Users without a subscription are not able to see the full
content. Please,
subscribe
or
login
to access all content.
Contents
- Preliminary Material
- Main Text
- 1 Introduction
- 2 Set-Off between Solvent Parties: Common Law
- Preliminary Material
- A Early Developments
- B Statutes of Set-off
- C The Statutes of Set-off as a Procedural Defence
- D Substantive Aspects of the Defence
- E Equitable Remedies
- F The Statutes of Set-off in Australia
- G Connected Cross-Demands at Common Law
- H Judgments
- I Common Law Abatement
- 3 Set-Off between Solvent Parties: Equitable Set-Off
- 4 Substantive Equitable Set-Off
- Preliminary Material
- 4.01
- A The Traditional Formulation
- B New Approaches
- C Equitable Set-off in Australia
- D The Substantive Nature of Equitable Set-off
- 4.29
- (1) What is meant by ‘substantive’?
- (2) Some possible problems
- (3) Is the set-off confined to litigation?
- (4) Right to take action consequent upon default
- (5) Action taken by a creditor before a set-off has been asserted
- (6) Estimating the value of the cross-claim
- (7) Statute of limitation
- (8) Arbitration and foreign jurisdiction clauses
- (9) Interest
- (10) Winding-up petition
- E Discretion
- F Liquidated Cross-Claims
- G Mutuality
- H Different Contracts
- I Creditor's Conduct Affecting Debtor's Ability to Pay
- J Repudiation of a Contract
- K Misrepresentation, Fraud, and Misleading or Deceptive Conduct
- L Limitation on Liability
- M Periodic Payments
- N Mortgages
- (1) The scope of equitable set-off
- (2) Mortgage to secure the unpaid price of property sold
- (3) Payment of the price by way of a loan from the vendor
- (4) Enforcing rights under the mortgage
- (5) Claim for possession, where possession does not depend on default
- (6) Remedies dependent upon default
- (7) Statutes of Set-off
- (8) Rent payable to a mortgagee in possession
- 5 Set-Off between Solvent Parties: Various Aspects
- Preliminary Material
- 5.01
- A Charterparties and Bills of Lading
- B Negotiable Instruments, Letters of Credit and Direct Debits
- C Building and Construction Contracts
- D Contracts of Employment
- E Landlord and Tenant
- F Specific Performance
- G Set-off as a Sword
- H Foreign Currencies
- I Contracting Out of Set-off
- (1) Equitable set-off and common law abatement
- (2) Unfair Contract Terms Act 1977
- (3) Misrepresentation Act 1967
- (4) Building and construction contracts
- (5) Statutes of Set-off
- (6) Second ranking security, and subordination
- (7) Agreement not to assign
- (8) Estoppel, and credit notes
- (9) Payment in advance
- (10) Company under administration
- J Failure to Assert a Cross-claim as a Defence
- K Criticisms of the State of the Law of Set-off
- 6 Set-Off in Bankruptcy and Company Liquidation
- Preliminary Material
- A Set-off in Bankruptcy
- B Companies
- C The Rationale for Insolvency Set-off
- D The Statutes of Set-off, Equitable Set-off and Counterclaim in Bankruptcy and Liquidation
- E Early Development, and the Influence of Equity
- F The Development of the Set-off Section
- G The Relevant Date for Determining Rights of Set-off
- H Qualification to the Set-off Section
- 6.66
- (1) Onus
- (2) What constitutes notice?
- (3) Bankruptcy
- (4) Company liquidation
- (5) Administration
- (6) Australia – bankruptcy
- (7) Australia – company liquidation
- (8) The identity of the party asserting the set-off
- (9) The meaning of ‘due’ (England), and the time of giving credit (Australia)
- (10) Assignment of a debt
- I Assignment of a Debt as a Preference
- J Temporary Suspension of Mutual Credit
- K The Necessity for Cross-Demands
- L Enforceable Demands
- M Insolvency Set-off is Mandatory
- N The Nature of Insolvency Set-off
- O Foreign Currencies
- P Interest
- Q Set-off as a Void Disposition of Property
- R Mistake as to Set-off
- S Multiple Claims, and Preferential Debts
- T Secured Debts
- 7 Debts, Credits, and Dealings
- 8 Claims Susceptible to Insolvency Set-Off
- Preliminary Material
- 8.01
- A Presently Existing Debts
- B Contingent Debt Owing by the Insolvent
- C Contingent Debt Owing to the Insolvent
- D Insolvent Corporate Group
- E Damages Claims
- F Breach of Trust
- G Calls on Shares
- (1) Introduction
- (2) Rationale
- (3) Set-off asserted by the company rather than by the contributory
- (4) Assignment
- (5) Solvent company
- (6) Bankrupt contributory
- (7) Contributory is a company in liquidation
- (8) Costs and expenses of the winding up
- (9) Unlimited companies
- (10) All creditors have been paid in full
- (11) Debt for equity swap
- H Basing a Claim for a Set-off upon a Wrongful Act
- 9 Commensurable Demands
- 10 Trust Funds
- Preliminary Material
- A Introduction
- B Insolvency Set-off
- C Statutes of Set-off
- D Dissipation of the Trust Fund
- E Equitable Set-off
- F Authority to Turn Property into Money – Rose v Hart
- G Surplus Proceeds after Realizing a Security
- H Special-Purpose Payments
- 11 Mutuality – Introduction
- 12 Mutuality – Same Parties
- Preliminary Material
- A Introduction
- B Joint Claims and Liabilities
- C Exceptions
- D Several Persons Separately Liable
- E Separate Depositor does not Assume a Personal Obligation
- F Deceased Insolvent Partner
- 13 Mutuality – Same Right
- Preliminary Material
- A Introduction
- B Transactions Impugned by an Insolvency Office-Holder
- (1) Preferences
- (2) Australia – preferences in company liquidation
- (3) Other impugned transactions
- (4) Insolvent trading in Australia
- (5) Assignment of book debts
- (6) Set-off, after the avoidance of an assignment of a debt
- C Performance of Contracts after Insolvency
- (1) Disclaimer
- (2) Contract by insolvent to sell property or perform work
- (3) Contract to sell property to or to perform work for an insolvent
- (4) Options
- D Leases
- E Periodical Payment Obligations after Insolvency
- F Agency
- (1) Introduction
- (2) Set-off agreement between the agent and the third party
- (3) Undisclosed principals
- (4) Set-off between the principal and the third party
- (5) Set-off between the agent and the third party, where the agent can enforce the contract
- (6) Set-off against an agent with a lien, where the agent cannot sue
- (7) Del credere commissions
- (8) Set-off between the agent and the third party, where the agent is personally liable as agent
- (9) Set-off between the principal and the agent
- G The Crown
- H Set-off in Relation to a Deceased's Estate
- 14 The Rule in Cherry V Boultbee
- Preliminary Material
- A Introduction
- B Executor's Right of Retainer
- C The Scope of the Rule
- D Who May Invoke the Rule?
- E Enforceable Rights and Obligations
- F Mutuality
- G The Obligation to Contribute
- H The Right to Participate
- I Discretionary Relief
- J Suretyship, and the Rule against Double Proof
- K Waiver, and Proof of Debt
- L Assignments
- M Defaulting Trustee who is also a Beneficiary
- N The Method of Application of Cherry v Boultbee
- 15 Combination of Bank Accounts
- Preliminary Material
- A Introduction
- B The Nature of the Right of Combination
- C Criticisms
- D Banker and Customer Relationship
- E The Scope of Combination
- F Express and Implied Agreements to Keep Accounts Separate
- 15.52
- 15.53
- (1) Current account and a loan account
- (2) Current account and other accounts
- (3) Deposit account upon which cheques cannot be drawn
- (4) Termination of the banker/customer relationship
- (5) Freezing an overdrawn account and opening a new account
- (6) Agreement to exclude set-offs
- (7) Bank's conduct precluding combination
- (8) Deposit for a specific purpose
- (9) Consequences of an agreement to keep accounts separate
- G Combination and Nominee Accounts
- H Agreements Permitting Combination
- I Different Currencies
- J Freezing Injunctions and Restraint Orders
- K Preferences
- L Trust Accounts
- (1) Introduction
- (2) The requirement of a trust
- (3) The defence of bona fide purchaser for value
- (4) Set-off agreement
- (5) Labelling an account as a trust account, where the customer is not a trustee
- (6) Account containing both trust and personal moneys
- (7) Overdrawn trust account
- M Assignments
- N Deceased Customer
- O Banker's Lien Over a Negotiable Instrument
- 16 Set-off Agreements
- Preliminary Material
- A Introduction
- B Insolvency
- C Set-off Agreement Taking Effect Contrary to the Pari Passu Principle
- D Close-out Netting
- E Regulations Giving Effect to EC Directives in Relation to Netting
- F Netting in Australia
- G An Administrator's Indemnity and Lien in Australia
- H Partnerships
- I Taking a Charge Over One's own Debt
- J A Set-off Agreement as a Charge
- K Flawed Asset
- 17 Assignees, and other Interested Third Parties
- Preliminary Material
- A Introduction
- B Assignments
- 17.02
- (1) Equitable assignment
- (2) Statutory assignment
- (3) Australia: Personal Property Securities Act 2009 (Cth)
- (4) Cross-demand must be available as a set-off against the assignor
- (5) Statutes of Set-off
- (6) Set-off in Australia
- (7) Notice to the debtor
- (8) Assignment of a future debt
- (9) Equitable set-off
- (10) Insolvency
- (11) Agreement not to assert set-offs
- (12) Conduct of the debtor
- (13) A set-off agreement as an equity
- (14) Successive assignments
- (15) Marshalling
- (16) Assignment merely of the proceeds of a debt
- (17) Assignment of part of a debt
- (18) Debts transferable at common law in their own right
- (19) Leases and mortgages
- (20) Freight payable to a mortgagee or purchaser of a ship
- (21) Transfer (or sub-mortgage) of a Torrens mortgage in Australia
- (22) Judgments and orders
- C Security Over a Debt
- D Court-Appointed Receiver on the Application of a Secured Creditor
- E Trusts
- F Execution of Judgments
- G Notice Under Section 260-5 of the Taxation Administration Act in Australia
- H Subrogation
- I Contracts (Rights of Third Parties) Act 1999
- 18 Sureties
- Preliminary Material
- 18.01
- A Principal Debtor's Right to Require a Set-off
- B Set-off Available to the Guarantor
- C Guarantor's Right to Rely on the Principal Debtor's Set-off
- D Mortgage Given to Secure Another Person's Debt
- E Surety's Right to Rely on a Co-Surety's Set-off
- F Set-off Between the Surety and the Principal Debtor
- Further Material
