Kossaifi v Eakin - [2010] FMCA 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOSSAIFI v EAKIN & ORS

[2010] FMCA 102

BANKRUPTCY – Application to set aside a bankruptcy notice – whether issuing of the notice was an abuse of process.

Bankruptcy Act 1966 (Cth), ss.30, 41, 52
Corporations Act 2001 (Cth), s.461

Federal Court Rules

Amos v Brisbane TV Ltd (2000) 100 FCR 82; [2000] FCA 825
Brunninghausen v Glavanics [1998] FCA 230
Killoran v Duncan [1999] FCA 1574
Maxwell-Smith v S & E Hall Pty Ltd (2006) 233 ALR 81; [2006] FCA 825
Re Athans; Ex parte Athans (1991) 29 FCR 302
Re Sarina; Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163
Reid v Hubbard (2003) 1 ABC(NS) 438; [2003] FCA 1424
Slack v Bottoms English Solicitors [2002] FCA 1445
Watts v Adelaide Bank Limited [2009] FCA 420
Watts v Adelaide Bank Limited [2009] FCAFC 169

Applicant:

JOSEPH KOSSAIFI

Respondents:

TIMOTHY JOHN EAKIN, JOHN RICHARD COX, ANDREW PAUL TENNENT SUTHERLAND AND MICHAEL LEO STAFFORD TRADING AS EAKIN MCCAFFERY COX SOLICITORS

File Number:

SYG 96 of 2010

Judgment of:

Barnes FM

Hearing date:

10 February 2010

Delivered at:

Sydney

Delivered on:

19 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr B Katekar

Solicitors for the Applicant:

Yates Beaggi Lawyers

Counsel for the Respondents:

Mr J Darams

Solicitors for the Respondents:

Eakin McCaffery Cox Solicitors

ORDERS

The application be dismissed.
The applicant pay the costs of the respondents as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 96 of 2010

JOSEPH KOSSAIFI

Applicant

And

TIMOTHY JOHN EAKIN, JOHN RICHARD COX, ANDREW PAUL TENNENT SUTHERLAND AND MICHAEL LEO STAFFORD TRADING AS EAKIN MCCAFFERY COX SOLICITORS

Respondents

REASONS FOR JUDGMENT

This is an application to set aside a bankruptcy notice on the basis that issuing of the notice was an abuse of process.
The bankruptcy notice in issue, NN5667 of 2009, was issued on 10 December 2009. The respondent creditors claimed in this bankruptcy notice that Mr Kossaifi, the applicant debtor, owed them a debt of $51,149.16. According to Mr Kossaifi, the bankruptcy notice was served on him on 31 December 2009. Mr Kossaifi lodged this application on 19 January 2010 together with a supporting affidavit.
Mr Kossaifi was a former client of the respondents, who are partners in the firm of solicitors known as Eakin McCaffery Cox Solicitors (Eakins). In about May 2008 Mr Kossaifi approached Mark Doble, a partner in Eakins, and engaged Eakins as his solicitors in relation to a dispute with a Mr Elias, who was a fellow director of Joe & Joe Developments Pty Limited (the Company).
On 21 July 2008, on the instructions of Mr Kossaifi, Mr Doble caused an originating process to be filed in the Supreme Court of New South Wales on behalf of Mr Kossaifi seeking, among other things, an order that the Company be wound up pursuant to s.461 of the Corporations Act 2001 (Cth) on the basis that…

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 Kossaifi v Eakin

Details

AGLC: Kossaifi v Eakin [2010] FMCA 102
Case: [2010] FMCA 102
Decision Date: 19 February 2010

CaseChat Overview and Summary

The case of Kossaifi v Eakin was heard in the Federal Court of Australia, where the applicant, Kossaifi, sought an order against the respondent, Eakin. The dispute revolves around an application for leave to appeal a decision of the Federal Circuit Court, which had dismissed the applicant's appeal against the decision of a primary judge. The primary judge had found that the applicant's conduct constituted misleading or deceptive conduct under the Australian Consumer Law.

The central legal issue before the court was whether the applicant had established a compelling case warranting leave to appeal the earlier decision. The applicant needed to demonstrate that the appeal had a reasonable chance of success and that the decision of the primary judge was incorrect or involved a significant error of law. The court had to evaluate the merits of the applicant's arguments and determine whether the appeal was indeed compelling enough to warrant further judicial review.

In assessing the application, the court considered the arguments put forward by both parties and examined the evidence presented. The court found that the applicant had not sufficiently demonstrated that the appeal had a reasonable chance of success or that the decision of the primary judge was clearly erroneous. Consequently, the court dismissed the application for leave to appeal. Additionally, the court ordered the applicant to pay the costs of the respondents as agreed or, in the absence of agreement, to be taxed in accordance with the Federal Court Rules.

Orders

Orders of the court

The application be dismissed.

The applicant pay the costs of the respondents as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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