Pearce (Trustee) v Mulhern (Bankrupt) (No 2)

Link copied
Case Copied 4 min read

FEDERAL COURT OF AUSTRALIA

Pearce (Trustee) v Mulhern (Bankrupt) (No 2) [2012] FCA 7

Citation: Pearce (Trustee) v Mulhern (Bankrupt) (No 2) [2012] FCA 7
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: BUCHANAN J
Date of judgment: 12 January 2012
Catchwords: BANKRUPTCY AND INSOLVENCY – arrest warrant – failure to attend public examination – use of an alias – flight risk  
Legislation: Bankruptcy Act 1966 (Cth) s 78
Cases cited: Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930
Date of hearing: Heard on the papers
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 4
Solicitor for the Applicant: Lynch Morgan 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:

BUCHANAN J

DATE OF ORDER:

11 JANUARY 2012

WHERE MADE:

SYDNEY

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:

BUCHANAN J

DATE:

12 JANUARY 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 9 August 2011 Logan J ordered that a warrant be issued pursuant to s 78(1)(f) of the Bankruptcy Act 1966 (Cth) for the arrest of the respondent bankrupt, Michael Richard Mulhern also known as Derek O’Malley and for his committal to gaol (Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930). The arrest warrant directed that Mr Mulhern, when arrested, be delivered to Her Majesty’s Gaol at Brisbane and it directed the Governor or Keeper of that gaol to receive him and keep him in custody until the Court otherwise orders. The arrest warrant also required and authorised the seizure of specified property.

  2. It appears that Mr Mulhern was arrested by the Australian Federal Police at…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Pearce (Trustee) v Mulhern (Bankrupt) (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2012] FCA 7
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Pearce, acting as the trustee of the estate of a bankrupt, and Mulhern, a bankrupt individual. The dispute revolves around Mulhern's failure to attend a public examination and his use of an alias, Derek O'Malley. The matter was heard in the Federal Court of Australia. The court was tasked with determining whether the respondent, Mulhern, had committed an offence under section 78(1)(f) of the Bankruptcy Act 1966 (Cth) by failing to attend a public examination. This provision allows for the arrest and committal of a bankrupt to gaol if they do not appear at a public examination without sufficient cause.

The primary legal issue before the court was whether Mulhern's failure to attend the examination constituted an offence. The court also had to consider whether Mulhern's use of an alias and his potential flight risk were relevant factors in the decision. The trustee argued that Mulhern's actions demonstrated a lack of cooperation with the administration of his bankruptcy estate and posed a flight risk, thereby justifying his arrest and committal.

The court found that Mulhern's failure to attend the examination was indeed an offence under the Act. It considered the seriousness of the offence, Mulhern's use of an alias, and the potential flight risk. The court concluded that these factors warranted the issuance of an arrest warrant for Mulhern. The court ordered that Mulhern be arrested and committed to gaol until further order of the court. Additionally, the court ruled that the costs of the application, including the costs of the day, were to be paid from Mulhern's estate, with priority in accordance with section 109 of the Act.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.