Frigger v Kitay [2017] FCA 1278

FEDERAL COURT OF AUSTRALIA

Frigger v Kitay [2017] FCA 1278 File number(s): WAD 428 of 2016

Judge(s): SIOPIS J

Date of judgment: 1 November 2017

Catchwords: BANKRUPTCY – application to set aside a bankruptcy notice – whether there was an implied stay of the judgment debt on which the bankruptcy notice was based – whether events giving rise to the judgment debt occurred after the company had gone into liquidation – whether the liability incurred by the debtors could be set-off under s 553C of the Corporations Act 2001 (Cth) – whether the debtors had a counterclaim, set-off or cross demand which exceeded the amount of the judgment debt – whether affidavit evidence was sufficiently probative to permit consideration of the legal and factual merits of the counterclaim, set-off or cross demand.

Legislation: Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(6A), 41(7) Corporations Act 2001 (Cth) ss 553C(1), 553C(2), 1324 Federal Court (Bankruptcy) Rules 2016 (Cth) r 3.02

Cases cited: Re Computer Accounting and Tax Pty Ltd; Ex parte Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) [No 4] [2014] WASC 169 Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 Ebert v Union Trustee Company of Australia Limited (1960) 104 CLR 346 Re Brink, Ex parte The Commercial Banking Company of Sydney Limited (1980) 44 FLR 135 Guss v Johnstone (2000) 171 ALR 598 Re Parker (1997) 80 FCR 1 Gye v McIntyre (1991) 171 CLR 609 Thomas v St George Bank Ltd [1999] FCA 166 Biztole Developments Pty Ltd v McLean (1995) 57 FCR 36 Frigger v Mervyn Jonathon Kitay in his capacity as liquidator of Computer Accounting & Tax Pty Ltd (in liq) [No 14] [2017] WASC 120 Dudzinski v Kellow [2002] FCA 665 Re Geard; Ex parte Reid (1994) 217 ALR 191