Federal Court of Australia
RESTRICTED DISTRIBUTION
"197
IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) QLD PET BN1160 of BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )
RE: BARRYMORE FRANCIS CLARKE and MARJORIE CLARKE
EX PARTE: THE ABOVENAMED and PETER SHEEHY
SPENDER J. BRISBANE
22 MAY 1986
REASONS FOR JUDGMENT
On 5 February 1985, Peter Sheehy, a solicitor of the Supreme Court of Queensland, obtained a final judgment against Barrymore Francis Clarke and Marjorie Clarke ("the applicants") in the Supreme Court of Queensland for one thousand six hundred and fifty-one dollars and fifty cents ($1,651.50). On 7 June
1985, the Deputy Registrar issued a Bankruptcy Notice based on that judgment directed to the applicants, and on 17 July 1985, before the expiration of the time fixed for compliance with the requirements of the Bankruptcy Notice, the applicants filed with the Registrar an affidavit of the kind referred to in s.41(7) of
the Bankruptcy Act 1966 ("the Act"), directed to satisfying the
Court of the existence of a counter-claim, set-off or cross
demand as is referred to in s.41(g) of the Act.
The claim asserted by the applicants, conformably with the requirements of s.40(1)(g) of the Act, exceeds the amount of the judgment debt on which the Bankruptcy Notice 1s founded.
The claim of the applicants against the respondent 1s for damages for professional negligence and/or breach of contract said to arise out of the negligent manner in which he performed his duties as solicitor for the applicants in Action No.2205 of 1982 in the Supreme Court of Queensland between the applicants as First Plaintiffs and B. & M. Clarke Enterprises Pty.Ltd., Second Plaintiff, and Japan Machines (Australia) Pty.Ltd. as First Defendant and Citicorp Australia Limited as
Second Defendant.
Mr. Sheehy had acted for the applicants in the preparation for trial and in instructing counsel on the trial. The action was tried by Mr. Justice G.N. Williams without a jury on 26, 27, 28, 29 and 30 September and 3 and 4 October, 1984. Senior and junior counsel appeared for both the plaintiffs and
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