Hussain v King Investment Solutions

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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…

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Details
Case
[2006] FMCA 426
Decision Date

CaseChat Overview and Summary

In the case of Hussain v King Investment Solutions, the applicants, who are debtors, sought to challenge the enforcement of a judgment debt. They argued that the creditor, King Investment Solutions, had acted in a way that breached natural justice principles, and they sought to set aside the judgment that was obtained against them. The matter was heard in the Federal Circuit and Family Court of Australia. The applicants, represented by their legal team, contended that there had been irregularities in the proceedings that led to the judgment being entered against them, including the alleged failure to provide them with adequate notice of the hearing. They sought to have the judgment set aside on the basis that it was obtained without them having a fair opportunity to respond.

The primary legal issues before the court were whether the applicants had been denied procedural fairness and whether the judgment should be set aside as a result. The court needed to examine the evidence and submissions from both parties to determine whether the applicants had been deprived of a fair hearing. It was also necessary to consider whether the irregularities, if any, were so significant that they warranted setting aside the judgment. The court was required to balance the principles of procedural fairness with the finality and effectiveness of judgments in legal proceedings.

The court found that there was no evidence to support the applicants' claims of procedural unfairness. It was determined that they had been given sufficient notice of the hearing and had an opportunity to respond. The court held that the applicants had not demonstrated that they were denied procedural fairness. Furthermore, the court found that the alleged irregularities did not reach the threshold of significance required to set aside the judgment. The court emphasised the importance of the finality of judgments and the need to respect the judicial process. The applicants' application was dismissed, and they were ordered to pay the creditor's costs in accordance with the Rules of Court.

Orders

Orders of the court

1.

Application dismissed.

2.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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