Morien v Johnston

Case [2006] FMCA 1918


FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORIEN v JOHNSTON [2006] FMCA 1918

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.

Bankruptcy Act 1966 (Cth), s.41(6A) and (6C)
Federal Magistrates Court Rules 2001 (Cth), r.4.01
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.2.03

Conway v Jackson (2001) 107 FCR 201
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
McPhee v Glentham Pty Ltd [2006] FMCA 1508
Re Horwarth; ex parte Mortgage Acceptance Nominees Ltd (1993) 43 FCR 587
Valassis v Bernard [2001] FCA 477
O’Loughlin v Glenmont Investments Pty Ltd [2001] FCA 925
Lipov v Alexander Fraser & Son Limited and Anor (1978) 24 ALR 616
Van Reesema v Australian Growth Resources Corporation Pty Ltd (1987) 75 ALR 311
Elliott v Water Wheel Holdings Ltd [2004] FMCA 37
Sidhom v Euphoric Pty Ltd [2006] FMCA 827
Jackson v Conway [2000] FCA 1530
Hovan v Goycolea-Silva [2003] FCA 234
Warner v Frost [1999] FCA 830
Shepherd v Chiquita Brands (South Pacific) Ltd [2001] FCA 1394

Perovich v Tesla Nominees [2006] FMCA 1342

Hacker v The Owners of Strata Plan Number 17572 [2005] FCA 1936

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson (1990) 93 ALR 479

Re Edward Gem Pty Ltd (2005) 141 FCR 408; [2005] FCA 74

Re Insurance Australia Group Ltd (2003) 128 FCR 581; [2003] FCA 581

Pinnacle VRB Ltd v Reliable Power Inc (2001) 163 FLR 215; [2001] VSC 262
Mauntill Pty Ltd v Cadoroll Pty Ltd (1994) 122 FLR 224

Adams v Lambert (2006) 3 ABC(NS) 835; (2006) HCA 10

La Pegna v Deputy Commissioner of Taxation [2006] FMCA 1643

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

  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

  3. The costs of these applications be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG286 of…

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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

3.

The costs of these applications be reserved.

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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