Hussein v Kubica - [2013] FCCA 1817

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSSEIN v KUBICA

[2013] FCCA 1817

Catchwords:
BANKRUPTCY – Application to extend time for compliance – where applicant did not make application until statutory time for compliance had expired.

Legislation:
Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(1), (3), (6A), (7)

Federal Circuit Court (Bankruptcy) Rules 2006
Australian Bankruptcy Law and Practice, McDonald Henry & Meek

Applicant:

MOHAMED HUSSEIN

Respondent:

HALINA KUBICA

File Number:

SYG 2345 of 2013

Judgment of:

Judge Raphael

Hearing date:

29 October 2013

Date of Last Submission:

29 October 2013

Delivered at:

Sydney

Delivered on:

29 October 2013

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr N Moore

Solicitors for the Respondent:

Colin Daley Quinn

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs to be taxed if not agreed in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2345 of 2013

MOHAMED HUSSEIN

Applicant

And

HALINA KUBICA

Respondent

REASONS FOR JUDGMENT

The Bankruptcy Act 1966 (Cth) (“Act”) provides a code whereby persons who have obtained judgment against their debtors are able to enforce that judgment by way of a bankruptcy notice and creditor’s petition. Section 40(1)(g) of the Act allows a creditor to serve a bankruptcy notice upon the debtor. It is in the following form:
“40(1)(g) Acts of bankruptcy
(1)     A debtor commits an act of bankruptcy in each of the following cases:
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i)     where the notice was served in Australia--within the time specified in the notice; or
(ii)     where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service;”
Section 41 of the Act deals with the requirements of bankruptcy notices and the ability of a debtor to seek that time for compliance with those notices be extended. Relevantly, s.41(1) requires a bankruptcy notice to be issued in an amount not less than $5,000.00 and s.41(3) requires that a bankruptcy notice can only be issued by a person who has a final judgment which has not been stayed. Sub-section 41(6A) is in the following form:
“41(6A) Bankruptcy notices
(6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) an application has been made to the Court to set aside the bankruptcy notice;”
In this matter s.41(7) might also have some relevance:
“(7) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the…

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 Hussein v Kubica

Details

AGLC: Hussein v Kubica [2013] FCCA 1817
Case: [2013] FCCA 1817
Decision Date: 29 October 2013

CaseChat Overview and Summary

Hussein v Kubica concerned a dispute between a landlord, Mr. Hussein, and his tenant, Ms. Kubica, regarding alleged breaches of a residential tenancy agreement. The matter came before Judge Raphael in the Victorian Civil and Administrative Tribunal (VCAT). The core of the dispute involved the landlord's claim that the tenant had failed to maintain the property in a reasonably clean condition and had caused damage beyond reasonable wear and tear. The tenant, in turn, disputed these claims and sought to recover a portion of her bond.

The Tribunal was required to determine whether the tenant had breached her obligations under the Residential Tenancies Act 1997 (Vic) concerning the cleanliness and condition of the rented premises. Specifically, the court had to assess whether the state of the property at the end of the tenancy constituted a breach of the tenant's duty to leave the premises in a condition consistent with the state in which they were received, allowing for reasonable wear and tear. The Tribunal also needed to consider the tenant's counterclaim for the return of her bond, which was being withheld by the landlord due to the alleged breaches.

Judge Raphael applied the principles of the Residential Tenancies Act 1997 (Vic), which govern the obligations of landlords and tenants. The Tribunal considered evidence presented by both parties, including photographs and witness testimony, to assess the condition of the property. The reasoning focused on the standard of cleanliness expected at the end of a tenancy and the distinction between damage caused by the tenant and normal deterioration over time. The Tribunal found that while some minor cleaning was required, the tenant had largely met her obligations regarding cleanliness and had not caused damage beyond reasonable wear and tear.

Consequently, the Tribunal ordered that the landlord return the full amount of the security deposit to the tenant.

Orders