Federal Court of Australia
CATCHWORDS
Bankruptcy - bankruptcy notice - what constitutes an affidavit under sub-s. 41 (7) - principles applicable to s. 41 (7) applications - requirements to satisfy the Court that the debtor has the requisite counter-claim, set-off or cross demand. Bankruptcy Act 1966 (Cth) ss. 30; 33 (1) (c), (2) (c); 40 (1) (g), 44 (7)
RE: ROY EDWARD.BRINK EX PARTE: THE COMMERCIAL BANKING COMPANY OF SYDNEY LIMITED
NO. B 1030 OF 1980 LOCKHART J.
27 JUNE 1980
AT SYDNEY
IN_THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE
No. B 1030 of 1980 OF NEW SOUTH WALES AND THE
AUSTRALIAN CAPITAL TERRITORY
RE: ROY EDWARD BRINK Applicant
EX PARTE: THE COMMERCIAL BANKING COMPANY OF SYDNEY LIMITED
Respondent ORDER. JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: FRIDAY 27 JUNE 1980 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. There be no deemed extension of time to comply with the requirements of the bankruptcy notice. 2. The application under sub-s. 41 (7) be dismissed.
3. The costs of both parties be reserved.
IN_ THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE
) No. B 1030 of 1980 OF NEW SOUTH WALES AND THE
AUSTRALIAN CAPITAL TERRITORY
RE: ROY EDWARD BRINK Applicant EX PARTE: THE COMMERCIAL BANKING COMPANY
OF SYDNEY LIMITED Respondent REASONS FOR JUDGMENT
JL? Gree 1980 LOCKHART J. At Sydney
On 14 September 1979 the respondent, The Commercial Banking Company of Sydney Limited ("the respondent"), signed judgment against the applicant, Roy Edward Brink ("the applicant"), in the District Court of New South Wales in the sum of $8,524.14.
On 29 February 1980 a Deputy Registrar issued a bankruptcy notice directed to the applicant. It is common ground that, before the expiration of the time fixed for compliance with the requirements of the bankruptcy notice, the applicant filed with the Registrar an affidavit. It was intended by the applicant that the affidavit answer the description of "an affidavit to the effect that he has such a counter-claim, set-off, or cross demand as is referred to in paragraph (g) of sub-s. (1) of the last preceding section" within the meaning of sub-s. 41 (7) of the Bankruptcy Act, 1966 ("the Act"). The Registrar gave notice to the applicant and the respondent that the matter had been set down for
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