Gould, Stephen v Day, Julian [1998] FCA 116

Gould, Stephen v Day, Julian [1998] FCA 116

The motion to set aside the bankruptcy notice failed because the magistrate's witness expenses order remained a binding court order and Mr Gould had unsuccessfully attempted to challenge it, and because the material before the Court did not establish the existence of any counter-claim, set off or cross-demand equal to or exceeding the amount of that order; the only evidence was that his District Court claim had been dismissed.

Jurisdiction
Australia
Judgment Date
20 February 1998
Procedural Posture
Application by Notice of Motion to Set Aside a Bankruptcy Notice / Hearing and Determination
Outcome
Motion to set aside the bankruptcy notice dismissed; time for compliance with the bankruptcy notice extended.
Legal Topics
['bankruptcy Notice' 'witness Expenses Order' 'counter Claim, Set Off or Cross Demand' 'act of Bankruptcy' 'extension of Time to Comply With Bankruptcy Notice']
['bankruptcy and Insolvency' 'civil Procedure'] ['bankruptcy Notice' 'witness Expenses Order' 'counter Claim, Set Off or Cross Demand' 'act of Bankruptcy' 'extension of Time to Comply With Bankruptcy Notice']

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Procedural Posture

Application by Notice of Motion to Set Aside a Bankruptcy Notice / Hearing and Determination

Legal Issues

  1. 1 ["Whether the bankruptcy notice should be set aside on the basis that the magistrate's order for witness expenses was excessive." "Whether the bankruptcy notice should be set aside because the applicant had a counter-claim, set off or cross-demand against the respondent equal to or exceeding the amount of the magistrate's order that could not have been set up in the proceeding in which that order was obtained."]

Ratio Decidendi

The motion to set aside the bankruptcy notice failed because the magistrate's witness expenses order remained a binding court order and Mr Gould had unsuccessfully attempted to challenge it, and because the material before the Court did not establish the existence of any counter-claim, set off or cross-demand equal to or exceeding the amount of that order; the only evidence was that his District Court claim had been dismissed.

Court Disposition

Motion to set aside the bankruptcy notice dismissed; time for compliance with the bankruptcy notice extended.

Orders

  • ['The time for complying with the bankruptcy notice is extended until and including Friday, 13 March 1998.' 'The motion to set aside the bankruptcy notice is otherwise dismissed.']