FEDERAL COURT OF AUSTRALIA
Pearce (Trustee) v Mulhern (Bankrupt) (No 4) [2012] FCA 54
Citation: Pearce (Trustee) v Mulhern (Bankrupt) (No 4) [2012] FCA 54 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(s): QUD 176 of 2011 Judge: JAGOT J Date of judgment: 2 February 2012 Catchwords: BANKRUPTCY – application for return of passport – whether just and equitable to do so – where respondent bankrupt had complied with obligations under the Bankruptcy Act 1966 (Cth) Legislation: Bankruptcy Act 1966 (Cth) Cases cited: Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930
Pearce (Trustee) v Mulhern (Bankrupt) (No 2) [2012] FCA 7
Pearce (Trustee) v Mulhern (Bankrupt) (No 3) [2012] FCA 16
Re Hicks; Ex parte Lamb (1994) 217 ALR 195
Re Tyndall (1977) 30 FLR 6
Sharma v Pattison [2006] FCA 287Date of hearing: 2 February 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Solicitor for the First Applicant: Mr Paul Lynch of Lynch Morgan Lawyers Counsel for the First Respondent: Mr M Southwick
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)
ApplicantAND: MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
2 FEBRUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interim application filed in Court today be dismissed.
2.The applicant pay the respondent’s costs of the interim application as agreed or taxed.
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)
ApplicantAND: MICHAEL RICHARD MULHERN ALSO KNOWN AS DEREK O'MALLEY (A BANKRUPT)
Respondent
JUDGE:
JAGOT J
DATE:
2 FEBRUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an interim application made by Mr Mulhern, a bankrupt, against the trustees of his property (the Trustees) for orders to the effect that the Trustees deliver up to Mr Mulhern his Australian and Irish passports and forthwith give to him their consent in writing to proposed overseas travel. The application is brought pursuant to s 178 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act).
The dealings between the Trustees and Mr Mulhern have been before this Court on at least three earlier occasions. On 9 August 2011, Logan J issued a warrant for Mr Mulhern’s arrest: see Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930. This was done under s 78 of the Bankruptcy Act. In his reasons for decision published on…
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- Case
- [2012] FCA 54
- Decision Date
CaseChat Overview and Summary
The court examined the statutory framework provided by the Bankruptcy Act and considered Mulhern's compliance with her obligations. The judge assessed whether the return of the passport would serve the interests of justice and equity, taking into account Mulhern's compliance and the broader context of her bankruptcy proceedings. The court noted that the statutory provisions did not explicitly address the return of a passport in such circumstances, requiring the court to interpret the law in light of equitable principles.
Ultimately, the court dismissed the interim application for the return of the passport. The judge found that, while Mulhern had complied with her obligations, the circumstances did not warrant the return of the passport as a matter of justice and equity. The court also ordered that the applicant, Pearce, pay the respondent's costs of the interim application as agreed or taxed. This decision was made under the authority provided by Rule 39.32 of the Federal Court Rules 2011, governing the entry of orders in such proceedings.
Orders
Orders of the court
1. The interim application filed in Court today be dismissed.
2. The applicant pay the respondent’s costs of the interim application as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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