CATCHWORDS
BANKRUPTCY - application to set aside bankruptcy notice - counter-claim set off or cross demand - requirement to produce evidence - requirement of amount at least equal to the judgment debt - applicant unable to bring proceedings due to personal reasons
Bankruptcy Act 1966 s.41(g)
Ebert v The Union Trustee Company of Australia Limited (1960-61) 104 CLR 346 Refd
Re Vijay Nath Ex parte The Abovenamed v Nationwide News Pty Ltd trading as Quest Community Newspapers
No QN 1101 of 1995
Kiefel J Brisbane 17 October 1995
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND No. QN 1101 of 1995
RE: VIJAY NATH
EX PARTE: THE ABOVENAMED
Applicant
AND: NATIONWIDE NEWS PTY LTD trading as QUEST COMMUNITY NEWSPAPERS
Respondent
JUDGE MAKING ORDER: Kiefel J.
DATE OF ORDER: 17 October 1995
WHERE MADE: Brisbane
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent's costs of the application.
NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND No. QN 1101 of 1995
RE: VIJAY NATH
EX PARTE: THE ABOVENAMED
Applicant
AND: NATIONWIDE NEWS PTY LTD trading as QUEST COMMUNITY NEWSPAPERS
Respondent
CORAM: Kiefel J.
DATE: 17 October 1995
PLACE: Brisbane
REASONS FOR JUDGMENT
Mr Nath applies to set aside a bankruptcy notice served on him and which is based upon a judgment obtained against him in the Magistrates Court in Brisbane on 2 December 1994 for the sum of $6622.99.
Mr Nath says that he should not have to pay all of
the sum claimed since the advertisements he was charged for were inaccurate and
therefore not worth the amount of the charge, and further that not all of the
orders for advertisements were authorised by him. As to the latter ground, although Mr Nath is
not required to now produce all admissible evidence upon which he would
ultimately rely (see Ebert v The Union Trustee Company of
Australia Limited (1960-61) 104 CLR 346), his affidavit contains
only a mere assertion. To an extent, the same may be said of the firstmentioned
ground which
might amount to a breach of contract if there was evidence as to what the
contract was for and what advertisements had been ordered.
But assuming for the moment that the claims amount to a counter-claim set off or cross demand within the meaning of s.41(g) of the Bankruptcy Act 1966, there is nothing to suggest that they would be of an amount at least equal to the amount of the judgment debt and it is abundantly clear that they could have been brought in the Magistrates Court proceedings. In this respect, Mr Nath explained that he was unable because of personal reasons and not for reasons related to legal efficacy to bring the cross-claim. For these reasons the application must be dismissed.
There will be a further order that the applicant pay the respondent's costs of the application.
I certify that this and the preceding page is a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.
Associate
Date: 17 October 1995
Applicant: In Person
Solicitors for the respondent: M J Murray & Associates
Date of Hearing: 16 October 1995
Place of Hearing: Brisbane
Date of Judgment: 17 October 1995
