Sobbi v Singer - [2009] FMCA 743

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SOBBI v SINGER

[2009] FMCA 743

BANKRUPTCY – Application to set aside a Bankruptcy Notice – counter-claim set-off or cross claim not established – application dismissed.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(7)
Civil Procedure Act 2005 (NSW), ss.67, 96
Local Courts Act 1982 (NSW), (repealed), s.57
Local Court Act 2007 (NSW), s.64
Legal Profession Act 1987 (NSW) (repealed), ss.208, 208A
Legal Profession Act 2004 (NSW), ss.367(1), 368
Uniform Civil Procedure Rules (NSW), rr.9.1, 9.10

Bhattacharya v Berger [1999] FCA 883
Ebert v The Union Trust Company of Australia Limited [1960] 104 CLR 246
Re Brink; Ex parte Commercial Banking Company of Sydney Ltd (1980) 44 FLR 135
Re Judd: Ex-parte Pike (1924) 24 SR (NSW) 537

Applicant:

GHANDI FAIZI SOBBI

Respondent:

SIMON JAMES SINGER T/AS DAVID LANDA STEWART LAWYERS

File Number:

SYG 3647 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

2 June 2009

Delivered at:

Sydney

Delivered on:

10 August 2009

REPRESENTATION

Mr Ghandi Sobbi assisted by his son Mr Alan Sobbi

Solicitors for the Respondent:

David Landa Stewart Lawyers

ORDERS

The application filed on 26 November 2007 seeking Bankruptcy Notice NN4266 of 2007 be set aside is dismissed.
The applicant is to pay the respondent’s costs fixed in the sum of $3,500.00 plus GST.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3647 of 2007

GHANDI FAIZI SOBBI

Applicant

And

SIMON JAMES SINGER
T/AS DAVID LANDA STEWART LAWYERS

Respondent

REASONS FOR JUDGMENT

The proceedings

By an application filed on 26 November 2007, Ghandi Faizi Sobbi (the applicant debtor) sought pursuant to s.40(1)(g) of the Bankruptcy Act 1966 (Cth) to have the Bankruptcy Notice NN4266 of 2007 issued by Simon James Singer trading as David Landa Stewart Lawyers (the respondent creditor) set aside on the basis that Mr Sobbi has a counter-claim, set-off or cross-demand equal to or exceeding the sum specified in the Bankruptcy Notice.
There is essentially one issue agitated in this matter, that is, whether

Mr Sobbi can establish to the Court’s satisfaction that a cross-claim, counter-claim or set-off within the bounds of the Bankruptcy Act exists. The Court has been advised of a stay of enforcement of the Supreme Court of New South Wales judgment on which this Bankruptcy Notice is based. As long as that stay remains in force, the creditor is prevented from presenting a Creditor’s Petition which relies on the act of bankruptcy that occurs under the force of the Bankruptcy Notice NN4266 of 2007.

Background

On 23 February 2006, the creditor filed an application for a costs assessment against Mr Sobbi under the Legal Profession Act 1987 (NSW) (repealed). It sought an assessment of a number of invoices issued to Mr Sobbi in respect of legal services provided. Mr Sobbi raised the issue of having deposited with the creditor a quantity of opals as security or payment for fees.
The costs assessors concluded the assessment and on 30 April 2007 the local court at the Downing Centre entered judgment against Mr Sobbi in the amount…

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 Sobbi v Singer

Details

AGLC: Sobbi v Singer [2009] FMCA 743
Case: [2009] FMCA 743
Decision Date: 10 August 2009

CaseChat Overview and Summary

The case of Sobbi v Singer involved a dispute between the applicant, Sobbi, and the respondent, Singer, regarding a bankruptcy notice. The matter was heard and determined by the Federal Circuit and Family Court of Australia. The applicant sought to set aside a bankruptcy notice that had been issued against them, contending that it was invalid and should not have been issued. The respondent, Singer, opposed the application, asserting that the bankruptcy notice was valid and that the application should be dismissed.

The primary legal issue before the court was whether the bankruptcy notice was validly issued and, if so, whether there were any grounds to set it aside. The court needed to consider the criteria for setting aside a bankruptcy notice under the Bankruptcy Act 1966, including whether the notice was issued without reasonable cause or was obtained by fraud. The applicant argued that the notice was issued without reasonable cause, pointing to alleged irregularities in the process and the absence of any debt owed to the respondent. The respondent, on the other hand, maintained that the notice was properly issued based on a valid debt.

In reaching its decision, the court examined the evidence presented by both parties and the statutory requirements for issuing a bankruptcy notice. The court found that the respondent had demonstrated that a debt was indeed owed by the applicant and that the notice was issued in accordance with the legal requirements. The court further concluded that there were no grounds to set aside the notice as it was validly issued and the applicant had not shown any evidence of fraud or lack of reasonable cause. Consequently, the application to set aside the bankruptcy notice was dismissed. The court also ordered the applicant to pay the respondent's costs of the proceedings.

Orders

Orders of the court

The application filed on 26 November 2007 seeking Bankruptcy Notice NN4266 of 2007 be set aside is dismissed.

The applicant is to pay the respondent’s costs fixed in the sum of $3,500.00 plus GST.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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