BANKRUPTCY – Application to extend time for compliance with bankruptcy notice – appeal from and application for stay of decision on which bankruptcy notice based – appeal and application for stay not yet heard – relevant principles – application dismissed.
PRACTICE AND PROCEDURE – Application to dismiss application for review of Registrar’s refusal to set aside bankruptcy principles – principles applicable to dismissal of application made out of time – application dismissed.
Sheahan & Le Poidevin Industries Pty Ltd v Northern Australia Land and Agency Co. Ltd & Ors. (unreported, Supreme Court of South Australia, Perry J, 4 February 1993) Pittorino v Meynert & Ors. [2001] WASC 245 Ipp J, “Lawyers’ Duties to the Court” (1998) 114 LQR 63
Applicant:
NEIL EDOUARD MORIEN
Respondent:
DERRAN CHARMAINE JOHNSTON
File Number:
PEG286 of 2006
Judgment of:
Lucev FM
Hearing date:
14 December 2006
Date of Last Submission:
14 December 2006
Delivered at:
Perth
Delivered on:
18 December 2006
REPRESENTATION
Applicant:
The Applicant appeared in person
Counsel for the Respondent:
Ms K. Vernon
Solicitors for the Respondent:
Arthur Metaxas & Co.
ORDERS
That the Applicant’s application for interim orders extending time for compliance with the bankruptcy notice be dismissed.
That the Respondent’s application for dismissal of the application, on the basis that it was filed out of time, be dismissed
The costs of these applications be reserved.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH
PEG286 of…
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.
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Details
AGLC
Morien v Johnston [2006] FMCA 1918
Case
[2006] FMCA 1918
Decision Date
CaseChat Overview and Summary
In the case of Morien v Johnston, the applicant sought to extend the time for compliance with a bankruptcy notice. This request was made in the context of an appeal and an application for a stay of the decision that the bankruptcy notice was based upon, which had not yet been heard. The respondent, in turn, applied to have the application to dismiss the application for review of the Registrar's refusal to set aside the bankruptcy dismissed, arguing that it was filed out of time.
The primary legal issue the court had to determine was whether the applicant's application for interim orders extending the time for compliance with the bankruptcy notice should be dismissed. Additionally, the court had to consider the principles applicable to the dismissal of the application made out of time, specifically whether the respondent's application for dismissal should also be dismissed.
The court found that the applicant's application for interim orders extending the time for compliance with the bankruptcy notice should be dismissed. Furthermore, the court held that the principles applicable to the dismissal of the application made out of time were made out, and thus the respondent's application for dismissal should also be dismissed. The costs of these applications were reserved for further consideration.
Orders
Orders of the court
1.
That the Applicant’s application for interim orders extending time for compliance with the bankruptcy notice be dismissed.
2.
That the Respondent’s application for dismissal of the application, on the basis that it was filed out of time, be dismissed