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Mulhern v Pearce

Mulhern v Pearce

Case [2013] FCA 1138 31 October 2013

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FEDERAL COURT OF AUSTRALIA
Mulhern v Pearce [2013] FCA 1138

Citation: Mulhern v Pearce [2013] FCA 1138

Parties: MICHAEL RICHARD MULHERN (AUSTRALIAN MADE BANKRUPT) v MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS FEDERAL COURT OF AUSTRALIA APPOINTED TRUSTEES OF THE AUSTRALIAN ESTATE OF MICHAEL RICHARD MULHERN, JOSEPH MICHAEL DODRILL (A BANKRUPT), JOHN ANTHONY DODRILL (A BANKRUPT) and BANK OF QUEENSLAND

File number: NSD 1888 of 2013

Judge: ROBERTSON J

Date of judgment: 31 October 2013

Catchwords: PRACTICE AND PROCEDURE – application that proceeding be transferred to the Queensland District Registry

Legislation: Federal Court of Australia Act 1976 (Cth) s 48
Federal Court Rules 2011 r 2.02

Cases cited:
Mortimer v Opes Prime Stockbroking Limited (ACN 086 294 028) (Administrators Appointed) (In Liquidation) [2009] FCA 227
National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155

Date of hearing: 31 October 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 21

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondents: Mr Paul Lynch of Lynch Morgan Lawyers appeared by telephone

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1888 of 2013

BETWEEN:
MICHAEL RICHARD MULHERN (AUSTRALIAN MADE BANKRUPT)
Applicant

AND:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS FEDERAL COURT OF AUSTRALIA APPOINTED TRUSTEES OF THE AUSTRALIAN ESTATE OF MICHAEL RICHARD MULHERN
First Respondent

JOSEPH MICHAEL DODRILL (A BANKRUPT)
Second Respondent

JOHN ANTHONY DODRILL (A BANKRUPT)
Third Respondent

BANK OF QUEENSLAND
Fourth Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

31 OCTOBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to s 48 of the Federal Court of Australia Act1976 (Cth) the proceeding be conducted in the Queensland Registry of the Court and pursuant to r 2.02 of the Federal Court Rules 2011 (Cth) the proceeding be transferred to that Registry.
2.The trustees’ costs of the interim application be costs in the administration of the estate.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1888 of 2013

BETWEEN:
MICHAEL RICHARD MULHERN (AUSTRALIAN MADE BANKRUPT)
Applicant

AND:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS FEDERAL COURT OF AUSTRALIA APPOINTED TRUSTEES OF THE AUSTRALIAN ESTATE OF MICHAEL RICHARD MULHERN
First Respondent

JOSEPH MICHAEL DODRILL (A BANKRUPT)
Second Respondent

JOHN ANTHONY DODRILL (A BANKRUPT)
Third Respondent

BANK OF QUEENSLAND
Fourth Respondent

JUDGE:

ROBERTSON J

DATE:

31 OCTOBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Before the Court is an interim application by the trustees dated 24 September 2013 that the proceeding be transferred to the Queensland District Registry of the Court.
The substantive proceeding was commenced in the New South Wales District Registry on 12 September 2013 and the applicant, Mr Mulhern, seeks the following orders:
1.Pursuant to s 153B of the Bankruptcy Act 1966 (Cth) that the sequestration order made against the applicant on 3 February 2010 be annulled or in the alternative set…

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.

Continue reading Mulhern v Pearce

Details

AGLC: Mulhern v Pearce [2013] FCA 1138
Case: [2013] FCA 1138
Decision Date

CaseChat Overview and Summary

In the case of Mulhern v Pearce, the Federal Court of Australia was asked to decide whether the proceedings should be transferred from the New South Wales District Registry to the Queensland District Registry. The applicant, Michael Richard Mulhern, sought to annul the sequestration order made against him in 2010 and to discharge his bankruptcy. The trustees of Mulhern's estate opposed the application and sought a transfer of the proceedings to Queensland. The court considered the application on an interim basis.

The key legal issues before the court were whether there was a sound reason to transfer the proceedings to Queensland and whether doing so would serve the ends of justice and the efficient administration of the Court. The court considered factors such as the location of parties, witnesses, and documents, as well as the convenience of the Court. The court found that transferring the proceedings to Queensland would be more suitable, considering the related litigation already taking place there and the significant cost savings that would result.

The court ultimately decided to transfer the proceedings to the Queensland District Registry, finding that it would be more efficient and economical to do so. The court also ordered that the trustees' costs of the interim application be costs in the administration of the estate.

Orders