JAHAD v Equitable Financial Solutions Pty Ltd

[2020] FCCA 2551

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAHAD v EQUITABLE FINANCIAL SOLUTIONS PTY LTD & ANOR [2020] FCCA 2551

Catchwords:
CONSUMER LAW – Costs – Where first respondent intends to conduct business of raising funds in relation to a Shariah-compliant investments program – where first respondent accepts appointment by applicant as its Wakeel agent to invest its funds and to repay principle and profit in consideration for agency fee – where first respondent accepts investment by applicant – where investments are not fully repaid – where condition of first respondent’s investment license was that it would participate in dispute resolution scheme conducted by Credit and Investments Ombudsman – where Ombudsman makes determination that first respondent repay investment – where first respondent does not repay monies – where proceedings ensued – proceeding allocated to Consumer Protection List – where first respondent placed in administration – where second respondent overseas and does not provide instructions when matter listed for directions – costs ordered –  where proceeding set down for hearing – jurisdiction put in issue – applicant discontinues proceeding – second respondent seeks costs on indemnity or party/party basis – applicable principles – discretionary considerations – relevance of conduct – orders made – Registrar directed to supply copy of reasons for judgment to Australian Securities & Investments commission.

Legislation: 

Corporations Act 2001 (Cth), s 131A

Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 21, 42, 43, 79

Federal Circuit Court Rules 2001 (Cth), rr 13.01, 21.02

Cases cited:

Ahmed v Minister for Immigration and Multicultural Affairs [2000] FCA 1436

Alrjoob v Minister for Home Affairs[2018] FCA 1144
AOJ15 v Minister for Immigration and Border Protection [2017] FCA 675
BEL17 v Minister for Immigration and Border Protection [2020] FCA 1045

Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876
Hobson v BWL Pty Ltd (No 3) [2012] FMCA 439
Ingui v Ostara [2003] FMCA 132
JT Stratford & Son Pty Ltd v Lindley (No 2) (1969) 1 WLR 1547

Kaur v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs), [2020] FCA 1247

MZZKH v Minister for Immigration and Border Protection [2013] FCCA 2287
O’Neill v Mann [2000] FCA 1680

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Yates Property Corporation Pty Ltd v Boland [2000] FCA 1106
Zaghoul v Jewellery & Gift Buying Service Pty Ltd [2020] FCA 1045

Applicant: AMINA JAHAD

First Respondent: EQUITABLE FINANCIAL SOLUTIONS PTY LTD "EFSOL"

Second Respondent: USMAN SIDDIQUI

File Number: MLG 2906 of 2019

Judgment of: Judge A Kelly

Hearing date: 16 March 2020

Date of Last Submission: 24 March 2020

Delivered at: Melbourne

Delivered on:  14 September 2020

REPRESENTATION

Counsel for the Applicant: Mr F.C. Brimfield

Solicitors for the Applicant: Mykyta Lawyers

Counsel for the Respondents: Ms M. Harris

Solicitors for the Respondents: Cordoba Lawyers

ORDERS

1. The application to set aside the order for costs made on 12 November 2019 against the second respondent, Usman Siddiqui, be dismissed.

2. The second respondent’s applications for the costs of this proceeding on an indemnity, alternatively a party/party, basis be dismissed.

3. Direct that the Registrar of the Court furnish a copy of these reasons for judgment to the Australian Securities & Investment Commission.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2906 of 2019

AMINA JAHAD

Applicant

And

EQUITABLE FINANCIAL SOLUTIONS PTY LTD

First Respondent

USMAN SIDDIQUI

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment incorporate the reasons for judgment which are published this day in Abdi v Equitable Financial Solutions Pty Ltd & Anor [2020] FCCA 2521 (Abdi v Equitable Financial Solutions).  For like reasons as are given in Abdi v Equitable Financial Solutions, I have determined that the second respondent’s application to set aside the Costs Order made in this proceeding and his application for the costs of the proceeding should be dismissed.  For the reasons given in Abdi v Equitable Financial Solutions I have also determined that these reasons for judgment should be referred to the Australian Securities & Investment Commission.

I certify that the preceding one (1) paragraph is a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date: 14 September 2020