Capsanis, in the matter of Capsanis v Owners - Strata Plan 11727 [2000] FCA 1262

FEDERAL COURT OF AUSTRALIA

Capsanis, in the matter of Capsanis v Owners – Strata Plan 11727 [2000] FCA 1262

BANKRUPTCY – application to set aside bankruptcy notice – judgment debt ordered in proceedings for arrears of maintenance levies against owner of unit - applicant argued that he had a counter claim or cross demand, which could not be set up in the original action – whether the debtor has a fair chance of success on the counter claim or cross demand, equal to or exceeding the amount of judgment debt – whether, to discharge the onus under Bankruptcy Act 1966 (Cth) s 40(1)(g), there is evidence as to the likely quantification of the claim – whether the counter claim or cross demand could have been set up in the Local Court proceedings PRACTICE AND PROCEDURE – compliance with Order 77 rule 13 dispensed with pursuant to Order 1 rule 8

Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(7) Local Courts (Civil Claims) Rules Part 18 rule 1(1), Part 26 rule 1

Re Brink; Ex parte Commercial Banking Company of Sydney Limited (1979-1980) 30 ALR 433 applied Re Donkin; Ex parte AGC Advances Limited (1994) 125 ALR 293 applied Crimmins v Glenview Home Units [1999] FCA 515 applied Gould, in the matter of Gould v Day [1999] FCA 1650 applied IN THE MATTER OF JOHN PETER CAPSANIS JOHN PETER CAPSANIS v THE OWNERS – STRATA PLAN 11727 N 7601 OF 2000 HELY J 7 SEPTEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7601 OF 2000

BETWEEN: JOHN PETER CAPSANIS

APPLICANT

AND: THE OWNERS - STRATA PLAN 11727

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 7 SEPTEMBER 2000

WHERE MADE: SYDNEY

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