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Rahman v Dubs

Rahman v Dubs

Case [2019] FCCA 3899 24 September 2019

Judicial Review

Jurisdiction

Statutory Construction

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FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN v DUBS & ORS

[2019] FCCA 3899

Catchwords:
BANKRUPTCY – Sequestration order – application to annul bankruptcy s.153B of the Bankruptcy Act 1966 (Cth) – Applicant claims that he did not owe any money, that the bankruptcy notice was a miscarriage and error, as was the judgment on the creditor’s petition, and the sequestration order – no such evidence presented – previous proceedings brought by the Applicant referred to – Application dismissed.

CONSTITUTIONAL LAW – Constitutional power to enact Bankruptcy Act 1966 (Cth) – Constitution s.51(xvii) – plenary power in relation to bankruptcy – power in relation to bringing matters from State Courts to Federal Courts – fundamental misunderstanding of the law – Application dismissed.

Legislation:

Bankruptcy Act1966 (Cth), ss.153B, 58(1)(a)
Constitution s.51(xxxvii)
Federal Circuit Court of Australia Act 1999 (Cth), ss.17AA(b), 31A
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r.7.03
Limitation Act1969 (NSW), s.37
Real Property Act1900 (NSW), s.127
Supreme Court Act1970 (NSW), s.69

Cases cited:

Boles v Official Trustee in Bankruptcy [2001] FCA 639; (2001) 183 ALR 239
Bulic v Commonwealth Bank of Australia Limited [2007] FCA 307
Dubs v Rahman [2012] FMCA 664
Francis v Eggleston Mitchell Lawyers Pty Limited [2014] FCAFC 18
Hacker v Weston [2015] FCA 363
Jaafar v Gleeson In his CAPACITY as Bankruptcy Trustee of the Bankrupt Estate of Mohamad Jaafar & Anor [2019] FCCA 1226
Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481
Lombe (Trustee) In The Matter of Rahman (Bankrupt) [2017] FCCA 750
Ozer v Australian Liquor Marketers Pty Limited [2001] FCA 1197
Rahman v Dubs [2010] NSWCA 129
Rahman v Dubs (No. 2) [2012] FCA 1081
Rahman v Lombe [2018] FCA 457
Re Davison [1997] HCA 42; (1997) 147 ALR 259
Re Lawson (1939) 11 ABC 137
Re Wakim; Ex Parte McNally [1999] HCA 27; (1999) 198 CLR 511
Shaw v Yarranova Pty Limited [2016] FCA 88
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Dept of Community Services and Health (1990) 22 FCR 73

Applicant:

MOHAMMAD TABIBAR RAHMAN

First Respondent:

ROSALIND V DUBS

Second Respondent:

AUSTRALIAN FINANCIAL SECURITY AUTHORITY

Third Respondent:

DAVID JOHN FRANK LOMBE

File Number:

SYG 3339 of 2018

Judgment of:

Judge Baird

Hearing date:

24 September 2019

Date of Last Submission:

24 September 2019

Delivered at:

Sydney

Delivered on:

24 September 2019

REPRESENTATION

Solicitors for the Applicant:

Mr M T Rahman in person

Counsel for the Third Respondent:

Mr A Spencer

Solicitors for the Respondent:

DWF (Australia)

Solicitors for the Third Party Creditors:

Mr D Wong, Makinson d’Apice Lawyers

ORDERS

The application by the applicant, Mr Rahman, that I recuse myself from hearing this matter be refused.
The interim application filed by Mr Rahman filed on 19 July 2019 be dismissed.
The Application filed 30 November 2018 be dismissed.
The Trustee’s costs of and incidental to this Application are to be paid out of the Bankrupt’s estate in accordance with s.109 of the Bankruptcy Act 1966 (Cth).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahman v Dubs

Details

AGLC: Rahman v Dubs [2019] FCCA 3899
Case: [2019] FCCA 3899
Decision Date: 24 September 2019

CaseChat Overview and Summary

In *Rahman v Dubs*, the applicant, Mr Rahman, sought to annul his bankruptcy pursuant to section 153B of the *Bankruptcy Act 1966* (Cth). Mr Rahman contended that he did not owe any money, that the bankruptcy notice was issued in error, and that the subsequent creditor's petition and sequestration order were similarly flawed. The matter came before Judge Baird in the Federal Court of Australia.

The primary legal issues before the Court were whether the applicant had established grounds for annulling his bankruptcy, and whether the *Bankruptcy Act 1966* (Cth) was constitutionally valid, particularly in relation to section 51(xvii) of the Constitution which grants the Commonwealth Parliament legislative power in respect of bankruptcy and insolvency. The Court was also required to consider the applicant's assertions regarding errors in the bankruptcy notice, creditor's petition, and sequestration order.

Judge Baird dismissed the application, finding that Mr Rahman had failed to present any evidence to support his claims that he did not owe money or that the bankruptcy proceedings were erroneous. The Court noted that previous proceedings brought by the applicant had also been unsuccessful. Furthermore, the Court found that the applicant demonstrated a fundamental misunderstanding of the law, including the constitutional validity of the *Bankruptcy Act 1966* (Cth) and the Commonwealth's plenary power under section 51(xvii) of the Constitution. The application was accordingly dismissed.

Orders