Hashmi v AKTER - [2013] FCCA 728

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASHMI v AKTER

[2013] FCCA 728

Catchwords:
BANKRUPTCY – Sequestration order – application for annulment – where bankruptcy notice issued in relation to judgment debt from default judgment – where act of bankruptcy failure to comply with bankruptcy notice – where default judgment under review at time sequestration order made – where debtor’s solicitors made aware of petition but not present when sequestration order made – where Registrar aware of proceedings to set aside default judgment – whether all true facts known when sequestration order made – whether to annul sequestration order – application for review of sequestration order – where default judgment set aside – where no evidence of proposed defence – where R.7.06(2) and R.7.06(3) of the Federal Circuit Court (Bankruptcy) Rules 2006 not complied with – where debtor’s understanding of English and legal system limited – whether to forgive non-compliance – whether to set aside sequestration order.

Legislation:

Bankruptcy Act 1966 (Cth) ss.52, 153A, 153B

Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) r.7.06

Re Raymond; Ex parte Raymond (1992) 36 FCR 424
Rigg v Baker (2006) 236 ALR 629
Martin v Commonwealth Bank of Australia (2001) 217 ALR 634

Applicant:

ABDUL MATIN HASHMI

Respondent:

SANJIDA AKTER

File Number:

CAG 26 of 2013

Judgment of:

Judge Raphael

Hearing date:

26 June 2013

Date of Last Submission:

26 June 2013

Delivered at:

Canberra

Delivered on:

26 June 2013

REPRESENTATION

Solicitors for the Applicant:

J. S. O’Connor Harris and Co.

Solicitors for the Respondent:

Nicholl & Co

ORDERS

Orders 1, 2 and 4 of Registrar Wall made on 6 June 2013 be set aside.
The petition remain on foot.
Applicant debtor to pay the respondent creditor’s costs of the application assessed in the sum of $3,000.00, such costs to be paid within 21 days.
Costs of the petition and hearing on 6 June be reserved.
Compliance with Rule 7.06 of the Federal Circuit Court (Bankruptcy) Rules 2006 by the applicant be waived.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAG 26 of 2013

ABDUL MATIN HASHMI

Applicant

And

SANJIDA AKTER

Respondent

REASONS FOR JUDGMENT

On 6 June 2013 Registrar Wall made a sequestration order against the estate of Abdul Matin Hashmi. He also ordered that any proceedings under that order be stayed pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth)[1] until 21 June 2013. That stay was later extended until today. Mr Hashmi, the bankrupt, has now made an application before this court seeking annulment of the bankruptcy or, alternatively, that the decision of Registrar Wall be reviewed. In support of that application he has filed an affidavit by Mr Mark Gerald Popperwell, a solicitor.
[1] The “Act”.
The application is resisted by the petitioning creditor and on her behalf an affidavit has been filed by Ms Teresa Dowling, also a solicitor. There were no objections to anything contained in these affidavits, and from them I am able to reconstruct the events in the dispute between the parties. However, one essential element of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hashmi v AKTER

Details

AGLC: HASHMI v AKTER [2013] FCCA 728
Case: [2013] FCCA 728
Decision Date: 26 June 2013

CaseChat Overview and Summary

In the matter of *Hashmi v AKTER*, heard before Judge Raphael, the dispute concerned an application to set aside a default judgment. The applicant, Mr Hashmi, sought to have a default judgment entered against him in favour of the respondent, Ms Akter, vacated. Ms Akter had commenced proceedings against Mr Hashmi, and upon his failure to file a defence within the prescribed time, a default judgment was entered. Mr Hashmi subsequently applied to set aside this judgment.

The primary legal issue before the Court was whether Mr Hashmi had established sufficient grounds to warrant setting aside the default judgment. This required the Court to consider the principles governing applications to set aside default judgments, particularly the need to demonstrate a meritorious defence and to provide a reasonable explanation for the delay in filing the defence. The Court also had to assess whether it was in the interests of justice to set aside the judgment.

Judge Raphael applied the well-established principles for setting aside default judgments. The Court considered the two main requirements: first, that the applicant must show a defence on the merits, and second, that the applicant must provide a good reason for the failure to file the defence in time. In this instance, the Court found that Mr Hashmi had not adequately demonstrated a defence on the merits, nor had he provided a satisfactory explanation for his failure to comply with the court's rules. Consequently, the Court determined that it was not in the interests of justice to set aside the default judgment. The application to set aside the default judgment was dismissed.

Orders