Mulhern v Pearce & Anor - [2012] FMCA 1186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MULHERN v PEARCE & ANOR

[2012] FMCA 1186

BANKRUPTCY – Applications for annulment of bankruptcy and for permission to travel – interim application for a change of venue.

Bankruptcy Act 1966 (Cth), s.153B
Federal Magistrates Act 1999, s.52
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
Federal Magistrates Court Rules 2001 (Cth)

CNH Capital Australia Pty Ltd v Pratley (No.2) [2009] FMCA 455
Koh v Erwin [2010] FMCA 278

Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495

Applicant:

MICHAEL RICHARD MULHERN

Respondents:

MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN

File Number:

SYG 2805 of 2012

Judgment of:

Driver FM

Hearing date:

10 December 2012

Delivered at:

Sydney

Delivered on:

10 December 2012

REPRESENTATION

Solicitors for the Applicant:

Mr M Smith

Solicitors for the Respondent:

Mr P Lynch
Lynch Morgan Lawyers

INTERLOCUTORY ORDERS

Pursuant to s.52 of the Federal Magistrates Act 1999 (Cth) and rule 8.01 of the Federal Magistrates Court Rules 2001 (Cth), proceedings SYG 2805 of 2012 be heard in the Brisbane registry of the Court.
The trustee’s costs of the interim application be costs in the administration of the estate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2805 of 2012

MICHAEL RICHARD MULHERN

Applicant

And

MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an interim application filed on 4 December 2012, seeking a change of venue of bankruptcy proceedings pursuant to s.52 of the Federal Magistrates Act 1999 (Cth) (Federal Magistrates Act) and rule 8.01 of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules). The application is supported by the affidavit of Mark William Pearce filed on 4 December 2012, who was not required for cross-examination. The parties have prepared written submissions. Those of the applicant trustees detail the principles relating to a change of venue, which I adopt, and also the merits of the trustees’ application.
Rule 8.01 of the Federal Magistrates Court Rules provides:
Change of venue
(1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2)In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.’
Section 52 of the Federal Magistrates Act provides:
Venue
(1) The Federal Magistrates Court may sit at any place in Australia.
(2) The Federal Magistrates Court or a Federal Magistrate may, at any stage of a proceeding in the Federal Magistrates Court, order that:
(a) the proceeding; or
(b) a part of the proceeding;
be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Federal Magistrates Court or…

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 & Anor

Details

AGLC: MULHERN v PEARCE & ANOR [2012] FMCA 1186
Case: [2012] FMCA 1186
Decision Date: 10 December 2012

CaseChat Overview and Summary

Michael Richard Mulhern filed an application for annulment of bankruptcy and for permission to travel. Mark William Pearce and Andrew John Heers, as trustees of Mulhern's property, filed a response. The trustees subsequently filed an interim application seeking a change of venue of the proceedings from Sydney to Brisbane. The Federal Magistrates Court considered the application, focusing on whether the change of venue would be more convenient for the parties, limit expenses and costs, and any other relevant factors. The court considered the location of the parties, witnesses, and documents, as well as earlier proceedings in Queensland in the Federal Court. The court found that transferring the proceedings to Brisbane would be more convenient for the parties, limit expenses and costs, and likely result in a more efficient and timely resolution of the case. The court ordered that the proceedings be heard in the Brisbane registry of the Court and that the trustee's costs of the interim application be costs in the administration of the estate.

The Federal Magistrates Court granted the interim application for a change of venue, ordering that the proceedings be heard in the Brisbane registry of the Court. The court found that the location of the parties, witnesses, and documents, as well as earlier proceedings in Queensland in the Federal Court, supported the transfer of the proceedings to Brisbane. The court also found that the transfer would likely result in a more efficient and timely resolution of the case, which would benefit both the bankrupt and the trustees. The court ordered that the trustee's costs of the interim application be costs in the administration of the estate.

Orders