Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Fine Real Estate Network Pty Ltd v Howell (Bankrupt) [2000] FCA 490 IN THE MATTER OF PAUL ROCH HOWELL FINE REAL ESTATE NETWORK PTY LIMITED v PAUL ROCH HOWELL N 8338 OF 1999 MATHEWS J 5 APRIL 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 8338 OF 1999
BETWEEN: FINE REAL ESTATE NETWORK PTY LIMITED
MERVYN KEITH FINE
PATRICIA JOAN FINE
APPLICANTS
AND: PAUL ROCH HOWELL
RESPONDENT
JUDGE: MATHEWS J
DATE OF ORDER: 5 APRIL 2000
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The notice of motion is dismissed. 2. The question of costs is reserved. 3. The matter is stood over until Monday 1 May 2000. 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 N 8338 OF 1999
BETWEEN: FINE REAL ESTATE NETWORK PTY LIMITED
MERVYN KEITH FINE
PATRICIA JOAN FINE
APPLICANTS
AND: PAUL ROCH HOWELL
RESPONDENT
JUDGE: MATHEWS J
DATE: 5 APRIL 2000
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 In November 1999, when I was duty judge, I had occasion to deal with a matter in the bankruptcy list in which the present respondent, Mr Howell, was applying to have a bankruptcy notice set aside under sections 41(7) and 40(1)(9) of the Bankruptcy Act 1966 (Cth) ("the Act") upon the basis that he had a counter-claim, set-off or cross-demand which equalled or exceeded the amount claimed under the bankruptcy notice. 2 In support of this application Mr Howell relied upon the fact that he was owed money as a result of certain proceedings in the Supreme Court of New South Wales between himself and Fine Real Estate Network Pty Limited ("Fine Real Estate"). However these proceedings did not involve the other two judgment creditors who had, jointly with Fine Real Estate, issued the bankruptcy notice against Mr Howell. There was persuasive authority to the effect that in order for a counter-claim, set-off of cross-demand to meet the requirements of section 40(1)(9) of the Act, it must be a claim "in the same right" as the claim upon which the bankruptcy notice is based. This requirement was not met in this case, because of the lack of identity between the company against whom the counter-claim was asserted and the judgment creditors named in the bankruptcy notice. For this reason I declined to make the orders sought in Mr Howell's application.
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