Majeed v Mahmud

[2013] NSWCA 52

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Majeed v Mahmud [2013] NSWCA 52

Hearing dates:

5 March 2013

Decision date:

05 March 2013

Before:

Beazley JA; Meagher JA

Decision:

The summons for leave to appeal is dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DISMISSAL OF SUMMONS FOR LEAVE TO APPEAL - failure to serve in compliance with UCPR 2005, r 11.2 - no order for substituted service.

DISMISSAL OF SUMMONS FOR LEAVE TO APPEAL - refusal to stand over summons - insufficient prospects of success - vesting of proceedings of an undischarged bankrupt in bankruptcy trustee - absence of evidence of reasons for delay.

Legislation Cited:

Bankruptcy Act 1966
Uniform Civil Procedure Rules 2005

Category:

Principal judgment

Parties:

Mohd Farok Abdul Majeed (Applicant)
Onn Mahmud (Respondent)

Representation:

Counsel:
In person (Applicant)
No appearance (Respondent)
Solicitors:
In person (Applicant)

File Number(s):

2013/28968

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9111

Citation:

Majeed v Mahmud [2008] NSWSC 309

Date of Decision:

2008-01-30 00:00:00

Before:

Brereton J

File Number(s):

SC 5010/06; 4977/07

Judgment

1. THE COURT: The Court gives the following judgment in the matter. The Court has before it a summons for leave to appeal filed on 30 January 2013 in respect of orders made by Justice Brereton on 30 January 2008 whereby his Honour set aside judgments that the applicant, Mr Majeed, had obtained against the respondent on 31 August 2007.

1. Mr Majeed appeared for himself on the hearing of the summons for leave to appeal today. There was no appearance for or on behalf of the respondent, Mr Mahmud.

1. Mr Majeed informed the Court that the summons for leave to appeal had been forwarded to Mr Mahmud by ordinary mail to an address in Singapore in circumstances where Mr Majeed understands that Mr Mahmud no longer lives in Australia. Forwarding the summons for leave to appeal in that way did not constitute service within the provisions of the Uniform Civil Procedure Rules 2005, r 11.2 and no order for substituted service has been made. In circumstances where the summons has not been served, the Court cannot deal with the matter today.

1. There are other problems which Mr Majeed encounters in seeking to have this Court deal with the matter in any event. Perhaps the most significant of them is the fact that Mr Majeed has informed the Court that he was made bankrupt at the instance of Mr Mahmud in November 2009 and has informed the Court that he has not been discharged from his bankruptcy. In those circumstances it is likely that any proceeding that Mr Mahmud now seeks to bring including the present summons seeking leave to appeal is vested in his trustee pursuant to the provisions of the Bankruptcy Act 1966 s 58.

1. In any event, there are problems on the present summons seeking leave to appeal. In particular, there is an absence of any evidence of the reasons for the almost five year delay in bringing the summons, although Mr Majeed has included in his argument reasons why this may have been so. But those arguments did not constitute evidence.

1. Further, Mr Majeed's argument in support of the summons seeking leave to appeal does not identify any basis upon which the judgment of Justice Brereton was arguably wrong.

1. As the matter presently stands, Mr Majeed has not been able to demonstrate that there are sufficient prospects of success so as to persuade the Court that the appropriate order to be made today is that the summons be stood over so as to allow Mr Majeed, inter alia, to seek substituted service of the summons. Even if he did so, there are the questions of his bankruptcy which would still need to be dealt with.

1. Accordingly, the Court proposes to dismiss the summons. In doing so, we do not intend to foreclose any application Mr Majeed may wish to bring in the future. However, the reasons just given should give an appropriate indication of the problems that Mr Majeed may face in bringing any such application.

1. The order that the Court makes today is that the summons for leave to appeal is dismissed.

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Decision last updated: 12 March 2013