Jafari v 23 Development Pty Ltd - [2020] FCCA 2379

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAFARI v 23 DEVELOPMENT PTY LTD

[2020] FCCA 2379

Catchwords:
BANKRUPTCY – Application for review of registrar’s decision to refuse to set aside a bankruptcy notice – applicant’s assertions that creditor’s solicitor not authorised to act being misconceived – applicant having lost in protracted proceedings in the in the Supreme Court of Victoria, the Court of Appeal and the High Court – applicant seeking in effect to run the Supreme Court hearing all over again – application ignoring principle of finality – application an abuse of process – application dismissed.

Legislation:

Federal Court Rules 2001 (Cth).

Cases cited:

Totev v Sfar [2008] FCAFC at [9]-[15]

Wren v Mahony (1992) 126 CLR 212

Ramsay Health Care Australia Proprietary Limited v Compton [2017] HCA 28

Applicant:

KOUROSH JAFARI

Respondent:

23 DEVELOPMENT PTY LTD

File Number:

MLG 4437 of 2019

Judgment of:

Judge Burchardt

Hearing date:

7 August 2020

Date of Last Submission:

7 August 2020

Delivered at:

Dandenong

Delivered on:

3 September 2020

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Mr Clarke Q.C

Solicitors for the Respondent:

Holman Webb Lawyers

ORDERS

The application for review of the decision of Registrar Gitsham made on 21 May 2020 and the applicant’s application to set aside the creditor’s bankruptcy notice filed 16 December 2019 are both dismissed.
The Applicant pay the Respondent’s costs, to be taxed pursuant to the Federal Court Rules 2001 (Cth) in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 4437 of 2019

KOUROSH JAFARI

Applicant

And

23 DEVELOPMENT PTY LTD

Respondent

REASONS FOR JUDGMENT

Introductory

On 21 November 2019, the Official Receiver issued a bankruptcy notice against Mr Kourosh Jafari at the behest of the petitioning creditor, 23 Developments Pty Ltd. That notice was served upon the applicant on 26 November 2019 when a process server left the notice in his mailbox.
On 16 December 2019, the applicant filed an application in this court seeking to set aside the bankruptcy notice, which ultimately culminated in orders made by Registrar Gitsham on 21 May 2020. The Registrar dismissed the applicant’s application to set the bankruptcy notice aside.
What is now before the court is Mr Jafari’s application for review of that decision filed 28 May 2020. It is a hearing de novo (see Totev v Sfar [2008] FCAFC at [9]-[15]).
Mr Jafari has been self-represented and is passionate about the matters the subject of this proceeding. I have a note of one of his submissions in which I understood him to say that “this case is my life”. Having perused the materials in the matter as a whole, I have no doubt that that is indeed the case.
Mr Jafari has advanced a number of strong submissions as to why the bankruptcy notice should be set aside and I will come to those in due course. It should be noted that his approach both to his oral and written submissions was, understandably given his…

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 Jafari v 23 Development Pty Ltd

Details

AGLC: Jafari v 23 Development Pty Ltd [2020] FCCA 2379
Case: [2020] FCCA 2379
Decision Date: 3 September 2020

CaseChat Overview and Summary

In *Jafari v 23 Development Pty Ltd*, the applicant sought a review of a registrar's decision to refuse to set aside a bankruptcy notice. The applicant's primary contention was that the creditor's solicitor lacked proper authorisation to act, a submission the court found to be misconceived. The applicant had previously been unsuccessful in protracted proceedings before the Supreme Court of Victoria, the Court of Appeal, and the High Court.

The central legal issue before the court was whether the bankruptcy notice should be set aside. This required the court to consider the applicant's assertions regarding the solicitor's authority and, more broadly, whether the application constituted an abuse of process by attempting to relitigate matters already determined by higher courts. The court also had to consider the principle of finality in litigation.

Judge Burchardt reasoned that the applicant's attempt to challenge the solicitor's authority was without merit and that the application was an attempt to relitigate the Supreme Court proceedings. The court emphasised the importance of the principle of finality in legal proceedings, noting that the applicant was effectively seeking to re-run a hearing that had already been exhaustively determined by multiple appellate courts. Consequently, the court found the application to be an abuse of process. The application was dismissed.

Orders