Moran v Lydiard Financial Services Pty Ltd

[2007] HCATrans 40

[2007] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M80 of 2006

B e t w e e n -

JOHN GERARD MORAN

Applicant

and

LYDIARD FINANCIAL SERVICES PTY LTD (FORMERLY CUTHBERTS NOMINEES PTY LTD)

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 FEBRUARY 2007, AT 9.33 AM

Copyright in the High Court of Australia

GUMMOW J:   The respondent obtained a bankruptcy notice against the applicant on 23 September 2005.  The applicant sought in the Federal Magistrates Court an order that a bankruptcy notice based on a taxation of costs be set aside.  He argued that the costs in question had been paid by promissory note; that he had a valid cross-claim for an amount far in excess of the amount claimed in the bankruptcy notice; and that the issuing of the bankruptcy notice was an abuse of court process.

Phipps FM ruled that the promissory note did not constitute payment of the debt; there was no genuine prospect of success on the cross-claim; and no abuse of process had occurred.  In the Federal Court, Sundberg J upheld the decision of Phipps FM, and dismissed the appeal.  His Honour gave comprehensive reasons for judgment.  Before this Court, the applicant seeks to challenge the validity of Sundberg J’s exercise of appellate jurisdiction, and to press his contentions regarding the promissory note.

The applicant’s case before this Court discloses no error on the part of Sundberg J, and his contentions regarding jurisdiction are without substance.  No question of law has been raised that would justify a grant of special leave.  There would be no prospects of success on any appeal to this Court from the Federal Court, and consequently special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.34 AM THE MATTER WAS CONCLUDED