Foyster v ANZ Banking Group Ltd [1999] FCA 1032

FEDERAL COURT OF AUSTRALIA

Foyster v ANZ Banking Group Ltd [1999] FCA 1032 BANKRUPTCY – application to set aside a bankruptcy notice – counter-claim, set-off or cross-demand – effect of s41(7) Bankruptcy Act 1966 – relationship between s41(7) and s40(1)(g) Bankruptcy Act 1966 – whether debtor may rely on quite separate counter claim from that initially asserted in affidavit filed to obtain automatic extension of time under s41(7) Bankruptcy Act 1966. Bankruptcy Act 1966 (Cth), s41(7), s40(1)(g) Re Brink, ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135, considered Eastick v ANZ Banking Group Ltd (1981) 53 FLR 91, cited Re James; ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183, considered

LLOYD FOYSTER v ANZ BANKING GROUP LTD N7702 OF 1999

EMMETT J 27 JULY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N7702 OF 1999

BETWEEN: LLOYD FOYSTER

Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

Respondent

JUDGE: EMMETT J

DATE: 27 JULY 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT (NO. 1) 1 Objection is taken to the filing of an affidavit on behalf of the Debtor, in which the Debtor seeks to raise a counter-claim or cross-claim which would satisfy the requirements of section 40(1)(g) of the Bankruptcy Act 1966 (Cth) ("the Act"), when added together with other cross-claims or counter claims which have already been the subject of affidavits. 2 An act of bankruptcy is committed inter alia under section 40(1)(g) where a creditor serves on a debtor a bankruptcy notice and the debtor does not either comply with the requirements of the notice or satisfy the Court that he has a counter-claim, set-off or cross-demand equal to or exceeding the amount of the judgment debt that could not have been set up in the action or proceedings in which the judgment was obtained.