Mahmoud v The Owners Corporation Strata Plan No 811 [No.3]
[2006] FMCA 1742
•7 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHMOUD v THE OWNERS CORPORATION STRATA PLAN NO 811 (No.3) | [2006] FMCA 1742 |
| BANKRUPTCY – Annulment of sequestration order – principles. EVIDENCE – Admissibility – business record. |
| Bankruptcy Act 1966 (Cth), ss.18, 19, 54(1), 109, 129(1), 134, 135, 140, 145, 153B, 156A, 165, 173, 174 Evidence Act, 1995 (Cth), s.69(1)(a) Legal Profession Act, 1987 (NSW) Legal Profession Act, 2004 (NSW) Strata Schemes Management Act, 1996 (NSW), s.80(1) Federal Magistrates Court Rules 2001 (Cth), r.6.11 Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.7.03, 7.04 |
| ASIC v Rich (2005) 216 ALR 320; [2005] NSWSC 417 Baker v Rigg [2005] FCA 1760 Boles v Official Trustee in Bankruptcy [2001] FCA 639 Byczko v Sheahan [2001] FMCA 120 Hudson v Whalan [1999] FCA 189 Lockhart v DCT [2005] FMCA 641 Mahmoud v The Department of Education and Training [2006] NSWIRComm 56 Mahmoud v The Owners Corporation Strata Plan 811 [2006] FMCA 879 Mahmoud v The Owners Corporation Strata Plan 811 [No. 2] [2006] FMCA 1711 Plant v Ken Smith Electronics Pty Ltd & Anor [2000] FMCA 7 Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 Re Frank; Ex parte Piliszky (1987) 16 FCR 396 Re Ginnane; Ex parte Ginnane (1994) 60 FCR 429 Re Gollan; Ex parte Gollan (1992) 40 FCR 38 Re Williams (1968) 13 FLR 10 Roach v Page (No. 15) [2003] NSWSC 939 Sandell v Porter (1966) 115 CLR 666 Stankiewicz v Plata [2000] FCA 1185 |
| Applicant: | TOSSON HUSSEIN MAHMOUD |
| Respondent: | THE OWNERS CORPORATION STRATA PLAN NO 811 |
| File Number: | (P)SYG 1420 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 October 2006 |
| Date of Last Submission: | 25 October 2006 |
| Delivered at: | Perth (by videolink to Sydney) |
| Delivered on: | 7 December 2006 |
REPRESENTATION
| Applicant on his own behalf: | Mr T.H. Mahmoud |
| Counsel for the Respondent: | Mrs P. Koroknay |
| Solicitors for the Respondent: | David Le Page |
| Counsel for the Official Trustee: | Mr R.D. Marshall |
| Solicitors for the Official Trustee: | Sally Nash & Co |
ORDERS
That the application for annulment of the sequestration order be dismissed;
That the matter be transferred to the docket of Federal Magistrate Lucev; and
That the matter be adjourned to a further directions hearing before Federal Magistrate Lucev at 9.30 am WDST (11.30 am EDST) on
31 January 2007 by videolink from Perth to Sydney in relation to the disposition of final orders 2 to 11 sought by the Applicant in the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
(P)SYG 1420 of 2006
| TOSSON HUSSEIN MAHMOUD |
Applicant
And
| THE OWNERS CORPORATION STRATA PLAN NO 811 |
Respondent
REASONS FOR JUDGMENT
The application
Tosson Mahmoud (“the Applicant”), who describes himself as “a teacher of French and the Chairman and Treasurer of our Owners’ Corporation Strata Plant (sic) 811” (“Owners Corporation”)[1] applies to the Court for final orders in the following terms:
[1] Affidavit of Tosson Mahmoud 25 October 2006 (“Mahmoud’s Affidavit”).
“01- Annulment of the sequestration order made against the estate of Tosson Mahmoud by the Registrar of the Federal Magistrate (sic) Court on 23-05-2005
02 -No order of any kind should had been made against Tosson Mahmoud on 23-05-2005 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.
03 -Adjournment of the hearing of this application until Tosson Mahmoud is cleared of the very severe trauma he is suffering from as a result of the attack on him and the very horrific experience he was subjected to as indicated by the annexed medical certificates together with the related document detailing the attack on him of the 24th of March, 2006.
04 -A stay of all proceedings in the Supreme Court of NSW in relations to all matters against Tosson Mahmoud, his estate and his unit at 16/417 Liverpool Rd., Ashfield, NSW, 2131, in particular the matter of the list of possession, common law division, No. 15829 of 2005
05 -Granting of legal aid by the Legal Aid Commission and the providing of a solicitor and a barrister to Tosson Mahmoud given his impoverished state, being a pensioner, faced by opponents hiring a solicitor and the very danger of the very threat to his ownership of his only place of residence at 16/417 Liverpool Rd., Ashfield, NSW, 2131
06 -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 no 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.
07 -The opponents pay to Tosson Mahmoud all his costs and expenses of $800,000.00 for the seven years of courts and tribunal cases which were caused, brought and lost by the opponents.
08 -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.
09 -The Department of Land to remove the caveat imposed on the only place of residence of Tosson Mahmoud at 16/417 Liverpool Rd, Ashfield, NSW, 2131
10 -That Tosson Mahmoud doesn’t owe any money stated in the creditors 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.
11 - A declaration that Tosson Mahmoud has paid all his levies of strata plan 811 up to date at the proper account of the Owners’ Corporation strata plan 811 at the National Bank No. 480349331 and therefore he owes no money to the Owners’ Corporation Strata Plan 811.” (“the Applicant’s Final Orders Sought”).
The Applicant also sought interim orders in identical terms to the final orders sought, save for order 7.
Previous applications, proceedings, hearings and orders in this Court
The matter was first set down in this Court for an interlocutory hearing at 10.15 am on 23 May 2006 and final hearing on 20 June 2006.
On 23 May 2006 the Court made the following orders:
“1.The matter be listed before me [Federal Magistrate Barnes] at 2.15pm on Tuesday, 1 August 2006.
2.The applicant file and serve evidence on which he seeks to rely in the annulment application by 30 June 2006.
3.The Official Trustee file and serve a report for the annulment application by 14 July 2006.
4. Any other evidence in reply by any party to be filed and served by 21 July 2006.
5.The applicant serve copies of all material filed by him in these proceedings on the party that was the applicant creditor in proceedings SYG 1034/2005 care of David Le Page, Solicitor, Suite 1505, Level 15, 33 Bligh Street, Sydney, New South Wales 2000 by registered post.
6.Liberty to apply to any party on two (2) days notice in the event of default of compliance with these orders.
7. 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” (“the 23 May 2006 Orders”).
The Applicant has not complied with orders 2, 4 and 5 of the 23 May 2006 Orders.
Although the 23 May 2006 Orders do not so provide, it is apparent from the Reasons for Judgment that the application for interim orders in the terms sought was dismissed.[2]
[2] Mahmoud v The Owners Corporation Strata Plan 811 [2006] FMCA 879 at para. 24 per Barnes FM (“Mahmoud [No. 1]”).
When the matter came on before the Court on 1 August 2006 the Court made the following orders:
“1. The hearing of the application for Final Orders 2 to 11 in the application filed on 16 May 2006 be adjourned pending further order.
2.The application for an annulment of the sequestration order made on 15 May 2005 be listed for final hearing on Wednesday 25 October 2006 at 10:15am.
3.The Applicant file and serve affidavit and other evidence on which he seeks to rely in relation to the application for annulment of sequestration order by Tuesday 15 August 2006.
4.The Respondent file and serve any affidavit evidence on or before Tuesday 29 August 2006.
5. Pursuant to Rule 7.03 of the Federal Magistrates Court (Bankruptcy) Rules the Applicant give notice of the annulment application to each person known to the Applicant to be a creditor of the Applicant at least 14 days before 25 October 2006.
6. Either party has liberty to apply on 2 days notice.
7.The costs of today are reserved.” (“the 1 August 2006 Orders”).
The Applicant did not comply with Orders 2, 3 and 5 of the 1 August 2006 Orders.
When the matter came on before the Court on 25 October 2006 for hearing of the application for annulment of the sequestration order[3] the Applicant sought to move on a Notice of Motion seeking:
a)to adjourn the hearing;
b)that “the file be inspected by [Federal] Magistrates (sic) Barnes and if there are any documents or materials not served on the applicant, then the hearing should be adjourned until he is served with the documents and time given for him to respond”; and
c)that Federal Magistrates Barnes disqualify herself because one of the annexures “focused heavily on the subject of feminism and the applicant is very concerned that he would be prejudiced by [Federal] Magistrates Barnes”.[4]
[3] The hearing of the application for Final Orders 2 to 11 having been adjourned pending further order, this was the only matter before the Court: see Order 1 of 1 August 2006 Orders.
[4] Notice of Motion tendered by leave in Court on 25 October 2006. The annexure presumably referred to is Annexure E to Annexure E to Annexure D to Mahmoud’s Affidavit, being a copy of an article “Teacher says ban is plot by feminists” from the Sunday Telegraph of 2 April 2006 in which the Applicant is described as a “teacher campaigning to eradicate the ‘virus of feminism’ from Australia” and his having “been banned from NSW schools after attacking his female principal.” The article further attributes to the Applicant the assertion that:
In Reasons for Judgment delivered orally on transcript on 25 October 2006 the Court dismissed the Notice of Motion.[5] The Reasons for Judgment deal with the adjournment for trauma sought by the Applicant.[6]
[5] Those Reasons for Judgment have since been revised from the transcript, and published: Mahmoud v The Owners Corporation Strata Plan 811 [No. 2] [2006] FMCA 1711 (“Mahmoud [No. 2]”).
[6] See “03” in Applicant’s Final Orders Sought in para. 1 above and Mahmoud [No 2] at para. 14 per Lucev FM.
In relation to the order sought that the Court inspect the file (as set out in para. 9(b) above), the Court said in Mahmoud [No. 2] that:
“I have also, this morning, prior to proceedings, and before I was aware that this Notice of Motion was on foot, read the papers on the Court file and I can say that, from the Court’s point of view, there is nothing untoward in the file, and I, therefore, do not propose to make any order sought with respect to an adjournment for service of various documents in relation to the second order sought in the Notice of Motion.”[7]
[7] Mahmoud [No. 2] at para. 16 per Lucev FM.
In retrospect, it might have been better to have said that “there is no indication that any documents or materials have not been served on the Applicant” rather than saying “there is nothing untoward in the file”.
It was however an ex tempore judgment, and, in any event, by reason of matters referred to below the issue was otherwise resolved in the course of the hearing of the annulment of sequestration order application.Very shortly after delivery, orally on transcript, of the Reasons for Judgment in Mahmoud [No.2] the Applicant requested that he be allowed to:
“… inspect the file, to see whether there is any document I don’t have, because you and the Court, on my understanding, will look at the file and then will see what’s in it, and rule accordingly. So, I never heard of this thing before, so that people – the judicial officer looked at the file and then decides that I have everything, without asking me.”[8]
[8] Transcript of Proceedings, 25 October 2006. Unfortunately the transcript pages are not numbered.
The following exchange then occurred:
“HIS HONOUR: Mr Mahmoud, do you have any evidence which indicates that there is anything untoward on the file, or with which you have not been served, other than your suspicion?
MR MAHMOUD: That’s my suspicion, because my history with these people proved that, and I’ve seen that sometimes happening. So, I expect it to happen. …
HIS HONOUR: Well, Mr Mahmoud, I am a very patient person. So, what I propose to do, subject to hearing counsel for the respondent and the Official Trustee is this: I will go through, with you, the original documents that are on file, and you can tell me whether or not they have been served, and if you say they have not been served, I will turn to counsel for the respondent and the Official Trustee and they can indicate to me whether or not they have been served, and whether there is a court record in relation to their service.”[9]
[9] Transcript of Proceedings, 25 October 2006.
The process of going through the Court file in open court resulted in the Applicant asserting that he had not been served with:
a)the affidavit of Giulia Inga, the Official Receiver for the Bankruptcy Districts of the State of New South Wales and the Australian Capital Territory, sworn and filed 12 July 2006 (“Inga’s Affidavit”); and
b)the affidavit of Antony Wolody, a director of Wolody Strata Management Pty Ltd, and said to have been appointed as the Managing Agent of The Owners – Strata Plan No 811 on 31 July 2000, sworn 25 August 2006 and filed on 29 August 2006 (“Wolody’s Affidavit”).
In relation to Inga’s Affidavit counsel for the Official Trustee said that there was a file note, and that his instructions were, that an employee of ITSA served the Applicant on 12 July 2006, and that it was personally served. The Court accepted an undertaking from the Official Trustee’s counsel that an affidavit of service would be filed within seven days.[10] Two days later, on 27 October 2006, Philip Madden, an employee of ITSA filed an affidavit in which he said that the Applicant was served with Inga’s Affidavit by certified post on 12 July 2006, and that there was no record of the certified post having been returned.[11]
[10] Transcript of Proceedings, 25 October 2006.
[11] Affidavit of Philip Madden, 27 October 2006, paras. 1 and 2 (“Madden’s Affidavit”).
On the basis of Madden’s Affidavit the Court finds that Inga’s Affidavit was properly served on the Applicant.
In relation to Wolody’s Affidavit counsel for the Respondent referred the Court to an affidavit declared and affirmed by Jane Crittenden, a solicitor employed by the Respondent’s solicitor, which said that Wolody’s Affidavit was served by Express Post on 30 August 2006, and that it had not been returned to the offices of the Respondent’s solicitor.[12]
[12] Affidavit of Jane Frances Crittenden, 11 September 2006, paras. 3 and 4 (“Crittenden’s Affidavit”).
On the basis of Crittenden’s Affidavit the Court finds that Wolody’s Affidavit was properly served on the Applicant.
The Applicant asserted that these affidavits had to be personally served. However, r.6.11 of the Federal Magistrates Court Rules, 2001 (Cth) (“FMC Rules”) provides that these affidavits may be sent by prepaid post addressed to the Applicant which, on the evidence referred to above, was the means adopted to effect service of those affidavits.
The Court is further satisfied, as a consequence of going through each document then on the Court file with the Applicant in Court, that there is nothing on the Court file that the Applicant is unaware of.
The Applicant’s evidence – Mahmoud’s Affidavit
Mahmoud’s Affidavit was tendered in Court on 25 October 2006. Initially it was tendered in that part of the proceedings on 25 October 2006 related to the abovementioned Notice of Motion.[13]
After strenuous objection from the Applicant in the Notice of Motion proceedings a copy of Mahmoud’s Affidavit was provided, by the Court, to counsel for the Respondent and the Official Trustee.[13] See paras. 9-12 above.
In the annulment of sequestration order proceedings the Applicant, eventually, decided that he wished to rely upon Mahmoud’s Affidavit. Notwithstanding the Applicant’s previous failure to comply with the
23 May 2006 Orders and 1 August 2006 Orders the Court allowed Mahmoud’s Affidavit to be relied upon in the annulment proceedings, subject to objections from counsel for the Respondent and counsel for the Official Trustee as to admissibility.Mahmoud’s Affidavit simply sets out his occupation,[14] his address and declares and affirms that he annexes various documents, as follows:
“01 -I annex herewith annex A which is an affirmed affidavit proving that the Owners’ Corporation Strata Plan 811 is disclaiming all payments ordered against Tosson Mahmoud.
02 -Annex B is a letter to the ITSA which it has illegally and illegitimately ignored.
03 -Annex C is the Summons filed on 24-10-06 at the Supreme Court against David Le Page.
04 -Annex D is the Affidavit filed on 24-10-06 at the Supreme Court against David Le Page.”[15]
[14] See para. 1 above.
[15] Mahmoud’s Affidavit, page 1.
Annexure A to Mahmoud’s Affidavit
Annexure A to Mahmoud’s Affidavit is of three pages, being a copy of an affidavit filed in proceedings in the Supreme Court of New South Wales Sydney Registry Court of Appeal, and purporting to be an affidavit by the Applicant as Chairman and Treasurer of the Owners Corporation. Relevantly, it is in the following terms:
“Statement
01 -The Owners’ Corporation Strata Plan 811, located at 417 Liverpool Rd., Ashfield NSW, 2131, states herein that it disclaims all payments of all sorts made against Mr. Tosson Mahmoud, the Chairman and Treasurer of our Owners’ Corporation Strata Plan 811, by orders from North Sydney Local Court on 01-12-2003 and on all other dates and that includes all payments for costs ordered against Mr. Tosson Mahmoud as for solicitors’ fees and costs in favor of our Owners’ Corporations. Our Owners’ Corporation states herein that it disclaims all other payments of all sorts whatsoever, made against Mr. Tosson Mahmoud or will be made against him by any other court or by any other jurisdiction, in favour of our Owners’ Corporation.
02 -As for the Cross Claim, dated 13-04-2006 and filed at the Supreme Court by Mr. Tosson Mahmoud, the Owners’ Corporation Strata Plan 811 herein states that the Owners’ Corporation owes money, to Mr. Tosson Mahmoud, the amount of which is for the Court of Appeal to determine.”[16]
[16] Mahmoud’s Affidavit, Annexure A.
The Statement dated 28 July 2006 is signed by the Applicant alone.
The admissibility of Annexure A was subject to objection by counsel for the Respondent and counsel for the Official Trustee, who likewise objected to any document similar in form and content in Mahmoud’s Affidavit.
The basis for the objection was that the Statement was not admissible as a business record of the Respondent.
In relation to the Notice of Motion the Court had upheld an objection to the admissibility of Annexure A on the basis that it was not a business record of the Respondent and not properly proven in any way.[17]
[17] Mahmoud [No. 2] at para. 13 per Lucev FM.
Annexure A is a document created by the Applicant. It is entirely self-serving, in so far as it attempts to:
a)absolve the Applicant from any debts to the Owners Corporation; and
b)establish that the Owners Corporation owes to the Applicant an amount (of $862,119.35) the subject of a purported cross-claim in NSW Supreme Court proceedings.[18]
[18] As to which see para. 51(e) and (f) below.
There is no record put forward by the Applicant to support the assertion he is Chairman of the Owners Corporation.
Annexure A is not a business record documenting the activities of the business of the Owners Corporation,[19] or kept, that is, retained or held by the Owners Corporation.[20] Rather, it has been created and retained and held by the Applicant for his own purposes. Annexure A is inadmissible.
[19] Roach v Page (No. 15) [2003] NSWSC 939 at paras 5-6 per Sperling J.
[20] Evidence Act, 1995 (Cth), s.69(1)(a). ASIC v Rich (2005) 216 ALR 320 at 345-346 per Austin J; [2005] NSWSC 417 at paras [98]-[100] per Austin J.
Annexure B to Mahmoud’s Affidavit
Annexure B is a letter signed by the Applicant directed to ITSA “in relation to your file of the so-called Bankruptcy No. NSW2499/5/7 (N40)”.[21] The substance of the letter is similar to the Annexure A Statement in so far as it disclaims all payments against the Applicant. It goes on to request discontinuance of Supreme Court proceedings concerning possession of a unit located at 16/417 Liverpool Road, Ashfield, New South Wales (“the Ashfield Unit”), and claims that the Respondent owes the Applicant money, in a matter subject to appeal to the New South Wales Court of Appeal.[22]
[21] Mahmoud’s Affidavit, Annexure B, para. 01.
[22] Mahmoud’s Affidavit, Annexure B, para. 02.
Counsel for the Official Trustee objects to the admissibility of Annexure B on the same bases as the objections to the Annexure A Statement.
Annexure B is inadmissible for the same reasons as Annexure A.
Annexures C and D to Mahmoud’s Affidavit
Annexure C is a summons in the common law division of the Supreme Court of New South Wales directed to David Le Page, the solicitor for the Respondent in these proceedings (“the Le Page Summons”).
Under the summons the plaintiff (the Applicant) claims an order canceling Mr Le Page’s practicing certificate, and further that neither he nor anyone else acting for him and or associated with him appear in any court to represent clients or to provide any other legal services of any kind.Annexure D is a document of 44 pages being an affidavit of the Applicant in relation to the Le Page Summons.
Annexure D itself contains a number of other annexures.
Annexure A to Annexure D purports to be a true copy of various sections of the Legal Profession Act, 1987 (NSW).[23] The Legal Profession Act, 1987 (NSW) was repealed by the Legal Profession Act, 2004 (NSW).
[23] The extracts appear to have been taken from the Butterworths Lexis Nexus publication entitled “New South Wales Solicitors Manual”, being pages 130,119-130,200 and 130,251 and 130,252 of an unidentified version of that manual (although the former pages are noted as being from Service 15, and the latter pages from Service 3).
Annexure B to Annexure D is a further copy of the Annexure A Statement. It is objected to as the Annexure A Statement and is inadmissible for the same reasons as Annexure A.
Annexure C to Annexure D is a copy of a Notice of Appearance filed in the Federal Court of Australia purporting to be in a matter concerning representation and authority in relation to The Owners Corporation.
Annexure D to Annexure D is a copy of the Notice of Appearance in this matter.
Annexures E and F to Annexure D contain a gallimaufry of matters best described in the Applicant’s words taken from the Affidavit in support of the Le Page Summons:
“5 - Annex E of 35 pages is a true copy of the correspondence of Tosson Mahmoud to the Prime Minister of Australia on the 30th of August, 2006. It does illustrate the scandalous crimes committed by the gang of the Wolody family, who is invading our Strata Plan 811, and its conspiracy with the bribed corrupt Police, the corrupt Intensive Psychiatric Care Unit at the Rozelle Hospital and with many others against Tosson Mahmoud in its desperate attempt to finish him off by discrediting him by libeling and labeling him as a mentally ill person so that he can be removed by that very sinister, vicious and monstrous mean (sic) from the Strata Plan 811 and the way will then become clear to the gang of the Wolody family to continue exercising its monstrous crimes against the owners of Strata Plan 811.
6 - Annex F of nine pages which is a true copy of the correspondence of Tosson Mahmoud to the Prime Minister of Australia on the 26th of September, 2006. It does complete the picture stated in annex E above.
Both annexes E and F above demonstrate very clearly the very real deep magnitude of the conspiracy by the criminal extortionist gang of the Wolody family with its associates. They show clearly that the appellant is a victim of a very serious miscarriage of justice and that he isn’t a bankrupt person, that the matter is very far from that and that the very serious and very vicious crimes committed by that gang of Wolody and his associates are continuing until now against the appellant to snatch very unjustly and very illegally the only residence of the appellant from him and to throw him on the street as a pure revenge and a pure declaration of victory of the gang against the victim appellant who, in the view of the gang, dared to stand for his rights and for the rights of the owners of Strata Plan 811 according to law and who exposed the crimes of the gang.”
The body and content of annexures E and F to annexure D concern the Applicant’s treatment at the Intensive Psychiatric Care Unit of Rozelle Hospital. There are also some documents concerning the Respondent and an alleged illegal entry into the Ashfield unit, and some other documents clearly irrelevant to the current application.
Counsel for the Respondent objected to the admissibility of any allegations of wrongdoing or incompetence against Mr Le Page. Counsel said that they were mere assertions, not evidence and were not relevant to the annulment of the sequestration order.
The Le Page Summons is irrelevant to the Applicant’s application to annul the sequestration order. Even if the Le Page Summons is ultimately granted in the terms sought (and that patently is a matter for the Supreme Court of New South Wales), it does not affect the grant, or annulment, of the sequestration order. Certainly that can be said of Annexure C and Annexures A-D of Annexure D. Annexures E-F to Annexure D are no more than a series of irrelevant and wholly unsubstantiated assertions and allegations made about a range of matters contained in letters to the Prime Minister of Australia.
Annexures C and D are inadmissible as evidence in these proceedings.
Applicant’s evidence – other documents
The Applicant also sought to rely on two further documents:
a)
purported minutes of a meeting of the Owners Corporation on
5 December 2003; and
b)
purported minutes of a meeting of the Owners Corporation on
25 February 2005.
(together “the Purported Minutes”).
The admissibility of the Purported Minutes as business records of the Respondent was challenged by counsel for the Respondent.
The Purported Minutes are not admissible for the same reasons as are set out in paras. 30(a), 31 and 32 above.
The Official Trustee’s report
The report filed on behalf of the Official Trustee (Inga’s Affidavit) under r.7.04 of FMC Bankruptcy Rules, 2006 (Cth) indicates that:
a)
the sequestration order was made on 23 May 2005, noting the date of the act of bankruptcy as 23 February 2005.[24]
[24] Inga’s Affidavit, para. 2 and annexure A.
The Application was filed and served almost a year after the sequestration order was made;[25]
[25] Application; Inga Affidavit, para. 6 and annexure D.
b)the Applicant has failed to file a Statement of Affairs with the Official Receiver, contrary to s.54(1) of the Bankruptcy Act, 1966 (Cth) (“Bankruptcy Act”);[26]
[26] Inga’s Affidavit, paras. 4 and 5. On 14 February 2006 the Applicant was convicted and fined for breaching s.54(1) of the Bankruptcy Act: Inga’s Affidavit, para. 5.
c)the Applicant is the sole registered proprietor (subject to mortgage) of the Ashfield Unit.[27] The value of the Ashfield Unit is unknown as the Applicant has failed to file a Statement of Affairs;
[27] Inga’s Affidavit, paras. 7 and 8 and annexures F and G.
d)as at late May 2005 the Applicant’s known creditors were:
i)HSBC Bank Australia Limited for the sum of $75,412.00 on the Ashfield Unit mortgage;[28] and
[28] Inga’s Affidavit, para. 8 and annexure G.
ii)NSW Teachers Credit Union for the sum of $10,000.00 on a continuing credit contract;[29]
[29] Inga’s Affidavit, para. 6 and annexure E.
e)a Statement of Claim for possession of the Ashfield Unit was filed in the NSW Supreme Court by the Official Trustee in Bankruptcy on 12 December 2005, seeking vacant possession to enable the sale of the property under the Official Trustee’s powers under the Bankruptcy Act;[30]
[30] Inga’s Affidavit, para. 9 and annexure H (“the Possession Proceedings”).
f)the Applicant (as Defendant) filed a Defence and Statement of Cross-Claim in the Possession Proceedings on 13 April 2006.[31] In an unparticularised Defence and Cross-Claim the Applicant (Defendant) cross-claims $783,703.95 against The Owners Corporation and the Official Trustee “for expenses, costs, court costs they caused to him since 1999 to April 2006”, and with interest and service fees the total sum cross-claimed is $862,119.35;[32]
[31] Inga’s Affidavit, para. 10 and annexure I.
[32] Inga’s Affidavit, annexure I.
g)no Notice of Intention to Declare Dividend to Creditors has yet been despatched because of the failure of the Applicant to file a Statement of Affairs;[33]
[33] Inga’s Affidavit, para. 11.
h)a proof of debt from the Owners Corporation has been admitted to rank for dividend in the sum of $77,704.00.[34] The debts described include:
[34] Inga’s Affidavit, annexure J.
i)five local court default judgments;
ii)outstanding levies and interest owed to the Owners Corporation;
iii)expenses incurred in accordance with s.80(1) of the Strata Schemes Management Act, 1996 (NSW), which provides for recovery as a debt of contributions unpaid, and interest and the expenses of the Owners Corporations incurred in recovering those amounts;
iv)costs incurred as a result of alleged acts of the Applicant, for example:
1. work commissioned by the Applicant representing himself as the Chairman of the Owners Corporation;
2. nuisance (especially for cleaning of various areas);
3. vandalism (particularly to electrics, plumbing and locks); and
4. excess water charges (for taps left running);[35]
i)an amount of $137,117.06 (excluding claims by undisclosed creditors) is estimated as being required to pay the fees and costs of the administration to date.[36]
[35] Inga’s Affidavit, exhibit J.
[36] Inga’s Affidavit, para. 13.
The evidence of the Respondent
Other than to the extent to which it has already been referred to, it is unnecessary to refer to the Respondent’s evidence contained in Wolody’s and Crittenden’s Affidavits.
Statutory framework
Section 153B of the Bankruptcy Act provides that:
“If the Court is satisfied that a sequestration order ought not to have been made … the Court may make an order annulling the bankruptcy”.
Principles – whether a sequestration order ought not to have been made
Much has been written on the expression “ought not to have been made” in s.153B of the Bankruptcy Act.[37]
[37] See Re Williams (1968) 13 FLR 10 at 23 per Gibbs J; Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 350 per Gummow J (“Re Ditford”); Re Ginnane; Ex parte Ginnane (1994) 60 FCR 429 at 445-446 per Ryan J (“Re Ginnane”); Re Gollan; Ex parte Gollan (1992) 40 FCR 38 at 40-41 per Spender J (“Re Gollan”); Re Frank; Ex parte Piliszky (1987) 16 FCR 396 at 403 per Fisher J (“Re Frank”); Hudson v Whalan [1999] FCA 189 at paras. 9-12 per Sackville, North and Hely JJ (“Hudson”); Stankiewicz v Plata [2000] FCA 1185 at paras. 19 and 20 per Drummond, Sackville and Dowsett JJ (“Stankiewicz”); Boles v Official Trustee in Bankruptcy [2001] FCA 639 at paras. 16 per Emmett J, (Katz and Conti JJ agreeing) (“Boles”); Baker v Rigg [2005] FCA 1760 at para. 23 per Wilcox J (“Baker”); Plant v Ken Smith Electronics Pty Ltd & Anor [2000] FMCA 7 at para. 3 per Raphael FM (“Plant”); Byczko v Sheahan [2001] FMCA 120 at paras. 12-14 per Raphael FM (“Byczko”).
The following principles can be distilled from the various writings:
a)the Court considers the case not only as disclosed at the time the sequestration order was made, but as it would be had all the true facts been before the Court;[38]
b)the true facts include those known at hearing of the annulment application to have existed at the time the sequestration order was made;[39]
c)an order should not be annulled unless the Court was in the circumstances bound not to make it;[40]
d)a bankrupt whose assets exceed debts at the date of the sequestration order will ordinarily be entitled to an annulment of bankruptcy, subject to the giving of undertakings to pay the costs of:
i)the petitioning creditor, and
ii)the administration by the Official Trustee,
and provided the assets are realisable, sufficient to pay the debt, within a relatively short time;[41] and
e)even if the Court is satisfied that a sequestration order ought not to have been made, it has a residual discretion not to annul the order.[42]
[38] Re Williams at 23 per Gibbs J; Stankiewicz at para. 19, per Drummond, Sackville and Dowsett JJ.
[39] Re Ditford at 305 per Gummow J; Re Ginnane at 445-446 per Ryan J; Re Gollan at 40-41 per Spender J; Stankiewicz at para. 20 per Drummond, Sackville and Dowsett JJ; Re Boles at para. 16 per Emmett J (Katz and Conti JJ agreeing); Baker at para. 23 per Wilcox J; Byczko at para. 12 per Raphael FM.
[40] Re Frank at 403 per Fisher J, followed in Hudson at paras. 10-11 per Sackville, North and Hely JJ; Boles at para. 16 per Emmett JJ (Katz and Conti JJ agreeing); Baker at para. 23 per Wilcox J; Plant at para. 3 per Raphael FM.
[41] Re Gollan at 41-42 per Spender J; Stankiewicz at paras. 29-30 per Drummond, Sackville and Dowsett JJ. See also Sandell v Porter (1966) 115 CLR 666 at 670 per Barwick CJ.
[42] Re Williams at 23 per Gibbs J; Stankiewicz at para. 20 per Drummond, Sackville and Dowsett JJ; Re Frank at 403 per Fisher J, followed in Hudson at paras. 10-11 per Sackville, North and Hely JJ; Re Boles at para. 16 per Emmett J (Katz and Conti JJ agreeing); Baker at para. 23 per Wilcox J; Plant at para. 3 per Raphael FM; Byczko at para. 14 per Raphael FM.
Conclusions – findings
The Applicant has tendered no admissible evidence in support of the Application. There is nothing before me to indicate that the sequestration order was not bound to be made. The Application must therefore be dismissed.
In any event, the Court exercises its discretion not to annul the sequestration order, for the following reasons:
a)the Applicant has not filed a Statement of Affairs, and it is therefore not possible to know precisely who his creditors might be;[43]
b)because the Applicant has not filed a Statement of Affairs it is not possible to determine whether he has unencumbered assets sufficient to meet the debts to creditors, including possibly unknown creditors;[44]
c)that, notwithstanding the provisions of the Bankruptcy Act relating to the powers and duties of Official Trustee (including ss.18, 19, 109, 129(1), 134, 135, 140, 145, 156A, 165, 173 and 174), the Applicant continues to refuse to recognise the “existence” of the Official Trustee or the role of the Official Trustee, and refuses to assist the Official Trustee;[45]
d)the almost one year delay in making the annulment application;[46] and
e)the Applicant has neither given nor offered undertakings of any kind.[47]
[43] Boles at para. 39 per Emmett J; Lockhart v DCT [2005] FMCA 641 at paras. 12-13 per McInnis FM (“Lockhart”).
[44] Lockhart at para. 13 per McInnis FM; Plant at para. 25 per Raphael FM.
[45] See generally Transcript of Proceedings, 25 October 2006; Boles at para. 39 per Emmett J.
[46] Boles at para. 40 per Emmett J.
[47] Stankiewicz at para. 32 per Drummond, Sackville and Dowsett JJ.
The Court will therefore also dismiss the Application in the exercise of the Court’s residual discretion.
Orders
The Court therefore makes the following orders:
a)that the application for annulment of the sequestration order be dismissed;
b)that the matter be transferred to the docket of Federal Magistrate Lucev; and
c)that the matter be adjourned to a further directions hearing before Federal Magistrate Lucev at 9.30 am WDST (11.30 am EDST) on 31 January 2007 by videolink from Perth to Sydney in relation to the disposition of final orders 2 to 11 sought by the Applicant in the Application.
I will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 7 December 2006
“Women should not be in any senior position over men. Nature does not mean it to be.”
The Applicant applied for relief from an alleged unfair dismissal arising from the abovementioned attack, and that application was dismissed by Deputy President Grayson of the NSW Industrial Relations Commission: Mahmoud v The Department of Education and Training [2006] NSWIR Comm 56.
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