Federal Court of Australia
FEDERAL COURT OF AUSTRALIA Bankruptcy – application to set aside bankruptcy notice – counter-claim, set-off, or cross-demand exceeding limits of jurisdiction of Local Court – whether fact that proceedings could have been transferred to District Court or Supreme Court, where cross-claim was within jurisdiction, meant that the cross-claim could have been set up when the judgment was obtained for the purposes of s 40(1)(g) of the Bankruptcy Act 1966. Bankruptcy Act 1966 – s 40(1)(g) Local Courts (Civil Claims) Act 1970 (NSW) - ss 21B(1), 21E(1) District Court Act 1973 (NSW) - s 145 Re Racheha; Ex parte Antonios (1980) 49 FLR 423 – foll. Re Franks; Ex parte GIO Holdings (1990) 24 FCR 398 – foll.
LORRAINE HELEN BESSEMER V THE OWNERS - STRATA PLAN NO. 6925/35054
NG 7370 of 1998
JUDGE: BEAUMONT J.
PLACE: SYDNEY
DATE: 10 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 7370 of 1998
BETWEEN: LORRAINE HELEN BESSEMER
APPLICANT
AND: THE OWNERS - STRATA PLAN NO. 6925/35054
RESPONDENT
JUDGE: BEAUMONT J.
DATE OF ORDER: 10 JUNE 1998
WHERE MADE: SYDNEY
ORDERS: 1. Application to set aside the bankruptcy notice dismissed with costs. 2. Suspend the operation of this order up to and including 1 July 1998 . 3. Reserve liberty to apply to vary or discharge this order on two days written notice to the other party. 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 NG 7370 of 1998
BETWEEN: LORRAINE HELEN BESSEMER
APPLICANT
AND: THE OWNERS - STRATA PLAN NO. 6925/35054
RESPONDENT
JUDGE: BEAUMONT J.
DATE: 10 june 1998
PLACE: SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J: Before the Court is an application to set aside a bankruptcy notice. The application is made in the following circumstances. By bankruptcy notice dated 4 March 1998, The Owners - Strata Plan Number 35054, as judgment creditors, claimed that Lorraine Helen Bessemer, as judgment debtor, owed them a debt of $15,090.34, being the amount of a judgment obtained in the Local Court dated 11 February 1998 in the sum of $15,028.58, together with interest. The judgment was obtained, it appears, upon the cause of action of moneys owed by way of levies made upon Mrs Bessemer as the holder of a strata title in the strata plan mentioned. The bankruptcy notice was served upon Mrs Bessemer on 17 March 1998. On 6 April 1998 Mrs Bessemer filed an application to set aside the bankruptcy notice. She accompanied her application with her affidavit sworn on that day. The affidavit was prepared by herself and she has not at any point of time during the present proceedings had the benefit of legal representation. In her affidavit she said: 1. I have a cross-claim against the owners - Strata Plan No 6925-35054 as set out in the document attached and marked with the letter A.
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