FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORIEN v JOHNSTON | [2007] FMCA 2100 |
| BANKRUPTCY – Review of Registrar’s decision – application to set aside bankruptcy notice – adjournment – invalidity of bankruptcy notice – bankruptcy notice not signed or stamped – bankruptcy notice irregular but not invalid – overstatement – appeal and stay of execution – counter-claim, set off or cross-demand – order for payment of judgment debt not against applicant – not a debtor against whom final judgment obtained – bankruptcy notice set aside. BANKRUPTCY – Application for sequestration order – whether debtor solvent – cash and assets available – no evidence of execution or garnishment – debtor solvent – no sequestration order. |
| Bankruptcy Act 1966 (Cth), ss.5(2); 40(1)(g); 52(2)(a); 306 Bankruptcy Regulations 1996 (Cth) |
| Applicant: | NEIL EDOUARD MORIEN |
| Respondent: | DERRAN CHARMAINE JOHNSTON |
| File Number: | PEG 286 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 8, 9, 13 & 15 February 2007 |
| Date of Last Submission: | 15 February 2007 |
| Delivered at: | Perth |
| Delivered on: | 17 December 2007 |
REPRESENTATION
| Applicant: | Mr N E Morien on his own behalf |
| Counsel for the Respondent: | Mr B G Grubb |
| Solicitors for the Respondent: | Arthur Metaxas & Co |
| Applicant: | DERRAN CHARMAINE JOHNSTON |
| Respondent: | NEIL EDOUARD MORIEN |
| File Number: | PEG 273 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 8, 9, 13 & 15 February 2007 |
| Date of Last Submission: | 15 February 2007 |
| Delivered at: | Perth |
| Delivered on: | 17 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B G Grubb |
| Solicitors for the Applicant: | Arthur Metaxas & Co |
| Respondent: | Mr N E Morien on his… |
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- AGLC
- Morien v Johnston [2007] FMCA 2100
- Case
- [2007] FMCA 2100
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the Court were whether the Registrar’s orders were valid, if the Bankruptcy Notice was correctly issued, and if the Creditor’s Petition should proceed. The Court had to examine the procedural correctness of the Registrar’s decisions and the validity of the Bankruptcy Notice issued to Johnston. Furthermore, the Court was required to determine the appropriateness of the Creditor’s Petition against Johnston.
The Court found that the Registrar’s orders 2 and 3 were flawed, leading to their quashing. The Bankruptcy Notice was also set aside as it was determined to be improperly issued. In terms of the Creditor’s Petition, the Court dismissed the Applicant’s application, finding that the Petition did not meet the necessary criteria. The Court ordered the return of the $85,000 paid into Court by Morien, along with any accrued interest, to him promptly. The Court also directed the parties to attempt to agree on costs, with a set timeline for further directions if an agreement could not be reached.
The final orders include the quashing of specific Registrar orders, the setting aside of the Bankruptcy Notice, dismissal of the Creditor’s Petition, and the release of funds paid into Court by Morien. The Court also mandated the parties to negotiate on costs, with a specified timeline for further directions if no agreement was achieved.
Orders
Orders of the court
The Court makes the following Orders:
1.
In PEG 286 of 2006, the Applicant’s application to set aside the orders and judgment of the Registrar dated 13 October 2006 be upheld as to orders 2 and 3 of those orders, and that orders 2 and 3 be quashed.
2.
In PEG 286 of 2006, that Bankruptcy Notice No. 372 of 2006 be set aside.
3.
In PEG 273 of 2006, that the Applicant’s application for a Creditor’s Petition be dismissed.
4.
In PEG 286 of 2006 that the sum of $85,000 paid into Court by Neil Edouard Morien pursuant to order 1 of this Court’s orders of 9 February 2007, plus any interest earned thereon, be released to him as soon as reasonably practicable.
5.
In PEG 273 of 2006 and PEG 286 of 2006, the parties to confer on costs, and if able to reach agreement a consent order is to be filed reflecting the terms of that agreement, otherwise the question of costs be listed for further directions at 9:45am on 31 January 2008, with liberty to vacate that date if consent orders are filed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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