Richards v Hutchinson

[2023] FCA 1102

Federal Court of Australia14 September 2023

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For Australian Law.

An application to set aside a bankruptcy notice filed by a self-represented litigant that relies on the wrong statutory provision (s 41(6A) instead of s 40(1)(g)) may nonetheless be a valid, competent application where the supporting affidavit, benevolently construed, discloses material going to an off-setting claim, and the application is not incompetent on its face for the provision actually cited.
Where the debt founding a bankruptcy notice is an interlocutory costs order in substantive proceedings between the same parties, the principal claim in those proceedings is — subject to quantum — an off-setting claim within s 40(1)(g) of the Bankruptcy Act per Chesson v Smith, and leave to amend to rely on that ground may be granted applying Aon principles, particularly where the respondents suffer no prejudice.
The distinction drawn in Graywinter Properties between the sufficiency of a supporting affidavit to enliven jurisdiction and the evidence needed to succeed at hearing applies equally in the bankruptcy notice context; a valid but imperfect application may be amended and supplemented by further affidavit material.