Johnstone, Raymond v Guss, Joseph [1997] FCA 484

Federal Court of Australia

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CATCHWORDS BANKRUPTCY - Bankruptcy notice - Counter-claim, set-off or cross demand - Satisfaction of court - Delay in prosecuting claim - Relevance. Bankruptcy Act 1966 ss40(1)(g), 47 James v Abrahams (1981) 34 ALR 657 Re Donkin; Ex parte AGC Advances Ltd (1994) 52 FCR 271 Ebert v Union Trustee Co (Aust) Ltd (1960) 104 CLR 346 Re Smith; Ex parte Chesson (1992) 106 ALR 159 Re a Bankruptcy Notice [1934] Ch 431 Re Judd; Ex parte Pike (1924) 24 SR (NSW) 537 Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 Re Gould; Ex parte Skinner (1983) 72 FLR 393 Re Isaac; Ex parte Isaac (1885) 2 Mor 258 Re Brown; Ex parte Peisley Bros (1892) 3 BC (NSW) 13 RAYMOND JOHNSTONE v JOSEPH GUSS VG 2041 of 1996 COURT:Sundberg J PLACE:Melbourne DATE:30 May 1997

IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY)No VG 2041 of 1996 BANKRUPTCY DIVISION) BETWEEN:RAYMOND JOHNSTONE Judgment Creditor AND:JOSEPH GUSS Judgment Debtor COURT:Sundberg J DATE:30 May 1997 PLACE:Melbourne MINUTES OF ORDER 1.The Court declares that it is not satisfied that the judgment debtor possesses a counter-claim, set-off or cross demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966. 2.The Court orders that the judgment debtor pay the judgment creditor's costs of the application. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY)No VG 2041 of 1996 BANKRUPTCY DIVISION) BETWEEN:RAYMOND JOHNSTONE Judgment Creditor AND:JOSEPH GUSS Judgment Debtor COURT:Sundberg J DATE:30 May 1997 PLACE:Melbourne REASONS FOR JUDGMENT SUNDBERG J: Background In September 1992 the judgment creditor, a barrister, commenced proceedings in the Magistrates' Court to recover fees he claimed were owing by the judgment debtor, a solicitor. The creditor obtained judgment for $8,430 together with interest and costs. The debtor's application to the Magistrates' Court to set aside the judgment was dismissed. An application for leave to appeal from that order was dismissed by a Master of the Supreme Court. An appeal from that dismissal was dismissed by Beach J. A further application to the Magistrates' Court to set aside the judgment was dismissed. The debtor then applied to the Supreme Court for a declaration that that dismissal was a nullity. That application was dismissed by Hayne J. The debtor appealed to the Full Court against his Honour's decision. On 22 August 1994 the Full Court ordered the debtor to give security for costs in default of which the appeal would be dismissed. The debtor was ordered to pay the creditor's costs. The security was not provided and the appeal was dismissed. The creditor's costs were taxed in the sum of $4,989.40.

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IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY)No VG 2041 of 1996 BANKRUPTCY DIVISION) BETWEEN:RAYMOND JOHNSTONE Judgment Creditor AND:JOSEPH GUSS Judgment Debtor COURT:Sundberg J DATE:30 May 1997 PLACE:Melbourne MINUTES OF ORDER 1.The Court declares that it is not satisfied that the judgment debtor possesses a counter-claim, set-off or cross demand of the type referred to in s40(1)(g) of the Bankruptcy Act 1966. 2.The Court orders that the judgment debtor pay the judgment creditor's costs of the application. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY)No VG 2041 of 1996 BANKRUPTCY DIVISION) BETWEEN:RAYMOND JOHNSTONE Judgment Creditor AND:JOSEPH GUSS Judgment Debtor COURT:Sundberg J DATE:30 May 1997 PLACE:Melbourne REASONS FOR JUDGMENT SUNDBERG J: Background In September 1992 the judgment creditor, a barrister, commenced proceedings in the Magistrates' Court to recover fees he claimed were owing by the judgment debtor, a solicitor. The creditor obtained judgment for $8,430 together with interest and costs. The debtor's application to the Magistrates' Court to set aside the judgment was dismissed. An application for leave to appeal from that order was dismissed by a Master of the Supreme Court. An appeal from that dismissal was dismissed by Beach J. A further application to the Magistrates' Court to set aside the judgment was dismissed. The debtor then applied to the Supreme Court for a declaration that that dismissal was a nullity. That application was dismissed by Hayne J. The debtor appealed to the Full Court against his Honour's decision. On 22 August 1994 the Full Court ordered the debtor to give security for costs in default of which the appeal would be dismissed. The debtor was ordered to pay the creditor's costs. The security was not provided and the appeal was dismissed. The creditor's costs were taxed in the sum of $4,989.40.

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