Mahmoud v The Owners' Corporation Strata Plan 811 - [2006] FMCA 879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAHMOUD v THE OWNERS’ CORPORATION STRATA PLAN 811

[2006] FMCA 879

BANKRUPTCY – Application for interim orders – annulment and other orders – respondent not served or notified of application.

Bankruptcy Act 1966 (Cth), s.30
Federal Magistrates Court (Bankruptcy) Rules 2006, r.7.06

Epitoma Pty Ltd v Australian Meat Industry Employees’ Union (No. 2) (1984) 3 FCR 55
Re Hepburn; Ex parte Deputy Commissioner of Taxation (unreported, Federal Court, Hill J, 10 July 1989)

Applicant:

TOSSON HUSSEIN MAHMOUD

Respondent:

THE OWNERS' CORPORATION STRATA PLAN 811

File Number:

SYG1420 of 2006

Judgment of:

Barnes FM

Hearing date:

23 May 2006

Delivered at:

Sydney

Delivered on:

23 May 2006

REPRESENTATION

Applicant:

In person

Counsel for the Official Trustee:

Mr R. Marshall

Solicitors for the Official Trustee:

Sally Nash & Co

Respondent:

No Appearance

ORDERS

That the application for interim orders be dismissed.
The matter be listed before me at 2:15pm on Tuesday, 1 August 2006.
The applicant file and serve evidence on which he seeks to rely in the annulment application by 30 June 2006.
The Official Trustee file and serve a report for the annulment application by 14 July 2006.
Any other evidence in reply by any party to be filed and served by

21 July 2006.
The applicant serve copies of all material filed by him in these proceedings on the party that was the applicant creditor in proceedings SYG1034/2005 care of David Le Page, Solicitor, Suite 1505, Level 15, 33 Bligh Street, Sydney, New South Wales 2000 by registered post.
Liberty to apply to any party on two (2) days notice in the event of default of compliance with these orders.
The applicant pay the costs of the Official Trustee as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1420 of 2006

TOSSON HUSSEIN MAHMOUD

Applicant

And

THE OWNERS' CORPORATION STRATA PLAN 811

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 16 May 2006 the applicant, Mr Mahmoud, filed this application in which the respondent is named as The Owners’ Corporation Strata Plan 811. The application seeks eleven final orders, in particular an annulment of a sequestration order made against the estate of Mr Mahmoud by a Registrar of this Court on 23 May 2005 and a number of other orders. The application also seeks some ten interim orders in identical terms to ten of the final orders sought. The application for final orders was listed for 20 June 2006. The hearing of the application for interim orders was listed for today.
When the matter came before the Court, Mr Mahmoud appeared for himself. The Official Trustee as trustee of the estate of Mr Mahmoud, was represented. Counsel for the Trustee told the Court that the trustee had only recently been served with the application and had not yet had the opportunity to prepare a report in connection with the annulment application. There was no appearance for the respondent, the petitioning creditor. It emerged in the course of Mr Mahmoud's submissions that the petitioning creditor has not been served with a copy of the application of 16 May 2006 or the supporting affidavit of Mr Mahmoud sworn on 16 May 2006. Mr Mahmoud told the Court that he regarded himself as the legitimate chairman and treasurer of the Owners’ Corporation Strata Plan 811, and indeed had described himself as the person on whom it was intended to serve this application in the application.
However the applicant was the subject of a sequestration order that was made on the application of the petitioning creditor. Whatever view is taken of the legitimacy of the status of the petitioning creditor as the Owners’ Corporation Strata Plan 811, a number of the orders that are sought by the applicant affect the interests of the petitioning creditor (and see Federal Magistrates Court (Bankruptcy) Rules 2006 Rule 7.03 which requires the applicant to give notice of an annulment application to each known creditor in accordance with Form 11). The petitioning creditor is not represented today and there is no evidence that anyone other than Mr Mahmoud and the Trustee has been given notice of these proceedings.
The court has a wide power to decide questions and to make orders such as declaratory orders and to grant injunctions including interlocutory injunctions and ex parte injunctions (see Epitoma Pty Ltd v Australian Meat Industry Employees’ Union (No. 2) (1984) 3 FCR 55 and Re Hepburn; Ex parte Deputy Commissioner of Taxation (unreported, Federal Court, Hill J, 10 July 1989) under s.30 of the Bankruptcy Act 1966 (Cth). Under s.30 the matter must however come within the cognizance of the Court and the orders must be necessary for the purposes of carrying out or giving effect to the Bankruptcy Act.
With that background then, the first interim order that is sought is annulment of the sequestration order made against the estate of the applicant. Mr Mahmoud now recognises that an annulment will not be made on an interim basis. Rather it will be a matter of making directions to progress his application for an annulment. I will return to this point.
He then seeks an interim order that “No order of any kind should had been made against [him] on 23 May 2005 [the date on which the sequestration order was made] as he was not informed of such a date of a hearing at that time and as he was not serviced (sic) with any notice of the date of the hearing.”
Again, this takes issue with the making of the sequestration order (and the order for payment of the petitioning creditor’s costs). This is a matter to be resolved at a final hearing. At that time, in addition to Mr Mahmoud and a legal representative for the Official Trustee, the petitioning creditor should have an opportunity to appear. It is not an order that should be made on an interim basis when the petitioning creditor has had no notice of the application. It is not entirely clear whether an order that the sequestration order be set aside is also being sought. In any event this is not a matter to be dealt with on an interim exparte basis. The order sought would require the court to make findings in relation to service of the applicant with the creditor’s petition. The creditor has not been notified of these proceedings. There is no evidence before the court from the applicant as to service beyond the assertion in this ground.
The applicant then seeks an adjournment of “the hearing of this application” until he “is cleared of” what he describes as trauma suffered after events of 24 March 2006 detailed in an attachment to the application. It is appropriate that this matter be adjourned, although not on the indefinite basis sought, because, as I have indicated, the petitioning creditor or any other creditors have not been neither given notice of the annulment application.
Mr Mahmoud seeks an adjournment on the basis of a medical certificate, a copy of which he provided to the Court in a bundle of documents attached to the application. There are two medical certificates from Dr Makram Girgis, one dated 10 April 2006 and one dated 17 April 2006. The “report” of 10 April 2006 states that as at 3 and 10 April 2006 Mr Mahmoud was not suffering from any kind of mental disorder. The medical report of 17 April 2006 states that a “mental status examination” revealed that Mr Mahmoud was “mentally sound and has no delusions, paranoid ideation, nor any kind of mental disorder”. It goes on to state, however, that Mr Mahmoud’s claimed treatment on 24 March 2006 (which is reported as “a horrific incident when the police sprayed [Mr Mahmoud’s] eyes and mouth with capsicum (having “illegally” invaded his unit to enable a plumber to enter), his subsequent arrest, claimed mistreatment and being kept in a police van for 7 hours):
… was very traumatic and now he is suffering from the major features of Post Traumatic Stress Disorder. This is a very serious emotional disorder which results in nightmares, flashbacks and intractable insomnia. He is living in fear and insecurity.
He will need counselling for several months, and a more detailed report will then be written about his condition.
On this basis Mr Mahmoud sought an indefinite adjournment of his annulment application. He did so in the face of proceedings against him in the Supreme Court, which I am told from the bar table are eviction proceedings commenced by the trustee in bankruptcy to obtain possession of Mr Mahmoud’s home unit. These proceedings have been adjourned until 6 June 2006. Mr Mahmoud intends to move on a notice of motion seeking a stay of the Supreme Court proceedings.
It was quite properly, and very fairly, pointed out by Mr Marshall for the Official Trustee that if Mr Mahmoud seeks a stay of the Supreme Court proceedings, it would be on the basis that he has an annulment application pending before this Court. It was suggested that it may be advisable for it to be clear that there was a pending annulment application which was being progressed. On that basis Mr Marshall proposed a timetable for the filing of documents which, it was suggested, recognised that Mr Mahmoud was not well (and that he had the medical certificate referred to above). On that basis it was suggested that it might be that at this stage documents to be filed might not be in proper form, but that nonetheless it should be possible for the applicant to file and serve the evidence on which he intended to rely in the annulment application when it was ultimately heard by this Court.
I see much force in that submission. While I note the medical certificate states that Mr Mahmoud is suffering from post-traumatic stress disorder and that he will need counselling, it does not suggest that he is unable to take such steps. There should be some orders made for the filing of documentation to progress this matter. It is not appropriate for the Court to make an order that there be an adjournment “until the applicant is cleared of the very severe trauma he is suffering”. Rather, it is appropriate that there be an adjournment to a fixed date. Mr Mahmoud will have the opportunity to provide further medical evidence if he is not in a condition to pursue his application at the time of the adjourned date. I will return to the orders to be made in this respect.
The next interim order sought by Mr Mahmoud is a stay of proceedings in the Supreme Court in relation to matters against him, his estate and his unit at a stated address in Ashfield “in particular, the matter of the list of possession, common law division No 15829 of 2005”. While it has been indicated to me from the bar table that these proceedings are proceedings for possession of the unit instituted by the trustee as part of the administration of the bankrupt’s estate, there is no relevant evidence before me in support of this application, other that what I am told about the date on which that matter is next before the Supreme Court. I also note that Mr Mahmoud has the opportunity to pursue, as is appropriate, an application in that court for a stay of proceedings. It has not been established by the applicant that this Court can or should order a stay of these or any other Supreme Court proceedings on the basis that is sought. There is no basis in the material before me (and bearing in mind that there is an annulment application in respect of which an adjournment is sought by the applicant) for the order that is sought to be made by this Court on an interim basis.
It is then sought that there be an interim order for the granting of legal aid by the Legal Aid Commission. It is not for this Court to make an order that the Legal Aid Commission grant legal aid to the applicant. It appears that the application for legal aid, which is expressed generally, is not simply in relation to the annulment proceedings. It is certainly not for this Court to make an order in relation to legal aid or representation in the conduct of proceedings in other courts. This is not a case in which it has been established on the evidence presently before the Court that it is appropriate to make an order for some form of pro bono legal assistance in relation to the application in this Court.
The next interim order sought takes issue with the Owners’ Corporation Strata Plan 811. It is as follows:
“Those opponents of Tosson Mahmoud calling themselves the owners’ corporation strata plan 811 are not the owners’ corporation strata plan 811, do not represent the owners’ corporation strata plan 811 and are an illegitimate body who has not authority on neither Tosson Mahmoud nor on the owners of strata plan 811 and that Tony Wolody is not the agent of the owners’ corporation strata plan 811 as his appointment was invalid since 31-07-2000 and as he was brought by malicious, vicious, illegal and illegitimate means with the conspiracy of the Police who confessed that it executed a false arrest and a false imprisonment of Tosson Mahmoud at 05.30 p.m. on 31-07-2000 to prevent him from attending the illegal extraordinary general meeting, of the Owners’ Corporation Strata Plan 811, at which Tony Wolody was planted fraudulently as our agent, in case someone had told him about it as Tosson Mahmoud, although he was and still is since then the only legitimate Chairman and the only one who could had called such a meeting, didn’t know about it until some days later.”
That is not a matter that should be dealt with on an interim and effectively ex parte basis. I note the absence of those who presented the creditor's petition, who appear to be the people with whom

Mr Mahmoud takes issue. Further this is not, in any event, a matter that has been established to be within the jurisdiction of this Court.
It is then claimed that an interim order should be made that “No money is owed by Tosson Mahmoud to his opponents as they are an illegitimate and an invalid body who has no right to demand any money from any owner”. Even if the Court has power to make such a declaration, there is no evidence before the Court to support this claim. It may be that Mr Mahmoud is seeking in some way to go behind a judgment obtained against him by the petitioning creditor. He has not put evidence before the Court at this stage in relation to such matters. It is not an order which I would, in any event, make on an interim, effectively ex parte basis, in the absence of the so called ‘opponents’. Insofar as the applicant contends that the sequestration order ought not to have been made, such issues may be addressed when the annulment application is determined.
In paragraph 8 it is sought that “The Department of Land to remove the caveat imposed” on Mr Mahmoud’s property. The Department of Land is not a party to these proceedings. It appears that this order is beyond jurisdiction. In any event there is no basis for the making of such order on the evidence before the Court, let alone on an interim basis.
The next interim order sought is that Mr Mahmoud:
“doesn’t owe any money stated in the creditor's petition as for costs in the Supreme Court because the conclusion of the cases in the Supreme Court is a very severe miscarriage of justice and no judge at the Supreme Court has made any judgement in the matters which were all decided by registrars hostile to Tosson Mahmoud and who illegally recognized Wolody and his solicitor Le Page as the Owners’ Corporation strata plan 811 and refused to recognize Tosson Mahmoud as the only representative of the Owners’ Corporation.”
The basis on which this is sought is not clear. Insofar as it takes issue with the judgment underlying the bankruptcy notice, this may be addressed in the hearing of the annulment application. There is no evidence to support the making of such an order on an interim basis.
Finally, in paragraph 10 Mr Mahmoud seeks a declaration (on an interim basis) that he “has paid all his levies of strata plan 811 up to date at the proper account of the Owners’ Corporation Strata Plan and therefore he owes no money to the Owners’ Corporation Strata Plan 811.”
Again this may relate to what the applicant seeks to pursue in his annulment application in relation to his solvency and outstanding debts. It is not yet clear on the material before the Court.

Mr Mahmoud did indicate that he intended to put on evidence in relation to his financial position and payment of all his levies and showed the Court documents he intended to put in evidence before the Court at a final hearing. When that has occurred, insofar as it is relevant to the annulment application, it may be considered at that date.
It is not for the Court to make such a declaration in the form of final relief on an interlocutory basis. Indeed it is not clear that the Court has jurisdiction to make such an order, given the nature of the proceedings before the Court. It seems that Mr Mahmoud is attempting to resolve all of his disputes about the legitimacy of the persons holding themselves out as officers of the Owners’ Corporation Strata Plan 811 in this Court. This may not be possible. It has not been established that the Court has jurisdiction to make all the orders sought.
The applicant did not address the legal basis for any of the orders sought on an interim basis. I am not persuaded that any such orders should be made where the respondent has not been served. The application for interim orders is dismissed. However, what the Court can and should do is make orders to adjourn the hearing of the application for final orders, in particular the annulment application, not indefinitely, but until a fixed date.
Mr Marshall, for the Official Trustee, proposed that the applicant file and serve his evidence in the annulment application by 30 May 2006, that the Official Trustee file and serve a report by 6 June 2006, other evidence in reply to be filed and served by 13 June 2006 and that the matter be adjourned to 20 June 2006. Mr Mahmoud indicated that he could not meet these times as he also has proceedings in the Supreme Court and needed to file affidavit evidence in relation to his stay application in that court. It seems that he may not fully appreciate that it may be relevant to such application that he has on foot an annulment application in this court which is being pursued. The timetable proposed would have had the benefit that by the time that matter came before the Supreme Court (on 6 June) Mr Mahmoud would have been in a position to show to the Supreme Court not only the orders made by this court, but also that he had in fact taken steps to pursue his annulment application. However instead he seeks an order that he file evidence by 18 September 2006 (if a date is to be fixed).
However I consider an earlier date is appropriate for the applicant to file and serve his evidence. I intend to order that the applicant file and serve evidence on which he seeks to rely in the annulment application by 30 June 2006. It would be open to the applicant to file and serve his evidence at an earlier time should he choose to do so, for example if he decided that it would be in his interests to do so. That will be a matter for him. I intend to bring the matter back before me after documents have been filed. I am not going to list it for a hearing on that date. As indicated, I have yet to have the benefit of hearing from the party that filed the creditor's petition in relation to whom some orders are sought. The applicant seeks a final order (in addition to final orders in the same terms as the interim orders) that the “opponents” pay his costs and expenses of $800,000 “for seven years of courts and tribunal cases which were caused, brought and lost by the opponents”. The basis for such a claim (and whether this Court has jurisdiction) has yet to be clarified. There are a number of procedural issues to be resolved before this matter can be listed for final hearing.