11 Mutuality – Introduction

11.01 For both the insolvency set-off section and the Statutes of Set-off there must be mutuality.1 Mutuality does not require that the claims should arise at the same time,2 nor that there should be any connection between them.3 It is irrelevant, moreover, that the claims may be of a different nature. As the High Court of Australia observed in Gye v McIntyre:4 ‘the word “mutual” conveys the notion of reciprocity rather than that of correspondence.’ Thus, an obligation arising out of an instrument under seal may be set off against a simple contract debt,5 and a...