mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346
Outcome: followed
addressing the terms of s 52(j) of the Bankruptcy Act 1924 (Cth), in Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 Dixon CJ, McTiernan and Windeyer JJ observed (at 350): ... Section 52 (j) makes it necessary that a debtor served with a bankruptcy notice, if he does not comply with its requirements, should satisfy the Court of Bankruptcy that he has a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt. The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand. "Cross demand" is the word relied upon here. The appellant cannot satisfy the Court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out. In Re Duncan; Ex parte Modlin [(1917) 17 SR (NSW) 152 ; 34 WN 49] Street J. said that the debtor need not satisfy the Court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor. In Re A Debtor [(1958) 1 Ch 81] Roxburgh J. said : "But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide : the Court must be satisfied that it has a reasonable probability of success" [(1958) 1 Ch 81]. Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand.
Case: Guss v Johnstone [2000] HCA 26 , 171 ALR 598
Outcome: applied
is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, &#8212; whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Harding v Deputy Commissioner of Taxation [2008] FCA 1403
Outcome: cited
prior Notice of Motion seeking to have the present proceeding heard in this Court with a jury was dismissed: Harding v Deputy Commissioner of Taxation [2008] FCA 1403. An application for leave to appeal that decision has also been dismissed: Harding v Deputy Commissioner of Taxation [2008] FCA 1516. The present Application is thus to be heard by a Judge of this Court, sitting alone.
Case: Harding v Deputy Commissioner of Taxation [2008] FCA 1516
Outcome: cited
prior Notice of Motion seeking to have the present proceeding heard in this Court with a jury was dismissed: Harding v Deputy Commissioner of Taxation [2008] FCA 1403. An application for leave to appeal that decision has also been dismissed: Harding v Deputy Commissioner of Taxation [2008] FCA 1516. The present Application is thus to be heard by a Judge of this Court, sitting alone.
Case: In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537
Outcome: cited
support of the contrary conclusion, it was understood that Counsel on behalf of Mr Harding contended that the term " cross demand " was not a technical term but rather a term which should not be given any confined meaning: In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537.
Case: Kocic v Commissioner of Taxation [2008] FCA 1576
Outcome: cited
it was contended by the Deputy Commissioner that it was s 105-100 of Schedule 1 to the Taxation Administration Act which made the present assessments " conclusive ". And no submission was advanced that there had been any error committed which amounted to a jurisdictional error: cf Commissioner of Taxation v Futuris Corp Ltd [2008] HCA 32 , 247 ALR 605. See also: Kocic v Commissioner of Taxation [2008] FCA 1576.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
ground of review as formulated by Counsel for Mr Harding was that Mr Scott's decision to issue the amended assessments was vitiated by reason of a failure to consider relevant considerations, namely: the conversation with " Laura "; and the acknowledgment on the part of Mr Scott that, had he known of the claimed GST exemption, he would have made further inquiries. But neither consideration was a consideration that Mr Scott was bound to take into account or further pursue: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39 41 per Mason J, even assuming that all that Mr Harding had to establish was a ground of review falling short of jurisdictional error. The rejection of the two suggested " cross-claims " or " cross demands " as formulated on behalf of Mr Harding makes it unnecessary to address the further submission as to whether any such " counter-claim " or " cross demand " " could ... have [been] set up in the action or proceeding " in the District Court.
Case: Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135
Outcome: applied
recently, in Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331 , His Honour Justice Lindgren reviewed the authorities and observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a " prima facie case ", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim; ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 44 FLR 135, 30 ALR 433] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a " prima facie case " ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the Court for the purposes of par 40(1)(g), the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the Court should be satisfied that the debtor has a claim deserving to be finally determined. Reference may also be made to Massih v Esber [2008] FCA 1452 at [16] [19]. But, whatever the meaning to be given to the term, it has to date been held that an action " must be something sounding in money ": Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J. An application seeking declaratory relief as to an entitlement to a charge on the proceeds of property has thus been said not to be a " counter-claim, set-off or cross demand ": In re A Bankruptcy Notice [1934] 1 Ch 431. See also: Massih v Esber [2008] FCA 1452 at [22] [24].
Case: Re Cox (1934) 7 ABC 98
Outcome: applied
is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, &#8212; whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331
Outcome: applied
recently, in Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331 , His Honour Justice Lindgren reviewed the authorities and observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a " prima facie case ", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim; ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 44 FLR 135, 30 ALR 433] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a " prima facie case " ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the Court for the purposes of par 40(1)(g), the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the Court should be satisfied that the debtor has a claim deserving to be finally determined. Reference may also be made to Massih v Esber [2008] FCA 1452 at [16] [19].
Case: Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129
Outcome: applied
requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].
Case: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182
Outcome: applied
is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, &#8212; whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323
Outcome: applied
requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].
Case: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694
Outcome: considered
more modern instance of that which may fall within the statutory phrase is provided by Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694. An application had there been made for relief under s 106 of the Industrial Relations Act 1996 (NSW), that being a provision which allowed the Industrial Relations Commission of New South Wales to declare void or to vary a contract. His Honour Justice Madgwick there relevantly concluded: Measurable in money? [33] A further matter put forward by the applicant was that the debtor was unable to satisfy the Court of the existence of a counter demand or cross-claim, because the claim does not sound in money. In James v Abrahams [1981] FCA 46 ; (1981) 34 ALR 657 , at 664 Deane and Lockhart JJ endorse the view of Latham CJ in Vogwell at 85, in respect of the corresponding provision of the Bankruptcy Act 1924 , that: The words of the section are that the debtor must satisfy the court that he has a 'counter-claim ... which equals or exceeds the amount of the judgment debt'. In the first place it is accordingly clear that the counter-claim ... must be something sounding in money. [34] The creditor argues that the claim before the Commission is not one sounding in money, but is a claim akin to the rectification of a contract. However, the debtor seeks, among other things, an order that the creditor pay to the debtor any money that may be found owing under the arrangement as varied by the Commission and his claim is that the amount Network sued for in the Local Court plus interest at something like commercial rates should be found to be owing. If successful, this would amount to a direct order for money and the Commission clearly has the power to make such an award. The other remedies sought are, in a practical sense, subsidiary to that claim. Therefore, this objection to the application must fail.
Case: Smart v Esanda Finance Corp Ltd [2000] FCA 235
Outcome: cited
requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].