FEDERAL COURT OF AUSTRALIA

Pearce (Trustee) v Mulhern (Bankrupt) [2011] FCA 930

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

REASONS FOR JUDGMENT

1    Section 78 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) enables the Court, where certain matters enumerated in sub (1) are made to appear, to issue a warrant for the arrest of, materially, a bankrupt and his committal to such gaol as the Court appoints until the Court otherwise orders. The onus lies on the trustee to make one or more of the matters enumerated in s 78 appear to the Court. The standard of proof is on the civil standard.

2    The evidence read today makes it appear to me that the bankrupt, Michael Richard Mulhern, uses an alias Derek O’Malley.

3    It further appears to me on the evidence read that Mr Mulhern has engaged in what is aptly described in the submissions made on behalf of the trustee as a deliberate and persistent pattern of gross breaches of the Bankruptcy Act. The most recent of these is a failure to appear today in accordance with the requirement of a summons for his public examination. That summons was personally served upon him.

4    I agree with the submission made on behalf of the trustee that there is evidence which, at least in terms of prima facie appearance, gives the appearance of an entry into Australia using an alias. I say that because the evidence establishes that within the time frame when one might expect him to have entered Australia there is no record of his entry under the name Mulhern.

5    The trustee’s evidence also discloses a pattern of a failure on the part of the bankrupt to fulfil the various duties cast on a bankrupt by s 77 of the Bankruptcy Act in terms of giving to the trustee various books of account and disclosing to the trustee items of property and otherwise aiding the trustee in the administration of his bankrupt estate. There is also reason to believe, on the material read, that the bankrupt has not disclosed property fully and truly to his trustee which would comprise, in terms of the Bankruptcy Act, property of the bankrupt.

6    The particular foundation of the application for the warrant is s 78(1)(f) which is:

That a bankrupt has, without good cause shown, neglected or failed to comply with an order of the Court or any other obligation under this Act.

7    As I have indicated, the most recent of these obligations was the requirement to attend in accordance with a summons but there are others to which I have made general reference. I am therefore of the opinion that the trustee has made it appear to the Court that there has been that non-compliance and I am satisfied that he has done so on the balance of probabilities. I therefore order that:

1.    A warrant issue pursuant to s 78(1)(f) of the Bankruptcy Act in the form that I have attached to the draft order for the arrest of the respondent bankrupt, Michael Richard Mulhern, also known as Derek O’Malley, and his committal to the gaol appointed in the warrant until the court otherwise orders.

2.    I further order that the costs of the application, including the costs of today and for the avoidance of a doubt those costs are to include the appearance before the registrar as well as before me, be payable from the estate of the respondent bankrupt, with priority, in accordance with s 109 of the Bankruptcy Act.

Associate:

Dated:    9 August 2011