Dahlan v Owners - Strata Plan No. 10833

[2014] FCA 838

FEDERAL COURT OF AUSTRALIA

Dahlan v Owners - Strata Plan No. 10833 [2014] FCA 838

Citation:	Dahlan v Owners - Strata Plan No. 10833 [2014] FCA 838
Appeal from:	Order of the Federal Circuit Court of Australia in SYG 1634 of 2013 dated 14 April 2014
Parties:	SAMER DAHLAN v THE OWNERS - STRATA PLAN NO. 10833
File number:	NSD 446 of 2014
Judge:	GLEESON J
Date of judgment:	7 August 2014
Catchwords:	BANKRUPTCY – appeal from the Federal Circuit Court – where applicant has not filed material or submissions in support of appeal – appeal dismissed
Date of hearing:	30 July 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr T Bors
Solicitor for the Respondent:	Le Page Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 446 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	SAMER DAHLAN Appellant
AND:	THE OWNERS - STRATA PLAN NO. 10833 Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	30 JULY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The respondent’s costs be paid out of the bankrupt’s estate on a priority basis.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 446 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:	SAMER DAHLAN Appellant
AND:	THE OWNERS - STRATA PLAN NO. 10833 Respondent

JUDGE:	GLEESON J
DATE:	7 AUGUST 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the appellant seeks to appeal from orders made by a judge of the Federal Circuit Court (“FCC”) in the appellant’s absence on 14 April 2014. The orders dismissed the appellant’s notice of opposition to a creditor’s petition presented against him, made a sequestration order against his estate, and ordered that the respondent’s costs be paid from the appellant’s bankrupt estate.

2. The notice of appeal states as the ground of the appeal:

   1.Absent when orders made.

   2.Solvent.

   3.Dispute amount.

   Background

3. The creditor’s petition was filed on 18 July 2013. The debts specified in the creditor’s petition comprise amounts due under Local Court judgments obtained in June 2011 and August 2012, interest and other expenses.  The judgments are for outstanding strata levies incurred between 2009 and 2012.

4. The act of bankruptcy specified in the creditor’s petition is the failure to comply with the requirements of a bankruptcy notice served on 2 April 2013.

5. The FCC file shows that on 23 January 2014, Registrar Tesoriero made an order for substituted service of the creditor’s petition, including by service on a Shaher Dahlan, a solicitor at Parramatta City Legal. Service was effected on Shaher Dahlan on 28 January 2014.

6. On 27 February 2014, the appellant appeared in person on the return of the creditor’s petition in the FCC. He was granted an adjournment until 27 March 2014 to get legal advice.

7. On 27 March 2014, the appellant again appeared in person before a Registrar of the FCC. He was again granted an adjournment, this time until 14 April 2014 to get a letter from a lender regarding a loan approval.  That day, the appellant filed a notice stating grounds of opposition to the creditor’s petition. The grounds were:

   1.Provisions set out in section 5 of the Bankruptcy Act, I am Solvent and have the capacity to pay the debt.

   2.Request a stay in proceedings as an application to set aside judgment is lodged in the Local Court.

   3.Dispute the amount requested.

8. The appellant also filed an affidavit dated 25 March 2014, witnessed by Shaher Dahlan, which stated:

   1.I am the owner of 6/31 Marine Parade The Entrance.

   2.Property is valued at $290 000.

   3.Marine Parade has been leased out to a tenant as of 17-03-2014. The rent payable is $350 per week.

   4.I have an interest in Green Houses located at 75 Watts Road Kemps Creek 2178.

   5.Value and good will of Green Houses is $100 000

   6.Liabilities amount to $190 000

   7.Given the opportunity I have the capacity to pay outstanding Strata Levies.

   8.Currently seeking out Finance.

   9.All correspondence by Srtata [sic] was delivered to the wrong mailing address.

   10.I have communicated with Strata through Parramatta City Legal in the past.

   11.I have only recently been made aware of these proceedings.

   12.Bankruptcy is not a suitable option for my circumstances.

9. On 14 April 2014, the creditor’s petition was listed before a Registrar at 10 am. In the appellant’s absence, the Registrar referred the creditor’s petition to a single judge, who dealt with the matter at 10:30 am.

10. On 22 May 2014, I held a lengthy directions hearing in the matter.  The appellant appeared in person and handed to the court a document which purported to be an affidavit sworn by him before a solicitor by the name of Daniel Hannouche. The “affidavit” attached a list of 17 points which included the following:

    Upon discovery of a judgment I contacted Parramatta City Legal

    Strata was subsequently contacted, however an agreement could not be reached

    Strata continued to add fees and charges, claiming the owner was not contactable

    This culminated into Bankruptcy proceedings

    I applied and was granted finance and forwarded a conditional approval on to Strata

    Bankruptcy was granted in my absence

    I am solvent and can clear the debt, however the amount sought is disputed

11. At the end of the directions hearing, the following orders were made (“the May 2014 orders”):

    1.The appellant file and serve on the respondent all material and submissions to be relied upon at the hearing no later than 4 pm on 1 July 2014.

    2.The appellant shall not be permitted to rely upon any material or submissions not served in accordance with order 1 above without leave of the court. Such leave is not to be granted other than in exceptional circumstances.

    3.The respondent file and serve on the applicant all material and submissions to be relied upon at the hearing, no later than 4 pm on 15 July 2014.

    4.The appellant file and serve on the respondent any material or submissions in reply no later than 4 pm on 22 July 2014.

    5.The appellant shall not be permitted to rely upon any material or submissions in reply not served in accordance with order 4 above without leave of the court. Such leave is not to be granted other than in exceptional circumstances.

    6.Submissions are not to exceed two pages in length (including annexure) and must be in an easily legible font of at least 12 point, with one and half line spacing throughout. Italics or underlining must be used for legislation and case citations.

    7.Pursuant to section 25(1AA) of the Federal Court Act 1976 (Cth), the appeal be listed for hearing before Gleeson J on 30 July 2014, with an estimate of half a day.

12. The Court also noted that the trustee appointed to the bankrupt estate of the appellant undertook not to take any further steps in the administration of the estate up to and including 30 July 2014.

13. The appellant did not comply with the orders.

14. On 11 and 17 July 2014, the Registry of the Court sent emails to the appellant’s email address asking the appellant to contact the Registry. There was no response to these emails. The Registry also made several attempts to contact the appellant on a mobile telephone number written on his application for an exemption from filing fees. The appellant told the court at the hearing that this was not his mobile telephone number.

15. The appellant did not make any attempt to contact the respondent or the Court to explain his failure to comply with the orders.

16. On 14 July 2014, the respondent filed and served submissions which said:

    1.The appellant has not elucidated upon any basis whatsoever to justify any appellate intervention in this matter.

    2.The appellant has not put any evidence before the court to suggest:-

    a)   any irregularity in the entry of the sequestration order against him;

    b)   any ability on his part to pay his debts as and when they fall due;

    c)   any other reason why a sequestration order ought not have been made in relation to him.

    3.Nothing follows from the fact that the appellant was not present in court at the time the sequestration order was made, in circumstances where:-

    a)   he was present in court when the hearing date of 14 April 2014 was allocated;

    b)   there is no indication of anything the appellant may have said or done upon the hearing of the creditor’s petition that would have engendered a different result. 

    4.There is not, nor has there ever been, any evidence before the court as to any means available to the appellant to meet the debts the subject of the petition, either by realising assets or obtaining any financial accommodation.

    5.There is no evidentiary basis for any suggestion by the appellant to the effect that he was unaware of proceedings or judgments against him, indeed, there is correspondence from a solicitor on his behalf suggesting exactly the contrary.

    6.There is no conceivable basis upon which the appellant could contend that he is not liable for the debts the subject of the petition, and certainly none is put in evidence by the appellant.  The debts the subject of the petition are unremarkable and an ordinary attendant of strata lot ownership.  The court can appreciate the prejudice to the other owners of lots in the relevant strata scheme, of the appellant’s continued failure to meet his liabilities in this regard.

    7.The appeal ought to be dismissed with costs.

17. On the morning of the hearing, the Registry received two telephone calls on behalf of the appellant. In the first call, the caller said that the appellant was coming to court but would not arrive until 11:30 am. The respondent was contacted and, by consent, the matter was stood down from 10:15 am until 11:30 am. Shortly before 11:30 am, a second call was received, saying that the appellant would not be at court until midday and was bringing a medical certificate. The respondent was again contacted and, by consent, the matter was stood down to midday.

18. At midday, when the matter was called the appellant was not in court. The respondent asked for the appeal to be dismissed.  As I was delivering my judgment, the appellant arrived.

19. The appellant said that he was not ready to proceed. He provided to the court a medical certificate dated 28 July 2014 which stated:

    This is to certify the Mr Samer Dahlan is receiving medical treatment and for the period Sunday, 1 June 2014 to Monday, 28 July 2014 inclusive.

    He will be unfit to continue his usual occupation.

    The patient is having a relapse of MS and his medical condition got worse with association of glandular fever.

20. After considering the medical certificate and hearing submissions from both the appellant and Mr Bors, counsel for the respondent, I decided that the hearing of the appeal should proceed. My reasons were:

    a.The medical certificate said nothing about the appellant’s ability to prepare for the hearing, or why the appellant might not have been able to comply with the May 2014 orders;

    b.It did not appear from the medical certificate that the doctor appreciated that the certificate might be used to support an adjournment application in these proceedings or to justify the appellant’s non-compliance with the May 2014 orders;

    c.The appellant did not make any attempt to contact the respondent or the Court prior to the hearing to explain his failure to comply with the May 2014 orders or to seek a vacation of the hearing;

    d.The Registry had made several unsuccessful attempts to contact the appellant. The appellant said that attempts to contact him by email were unsuccessful because he had not been opening his email. He said that the telephone number used by the Registry to attempt to contact him was incorrect. I was not satisfied that these explanations were adequate when the appellant had provided the email address to the Registry as a contact point.

    e.I was not satisfied that the appellant had not been given an adequate opportunity to prepare for the appeal.

21. When asked to make submissions as to why the appeal should not be dismissed, the appellant requested an opportunity to pay the respondent in full without being made bankrupt. The appellant did not say anything which put in doubt the propositions in the respondent’s written submissions.

22. In the absence of any material to support an argument that the primary judge’s decision was affected by appellable error, I dismissed the appeal and ordered that the respondent’s costs be paid out of the bankrupt’s estate on a priority basis.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate:

Dated:        7 August 2014