mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Nath v Clipway Pty Ltd [1999] FCA 625
Outcome: cited
Whether a claim " could not have been set up " is thus 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. These comments have since been approved by the Full Court: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ. See also: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J. In Re Ling , Hill J concluded that a claim could be set up in the Federal Court as against the Commonwealth even though to do so the judgment debtor would have had to have commenced proceedings in the High Court of Australia and to have had those proceedings remitted to the Federal Court. The fact that such a " tortuous route " had to be followed did not mean that the proceeding could not have been set up in the Federal Court. His Honour reviewed some of the authorities and concluded (at 137): These cases, it seems to me, establish that a cross-claim will be one which could be set up in the action, notwithstanding that to do so the debtor may need to transfer the proceedings first to another court, or may need to obtain in his or her favour the exercise of a discretion before doing so. The onus of showing that the claim is not one that could have been set up in the creditor's proceedings lies upon the debtor. That onus will not be satisfied merely by showing that some indirect course may need be followed (that course being in the discretion of the debtor) nor by showing that there existed a discretion which could have been exercised against the setting up of the claim as a cross-claim. To satisfy that onus the debtor must show that, as a matter of law and in the circumstances prevailing, he or she could not have set up the cross-claim. That the debtor has not done in the present case. In Nath v Clipway Pty Ltd [1999] FCA 625 at [4] Spender J agreed with these observations of Hill J. Kiefel and Hely JJ agreed with Spender J. See also: Lau v Accord Pacific Properties Pty Ltd [2003] FCA 795 at [9] [10] per Branson J.
Case: O'Brien v Doherty [2008] NSWSC 205
Outcome: cited
That process relevantly commenced with the making of an order for the payment of costs by the Supreme Court and the subsequent issue by a costs assessor of a certificate pursuant to s 368(1) of the Legal Profession Act . Section 372 of that Act provides for the finality of such determinations as follows: Determination to be final A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division. Provision is made for the review of determinations made (ss 373 383) and for an appeal against a decision of a costs assessor " as to a matter of law " (s 384. See: O'Brien v Doherty [2008] NSWSC 205 ; Cassegrain v CTK Engineering [2008] NSWSC 457).
Case: Pepper v McNiece [1941] HCA 27 ; (1941) 64 CLR 642
Outcome: followed
The " final judgment or final order " in the present proceeding, it was ultimately submitted by the Applicant, was the judgment of the District Court. The form of a bankruptcy notice is that prescribed by reg 4.02 of the Bankruptcy Regulations 1996 (Cth) and clause 2 to that form provides as follows: The creditor claims that the debt is due and payable by you. A copy of the judgments or orders relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgments or orders had not been stayed. If a bankruptcy notice is to satisfy the requirements of s 41(1) and (2) of the Bankruptcy Act as to form, it must correctly identify the source of the bankrupt's liability to make the payment demanded by the notice: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 , 133 ALR 718 at 721 per Drummond J. Only a judgment upon which a creditor is in a position to issue execution when he issues the bankruptcy notice can constitute a final judgment for the purposes of s 40(1)(g): cf. Pepper v McNiece [1941] HCA 27 ; (1941) 64 CLR 642 at 657 per Williams J. A judgment which has been stayed may not found a bankruptcy notice: s 41(3)(b) ; Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 187 8 per Riley J; Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188 , 107 FCR 144.
Case: Re Black; Ex parte Jeffery (1932) 4 ABC 157
Outcome: followed
Attached to the Bankruptcy Notice as served upon the Applicant on 11 February 2008 was the judgment of the District Court, being the Certificate of Judgment signed by the Registrar of that Court. For the purposes of s 40(1)(g) , the " action or proceeding " in which that judgment was obtained was necessarily the District Court proceeding. " A proceeding ", it may be noted, " may mean something as distinct from an action or any step thereunder in which final orders are made for the payment of money. It may also mean a step in an action, in which proceeding a final order is made for the payment of money ": Re Black; Ex parte Jeffery (1932) 4 ABC 157 at 160 per Lukin J.
Case: Re Brinks; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 , 44 FLR 135
Outcome: followed
The " counter-claim, set-off or cross demand " referred to in s 40(1)(g) and 41(7) " must be something sounding in money ": Re Brinks; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 , 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J.
Case: Re Brown, Ex parte Peisley Brothers (1892) 3 BC (NSW) 13
Outcome: followed
This provision exists for the benefit of the debtor: Re Willats; Ex parte Nissan Finance Corp Ltd [1991] FCA 407 ; (1991) 31 FCR 206. O'Loughlin J there observed (at 212): The reference in s 40(1)(g) of the Act to a counterclaim that could not have been set up in the proceedings exists for the protection of the debtor. Notwithstanding that his creditor may have obtained a judgment against him, that judgment cannot be used to found a bankruptcy notice if there is -- outside the spectrum of those legal proceedings -- a counterclaim of equal or greater size. But the Act intends a debtor, at the earliest opportunity, to raise against his creditor such counterclaim, if any, as he may have and which can be properly raised in the creditor's proceedings; if he does not he cannot complain (by way of raising that counter-claim) when the creditor applies to this court to issue a bankruptcy notice. The statutory phrase " must not be narrowed ". A judgment debtor is " not to lie by with his cross-demand, but must prosecute it with due diligence ": Re Brown, Ex parte Peisley Brothers (1892) 3 BC (NSW) 13 at 14 per Manning J. " A debtor having a claim against his or her creditor can not just stand by while judgment is obtained and later seek to use that claim to set aside a bankruptcy notice founded upon that judgment ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 137 per Hill J.
Case: Re Cox (1934) 7 ABC 98
Outcome: followed
A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Re Deen, Ex parte Deen v Muller (1995) 58 FCR 441
Outcome: followed
But the phrase refers only to those causes of action which a debtor was entitled to plead up to the time of judgment that are capable of amounting to a " counter-claim, set-off or cross demand " within the meaning of s 40(1)(g): Re Deen, Ex parte Deen v Muller (1995) 58 FCR 441. A claim acquired subsequent to the time of judgment is not a claim which could have been set up as against the judgment debt, even though the debtor could have acquired the claim -- had he so chosen -- prior to judgment. 33 Section 40(1)(g) refers to a creditor who has obtained against a debtor " a final judgment or final order " and further refers to the ability to set up the " counter-claim, set-off or cross demand " in the " action or proceeding in which the judgment or order was obtained ".
Case: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152
Outcome: followed
A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 , 133 ALR 718
Outcome: followed
The " final judgment or final order " in the present proceeding, it was ultimately submitted by the Applicant, was the judgment of the District Court. The form of a bankruptcy notice is that prescribed by reg 4.02 of the Bankruptcy Regulations 1996 (Cth) and clause 2 to that form provides as follows: The creditor claims that the debt is due and payable by you. A copy of the judgments or orders relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgments or orders had not been stayed. If a bankruptcy notice is to satisfy the requirements of s 41(1) and (2) of the Bankruptcy Act as to form, it must correctly identify the source of the bankrupt's liability to make the payment demanded by the notice: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 , 133 ALR 718 at 721 per Drummond J. Only a judgment upon which a creditor is in a position to issue execution when he issues the bankruptcy notice can constitute a final judgment for the purposes of s 40(1)(g): cf. Pepper v McNiece [1941] HCA 27 ; (1941) 64 CLR 642 at 657 per Williams J. A judgment which has been stayed may not found a bankruptcy notice: s 41(3)(b) ; Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 187 8 per Riley J; Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188 , 107 FCR 144.
Case: Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331
Outcome: followed
To " satisfy " the Court it is not necessary for the debtor to prove, as on a final hearing, the asserted entitlement to recover as against the creditor. That which is to be established is whether the Court is " satisfied " that the debtor " has a claim deserving to be finally determined ": Re Glew; Glew v Harrowell [2003] FCA 373 at [11] , [2003] FCA 373 ; 198 ALR 331 at 334. Lindgren J there observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: &#8226; 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... &#8226; that they have "a fair chance of success" or are "fairly entitled to litigate" the claim... and &#8226; 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 [Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135] 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". This was subsequently characterised by His Honour as a " relatively low threshold ": at [64]. The judgment to be made " 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 ": Guss v Johnstone [2000] HCA 26 at [40] , [2000] HCA 26 ; 171 ALR 598 at 606 per Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ.
Case: Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29
Outcome: followed
A claim for unliquidated damages for breach of contract can fall within the term " cross demand " ( Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29) ; as can a claim for unliquidated damages for a tort ( In re Judd, Ex parte Pike , supra at 539 40). A claim for relief under the Industrial Relations Act 1996 (NSW), being a claim that the creditor pay the debtor any money that may be found owing under an arrangement as varied by the Industrial Relations Commission may also be a cross-claim or counter-demand: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 at [33] [34], [2000] FCA 1187 ; 178 ALR 694 at 704 5 per Madgwick J. A " cross demand " need not have any connection with the cause of action out of which the judgment debt arose: cf In re a Debtor [1914] 3 KB 726. A judgment debtor is thus able to " buy up a claim against the judgment creditor in order to have a 'cross demand' ": In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ.
Case: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182
Outcome: followed
A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.
Case: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77
Outcome: followed
The Application was filed in this Court on 29 February 2008. That Application seeks an order setting aside the Bankruptcy Notice . The power of this Court to set aside a bankruptcy notice was not questioned: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83 per Lockhart J; Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 at [25] , [2007] FCA 308 ; 239 ALR 330 at 337 per Ryan J.
Case: Re Stokvis (1934) 7 ABC 53
Outcome: followed
Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up 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 FLR 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 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 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." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40. 30 Similarly, a claim which may be brought by way of a cross-claim, but only upon the claimant electing to discontinue a pending action, is nevertheless a claim which could be set up as a " counter-claim, set-off or cross demand ": Re Stokvis (1934) 7 ABC 53.
Case: Re Vicini; Ex parte E A Sealey &amp; Co (1982) 64 FLR 323
Outcome: followed
Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up 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 FLR 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 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 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." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40.
Case: Re Willats; Ex parte Nissan Finance Corp Ltd [1991] FCA 407 ; (1991) 31 FCR 206
Outcome: followed
This provision exists for the benefit of the debtor: Re Willats; Ex parte Nissan Finance Corp Ltd [1991] FCA 407 ; (1991) 31 FCR 206. O'Loughlin J there observed (at 212): The reference in s 40(1)(g) of the Act to a counterclaim that could not have been set up in the proceedings exists for the protection of the debtor. Notwithstanding that his creditor may have obtained a judgment against him, that judgment cannot be used to found a bankruptcy notice if there is -- outside the spectrum of those legal proceedings -- a counterclaim of equal or greater size. But the Act intends a debtor, at the earliest opportunity, to raise against his creditor such counterclaim, if any, as he may have and which can be properly raised in the creditor's proceedings; if he does not he cannot complain (by way of raising that counter-claim) when the creditor applies to this court to issue a bankruptcy notice. The statutory phrase " must not be narrowed ". A judgment debtor is " not to lie by with his cross-demand, but must prosecute it with due diligence ": Re Brown, Ex parte Peisley Brothers (1892) 3 BC (NSW) 13 at 14 per Manning J. " A debtor having a claim against his or her creditor can not just stand by while judgment is obtained and later seek to use that claim to set aside a bankruptcy notice founded upon that judgment ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 137 per Hill J.
Case: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694
Outcome: followed
A claim for unliquidated damages for breach of contract can fall within the term " cross demand " ( Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29) ; as can a claim for unliquidated damages for a tort ( In re Judd, Ex parte Pike , supra at 539 40). A claim for relief under the Industrial Relations Act 1996 (NSW), being a claim that the creditor pay the debtor any money that may be found owing under an arrangement as varied by the Industrial Relations Commission may also be a cross-claim or counter-demand: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 at [33] [34], [2000] FCA 1187 ; 178 ALR 694 at 704 5 per Madgwick J. A " cross demand " need not have any connection with the cause of action out of which the judgment debt arose: cf In re a Debtor [1914] 3 KB 726. A judgment debtor is thus able to " buy up a claim against the judgment creditor in order to have a 'cross demand' ": In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ.