
Counterclaim, Set Off, Cross Demand, Sequestration Order, Bankruptcy Act Compliance
Bankruptcy Counterclaim Set Off Cross Demand Sequestration Order Bankruptcy Act Compliance

Case Brief

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Parties

Winifred Anne Madelaine Harris

Debtor

Ernest Harding Niemann

Creditor

Mr Walker

Debtor's Solicitor

Mr Rees Jones

Debtor's Solicitor (for Adjournment Application Only)

Procedural Posture

Bankruptcy Creditor's Petition / Final Hearing of Petition and Debtor's Application

Legal Issues

  1. 1 Whether the debtor's affidavit constituted an affidavit as to counterclaim, set-off, or cross demand equal to or exceeding the debt as required by Bankruptcy Act 1966 ss.41(7) and 40(1)(g)
  2. 2 Whether enlargement of time for compliance with bankruptcy notice should be granted
  3. 3 Whether grounds of opposition establish sufficient reason not to make sequestration order

Ratio Decidendi

An affidavit filed by the debtor alleging only a partial set-off or cross demand less than the amount claimed does not constitute an affidavit of the kind contemplated by ss.41(7) and 40(1)(g) of the Bankruptcy Act 1966. The grounds of opposition did not establish sufficient cause to refuse a sequestration order, and the creditor's petition was upheld.

Court Disposition

Sequestration order made on creditor's petition. Debtor's application for enlargement of time dismissed. Costs awarded to petitioning creditor in accordance with statute.

Orders

  • Order for sequestration of estate
  • Costs of petitioning creditor of and incidental to the petition and of and incidental to debtor's applications including reserved costs, to be in accordance with statute