Laba-Sarkis v Moussa

[2012] FMCA 717

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LABA-SARKIS v MOUSSA & ANOR [2012] FMCA 717

PRACTICE AND PROCEDURE – Adjournment – where matter adjourned three times previously – where previous adjournments to allow for leave to appeal – where leave to appeal to New South Wales Court of Appeal summarily dismissed – where merits not considered – where applicant seeks leave to appeal to Full Bench of New South Wales Court of Appeal – where no indication of error in summary dismissal – where prospects of success small – whether to adjourn.

BANKRUPTCY – Trustee – conduct of trustees – where trustees refused to allow applicant to appeal judgment upon which bankruptcy notice and subsequent sequestration order based or to undertake appeal themselves – where applicant continued appeal – where dismissed on ground that bankrupt had no standing – where application to appeal trustee decision not made within 60 days – whether 60 day time limit mandatory or can be extended – whether prospects of success in appeal proceeding – whether to make orders sought.

Bankruptcy Act 1966, ss.33(1)(b), 58, 60, 178
Supreme Court Act1970 (NSW)

Cummings v Claremont Petroleum (1996) 185 CLR 124
Baulkham Hills Shire Council v Stankovic [2009] NSWCA 281
Raniere Nominees Pty Ltd trading as Horizon Motor Lodge v Daley (2006) 67 NSWLR 417
David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265

Applicant: TOUFIC LABA-SARKIS

First Respondent: MAHMOUD MOUSSA

Second Respondent: ANTHONY DE VRIES & DAVID SOLOMONS

File Number: SYG 1332 of 2011

Judgment of: Raphael FM

Hearing date: 1 August 2012

Date of Last Submission: 1 August 2012

Delivered at: Sydney

Delivered on: 1 August 2012

REPRESENTATION

Counsel for the Applicant: Ms F Sinclair

Solicitors for the Applicant: Benjamin & Khoury Solicitors & Attorneys

Counsel for the First Respondent: Mr K Rollingson

Solicitors for the First Respondent: George Khoury & Co. Solicitors

Solicitors for the second Respondent: Sally Nash & Co.

ORDERS

1. Adjournment refused.

2. Application dismissed.

3. Applicant to pay the costs of both respondents, such costs to be paid from the estate of the bankrupt.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1332 of 2011

TOUFIC LABA-SARKIS

Applicant

And

MAHMOUD MOUSSA

First Respondent

ANTHONY DE VRIES & DAVID SOLOMONS

Second Respondent

REASONS FOR JUDGMENT

Application for adjournment

1. This matter, which seeks review of a decision of trustees in bankruptcy made in December 2011, has been before the court on a number of occasions since the application was made originally on 9 March 2011.  On 19 March I adjourned it until 3 May.  It was further adjourned until 8 June and on 8 June it was adjourned until today.  The ground upon which I granted those adjournments was that the bankrupt was seeking leave in the Court of Appeal to appeal a decision of Latham J of the New South Wales Supreme Court dismissing an appeal from a decision of Magistrate O’Shea which formed the basis of the debt that has resulted in Mr Laba-Sarkis’ bankruptcy. 

2. The application before…