Mahmoud v Owners Corporation Strata Plan No 811
[2007] FMCA 131
•9 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHMOUD v OWNERS’ CORPORATION STRATA PLAN NO 811 | [2007] FMCA 131 |
| BANKRUPTCY – Practice and Procedure – Application for extension of time for filing affidavits – attainment of justice – necessity to quell controversy. |
| Constitution, Chapter III Federal Magistrates Act 1999, (Cth), ss.14 and 18 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 Mahmoud v The Owners’ Corporation Strata Plan 811 [No 2] [2006] FMCA 1711 Mahmoud v The Owners Corporation Strata Plan No 811 [No 3] [2006] FMCA 1742 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 The Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194 The Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3 |
| Applicant: | TOSSON HUSSEIN MAHMOUD |
| Respondent: | OWNERS’ CORPORATION STRATA PLAN NO 811 |
| File Number: | SYG 1420 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 9 February 2007 |
| Date of Last Submission: | 9 February 2007 |
| Delivered at: | Perth (via videolink to Sydney) |
| Delivered on: | 9 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. W. Shaw (Solicitor) |
| Solicitors for the Applicant: | The People's Solicitors |
| Counsel for the Respondent: | Mrs P. Koroknay |
| Solicitors for the Respondent: | David Le Page |
ORDERS
Order number 2 made on 31 January 2007 be varied by deleting the date “9 February 2007” and inserting the date “23 February 2007”;
Order number 3 be varied by deleting the date “16 February 2007” and inserting the time and date “4.00 pm on 2 March 2007”;
Order number 4 be varied by deleting the date “23 February 2007” and inserting the date “9 March 2007”;
Order number 5 be varied by deleting the date “2 March 2007” and inserting the date “16 March 2007”;
Order number 6 be varied by deleting the date “9 March 2007” and inserting the date “23 March 2007”; and
Costs of today be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 1420 of 2006
| TOSSON HUSSEIN MAHMOUD |
Applicant
And
| OWNERS’ CORPORATION STRATA PLAN NO 811 |
Respondent
REASONS FOR JUDGMENT
(Revised from the transcript)
The application
This is an application which, on what the Court is told today by Mr Shaw, is effectively an application for an extension of time in which to file affidavits in relation to this matter.
History of matter
In the decision that the Court handed down in Mahmoud v The Owners Corporation Strata Plan No 811 [No 3] [2006] FMCA 1742 (“Mahmoud [No 3]”) on 7 December 2006, the Court made orders at that time that the application for annulment of the sequestration order be dismissed, and an order that the matter be adjourned to a directions hearing on 31 January 2007 to deal with the disposition of final orders 2 to 11 sought (“final orders sought”) by the Applicant in the application. It is not necessary to read the final orders sought for present purposes. They are contained in paragraph 1 of the judgment in Mahmoud [No 3].
In the directions hearing on 31 January 2007, the Court made orders, including, relevantly for present purposes, an order that any further affidavits relied upon by the Applicant be filed and served by 4 pm on 9 February 2007. At that time the hearing of the matter was set for
27 March 2007, subject to the filing of a foreshadowed Notice of Motion referred to in Court by the Applicant who then appeared in person. That foreshadowed Motion indicated that the Applicant wished to make an application for disqualification on the basis of bias, and also for an adjournment on medical grounds, and that is dealt with at pages 3 to 5 of the transcript of the hearing on 31 January 2007.
By application filed on 5 February 2007 by solicitors on behalf of the Applicant, certain orders were sought in relation to the proceedings, namely, that the proceedings be stayed. That has been clarified today by Mr Shaw. He tells me that the Applicant does not presently seek a stay of these proceedings but rather an extension of time in relation to the filing of affidavits, and presumably, submissions in the matter. The affidavit accompanying the application is from Kalianna Grace Dean, who is a paralegal employed by the solicitors now representing the Applicant.
Ms Dean asserts in her affidavit that, to put it shortly, the Applicant came to the firm of solicitors on the afternoon of the last directions hearing, that the matter is complex with accompanying documentation exceeding three suitcases worth, and requests an extension of time to adequately prepare the Applicant’s next affidavit, saying that it would not be practicable to do that by the date ordered, namely, 9 February 2007.
Matters in issue
Substantive issue
In terms of the merits of the application, the Court can readily understand that newly instructed solicitors might not in a week, or less than a week, be ready to prepare an affidavit in a matter such as this, more so faced with three suitcases of material.
However, the issues in relation to this matter in relation to the bankruptcy are not so broad as to make the matter as complex as is suggested.
If one looks at the final orders sought, it seems that, order 1 having been disposed of by the Court’s order on 7 December 2006, orders 2 to 11 fall as follows, on a present consideration, without determining them for future purposes.
Remaining issues
Order 2 simply requires evidence of service.
Order 3 to a certain degree, given that the sequestration order application has been dealt with, has become historical and/or requires appropriate current evidence of a medical practitioner. If an adjournment is sought on medical grounds in this matter the Court will require the medical practitioner to attend for cross-examination.
Order 4 seeking, as it does, a stay of proceedings in the Supreme Court of New South Wales (“Supreme Court”) does not seem to me a matter which is necessarily within the power of this Court, but in any event, and as Mr Shaw quite properly concedes, the current position in the Supreme Court in relation to the proceedings referred to in order 4 is that the relevant writ has been granted and a stay in relation to those proceedings has been refused by Rothman and Hall JJ respectively: see The Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194; The Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3. At this point in time it seems to me that there is not much left in relation to that matter with which this Court could presently deal.
In relation to order 5, which seeks the grant of legal aid, again that is a matter which does not seem on its face to be a matter which this Court has any power to deal with. Insofar as the grant of legal aid is premised on the Applicant’s concerns about the ownership of the residence, that is again a matter which this Court, given the current state of the Supreme Court proceedings, is probably not in a position to do a great deal about.
Order 6 may be a contestable issue. It would require evidence of the proper officers and proper records of the Owners’ Corporation. That is clearly a matter about which there is much dispute in this matter. It might be an interesting issue, as might all of these issues, to determine whether or not this Court has any remaining jurisdiction given the provisions of sections 14 and 18 of the Federal Magistrates Act 1999, (Cth) (“FM Act”), but on its face, order 6 does give rise, properly evidenced with appropriate affidavits, to a contestable issue.
Order 7 seeks all of the Applicant’s costs in relation to all the proceedings in all the courts that arise by virtue of the disputes that he presently has in relation to the Owners’ Corporation. Again, other than costs in relation to this matter directly, that does not appear to be a matter about which this Court could do a lot at the end of the day.
Order 8 appears to be allied to the order sought in order 6, but really probably requires no further evidence and is merely consequential on order 6.
Order 9 in relation to the removal of the caveat is in a similar basket to those orders referred to which this Court can probably not now deal with given the present state of the proceedings in the Supreme Court.
Order 10 is again not really an order sought but an assertion that the Applicant does not owe any money in relation to any of the orders that were made by the Supreme Court and pleads hostility on the part of the Registrars of the Supreme Court. Again, that appears to be a matter which does not really fall for consideration in these proceedings.
Order 11 again appears to be an order which is allied and probably consequential on the orders sought in orders 6 and 8, and again the evidence would probably not be much more than that is required in relation to order 6.
Contestable issue
In those circumstances and analysed that way, it seems that in reality there is one central contestable issue for present purposes in this litigation, and that relates to order 6 and consequentially orders 8 and 11, which gives rise, of course, to the question of whether or not this Court has jurisdiction and power to deal with those matters given the dismissal of the sequestration order and the provisions of ss.14 and 18 of the FM Act. That obviously is a matter which will require submissions on the day that the matter is heard.
The Court has no doubt that there are three suitcases of material in this matter, but without being told what that material is, and without an analysis of it, it is difficult to determine how much of it might be relevant to the issues that seem to fall to be determined. It seems that the relevant factors in determining this application are perhaps more confined than might appear at first blush, with great respect, to a paralegal meeting a client with three suitcases of material which has not yet, it would seem, been completely analysed.
Ultimately the Court's objective is the attainment of justice: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In the proper exercise of the judicial power under Chapter III of the Constitution, Chapter III courts quell controversy: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at page 158 per Rares J.
In that regard it is noteworthy that this application was originally filed on 16 May 2006. There have been various hearings, various applications for adjournment, and now this application for an extension of time. The Court need not recite the history of those matters. They are set out in the decisions in Mahmoud v The Owners’ Corporation Strata Plan 811 [No 2] [2006] FMCA 1711 and Mahmoud [No 3].
It is the Court’s view that the time is now right for the remaining controversy in this matter to be quelled. For that reason the Court made orders at the directions hearing on 31 January 2007 for steps to be taken preparatory to further hearing of this matter, and for a further hearing of this matter on 27 March 2007.
The Court still intends to hear this matter on 27 March 2007. The Court understands and, in the circumstances, is sympathetic to the task that confronts the recently instructed solicitors. However, this application is, for the reasons that the Court has endeavoured to outline above, more molehill than mountain.
In the circumstances and given, no doubt, that the Applicant's solicitors have been working assiduously to endeavour to file the relevant affidavits by 4 pm this afternoon in accordance with the Court’s existing orders, there is no need to alter the hearing date, but the Court is prepared to grant an extension of time for the filing of affidavits and submissions.
That can be done by moving the relevant dates by a fortnight, which is more than enough time for the Applicant's solicitors to prepare and file any affidavits required on behalf of the Applicant, given the time that has already passed and the nature of the matters in issue, as outlined above.
Orders
In the circumstances, therefore, the Court proposes to make the following orders:
a)Order number 2 made on 31 January 2007 be varied by deleting the date “9 February 2007” and inserting the date 23 February 2007”;
b)Order number 3 be varied by deleting the date “16 February 2007” and inserting the time and date “4 pm on 2 March 2007”;
c)Order number 4 be varied by deleting the date “23 February 2007” and inserting the date “9 March 2007”;
d)Order number 5 be varied by deleting the date “2 March 2007” and inserting the date “16 March 2007”;
e)Order number 6 be varied by deleting the date “9 March 2007” and inserting the date “23 March 2007”; and
f)Costs of today be reserved.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
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