Re Hodby, B.P. v. Ex parte Kenny, J. [1986] FCA 448

1

wea,

éCATCHWORODS

BANKRUPTCY - Bankruptcy Notice - Application to set aside - Sufficiency of affidavit under 5.41(7) - Necessity to satisfy court that debtor has requisite counter-claim, set-off or cross demand - Whether counter-claim could not have been set up in the

action in which the. judgment was obtained. !

Bankruptcy Act 1966 (Cth) ss.40(1)(q) and 41(7)

Local and District Criminal Courts Act 1926 (S.A.) ss.79(1) & (2)

RE: BARRY PATRICK HODBY Debtor EX PARTE: JOHN KENNY Creditor FISHER J.

ADELAIDE

14 OCTOBER 1986

IN THE FEDERAL COURT OF AUSTRALIA ) )

SOUTH AUSTRALIA DISTRICT REGISTRY ) No.166 of 1986 )

GENERAL DIVISION )

BETWEEN:

Re: BARRY PATRICK HODBY

Debtor Ex Parte: JOHN KENNY

Creditor MINUTE OF ORDER JUDGE MAKING ORDER : FISHER J. WHERE MADE : ADELAIDE

DATE OF ORDER

THE COURT ORDERS THAT:

1. Pursuant to s.41(7) of the Bankruptcy Act 1966

14 OCTOBER 1986

(Cth)

time for compliance with the bankruptcy notice extended to, and including the 14th day of October 1986.

2. The application to set aside the bankruptcy notice dismissed. 3. The debtor pay to the creditor his costs

proceedings, the same to be taxed if not agreed.

of the

Note: Settlement and entry of order is dealt with in Bankruptcy

Rule 124.

IN _ THE FEDERAL COURT OF AUSTRALIA )

) SOUTH AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION No. 166 of 1986

BANKRUPTCY DISTRICT OF THE STATE

OF SOUTH AUSTRALIA Re: BARRY PATRICK HODBY Debtor Ex Parte: JOHN KENNY Creditor REASONS FOR JUDGMENT FISHER J. :

On 11 September 1985 John Kenny ("the creditor") obtained judgment by consent against Barry Patrick Hodby ("the debtor") in the Local Court of Adelaide in the sum of $30,000. On 25 February 1986 the Registrar issued a bankruptcy notice directed to the debtor which vas served on him on 6 March 1986. Time for compliance with the bankruptcy notice was fixed for 14 days from the date of service. On 20 March 1986, within the said period of 14 days, the debtor filed with the Registrar an affidavit. It was intended that this affidavit satisfy the requirements of sub.s.41(7) of the Bankruptcy Act 1966 (Cth) ("the Act") which subsection operates to extend the time for compliance by the debtor with the bankruptcy notice. On the same day the debtor made application to this Court for an order that