Elkateb v Lawindi

[2000] FCA 1939

FEDERAL COURT OF AUSTRALIA

Elkateb v Lawindi [2000] FCA 1939

MOHAMED SAFWAT ELKATEB v WASFY LAWINDI
N1229 of 2000

MADGWICK J
8 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1229 of 2000

BETWEEN:	MOHAMED SAFWAT ELKATEB APPLICANT
AND:	WASFY LAWINDI RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	8 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s Notice of Motion be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1229 of 2000

BETWEEN:	MOHAMED SAFWAT ELKATEB APPLICANT
AND:	WASFY LAWINDI RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter, the applicant seeks by Notice of Motion an order:  “[t]hat the Respondent be restrained from issuing a Creditor's Petition against the Applicant until the Applicant's appeal against Stone J's judgment of 30 October 2000 in these proceedings is heard”.  By the judgment referred to, her Honour dismissed the present applicant debtor's application to set aside a bankruptcy notice which had been served upon him.  The Notice of Motion, on its face, appears to be directed to preserving the position until the appeal, which is on foot, against Stone J's judgment can be heard. 

2. In submissions, the applicant has attempted to support his application by suggesting that there would be an abuse of the processes of the Court, unless the Court acted, on two bases.  Firstly, the applicant claims he has been subjected to a multiplicity of bankruptcy proceedings, as an earlier petition against him by the present respondent creditor was dismissed.  He says that for the creditor to come again will cause him much worry and distress.  The second basis is that the applicant asserts from the bar table that the true motive of the creditor is not to invoke the Court's insolvency jurisdiction to deal with the question of his possible insolvency but to hinder him in vindicating litigious rights that he believes he has against the creditor.

3. Whichever way the application is supported, in my opinion, it is misconceived. I have concerns as to whether, except to prevent an abuse of process, the Court has power to prevent a creditor filing a petition, as s 41(7) of the Bankruptcy Act 1966 (Cth) operates to extend time for the filing of a petition until the original determination of the Court, not any appeal from that original determination: Ebert v Union Trustee Co of Australia (1961) 165 CLR 327 and Johnstone v Guss [1998] FCA 117. However, subject to protecting a petitioning creditor against the petition lapsing because of delay in the conclusion of the appellate process, it would ordinarily be expected that, if it be shown that there is an arguable appeal, the hearing of the creditor's petition might be adjourned to await the outcome of the challenge to the judgment which has been passed on the bankruptcy notice.

4. There is no evidence before the Court to suggest any improper purpose on the part of the creditor.  There is also no foundation, on the material before me, for the applicant’s submission that for the creditor to petition the Court it would amount to an abuse of process.  It is undoubtedly true that being a debtor in bankruptcy proceedings is likely to be a cause of worry and distress, however, that alone does not make the proceedings legally oppressive.  There is no basis for the submission that it would be, in legal terms, oppressive for the creditor to lodge another petition.

5. If the Court did have power to make the orders sought I would, in my discretion, decline to exercise it.  It appears to me that, on the material before me, the creditor is behaving perfectly legitimately and there is no warrant for the Court to intervene.

6. The Notice of Motion is dismissed.  The applicant is to pay the respondent's costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             15 January 2001

Applicant appeared in person.
Counsel for the Respondent:	R P Freeman
Solicitor for the Respondent:	Turner Freeman Solicitors
Date of Hearing:	8 December 2000
Date of Judgment:	8 December 2000