Mahommed v Cox

[2025] FCA 469

FEDERAL COURT OF AUSTRALIA

Mahommed v Cox [2025] FCA 469

File number:

NSD 1874 of 2024

Judgment of:

MARKOVIC J

Date of judgment:

14 May 2025

Catchwords:

BANKRUPTCY AND INSOLVENCY – appeal from decision of primary judge to dismiss application for review of registrar’s decision to dismiss an application to set aside a bankruptcy notice – whether appellant has a counter-claim, set-off or cross demand equal to, or in excess of, the judgment debt – where judgment debt created by a costs order – appeal dismissed  

Legislation:

Bankruptcy Act 1966 (Cth) s 40(1)(g)

Cases cited:

Capsanis, in the matter of Capsanis v Owners – Strata Plan 11727 [2000] FCA 1262

Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

50

Date of hearing:

1 May 2025

Counsel for the Appellant:

The appellant appeared in person.

Counsel for the Respondent:

Mr D Allen

Solicitor for the Respondent:

Shaba & Thomas Lawyers

ORDERS

NSD 1874 of 2024

BETWEEN:

MR PETER MAHOMMED

Appellant

AND:

KAREN ANN COX AS ADMINISTRATOR OF THE DECEASED ESTATE OF DAVID WILLIAM DIXON

Respondent

ORDER MADE BY:	MARKOVIC J
DATE OF ORDER:	14 MAY 2025

THE COURT ORDERS THAT:

1.The appellant’s amended notice of appeal filed on 6 March 2025 is dismissed.

2.The appellant is to pay the respondent’s costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1. This is an appeal from orders made by the Federal Circuit and Family Court of Australia (FCFCoA) on 28 November 2024 dismissing with costs an application made on 19 September 2023 for review of a decision by a registrar by which the registrar, in turn, had dismissed an application to set aside a bankruptcy notice with costs: see Mahommed v Cox [2024] FedCFamC2G 1299 (J). 

   BACKGROUND

2. The background to the proceeding before the primary judge and, it follows, for the most part to this appeal is set out at J[4]-[17]. I set out a summary below.

3. In 2020 the appellant, Peter Shah Mahommed, and another person, Roger Ward, as plaintiffs commenced proceeding No 2020/247595 in the Supreme Court of New South Wales (Supreme Court Proceeding).  Westpac Banking Corporation and the respondent to this appeal, Karen Ann Cox as administrator of the deceased estate of David William Dixon, were respondents to the Supreme Court Proceeding. 

4. The background to the Supreme Court Proceeding was summarised in Ward v Westpac Banking Corporation Ltd [2023] NSWCA 11 (Griffiths AJA, with whom Ward P and Adamson JA agreed) at [12]-[15] as follows:

   [12]The proceedings were commenced in 2020 by Mr Ward and Mr Mahommed. The named defendants were initially Westpac and the Registrar General of Titles, NSW. On 31 May 2021, the plaintiffs filed an amended statement of claim joining Ms Cox in her capacity as administratrix…