Conlan v Mladenis

[2007] FCA 1129

FEDERAL COURT OF AUSTRALIA

Conlan v Mladenis [2007] FCA 1129

BANKRUPTCY – creditor’s petition – costs of dismissal – whether respondent delayed in having default judgment set aside – Registrar found for debtor

APPEAL – from decision of Registrar – whether Magistrate conducted hearing de novo – exercise of discretion – whether Magistrate failed to take into account material consideration

HELD: the Magistrate correctly conducted a hearing de novo, but failed to take into account a material consideration

Pattison v Hadjimouratis [2006] FCAFC 153 applied
Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 applied
House v The King 55 CLR 499 applied
Norbis v Norbis (1986) 161 CLR 513 cited
Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 applied
Oshlack v Richmond River Council (1998) 193 CLR 72 cited
Hogg v J Isherwood‑Hicks Pty Ltd (1992) 108 FLR 62 cited
Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50 cited

GERARD ANTHONY CONLAN v CHRIS MLADENIS
VID 1170 OF 2006

SUNDBERG J
3 AUGUST 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1170 OF 2006

BETWEEN:	GERARD ANTHONY CONLAN Appellant
AND:	CHRIS MLADENIS Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of Federal Magistrate Hughes made on 5 October 2006 be set aside.

3.The matter be remitted to the Federal Magistrates Court for further hearing in accordance with the reasons herein.

4.The costs of the review before Federal Magistrate Hughes and of the appeal be reserved for determination on the remitter.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1170 OF 2006

BETWEEN:	GERARD ANTHONY CONLAN Appellant
AND:	CHRIS MLADENIS Respondent

JUDGE:	SUNDBERG J
DATE:	3 AUGUST 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. On 10 September 2004 the appellant, who is a solicitor, obtained a default judgment against the respondent, a former client, for $4,548.63 in the Melbourne Magistrates Court (the State Court). A bankruptcy notice was issued on 6 April 2005 and was served on the respondent on 9 April. He did not comply with the demand made by the notice, and thus committed an act of bankruptcy on 2 May 2005. The appellant filed a creditor’s petition on 3 May 2005. On 25 May 2005 the respondent filed in the State Court an “application for leave to defend after order made” seeking to have the judgment set aside and leave to defend. The “special circumstances” on which the respondent relied for this relief were that the complaint had never been served on him, he did not owe the amount claimed in the complaint, and he had made the application as soon as practicable after becoming aware of the judgment. On 8 June 2005 the respondent filed a notice of intention to oppose the petition…