Selth, Re D.T. Ex Parte D.T. Selth Elric Pty Ltd [1986] FCA 109

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IN THE FEDERAL COURT OF AUSTRALTA ) GENERAL DIVISION )

BANKRUPTCY DISTRICT OF THE SOUTHERN } DISTRICT OF THE STATE OF QUEENSLAND )

QLD BN925 of 1985

RE: David Trevor SELTH

EX PARTE: David Trevor SELTH Applicant BLRIC PTY LIMITED Respondent

SPENDER J.

17 MARCH, 1986

REASONS FOR JUDGMENT

This is anapplication by David Trevor Selth under

s.41(7) of the Bankruptcy Act 1966 directed to satisfying the

Court that he has a counter-claim, set-off or cross-demand as 1s referred to in paragraph 40(1)(9) of the Act, that is, a

counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt referred to in the Bankruptcy Notice which has been served on him, being a counter-claim, set-off or

cross demand that he could not have set up inthe actual

proceeding in which the judgment or order was obtained.

On 7 May, 1985, a Bankruptcy Notice directed to Mr. Selth was issued on the request of Elric Pty. Limited (Elric).

The Bankruptcy Notice claimed the sum of $5.099.67, said to be a

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amount due to Elric as the balance outstanding under a judgment obtained by it against Mr. Selth in the Supreme Court of

Queensland on 15 February, 1985.

In that action, No.5032 of 1983, the Writ of Summons by Elric against Mr. Selth was issued on 24 November, 1983 claiming $113,309.91, moneys paid by Elric to a third party for and on behalf of Mr. Selth and at his request. On 6 December, 1983, a judgment in default of appearance was entered against Mr. Selth in that sum and costs of $230.90. On 31 January, 1984, on Mr. Selth's application, the default judgment was set aside by

consent and the judgment creditor's costs of obtaining judgment and in respect of the application to set aside the judgment by

default were awarded against Mr. Selth. On 2 March, 1984, Mr. Selth delivered a defence in the action. On 21 March, 1984, Elric applied for summary judgment against Mr. Selth on the basis that the defence delivered on 2 March, 1984 disclosed no proper defence. On that day, Master Lee Q.C., granted leave to Mr. Selth to file an amended defence and ordered that he pay the judgment creditor's costs of the application to be taxed. On 11 April, 1984, Mr. Selth delivered an amended defence. On 17 October, 1984, he delivered a further amended defence and counter-claim, pursuant to leave granted to him by the judge of the Supreme Court of Queensland sitting in the Commercial Causes jurisdiction. On 22 October, 1984, application was made for the whole of the counter-claim to be struck out. Such application was heard and determined by Mr. Justice Moynihan who, after hearing argument for counsel for both parties, ordered that paragraphs 3,