Hussain v Meyer Vanderberg
[2011] FCA 607
•3 June 2011
FEDERAL COURT OF AUSTRALIA
Hussain v Meyer Vanderberg [2011] FCA 607
Citation: Hussain v Meyer Vanderberg [2011] FCA 607 Parties: MOHAMMAD MUNIR HUSSAIN and BAZLUN HAHAR BILKIS v ARCHIE TSIRIMOKOS & ORS trading as MEYER VANDENBERG File number: ACD 7 of 2011 Judge: STONE J Date of judgment: 3 June 2011 Date of hearing: 29 April 2011 Legislation: Federal Court Rules O 80 r 4 Place: Canberra Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 The applicants appeared in person. Solicitor for the Respondent: Meyer Vandenberg Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 7 of 2011
BETWEEN: MOHAMMAD MUNIR HUSSAIN AND BAZLUN NAHAR BILKIS
ApplicantsAND: ARCHIE TSIRIMOKOS & ORS trading as MEYER VANDENBERG
Respondent
JUDGE:
STONE J
DATE OF ORDER:
29 APRIL 2011
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 7 of 2011
BETWEEN: MOHAMMAD MUNIR HUSSAIN AND BAZLUN NAHAR BILKIS
ApplicantsAND: ARCHIE TSIRIMOKOS & ORS trading as MEYER VANDENBERG
Respondent
JUDGE:
STONE J
DATE:
3 JUNE 2011
PLACE:
CANBERRA
REASONS FOR JUDGMENT
On 29 April 2011 I dismissed the applicants’ application for leave to appeal. I undertook to provide reasons at a later date. These are my reasons.
At the hearing before me on 29 April 2011, Mr Barhen, solicitor from Meyer Vandenberg Lawyers, handed up a chronology of the legal proceedings in which the applicants have been involved to date. To understand the present proceeding, it is relevant to set out a brief history of the previous proceedings.
On 14 October 2008 consent judgment was entered against the applicants, Mohammad Munir Hussain and Bazlun Nahar Bilkis also known as Ivy Rahman in the ACT Magistrates Court, in favour of Meyer Vandenberg Lawyers, the respondent in this proceeding. The orders made in the Magistrates Court provided that the applicants were to pay $3,000 to the respondent by monthly instalments of $300 commencing on 21 October 2008. They also provided that if there was a default of 7 days “the whole of the claim of $5853.10 plus interest at prejudgment rate of 9% is due and payable”.
When the applicants defaulted Meyer Vandenberg served a bankruptcy notice on Mr Hussain on 12 December 2008 and on Ms Rahman on 27 January. On 22 December 2008 the first applicant filed an application in the Federal Magistrates Court seeking to have the bankruptcy notice set aside. This application was dismissed by a Registrar of the Court on 26 February 2009 and an order made that the first applicant pay the respondent’s costs.
On 26 March 2009, a creditor’s petition was filed by Meyer Vandenberg Lawyers in the Federal Magistrates Court against the two applicants. On 24 April 2009 the first applicant filed a notice of opposition to the creditor’s petition. The creditor’s petition was heard by a Registrar of the Court on 28 May 2009 and a sequestration order made against the estates of Mr Hussain and Ms Rhaman.
On 28 May 2009 the applicants filed an application to have the sequestration order set aside and to have the second applicant’s name removed from the orders on the basis that the second applicant was not a party to the bankruptcy proceeding. They also sought an order that the proceeding be stayed until resolution of proceedings in the ACT Supreme Court.
On 20 July 2009 a hand written undertaking was given by the applicants that they would: (a) pay the sum of $15,000, by four equal monthly instalments, to Meyer Vandenberg Lawyers; and (b) discontinue all proceedings in the Federal Magistrates Court and the Supreme Court of the ACT. On the same day, Meyer Vandenberg wrote a letter to Frank Lo Pilato, the trustee of the bankrupt estates, advising that the parties had signed a document under which the applicants had agreed to pay Meyer Vandenberg the sum of $15,000 by instalments and to withdraw all proceedings in the Federal Magistrates Court and the ACT Supreme Court. The letter also stated that Meyer Vandenberg agreed to discharge the bankruptcy proceeding against the applicants on payment of the sum. Consent orders were made by Neville FM on 20 July 2009 withdrawing all applications and making no order as to costs.
On 15 June 2010 the applicants filed an application to reopen the case and have the sequestration order set aside. When the application came before Neville FM on 16 August 2010, the applicants did not appear and his Honour ordered that, in the absence of action within 14 days, the application be dismissed.
On 6 September 2010 his Honour made orders in chambers that his order of 16 August 2010 be suspended pending further order. The proceeding was then listed for directions on 25 October 2010. On 25 October 2010 the applicants again failed to appear and the proceeding was re-listed for directions on 29 November 2010.
On 29 November 2010 the applicants did not appear and his Honour ordered that all outstanding applications be dismissed. The current proceeding was commenced by an application and three supporting affidavits filed on 21 February 2011. The application and supporting affidavits are largely incomprehensible, but appear to seek an order that the sequestration order made on 28 May 2009 be set aside.
On 7 March 2011 the matter came before me for first directions. At this hearing, Mr Hussain and his wife appeared for themselves. The applicants indicated they wanted the sequestration order set aside but were unable to provide any explanation why such an order should be made. I stood the matter over until 29 April 2011 and ordered that the applicants be referred to a lawyer on the pro bono panel for legal assistance in accordance with O 80 r 4 of the Federal Court Rules. My hope was that with legal assistance they might be able to articulate a comprehensible claim.
On 19 April 2011 the ACT Bar Association wrote to the ACT Registry of the Court advising that the ACT Pro Bono Clearing House had determined not to refer the applicants to a legal practitioner for pro bono assistance. The correspondence explained that the review panel had considered the applicants’ request for assistance in October 2010, in relation to an application in the Federal Magistrates Court, and had, at that time, determined that the matter not be referred to a legal practitioner for assistance.
At the hearing before me on 29 April 2011, I again asked the applicants to explain what they were seeking in their application. They reiterated that they wanted to have the sequestration order set aside, but were unable to suggest any legal basis for doing so or provide any explanation for the delay in seeking such an order. Mr Bahren sought an order that the application be dismissed given the time delay between the date of the sequestration order and the date of this application and having regard to the undertaking the applicants entered into on 20 July 2009.
Having regard to the circumstances of the case, I was satisfied that the application filed on 21 February 2011 should be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 3 June 2011
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