Melbourne v Relativity Pty Ltd [1999] FCA 160

FEDERAL COURT OF AUSTRALIA

Melbourne v Relativity Pty Ltd [1999] FCA 160 BANKRUPTCY - application to set aside a bankruptcy notice - judgment debt arose from a costs order of a prior proceeding - whether debtor able to demonstrate a counter claim, set-off or cross demand equal to or exceeding the amount of the judgment debt - whether failure of respondent creditor to pay all agreed monies gave rise to a breach of an earlier agreement between the parties - whether the respondent creditor had breached an implied term to cooperate as joint venturer - whether there existed a conspiracy aimed at injuring the debtor - whether respondent creditor committed a trespass to the debtor's property - whether trespass alleged could give rise to an action in tort for unliquidated damages capable of offsetting the judgment debt - question of ownership of the trespassed goods - whether debtor's affidavits demonstrated or quantified the damages arising from the alleged counter claim - whether counter claim had a reasonable prospect of success - consideration of the bona fides of the debtor's claim.

Bankruptcy Act 1966 (Cth) s 40(1)(g) & 41(7)

Ebert v The Union Trustee Co of Australia (1960) 104 CLR 346, foll. Re Schmidt; Ex parte Angelwood Pty Ltd (1967) 13 FLR 111, cited Re Phyllis Graves; Ex parte Phyllis Graves v Kevin Seggie [1997] FCA 1154, foll. Re Bruce William Naghten and Irene Margaret Naghten; Bruce William Naghten and Irene Margaret Naghten v Commonwealth Bank of Australia [1998] FCA 635, foll.

LANCE MELBOURNE v RELATIVITY PTY LTD and MARK HENRY DE COURCY BINGHAM NG 7250 OF 1998 MOORE J 26 FEBRUARY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 7250 OF 1998

BETWEEN: LANCE MELBOURNE

Applicant

AND: RELATIVITY PTY LTD

First Respondent