Smith v Achieve Homes Pty Ltd

[2024] FCA 327

Federal Court of Australia4 April 2024

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Interrogate

Catchwords

1. Practice and Procedure
2. › Federal Court
3. › Review of Registrar's decision under s 35A(5) Federal Court of Australia Act 1976
1. Bankruptcy
2. › Bankruptcy notices
3. › Application to set aside under s 40(1)(g) Bankruptcy Act 1966
1. Bankruptcy
2. › Acts of bankruptcy
3. › Counter-claim, set-off or cross demand that could not have been set up in proceeding
1. Building and Construction
2. › Security of payment
3. › Adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW)

Quick Take

The Court held that a debtor cannot 'set up' a counter-claim, set-off or cross demand in an adjudication proceeding under the NSW Security of Payment Act for the purposes of s 40(1)(g) of the Bankruptcy Act, because the adjudicator has no jurisdiction to determine or award such claims. A bankruptcy notice based on a judgment debt arising from a Security of Payment Act adjudication can therefore be set aside where the debtor has a genuine counter-claim that could not have been brought in the adjudication proceeding.