FEDERAL COURT OF AUSTRALIA
Hussein v Kubica [2014] FCA 695
Citation: Hussein v Kubica [2014] FCA 695 Appeal from: Application for extension of time: Hussein v Kubica [2013] FCCA 1817
Kubica v Hussein [2013] FCCA 1957
Kubica v Hussein (No 2) [2013] FCCA 2092Parties: MOHAMED HUSSEIN v HALINA BARBARA KUBICA
MOHAMED HUSSEIN v HALINA BARBARA KUBICA and THE OFFICIAL TRUSTEE IN BANKRUPTCY
File number: NSD 2460 of 2013
NSD 164 of 2014Judge: JAGOT J Date of judgment: 30 June 2014 Catchwords: PRACTICE AND PROCEDURE – Appeals – leave to appeal – appellant sought adjournment before primary judge on basis of pending application under Family Law Act 1975 (Cth) s 79A and pending special leave application to High Court – whether primary judge erred in refusing to grant adjournment
PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal – whether primary judge’s decision attended by sufficient doubt
BANKRUPTCY AND INSOLVENCY – application to set aside or extend time for compliance with bankruptcy notice – time for compliance with notice expired at time of commencing proceeding – whether primary judge erred in finding court lacked jurisdiction
Legislation: Bankruptcy Act 1966 (Cth) ss 41(6A), 41(7), 52
Family Law Act 1975 (Cth) s 79A
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Court Rules 2011 (Cth) rule 36.05
Cases cited: Ahearn v Deputy Commissioner of Taxation (1987) 76 ALR 137
DCT v Cummins (2008) 70 ATR 855
Décor Corp Pty Ltd v Dart Industries Inc (1991) 104 ALR 621
Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 1362
Luck v The University of Southern Queensland [2011] FCA 1335
Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111
SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388
Westpac Banking Corporation v Carver [2003] 126 FCR
Date of hearing: 28 April 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Mr Hussein: Mr Hussein appeared in person Counsel for Ms Kubica: S White Solicitor for the Ms Kubica: Colin Daley Quinn Solicitors
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2460 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MOHAMED HUSSEIN
Appellant
AND: HALINA BARBARA KUBICA
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
30 JUNE 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs as agreed or taxed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 164 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MOHAMED HUSSEIN
ApplicantAND: HALINA BARBARA KUBICA
First RespondentTHE OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
30 JUNE 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application for an extension of time under Rule…
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- Hussein v Kubica [2014] FCA 695
- Case
- [2014] FCA 695
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CaseChat Overview and Summary
The primary legal issue before the court was whether the FCC judge erred in refusing to grant an adjournment of the proceedings on the basis of a pending application under the Family Law Act and a pending special leave application to the High Court. Another issue was whether the FCC judge erred in finding that the court lacked jurisdiction to consider Mr Hussein’s application to set aside the bankruptcy notice, given that the time for compliance had expired. Additionally, the court had to determine if the primary judge’s decision to deny an extension of time to file a notice of appeal was attended by sufficient doubt.
The court held that Mr Hussein had not contested the primary judge’s finding that the time for compliance with the bankruptcy notice had expired. As such, the only ground for appeal was whether the primary judge was wrong to find that the court lacked jurisdiction. The court found that the primary judge correctly interpreted the relevant sections of the Bankruptcy Act, which explicitly state that the court has no jurisdiction to grant relief once the time for compliance with a bankruptcy notice has expired. The court also noted that Mr Hussein had not identified any other basis for seeking the same relief. Consequently, the appeal did not have any prospects of success. Furthermore, the court was not satisfied that Mr Hussein had provided an adequate explanation for his delay in filing the notice of appeal. Therefore, the application for an extension of time was also dismissed.
The final orders of the court were to dismiss the appeal and the application for an extension of time, with both Mr Hussein and the applicant paying the respondents' costs as agreed or taxed. The dismissal of the appeal meant that the orders of the FCC sequestrating Mr Hussein's estate remained in place. The dismissal of the application for an extension of time meant that Mr Hussein's appeal was not to proceed.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. The application for an extension of time under Rule 36.05 of the Federal Court Rules 2011 (Cth) be dismissed.
2. The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In proceeding NSD 2460 of 2013 the appellant, Mohamed Hussein, appeals from the orders made by the FCC sequestrating his estate (Kubica v Hussein [2013] FCCA 1957; Kubica v Hussein (No 2) [2013] FCCA 2092). The FCC proceeding to which those orders relate (the sequestration proceeding) was commenced by way of creditor’s petition by the respondent, Ms Kubica. Proceeding NSD 164 of 2014 is an application by Mr Hussein under rule 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) for an extension of time to file a notice of appeal (the extension application) from orders of the FCC dismissing his application to set aside the bankruptcy notice upon which the creditor’s petition in the sequestration proceeding was founded (the bankruptcy notice) (Hussein v Kubica [2013] FCCA 1817). The second respondent in the extension application, Mr Hussein’s official trustee in bankruptcy, has filed a submitting appearance and has taken no further part in the proceeding.Background The procedural and factual history of the dispute to which these proceedings relate is set out below insofar as relevant. Mr Hussein and Ms Kubica were formerly married. On 17 July 2009, in proceedings which are not the subject of this appeal or the extension application, the Federal Magistrates Court of Australia made consent orders for a property settlement between Mr Hussein and Ms Kubica (the Family Law proceedings). Later that year, Mr Hussein filed an application under s 79A of the Family Law Act 1975 (Cth) (Family Law Act) seeking to have the property settlement orders set aside on the basis of non-disclosure of certain matters by Ms Kubica during the settlement negotiations. The s 79A application was resolved by the making of consent orders on 12 August 2010 (the 2010 consent orders). On 2 March 2011, Mr Hussein filed a second s 79A application in respect of the property settlement orders, this time in the Family Court of Australia (Family Court). In the same proceeding, Mr Hussein also sought orders pursuant to s 109A of the Family Law Act for the enforcement of the 2010 consent orders. In May 2012, the Family Court dismissed the second s 79A application by consent. However, Mr Hussein pressed his s 109A application, which was heard and summarily dismissed with costs ordered against Mr Hussein as agreed or assessed on an indemnity basis. On appeal, the Full Court of the Family Court upheld the indemnity costs order. It is from this and another costs order in the Family Court proceedings that the bankruptcy notice arose. In April 2013, Ms Kubica caused a bankruptcy notice to be served upon Mr Hussein in respect of the unsatisfied costs orders (which had been fixed as a judgment debt, by then amounting to $77,445.85 including interest). On 12 August 2013, Ms Kubica commenced the sequestration proceeding by way of creditor’s petition founded upon the bankruptcy notice. Between service of the bankruptcy notice upon Mr Hussein and commencement of the sequestration proceeding, Mr Hussein filed a third application under s 79A of the Family Law Act (the third s 79A application). As with his previous applications, Mr Hussein asserted non-disclosure by Ms Kubica in relation to the property settlement and subsequent consent orders. The third s 79A application was transferred to the Family Court where it is presently pending.