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[2011] QSC 281
General information, not legal advice.
Supreme Court of Queensland
2011-09-27
Applegarth J
Original judgment source is linked above.
[1] WEC Pty Ltd v Cypriot Community of Queensland Inc [2002] QCA 506 at [11].
[3] Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 citing Eng Mee Young v Letchumanan [1980] AC 331 at 341.
[4] [2002] QCA 506 at [11] (footnotes removed).
[5] Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452 at 462-466, [1997] FCA 681 per the Court; TR Administration Pty Ltd v Marchetti [2008] VSCA 70; (2008) 66 ACSR 67 at 77, [2008] VSCA 70 at [57].
[6] (1993) 11 ACSR 601 at 605.
[7] [2006] QCA 47; [2006] 2 Qd R 399 at 404, [2006] QCA 47 at [19] (footnotes removed).
[12] [2002] WASC 121; (2002) 20 ACLC 1,298 at 1,300-1,301, [2002] WASC 88 at [15]- [17].
[13] [2003] NSWSC 252 at [34]- [36].
[15] As to which see Neutral Bay Pty Ltd v Deputy Commissioner of Taxation (2007) 25 ACLC 1,341 at 1,359-1,362, [2007] QCA 312 at [76]- [84]; reversed on appeal in Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473, [2008] HCA 41.
Viva 4 Enterprises Pty Ltd
Octobay Pty Ltd [2011] QSC 281
Australian Aloe Ltd v Export Growth Finance Pty Ltd [2003] NSWSC 252 discussed
Boutique Venues Pty Ltd v JACG Pty Ltd [2007] NTSC 5 discussed
C & E Pty Ltd v Corrigan [2006] 2 Qd R 399; [2006] QCA 47 cited
Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; [2008] HCA 41 cited
Neutral Bay Pty Ltd v Deputy Commissioner of Taxation (2007) 25 ACLC 1,341; [2007] QCA 312 cited
PCH Group Ltd v Hallbridge Pty Ltd [2002] WASC 121; (2002) 20 ACLC 1,298; [2002] WASC 88 discussed
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452; [1997] FCA 681 cited
TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; [2008] VSCA 70 cited
WEC Pty Ltd v Cypriot Community of Queensland Inc [2002] QCA 506 cited
"15. Counsel for the defendant referred to a number of authorities, including the decision of the Full Court of the Federal Court in Stec v Orfanos [1999] FCA 457. This case concerned a bankruptcy notice but the principle is the same. The Court said (at para24):
'... Where a debtor seeks to set aside a bankruptcy notice on the ground that the debtor has a cross demand which equals or exceeds the amount of the judgment or order on which the bankruptcy notice is founded, the judgment on the one hand and the cross demand on the other must be mutual and due in the same right: Re Anderson; Ex parte Alexander [1927] NSWStRp 35; (1927) 27 SR (NSW) 296; James v Abrahams [1981] FCA 46; (1981) 51 FLR 16 at 27. The requirement that the two claims be "in the same right" is directed to the capacities in which the claimants claim. Thus a claim by a judgment creditor personally cannot be answered by a claim against the creditor as a member of a partnership or as an executor or trustee. See Re Wedd; Ex parte Wedd (1961) 19 ABC 36; Re Molesworth (1907) 51 Sol J 653; Vogwell v Vogwell (1939) 11 ABC 83 at 89. But the requirement relevant to the present case is that the claims be mutual; that is that they be of the same kind or nature. Thus joint debts cannot be set off against several debts: Middleton v Pollock (1875) LR 20 Eq 515 at 518. ...'
16. There appears to be no good reason why this requirement of mutuality should not apply in relation to applications brought under s 459G as it undoubtedly applies in applications made under the Bankruptcy Act. Counsel for the plaintiff suggested nothing to the contrary. However, there appears to be no direct authority on the point. The decision of the Full Court of the Federal Court in John Shearer Ltd v GEHL Co [1995] FCA 1034; (1996) 14 ACLC 147, which was cited by counsel for the defendant, dealt with a different question. The issue in that case was whether when a statutory demand was based on a dishonoured bill of exchange, a claim brought under the Trade Practices Act could amount to an 'offsetting claim'. The Full Court held that it could, giving a wide interpretation to the term 'cross-demand' found in the definition of 'offsetting claim' to be found in s 459H(5). But the question of mutuality did not arise.
(2008) 237 CLR 473
(1997) 76 FCR 452
(1981) 51 FLR 16