Federal Court of Australia
CATCHWORDS BANKRUPTCY - whether affidavit filed by judgment debtor amounted to a counter-claim, set-off, or cross demand of the kind referred to in s40(1)(g) of Bankruptcy Act 1966 (Cth) - effect of affidavit not falling within description of s41(7). Bankruptcy Act 1966 (Cth) s 40(1)(g) and s 41(7) Webb v Hunter unreported decision of the Full Federal Court delivered 10 August 1995 No SN 355 of 1995 Re: PHILIP MARK SMITH Judgment Debtor Ex Parte:CLIVE FAGGOTTER Judgment Creditor Branson J Adelaide 10 October 1995
IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) ) GENERAL DIVISION ) No SN 355 of 1995 ) BANKRUPTCY DISTRICT OF THE ) ) STATE OF SOUTH AUSTRALIA ) Re: PHILIP MARK SMITH Judgment Debtor Ex Parte: CLIVE FAGGOTTER Judgment Creditor MINUTES OF ORDER CORAM: Branson J PLACE: Adelaide DATE: 10 October 1995 THE COURT ORDERS THAT:- 1. It is declared that the time for compliance with the bankruptcy notice expired on 17 July 1995. 2. The debtor is to pay the creditor's costs of and incidental to the filing by the debtor of his affidavit of 14 July 1995. Should the debtor become bankrupt as a consequence of his failure to comply with the bankruptcy notice dated 30 May 1995 such costs to be governed by the provisions of the Bankruptcy Act 1966 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) ) GENERAL DIVISION ) No SN 355 of 1995 ) BANKRUPTCY DISTRICT OF THE ) ) STATE OF SOUTH AUSTRALIA ) Re: PHILIP MARK SMITH Judgment Debtor Ex Parte: CLIVE FAGGOTTER Judgment Creditor EX TEMPORE REASONS FOR JUDGMENT CORAM: Branson J PLACE: Adelaide DATE: 10 October 1995 In this matter, before the time fixed for compliance with the requirements of the bankruptcy notice, the debtor filed an affidavit dealing with certain financial dealings between him and the judgment creditor. The Registrar treated the affidavit as one asserting a counter-claim, set-off or cross demand of the kind referred to in s40(1)(g) of the Bankruptcy Act 1966 (Cth) ("the Act") and issued a notice fixing a time for the debtor to satisfy the Court "that he has the counter-claim, set-off or cross demand referred to in the ... affidavit." Section 40(1)(g) provides that:-
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