Hussain v King Investment Solutions

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUSSAIN & ANOR v KING INVESTMENT SOLUTIONS [2006] FMCA 426

BANKRUPTCY – Application to set aside Bankruptcy Notice – where only notice of alleged misstatement of amount owed was given in application to set aside – where the application was not served within the time set out in FMCR 30.02 – where no extension of time for compliance was requested nor obtained.

Bankruptcy Act 1966, ss.41(5), (6)A
Federal Magistrates Court Rules 2001

Streimer v Tamas [1981] 54 FLR 253

First Applicant:	FAHMI MUSTAFA HUSSAIN
Second Applicant:	MERAJ ATHER HUSSAIN

Respondent: KING INVESTMENT SOLUTIONS PTY LTD (ACN 077 985 392)

File Number: SYG3660 of 2005

Judgment of: Raphael FM

Hearing date: 21 March 2006

Date of Last Submission: 21 March 2006

Delivered at: Sydney

Delivered on: 21 March 2006

REPRESENTATION

Solicitors for the Applicant: Douglas Knaggs

Counsel for the Respondent	Sarah Hill
Solicitors for the Respondent:	Bransgroves Solicitors

ORDERS

1. Application dismissed.

2. Applicant debtors pay the respondent creditor's costs to be taxed if not agreed in accordance with the Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3660 of 2005

FAHMI MUSTAFA HUSSAIN

First Applicant

MERAJ ATHER HUSSAIN

Second Applicant

And

KING INVESTMENT SOLUTIONS PTY LTD
(ACN 077 985 392)

Respondent

REASONS FOR JUDGMENT

(as corrected)

1. This is an application to set aside a bankruptcy notice numbered NN 4161/05 issued against husband and wife debtors by a money lender who lent them the sum of $95,000 for a period of two months commencing on 17 December 2004.  The money lender took security by way of mortgage of real property owned by the borrowers and the loan was said to be at an interest rate of 60% per annum with a higher rate of 118.8% per annum compounded.  The debtors were intending to refinance the property with another institution.  They were not successful.  The lender commenced proceedings against the borrowers and obtained judgment in the Supreme Court of New South Wales in proceedings No 2411 of 2005.  The judgment was for the sum of $151,430.00 which was the principal sum plus interest due up to the date of judgment in accordance with the mortgage.  The date of judgment was 15 August 2005.

2. Thereafter, interest continued to run under the mortgage together with certain penalties.  The creditor, through its director, deposes in an affidavit filed on 31 January 2006 that:

   “On or about 2 September 2005 I had a telephone conversation with Fahmi Mustafa Hussain, one of the applicants and words to the following effect were said:

   Hussain:   If I paid you $20,000 before the eviction, would you stay the eviction?  Then after two weeks I will pay you more.

   King:  Yes, I will stay the eviction for two weeks.

   On or about 5 September 2005 Mr Hussain paid the respondent $20,000 and I instructed my solicitors to stay the eviction.”

3. The creditor claims that the money paid by Mr Hussain was taken towards interest, expenses and costs due under the mortgage independent of the judgment and therefore…