FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORAN v LYDIARD FINANCIAL SERVICES PTY LTD | [2005] FMCA 1821 |
| BANKRUPTCY – Bankruptcy notice – application to set aside – whether promissory note is payment of debt – whether debtor has set off or cross-claim – whether bankruptcy notice abuse of process when three previous notices were invalid. |
| Bankruptcy Act1966 (Cth) |
| Bhagat v Global Custodians Ltd (2002) FCA 223 Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346 at 350 |
| Applicant: | JOHN GERARD MORAN |
| Respondent: | LYDIARD FINANCIAL SERVICES PTY LTD |
| File Number: | MLG 1291 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 31 October 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2005 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Mr Peter Fary |
| Solicitors for the Respondent: | Wisewoulds |
ORDERS
That the application filed by the application debtor on 17 October 2005 is dismissed.
That the applicant debtor pay the respondent creditor's costs to be taxed in accordance with the procedures contained in O.62 of the Federal Court Rules using the scale contained in schedule 1 of the Federal Magistrates’ Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1291 of 2005
| JOHN GERARD MORAN |
Applicant
And
| LYDIARD FINANCIAL SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
The respondent to this application, Lydiard Financial Services Pty Ltd, has obtained a bankruptcy notice against the applicant, John Gerard Moran. The bankruptcy notice was issued on 23 September 2005. It is based on an order of the Court of Appeal of the Supreme Court of Victoria where on 28 February 2003, the Court dismissed an application and ordered that John Gerard Moran pay on an indemnity basis the costs of Lydiard Financial Services Pty Ltd, formerly called Cuthberts Nominees Pty Ltd, and then on an order of the taxing master of the Supreme Court, Master Bruce, on 30 June 2003, where the master ordered that those costs be taxed and allowed in the sum of $11,310.40.
The bankruptcy notice was served on 29 September 2005. Mr Moran now applies to set it aside. He puts forward three bases for his application to set aside. First, that the costs have been paid. He says that they were part of a payment of $82,521.27 paid to the creditor's solicitors in January 2005. Next he claims that he has a cross-claim in an amount which exceeds by many multiples the costs which are claimed in this bankruptcy notice, and finally, the third claim he alleges that the issuing of this bankruptcy notice, being the fourth that the creditor has obtained against him, is an abuse of process of the Court.
I deal first with the claim that payment was made. The order for costs in the Court of Appeal on 28 February 2003 is not the only order for costs which has been made against Mr Moran, thus the explanation for the figure of $82,521.27. On 31 January 2005, Mr Moran sent to Messrs Wisewoulds, who are…
Keep reading for free
Create a free CaseChat account to read Moran v Lydiard Financial Services Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2005] FMCA 1821
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the arbitration agreement was valid and enforceable against Moran. Additionally, the court had to consider the enforceability of the arbitration award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The court also had to determine whether the application debtor's arguments for dismissing the enforcement proceedings were valid.
The court found that the arbitration agreement was valid and enforceable under the applicable law. The court held that the arbitration award was valid and binding on Moran, as it was recognised under the New York Convention. The court dismissed the application debtor's arguments and held that there were no grounds to dismiss the enforcement proceedings. The court ordered that the application be dismissed and that the applicant debtor pay the respondent creditor's costs in accordance with the Federal Court Rules.
Orders
Orders of the court
1.
That the application filed by the application debtor on 17 October 2005 is dismissed.
2.
That the applicant debtor pay the respondent creditor's costs to be taxed in accordance with the procedures contained in O.62 of the Federal Court Rules using the scale contained in schedule 1 of the
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.