Naghtenr v Commonwealth Bank of Australia [1998] FCA 635

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Application to set aside bankruptcy notice - judgment debt - whether applicant has a cross-claim, set-off or cross demand under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) - whether proceedings against the respondent in the Supreme Court of New South Wales amount to a cross demand - whether bona fide cross demand - whether claim amounts to prima facie case - whether mortgagee breached duty of care to mortgagor in exercise of power of sale. Bankruptcy Act 1966 (Cth) - s 40(1)(g) Ebert v The Union Trustee Company of Australia Ltd (1960) 104 CLR 346 - applied

Re bruce william naghten and irene margaret naghten; bruce william naghten and irene margaret naghten -v- Commonwealth Bank of Australia

NN 2813 of 1996

FOSTER J 21 MAY 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NN 2813 of 1996

between: bruce william naghten and

and irene margaret naghten

debtors

bruce william naghten and

irene margaret naghten

Applicants

and: Commonwealth Bank of Australia (Acn 123 123 124)

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 21 MAY 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application to set aside the bankruptcy notice is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NN 2813 of 1996

between: bruce william naghten and

and irene margaret naghten

debtors

bruce william naghten and

irene margaret naghten

Applicants

and: Commonwealth Bank of Australia (acn 123 123 124)

Respondent

JUDGE: FOSTER J

DATE: 21 MAY 1998

PLACE: SYDNEY