. 44| CATCHWORODS BANKRUPTCY - bankruptcy notice - alleg counter-claim, set-off or cross demand generality of material relied on. Bankruptcy Act 1966, ss.40(1)(g) and 41(7) Daribor Stephan Maroevic v. Ronald Facy Qld G15 of 1987 FISHER, SPENDER & PINCUS JJ. BRISBANE 19 AUGUST 1987 ed existence of - vagueness and 2.0 AUG 1987 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTAY IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G15 of 1987 GENERAL DIVISION ) ON APPEAL FROM _THE SUPREME COURT OF QUEENSLAND BETWEEN: DARIBOR STEPHAN MAROEVIC Appellant AND: RONALD FACY Respondent MINUTES OF ORDER JUDGES MAKING ORDER: FISHER, SPENDER AND PINCUS JJ. DATE OF ORDER: 19 AUGUST 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G15 of 1987 GENERAL DIVISION ) ON_ APPEAL FROM THE SUPREME COURT OF UEENSLAND BETWEEN: DARIBOR STEPHAN MAROEVIC Appellant AND: RONALD FACY Respondent CORAM: FISHER, SPENDER & PINCUS JJ. 19 AUGUST 1987 REASONS FOR JUDGMENT This 1s an appeal from the Supreme Court of Queensland exercising jurisdiction under the Bankruptcy Act. The appellant challenges an order made by that Court on 4 February 1987 in respect of a bankruptcy notice served on him. The Court's order was as follows:- "The Court 1s not satisfied that the Judgment Debtor has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt, being a counter-claim, set-off or cross demand that the Judgment Debtor could not have set up in the action in which the judgment was obtained." The bankruptcy notice was issued on a judgment entered against the appellant in the Magistrates Court of Queensland at Bowen in a sum of $5,887.46 by way of damages for personal injuries. Section 41(7) of the Bankruptcy Act reads as follows: "Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has filed with the Registrar an affidavit to the effect that he has such a counter-claim, set-off or cross demand as 1s referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied." The appellant, who was unrepresented both here and in the Supreme Court, relied before the learned primary judge on an affidavit by himself dated 29 August 1986. There was no evidence as to whether that affidavit was filed in the time prescribed by s.41(7), but counsel for the respondent was content to argue the matter on the basis that there had been compliance with the time limit. The expression "such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g)" may by reference to that paragraph be seen to mean - " .. a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he could not have set up in the action or proceeding in which the judgment or order was obtained". By consent, an affidavit was read before us made by K.J. Crowdey, a law clerk present at the hearing in the Supreme Court, from which it appears that the learned primary judge regarded the question before him as being whether there was in truth any counter-claim, set-off or cross demand. Although no reasons were given, it seems safe to infer that his Honour decided the matter on that basis, rather than on the ground that the appellant could have set up the claim in question. The latter point appears to be an arguable one, dependent upon the construction of certain provisions of the Magistrates Court Act 1921-1982 (Q.), and rules made thereunder, and the District Courts Act 1967-1985 (Q.). It seems to us, however, that the first question to be considered is that which the learned primary judge apparently dealt with, namely whether there was a counter-claim, set-off or cross demand. We have carefully studied the affidavit of the appellant which was before the learned primary judge, and do not think it necessary to set its terms out in full. In brief summary, the effect of that affidavit is as follows: The allegations of the judgment creditor are said to be incorrect, as is the judgment of the Magistrates Court. The appellant believes himself to have been denied his rights and justice from the beginning of the case. The appellant's property is said to have been damaged by one Doyle and others, including the respondent, Doyle having engaged in illegal development work on land neighbouring that of the appellant. Damage has been caused, it is said, to the appellant, his family and his home; he has lost wages and incurred legal expenses in a total of $33,850. He claims to have been intimidated and discriminated against racially and otherwise, and claims $500,000 under that head. He also seeks an additional $20,000 for loss of property, $500,000 in respect of damage to his health and contribution to a dividing fence in the sum of $100. The respondent also relied on an affidavit which was before the learned primary judge, suggesting that the appellant's claim could perhaps be based on an allegation of personal injury caused to him on 12 March 1983. That does not appear to be so. From perusal of the papers and the appellant's address to us, it seemed that his desire is to have some appropriate authority investigate and compensate him for a number of wrongs he claims have been done to him. Counsel for the respondent drew our attention to the discussion in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135 of what must be shown by a judgment debtor to satisfy the requirements of s.41(7). In that case Lockhart J. pointed to the variations in the way in which the test has been expressed: it has been said that it is enough if there is a genuine claim, it is necessary to show a bona fide claim, there must be reasonable ground for the claim and other tests have been suggested. Since the point was argued on one side only, it is undesirable that this Court express a concluded view as to the appropriate test. Plainly, the learned primary judge was not satisfied that the counter-claim, set-off or cross demand on which the appellant sought to rely before him had sufficient substance. The onus was on the appellant to satisfy his Honour of the matters there mentioned and he failed to do so. Before us, again, it was for the appellant to show that his Honour was in error in his conclusion. So far from being of that opinion, we agree, with respect, with the result which was arrived at below. The material before the Court was plainly not such as should have induced the requisite state of satisfaction. In arriving at our conclusion, we have made allowance for the fact that the appellant laboured under the disadvantages of having no legal assistance anda less than perfect command of written English. However benevolently one reads the material relied on by the appeliant, it is too vague and general to forma foundation for a finding that the appellant has a counter-clain, set~off or cross demand. The appeal must be dismissed with costs. - I certify that this and the preceding four pages are a true copy of the reasons for Judgment herein of the Honourable Justices Fisher, Spender and Pincus. ~~ ~ JT Meebo. Associate Dated: 19 August 1987