In the matter of Michell as Trustee of the bankrupt estate of Almosawy (Bankrupt) v Al Mosawy

[2021] FCCA 945

FEDERAL CIRCUIT COURT OF AUSTRALIA

In the matter of Michell as Trustee of the bankrupt estate of Almosawy (Bankrupt) v Al Mosawy [2021] FCCA 945  

File number(s):	MLG4117 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	16 April 2021
Catchwords:	BANKRUPTCY – Extempore ruling on unopposed application by trustee.
Legislation:	Bankruptcy Act 1966 (Cth) ss 120, 121
Number of paragraphs:	4
Date of hearing:	16 April 2021
Place:	Dandenong
Counsel for the Applicant:	Mr Fry
Solicitor for the Applicant:	Craddock Murray Neumann

ORDERS

MLG4117 of 2020

IN THE MATTER OF MAITHAM ALMOSAWY, A BANKRUPT

BETWEEN:

STEPHEN JOHN MICHELL AS TRUSTEE OF THE BANKRUPT ESTATE OF MAITHAM ALMOSAWY, A BANKRUPT

Applicant

AND:

SADIQ ABDUL AL MOSAWY

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	16 APRIL 2021

THE COURT DECLARES THAT:

1. The transactions by which Maitham Almosawy (the bankrupt) paid the sum of $115,000 to the Respondent as referred to in the affidavit of the Applicant sworn 27 November 2020 are void pursuant to sections 120 and 121 of the Bankruptcy Act 1966 (Cth).

THE COURT ORDERS THAT

2. The Respondent is directed to the pay the sum of $115,000 to the Applicant, plus interest of $3,265.53.

3.The Respondent is to pay the Applicant’s costs as agreed, or to be taxed and assessed in default of agreement.

REASONS FOR JUDGMENT
(Revised from Transcript)

JUDGE BURCHARDT:

1. It should be noted at the outset that orders for substituted service have been made and complied with, and I accept what counsel tells me from the bar table, to the effect that his instructor has made yet further efforts at seeking to inform the respondent of this hearing.  Indeed, we know from a rather cryptic message sent yesterday to my chambers by someone who is a relative, or possibly the daughter, of the respondent, that she, at least, is aware of the proceedings.  I am informed that she was the subject of a phone call from Mr Fry’s instructor but refused to explain how long her father has been overseas, or how long it might be before he might return.  I appreciate that that is hearsay, not on affidavit, but both concerned, as I say, both Mr Fry and his instructor are officers of the Court, and I have no doubt they would not mislead me.

2. In these circumstances, it was plainly appropriate to proceed with the matter, not least because the respondent has made no endeavour to participate in the proceeding whatsoever.  We have made, through my associates, the phone line available for him to participate, should he be desirous of doing so.  But no phone call has been received. 

3. That, therefore, is why I have been prepared to continue today on an undefended basis.  Having said that, and turning to the merits of the matter, the chronology is overwhelming.  The bankrupt was served with a bankruptcy notice on 10 October 2019.  Between then and the subsequent sequestration order, he has held and transferred $150,000, or thereabouts, to his father.  He has asserted in conversations with the officers asking on behalf of the trustee that this was to repay a debt, but no evidence of any cogent sort has been put to support that assertion, by either the bankrupt or his father.

4. In these circumstances, it is quite plain that the transfers made to the father are void, both pursuant to section 120 and section 121 of the Act. It is plainly appropriate that the trustee be granted the relief that he seeks. And for those reasons, I have done so. I should say that the comprehensive and very helpful written submissions of the applicant make it quite plain that the Court has proper power to make these orders, and indeed, ought do so in these circumstances I refer to. And, as it were, I incorporate by reference matters in the applicant’s written submissions in these reasons, because I say they are cogent and comprehensive, and to be accepted.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate: Sarah Baffi

Dated:       5 May 2021