Federal Court of Australia
CATCHWORDS
Bankruptcy Act 1966 - petitioning creditor on proof of facts set out in s.52(1) prima facie entitled to an order of sequestration; held other sufficient cause not having been shown why an order ought not be made, order of
sequestration made.
RE: Robert Ian MITCHELSON EX PARTE: Carolyn Eva MITCHELSON
SWEENEY J. 19 December 1979
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION No. P741 of 1978
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
Re: Robert Ian MITCHELSON a debtor
Ex parte: Carolyn Eva MITCHELSON a creditor
C.A. Sweeney J. 19 December, 1979
REASONS FOR JUDGMENT
The petitioning creditor obtained judgment against the debtor, her former husband, on 12 July 1978 in the Supreme Court of Victoria in the sum of $7,797.26 (being the amount claimed of $7,659.60 together with interest of $137.66) and $166.00 costs.
A bankruptcy notice claiming the sum of $7,963.26, being the amount of the judgment and costs, was issued on 19 September 1978 and served on the debtor on 26 September.
In the petition, dated and presented on 23 November 1978, the petitioning creditor alleged the existence of the judgment debt and the commission of an act of bankruptcy in failing on or before 9 November 1978 either to comply with the requirements of the bankruptcy notice or to satisfy the Court that he had a counter-claim, set off or cross demand equal to or exceeding the sum specified in the bankruptcy notice. In
paragraph 3 of the petition, the petitioning creditor said:
"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."
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The debtor filed an affidavit on 10 October 1978 an which he claimed that he had a counter-claim, set off or cross demand against the petitioning creditor equal to or exceeding the amount of the judgment debt. The affidavit did not contain an allegation that the counter-claim, set off or cross demand was one which he could not have set up in the action, as required under the terms of ss.41(7) and 40(1) (g)
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