Harris ex parte Niemann

CATCHWORDS

Bankruptcy Act 1966 - ss.41(7) and 40(1)(g), "affidavit as to Counterclaim, Set-Off or Cross Demand" alleging a partial set-off or cross-demand against the petitloning creditor, held not an affidavit of the kind contemplated by the sections; order of sequestration made on creditor's petition.

RE: WINIFRED ANNE MADELAINE HARRIS EX PARTE: ERNEST HARDING NIEMANN SWEENEY J.

19 DECEMBER 1979

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION No. P859 of 1979

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

Re: Winifred Anne Madelaine HARRIS a Debtor

Ex parte: Ernest Harding NIEMANN

a Creditor

REASONS FOR JUDGMENT

C.A. Sweeney J. Iv vpecenper, 1979

The petitioning creditor issued a petition returnable on 23 October 1979 in which it was alleged:

"1. The debtor was at the date of the commission of the act of bankruptcy specified in paragraph 4 of this °* petition personally present in Australia.

2. The debtor is justly and truly indebted to the creditor in the sum of $5,023.06¢ for

{a) an Order obtained by the creditor in the Supreme Court of Victoria on 31/5/1979 for $4,025.08¢;

(b) an Order obtained by the creditor in the Supreme Court of Victoria on 25/6/1979 for $447-98¢; and,

(c) an Order obtained by the creditor in the Supreme Court of Victoria on 26/7/1979 for $550-00¢.

3. I do not, nor does any person on my behalf, hold any security over the property of the debtor, or any part of it for the payment of the amount specified in the last preceding paragraph.

«2-2/

4. The debtor, within six months before the presentation of this petition, committed the following act of bankruptcy namely that she failed on or before the 17th day of September,

1979, either to comply with the requirements of a bankruptcy notice served on her on the First day of September, 1979, or to satisfy the Court that she had a counter claim, set-off or cross demand equal to or exceeding the sum specified in paragraph (a) of the bankruptcy notice."