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

FEDERAL COURT OF AUSTRALIA

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

Parties: MICHAEL RICHARD MULHERN (AUSTRALIAN MADE BANKRUPT) v MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AS FEDERAL COURT OF AUSTRALIA APPOINTED TRUSTEES OF THE AUSTRALIAN ESTATE OF MICHAEL RICHARD MULHERN, JOSEPH MICHAEL DODRILL (A BANKRUPT), JOHN ANTHONY DODRILL (A BANKRUPT) and BANK OF QUEENSLAND

File number: NSD 1888 of 2013

Judge: COLLIER J

Date of judgment: 1 August 2014

Catchwords: BANKRUPTCY AND INSOLVENCY – application by trustees for summary dismissal – r 1.03(2) Federal Court (Bankruptcy) Rules 2005 (Cth) and r 26.01 Federal Court Rules 2011 (Cth) – primary proceedings concern application by bankrupt seeking annulment of sequestration order, discharge of bankruptcy and return of passport and United States Green Card – two interlocutory applications filed by bankrupt seeking return of passport and discharge of bankruptcy – whether bankrupt has reasonable prospect of successfully prosecuting the proceeding – bankrupt not personally served with bankruptcy notices or creditor's petitions – service effected in accordance with substituted service orders – whether jurisdiction for sequestration order existed – s 43(1)(b) Bankruptcy Act 1966 (Cth) – bankrupt alleging business not carried on in Australia and not ordinarily resident in Australia at time of bankruptcy – bankrupt not contesting any factual evidence on which court relied in making sequestration order – assertion that debt the subject of bankruptcy paid by bankrupt PRACTICE AND PROCEDURE – application to reopen hearing to adduce further evidence made by trustees – further application to adduce evidence made by bankrupt – whether in interest of justice to reopen and admit evidence – whether material relevant PRACTICE AND PROCEDURE – application by trustees for security for costs – s 56 Federal Court of Australia Act 1976 (Cth) – r 19.01 Federal Court Rules 2011 (Cth) – whether bankrupt has assets in jurisdiction – whether order for security would stifle proceedings – bankrupt's prospects of success – bankrupt's ability to satisfy a costs order – whether bankrupt has cooperated with trustees