Webb, L.M. v Hunter, L. [1995] FCA 609

Webb, L.M. v Hunter, L. [1995] FCA 609

The respondent's affidavit did not comply with s.41(7) because, even on a benevolent construction, it contained only wide-ranging assertions and allegations, with no evidence establishing any real or effective counter-claim, set-off or cross-demand. Because the affidavit did not fall within s.41(7), it did not extend the time for compliance with the bankruptcy notice, which expired on 1 November 1994. The declaration that time expired on 26 May 1995 was therefore set aside.

Jurisdiction
Australia
Judgment Date
10 August 1995
Procedural Posture
Bankruptcy Appeal / Appeal From a Judge of the Federal Court of Australia; Extension of Time to Appeal Granted
Outcome
Appeal allowed with costs; second order at first instance set aside; declaration made that time for compliance expired in accordance with the bankruptcy notice and was not extended by any affidavit filed under s.41(7); costs certificate granted to the appellant.
Legal Topics
['bankruptcy Notice' 'affidavit Under S.41(7) of the Bankruptcy Act 1966' 'counter Claim, Set Off or Cross Demand' 'registrar Review' 'extension of Time for Compliance With Bankruptcy Notice' 'costs Certificate']
['bankruptcy Law' 'federal Court Procedure'] ['bankruptcy Notice' 'affidavit Under S.41(7) of the Bankruptcy Act 1966' 'counter Claim, Set Off or Cross Demand' 'registrar Review' 'extension of Time for Compliance With Bankruptcy Notice' 'costs Certificate']

Case Brief

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Procedural Posture

Bankruptcy Appeal / Appeal From a Judge of the Federal Court of Australia; Extension of Time to Appeal Granted

Legal Issues

  1. 1 ['Whether an affidavit filed in purported reliance on s.41(7) of the Bankruptcy Act 1966, but not complying with that subsection, extended the time for compliance with the bankruptcy notice.' 'Whether the second order made at first instance declaring that time for compliance expired on 26 May 1995 should be set aside.' 'Whether the appellant should receive a costs certificate under s.7(1) of the Federal Proceedings (Costs) Act 1981.']

Ratio Decidendi

The respondent's affidavit did not comply with s.41(7) because, even on a benevolent construction, it contained only wide-ranging assertions and allegations, with no evidence establishing any real or effective counter-claim, set-off or cross-demand. Because the affidavit did not fall within s.41(7), it did not extend the time for compliance with the bankruptcy notice, which expired on 1 November 1994. The declaration that time expired on 26 May 1995 was therefore set aside.

Court Disposition

Appeal allowed with costs; second order at first instance set aside; declaration made that time for compliance expired in accordance with the bankruptcy notice and was not extended by any affidavit filed under s.41(7); costs certificate granted to the appellant.

Orders

  • ['The appeal be allowed with costs, to include the costs of the application for leave to file and serve the notice of appeal and the costs of the motions brought by the respondent which have been dismissed.' 'The second of the two orders made by the judge at first instance on 26 May 1995 be set aside.' 'In lieu of...