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Miao v Michell

Miao v Michell

Case [2018] FCCA 2859 27 September 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MIAO v MICHELL

[2018] FCCA 2859

Catchwords
BANKRUPTCY – Injunction to restrain settlement of sale of a property – no serious issue to be tried – balance of convenience did not favour applicant – applicant as an undischarged bankrupt unable to proffer a meaningful undertaking as to damages – no evidence that applicant had suffered losses that cannot be compensated.

Legislation

Bankruptcy Act 1966 (Cth), ss.58(1), 176, 178

Owners Corporation Act 2006 (Vic)

Cases cited
Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd [1991] 1 Qd R 301

Adelaide Steamship Co v Martin (1879) 5 VLR (E) 45
Adsett v Berlouis (1992) 37 FCR 201
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Baycorp Collections PDL (Australia) Pty Ltd v Reaper (No 2) [2017] FCCA 244
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Blue Wedges Inc v Port of Melbourne Corporation [2005] VSC 305
Brown v Newall (1837) 40 ER 752
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch D 949
Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103
Freeman v Joiner [2005] FCAFC 149
Macchia v Nilant (2001) 110 FCR 101
Mannigel v Aitken (1983) 77 FLR 406
Miao v Michell [2018] FCCA 1068
National Australia Bank Ltd v Bond Brewing Holdings Ltd (Bond Brewing case) [1991] 1 VR 386
O’Brien v Australasian Temperance and General Mutual Life Assurance Society Ltd (1891) 24 SALR 128
Owen & Owen [2016] FCCA 2130
Pierce & D’Cruz and Pierce & T [2010] FamCAFC 99
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516
Ramsay Health Care Australia Proprietary Limited v Compton [2017] HCA 28
Re Brogden [1888] WN 238
Reliance Permanent Building Society v Harwood-Stamper [1944] Ch 362
Scott v Commissioner of Taxation (No 2) (1966) 40 ALJR 265
Snook v London and West Riding Investments Ltd (1967) 2 QB 768
Tucker v New Brunswick Trading Co of London (1890) 44 Ch D 249
Wakim v HIH Casualty & General Insurance Ltd (2001) 111 FCR 58
WGOC & GH and Anor [2006] FamCA 539
Winn v Yeo & Rambaldi as former trustees of the estate of Goodwin (a bankrupt) [2017] FCCA 2528

Applicant:

SHIRLEY MIAO

Respondent:

STEPHEN JOHN MICHELL

File Number:

MLG 2865 of 2018

Judgment of:

His Honour Judge Wilson

Hearing date:

27 September 2018

Date of Last Submission:

27 September 2018

Delivered at:

Melbourne

Delivered on:

27 September 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the Respondent:

Solicitors for the Respondent:

SLF Lawyers

ORDERS

The application for an urgent interim injunction filed on 24 September 2018 is refused.
The applicant pay the trustee’s costs on an indemnity basis.
The further hearing of this proceeding is adjourned to 26 October 2018 at 10:15am to consider any other or further application brought, otherwise this proceeding will stand dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miao v Michell

Details

AGLC: Miao v Michell [2018] FCCA 2859
Case: [2018] FCCA 2859
Decision Date: 27 September 2018

CaseChat Overview and Summary

Miao (the applicant) sought an injunction to restrain the settlement of the sale of a property. Michell (the respondent) was the trustee in bankruptcy of the applicant. The dispute concerned the applicant's attempt to prevent the sale of a property by the trustee.

The primary legal issue before the court was whether the applicant had established a sufficient basis to grant an interlocutory injunction. This involved determining whether there was a serious question to be tried and, if so, whether the balance of convenience favoured granting the injunction. A further consideration was the applicant's ability to provide a meaningful undertaking as to damages, given their status as an undischarged bankrupt.

His Honour Judge Wilson found that the applicant had failed to demonstrate a serious question to be tried. Furthermore, the court determined that the balance of convenience did not favour the applicant. Crucially, as an undischarged bankrupt, the applicant was unable to offer a meaningful undertaking as to damages, and there was no evidence that the applicant had suffered losses that could not be compensated. Consequently, the application for an injunction was dismissed.

Orders