James v Hill [2005] FCA 981

FEDERAL COURT OF AUSTRALIA

James v Hill [2005] FCA 981

BANKRUPTCY – appeal – application to set aside bankruptcy notice – judgment debt – counter-claim, set-off or cross-demand – assignment of action in injurious falsehood – whether appellant as assignee demonstrated a prima facie case to recover damages equal to or in excess of the judgment debt APPEAL – evidence – application for evidence to be received on appeal – whether open to appellant to establish a counter-claim, set-off or cross-demand that did not exist when application to set aside bankruptcy notice was first heard

Bankruptcy Act 1966 (Cth) par 40(1)(g), subs 41(7) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) par 24(1)(d), subs 25(1A)

Federal Court Rules O 52 r 36 Federal Magistrates Court Rules r 30.02

Crimmins v Glenview Home Units [1999] FCA 515 referred to K Mart Australia Limited v Commissioner of Taxation [1995] FCA 760 cited Patane v Asteron Life Ltd [2004] FCA 232 followed Poulton v The Commonwealth (1953) 89 CLR 540 referred to DAVID ANTHONY JAMES v TERRY DONALD HILL NSD 949 of 2005 BRANSON J 19 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 949 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: DAVID ANTHONY JAMES

APPELLANT/CROSS RESPONDENT

AND: TERRY DONALD HILL

RESPONDENT/CROSS APPELLANT

JUDGE: BRANSON J

DATE OF ORDER: 13 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The cross appeal be dismissed. 3. The appellant pay the respondent's costs of the appeal. 4. The respondent pay the appellant's costs of the cross appeal, if any, such costs, if any, to be set off against the costs payable pursuant to order 3 hereof. 5. If a sequestration order against the estate of the appellant is made consequent upon the appellant's failure to comply with the requirements of the bankruptcy notice numbered NA 3422/04, the costs to which the respondent is entitled be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).