Mulhern v Pearce (No 2) [2014] FCA 805

Mulhern v Pearce (No 2) [2014] FCA 805

Mulhern's bankruptcy could not be annulled as there was no merit to his claims: substituted service of bankruptcy notices and petitions was validly conducted; there was uncontested evidence he had a place of business and was conducting business in Australia at the relevant time; the argument that the debt was paid was a bare assertion unsupported by evidence; and the orders sought for discharge of bankruptcy and return of passport and Green Card lacked legal foundation. No reasonable prospect of success existed; thus, summary dismissal was warranted.

Parties
Applicant: Michael Richard Mulhern (Australian Made Bankrupt); First Respondent: Mark William Pearce and Andrew John Heers as Federal Court of Australia appointed trustees of the Australian estate of Michael Richard Mulhern; Second Respondent: Joseph Michael Dodrill (a bankrupt); Third Respondent: John Anthony Dodrill (a bankrupt); Fourth Respondent: Bank of Queensland
Jurisdiction
Australia
Judgment Date
01 August 2014
Procedural Posture
Bankruptcy Application/interlocutory Applications / Judgment on Applications for Summary Dismissal, Security for Costs, and Admission of Evidence
Outcome
Applicant's originating application and interim applications dismissed; supporting/new affidavits admitted; orders for further costs applications reserved.
Legal Topics
Annulment of Sequestration Order, Discharge of Bankruptcy, Return of Passport and Green Card, Substituted Service, Jurisdictional Prerequisites for Sequestration Order, Security for Costs, Summary Dismissal, Admissibility of Further Evidence
Bankruptcy and Insolvency Practice and Procedure Annulment of Sequestration Order Discharge of Bankruptcy Return of Passport and Green Card Substituted Service Jurisdictional Prerequisites for Sequestration Order Security for Costs +2 more

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Parties

Michael Richard Mulhern (Australian Made Bankrupt)

Applicant

Mark William Pearce and Andrew John Heers as Federal Court of Australia appointed trustees of the Australian estate of Michael Richard Mulhern

First Respondent

Joseph Michael Dodrill (a bankrupt)

Second Respondent

John Anthony Dodrill (a bankrupt)

Third Respondent

Bank of Queensland

Fourth Respondent

Procedural Posture

Bankruptcy Application/interlocutory Applications / Judgment on Applications for Summary Dismissal, Security for Costs, and Admission of Evidence

Legal Issues

  1. 1 Whether the applicant's bankruptcy should be annulled under s 153B of the Bankruptcy Act 1966 (Cth)
  2. 2 Whether there was appropriate jurisdiction for making the sequestration order under s 43(1)(b) of the Bankruptcy Act
  3. 3 Whether lack of personal service of bankruptcy notices and petitions voids the bankruptcy

Ratio Decidendi

Mulhern's bankruptcy could not be annulled as there was no merit to his claims: substituted service of bankruptcy notices and petitions was validly conducted; there was uncontested evidence he had a place of business and was conducting business in Australia at the relevant time; the argument that the debt was paid was a bare assertion unsupported by evidence; and the orders sought for discharge of bankruptcy and return of passport and Green Card lacked legal foundation. No reasonable prospect of success existed; thus, summary dismissal was warranted.

Court Disposition

Applicant's originating application and interim applications dismissed; supporting/new affidavits admitted; orders for further costs applications reserved.

Orders

  • The affidavit of Mark William Pearce sworn 13 June 2014 be admitted to evidence.
  • The affidavit of Paul Gerard Lynch affirmed 13 June 2014 be admitted to evidence.