Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485

Batterham v Nauer, in the matter of Peter James Batterham [2019] FCA 485

Mr Batterham does not have a prima facie counter-claim or cause of action against Mr Nauer sufficient to set aside the bankruptcy notice or to proceed with NSD990/2018, as his claims are either misconceived, lacking factual or legal foundation, statute-barred, or barred by his bankruptcy and the terms of the 2011 settlement deed.

Parties
Applicant: Peter Batterham; Respondent: Marcel Andre Nauer
Jurisdiction
Australia
Judgment Date
11 April 2019
Procedural Posture
Bankruptcy and Summary Dismissal Application / Final Judgment
Outcome
Application to set aside bankruptcy notice refused; proceedings summarily dismissed with costs.
Legal Topics
Application to Set Aside Bankruptcy Notice, Summary Dismissal, Director's Duties, Oppressive Conduct, Australian Consumer Law, Breach of Fiduciary Duty, Fraud, Statute of Limitations, Trustee in Bankruptcy, Releases in Settlement Deed
Bankruptcy and Insolvency Corporations Law Practice and Procedure Application to Set Aside Bankruptcy Notice Summary Dismissal Director's Duties Oppressive Conduct Australian Consumer Law +5 more

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Parties

Peter Batterham

Applicant

Marcel Andre Nauer

Respondent

Procedural Posture

Bankruptcy and Summary Dismissal Application / Final Judgment

Legal Issues

  1. 1 Whether Mr Batterham has a counter-claim, set-off or cross-demand sufficient to set aside bankruptcy notice under s 40(1)(g) of the Bankruptcy Act 1966 (Cth)
  2. 2 Whether Mr Batterham's claims in NSD990/2018 disclose any reasonable cause of action or have reasonable prospects of success
  3. 3 Whether claims for breach of Corporations Act, ACP, fiduciary duty, or fraud are misconceived or doomed to fail

Ratio Decidendi

Mr Batterham does not have a prima facie counter-claim or cause of action against Mr Nauer sufficient to set aside the bankruptcy notice or to proceed with NSD990/2018, as his claims are either misconceived, lacking factual or legal foundation, statute-barred, or barred by his bankruptcy and the terms of the 2011 settlement deed.

Court Disposition

Application to set aside bankruptcy notice refused; proceedings summarily dismissed with costs.

Orders

  • In NSD982/2018, application to set aside bankruptcy notice BN224341 refused.
  • In NSD982/2018, proceeding dismissed with costs.