Kubica v Hussein - [2013] FCCA 1957

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUBICA v HUSSEIN

[2013] FCCA 1957

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – where respondent claimed pending application before Family Court of Australia under s.79 of the Family Law Act1975 (Cth) – where respondent had successfully pursued claims under s.79 on two prior occasions – whether claim based on genuine and arguable grounds – where outstanding application for special leave to appeal to High Court in relation to costs order – where order subject of appeal to Full Bench of the Family Court – whether genuine dispute with real prospects of success – where respondent claimed petitioning creditor indebted to him – where debt not disputed, but not sufficient to reduce respondent’s indebtedness to below the statutory minimum – whether to grant adjournment.

Legislation:

Family Law Act 1975 (Cth), s.79A

Federal Circuit Court Rules 2001, Part 15 Rule 15.01(b)
Federal Circuit Court Act 1999, s.55

Ahearn v Deputy Commissioner of Taxation (1987) 76 ALR 137
Re Schmidt; Ex parte Anglewood Pty. Ltd. (1968) 13 FLR 111
Re James Ex p: Carter Holt Harvey (1994) 51 FCR 14
In the Marriage of Arpas (1989) 30 Fam LR 314
In the Marriage of Holland (1982) 8 Fam LR 233
In the Marriage of JA & LJ Sommerville [1999] FamCA 958; 27 Fam LR 233
DCT v Cummins (2008) 70 ATR 855
Westpac Banking Corporation v Carver [2003] 126 FCR 113

Applicant:

HALINA BARBARA KUBICA

Respondent:

MOHAMED HUSSEIN

File Number:

SYG 1876 of 2013

Judgment of:

Judge Raphael

Hearing date:

19 November 2013

Date of Last Submission:

19 November 2013

Delivered at:

Sydney

Delivered on:

19 November 2013

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr S White SC

Solicitors for the Respondent:

Colin Daley Quinn

ORDERS

Application for adjournment declined.
Notices of opposition dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1876 of 2013

HALINA BARBARA KUBICA

Applicant

And

MOHAMED HUSSEIN

Respondent

REASONS FOR JUDGMENT

The court has before it an application for a sequestration order against the estate of Mohamed Hussein. A creditor’s petition was issued on 12 August 2013. The underlying debt was in respect of costs ordered by the Family Court of Australia that had been assessed and transformed into judgments totalling the sum of $77,445.85. The petitioning creditor is the former wife of the debtor. On 9 September 2013 Mr Hussein filed a notice of opposition to the petition and another notice of opposition was served on 22 October 2013. Also on 9 September 2013 Mr Hussein filed an application for an adjournment of the creditor’s petition.
The basis for Mr Hussein’s request for an adjournment and really the point behind his notice of objection was threefold. First he said that he had an application pending in the Family Court of Australia under s.79A of the Family Law Act 1975[1]. Secondly, he had an outstanding application for special leave to the High Court appealing against the decision of the Judge of the…

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 Kubica v Hussein

Details

AGLC: KUBICA v HUSSEIN [2013] FCCA 1957
Case: [2013] FCCA 1957
Decision Date: 19 November 2013

CaseChat Overview and Summary

In *Kubica v Hussein*, heard before Judge Raphael, the respondent sought an adjournment of proceedings on the basis of a pending application before the Family Court of Australia under s.79 of the *Family Law Act 1975* (Cth). The respondent had previously pursued s.79 claims on two occasions. Additionally, there was an outstanding application for special leave to appeal to the High Court concerning a costs order, which was also the subject of an appeal to the Full Bench of the Family Court. The respondent also contended that the petitioning creditor was indebted to him, although this debt was insufficient to reduce his overall indebtedness below the statutory minimum.

The central legal issue before the court was whether the respondent had demonstrated genuine and arguable grounds for an adjournment, specifically whether his pending applications and claims constituted a genuine dispute with real prospects of success that warranted staying the current proceedings. The court was required to assess the strength and bona fides of the respondent's asserted grounds for seeking the adjournment in light of the history of prior proceedings and the nature of the outstanding appeals.

Judge Raphael considered the respondent's arguments and the evidence presented. The court determined that the respondent's claims, particularly in relation to the Family Court proceedings and the alleged debt, did not present a genuine dispute with real prospects of success sufficient to justify an adjournment. The prior s.79 applications had been unsuccessful, and the debt, while acknowledged, did not negate the respondent's substantial indebtedness to the petitioning creditor. Consequently, the court found that the grounds for adjournment were not made out.

Orders