Pearse v Wiseguy Pty Ltd

[2005] FCA 222

FEDERAL COURT OF AUSTRALIA

Pearse v Wiseguy Pty Ltd [2005] FCA 222

WARREN VICTOR PEARSE v WISEGUY PTY LTD

No SAD 11 of 2005

FINN J
ADELAIDE
10 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 11 OF 2005

BETWEEN:	WARREN VICTOR PEARSE APPLICANT
AND:	WISEGUY PTY LTD RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	10 MARCH 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The respondent’s motion be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 11 OF 2005

BETWEEN:	WARREN VICTOR PEARSE APPLICANT
AND:	WISEGUY PTY LTD RESPONDENT

JUDGE:	FINN J
DATE:	10 MARCH 2005
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. This is a motion in an appeal filed by the respondent, Wiseguy Pty Ltd, against the appellant, Warren Victor Pearse seeking security for costs under s 56 of the Federal Court of Australia Act 1976 (Cth).

2. The appeal itself relates to a decision of a Federal Magistrate which summarily dismissed an application by Mr Pearse to have a bankruptcy notice set aside under s 41 of the Bankruptcy Act 1966 (Cth). Mr Pearse acknowledged in those proceedings that he was in debt to Wiseguy in the amount of $6,609.30. He nonetheless claimed that Wiseguy owed him a substantially greater sum of money than that debt. In support of that he referred to legal proceedings that had been initiated in the District Court of South Australia claiming the sum of $299,450.00 from Wiseguy. The stated plaintiff in that proceeding was a company, Oakstaff Pty Ltd, which was apparently trustee for a unit trust called FM Media Trust, the sole beneficiary of that trust allegedly being Mr Pearse. Mr Pearse was also the sole director of Oakstaff Pty Ltd. It is clear on material filed before me that he is not a shareholder in that company.

3. The Magistrate dismissed Mr Pearse’s application on the short ground that Mr Pearse as debtor had no set off, counter claim or cross demand against Wiseguy by virtue of those proceedings, those proceedings being conducted by a third party.  The notice of appeal filed against the Magistrate’s judgment challenges findings of fact made by the Magistrate.  It appears from that judgment that the facts as found were based on evidence provided by Mr Pearse and are consistent with the pleadings in the District Court action which are in evidence before me.  It equally seems to be the case that the errors allegedly made by the Federal Magistrate are founded on information which was not before the Magistrate.  It would seem that a new case is sought to be run on the appeal.  It is not necessary for me on the present motion to express a firm view as to the prospects of the appeal although I would have to say that I do not consider them to be at all strong:  cf Chapman v Luminis…