Pearce (Trustee) v Mulhern (Bankrupt) - [2011] FCA 930

FEDERAL COURT OF AUSTRALIA
Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930

Citation: Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930

Parties: MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT) v MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)

File number: QUD 176 of 2011

Judge: LOGAN J

Date of judgment: 9 August 2011

Catchwords: BANKRUPTCY AND INSOLVENCY – arrest warrant – whether to issue – where respondent bankrupt had not appeared for public examination – where it appeared respondent had not complied with obligations of a bankrupt under the Bankruptcy Act 1966 (Cth) – arrest warrant issued

Legislation: Bankruptcy Act 1966 (Cth) ss 77, 78, 109

Date of hearing: 9 August 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 7

Solicitor for the Applicant: LynchMorgan Lawyers

Counsel for the Respondent: Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 176 of 2011

BETWEEN:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Applicant

AND:
MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

9 AUGUST 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.A warrant issue pursuant to section 78(1)(f) of the Bankruptcy Act 1966 (Cth) (the Act) in the form of Form 16 of the Federal Court (Bankruptcy) Rules 2005 for the arrest of the respondent bankrupt Michael Richard Mulhern also known as Derek O’Malley and his committal to such gaol as the Court appoints until this Court otherwise orders.
2.The costs of this application including the costs of this day be payable from the estate of the respondent bankrupt with priority in accordance with section 109 of the Act.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 176 of 2011

BETWEEN:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Applicant

AND:
MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Respondent

JUDGE:

LOGAN J

DATE:

9 AUGUST 2011

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Section 78 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) enables the Court, where certain matters enumerated in sub (1) are made to appear, to issue a warrant for the arrest of, materially, a bankrupt and his committal to such gaol as the Court appoints until the Court otherwise orders. The onus lies on the trustee to make one or more of the matters enumerated in s 78 appear to the Court. The standard of proof is on the civil standard.
The evidence read today makes it appear to me that the bankrupt, Michael Richard Mulhern, uses an alias Derek O’Malley.
It further appears to me on the evidence read…

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 Pearce (Trustee) v Mulhern (Bankrupt)

Details

AGLC: Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930
Case: [2011] FCA 930
Decision Date: 9 August 2011

CaseChat Overview and Summary

In the matter of Pearce (Trustee) versus Mulhern (Bankrupt), the Federal Court of Australia considered whether to issue an arrest warrant for the bankrupt respondent who had failed to appear for a public examination. The trustee sought the issuance of the warrant on the grounds that the respondent had not complied with his obligations under the Bankruptcy Act 1966 (Cth). The court's primary task was to determine whether the circumstances justified the issuance of an arrest warrant and the appropriate form it should take.

The legal issues before the court included whether the respondent's non-appearance and non-compliance with his obligations warranted the issuance of an arrest warrant under section 78(1)(f) of the Bankruptcy Act 1966 (Cth). The court also had to consider whether the costs of the application, including those of the day, should be paid from the respondent's estate. The court examined the provisions of the Act and relevant case law to address these issues.

The court found that the respondent's failure to appear for the public examination and non-compliance with his obligations under the Act warranted the issuance of an arrest warrant. The court determined that the appropriate form of the warrant was in accordance with section 78(1)(f) of the Bankruptcy Act 1966 (Cth) and Form 16 of the Federal Court (Bankruptcy) Rules 2005. Additionally, the court ruled that the costs of the application, including those of the day, should be paid from the respondent's estate with priority in accordance with section 109 of the Act.

The court issued a warrant for the arrest of the respondent, Michael Richard Mulhern also known as Derek O’Malley, and ordered his committal to such gaol as the Court appoints until the Court otherwise orders. Furthermore, the court mandated that the costs of the application, including those of the day, be payable from the estate of the respondent with priority in accordance with section 109 of the Bankruptcy Act 1966 (Cth).

Orders

Orders of the court

1. A warrant issue pursuant to section 78(1)(f) of the Bankruptcy Act 1966 (Cth) (the Act) in the form of Form 16 of the Federal Court (Bankruptcy) Rules 2005 for the arrest of the respondent bankrupt Michael Richard Mulhern also known as Derek O’Malley and his committal to such gaol as the Court appoints until this Court otherwise orders.

2. The costs of this application including the costs of this day be payable from the estate of the respondent bankrupt with priority in accordance with section 109 of the Act.

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

Background

Background to the litigation

Full text does not contain this section.

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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Citation:		Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930
Parties:		MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT) v MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
File number:		QUD 176 of 2011
Judge:		LOGAN J
Date of judgment:		9 August 2011
Catchwords:		BANKRUPTCY AND INSOLVENCY – arrest warrant – whether to issue – where respondent bankrupt had not appeared for public examination – where it appeared respondent had not complied with obligations of a bankrupt under the Bankruptcy Act 1966 (Cth) – arrest warrant issued
Legislation:		Bankruptcy Act 1966 (Cth) ss 77, 78, 109
Date of hearing:	9 August 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Solicitor for the Applicant:	LynchMorgan Lawyers
Counsel for the Respondent:	Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 176 of 2011

BETWEEN:	MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS TRUSTEES OF THE PROPERTY OF MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT) Applicant
AND:	MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT) Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	9 AUGUST 2011
WHERE MADE:	BRISBANE

JUDGE:	LOGAN J
DATE:	9 AUGUST 2011
PLACE:	BRISBANE