Gomez v State Bank of New South Wales Limited [2002] FCAFC 101; [2002] FCA 442

Gomez v State Bank of New South Wales Limited [2002] FCAFC 101 Gomez v State Bank of New South Wales Limited [2002] FCA 442

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Gomez v State Bank of New South Wales Limited [2002] FCA 442

BANKRUPTCY – appeal from decision of primary judge dismissing an application to set aside a bankruptcy notice – debtor's claim that secured creditor had sold mortgaged properties at an undervalue and in breach of a duty of care as mortgagee – tests applicable to whether duty of care discharged – whether debtor had shown prima facie case for relief by way of counterclaim, set-off or cross-demand.

Bankruptcy Act 1966 (Cth) subs 40(1), 41(7)

Ebert v The Union Trustee Company of Australia Ltd (1960) 104 CLR 346 applied Guss v Johnstone (2000) 171 ALR 598 applied Kennedy v De Trafford [1897] AC 180 referred to Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW ConvR 55-731 cited Stone v Farrow Mortgage Services (in liq) [1999] NSWCA 435 referred to Beecham Group Limited v Bristol Laboratories Pty Limited (1967) 118 CLR 618 referred to Cuckmere Brick Co Ltd v Mutual Finance Limited [1971] Ch 949 considered Medforth v Blake [2000] Ch 86 considered Pendlebury v Colonial Mutual Life Assurance Society Limited (1912) 13 CLR 676 referred to Forsyth v Blundell (1973) 129 CLR 477 referred to Commercial and General Acceptance Corporation Limited v Nixon (1981) 152 CLR 491 referred to Banque Commerciale SA (In liq) v Akhil Holdings Limited (1990) 169 CLR 279 cited Water Board v Moustakas (1988) 180 CLR 491 cited State Bank of New South Wales Ltd v Chia & Anor (2000) 50 NSWLR 587 approved