Syed v Green Lion Pty Ltd

[2013] FCCA 763

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED v GREEN LION PTY LTD & ORS [2013] FCCA 763

Catchwords:
BANKRUPTCY – Application for extension of time to review sequestration order – applicant withdrew application in the second day of hearing – only extant issue was whether an obvious error in the name of the bankrupt should be corrected.

Legislation:

Bankruptcy Act 1966, s.109(1)(a)

Federal Circuit Court of Australia Act 1999, s.104(3)

Applicant: ABDUL RAFAY SYED

First Respondent: GREEN LION PTY LTD

Second Respondent: ANDREW REGINALD YEO (AS TRUSTEE IN BANKRUPTCY)

Third Respondent: GESS MICHAEL RAMBALDI (AS TRUSTEE IN BANKRUPTCY)

File Number: MLG 5 of 2013

Judgment of: Judge O’Dwyer

Hearing dates: 13 and 14 May 2013

Date of Last Submission: 14 May 2013

Delivered at: Melbourne

Delivered on: 14 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Bowden

Solicitors for the Applicant: Starnet Legal Pty Ltd

Counsel for the 
First Respondent: Mr Warren

Solicitors for the
First Respondent: Russell Kennedy

Counsel for the
Second and Third Respondents: Mr Cull

Solicitors for the
Second and Third Respondents: ICA Lawyers

THE COURT ORDERS BY CONSENT THAT:

1. Leave is granted to join Andrew Reginald Yeo and Gess Michael Rambaldi (as joint and several Trustees of the Estate of Abdul Rafay Syed) to be hereafter described as the Second and Third Respondents respectively. Green Lion Pty Ltd shall be consequently described as the First Respondent.

2. The oral application by the applicant on 13 May 2013 to extend time to file for a review of the sequestration order made on 16 October 2012 by Registrar Caporale is dismissed.

3. The application filed on 3 January 2013 is dismissed.

4. The Applicant pay the First Respondent’s costs of and incidental to this proceeding, including reserved costs and the cost of transcript, on an indemnity basis, to be taxed in default of agreement with priority accorded by s.109(1)(a) of the Bankruptcy Act 1966.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to Section 104(3) of the Federal Circuit Court of Australia Act 1999, the orders made by Registrar Caporale on 16 October 2012 in the Federal Circuit Court proceeding no MLG126 of 2012 are varied to read:

   (a)A sequestration order be made against the estate of ABDUL RAFAY SYED.

   (b)The Applicant’s costs, including reserved costs, be taxed on an indemnity basis, and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

2. The trustees’ costs be paid out of the bankrupt estate in accordance with the Bankruptcy Act 1966.

3. Liberty granted to the parties to inspect and copy documents produced in Court under subpoena.

AND THE COURT NOTES THAT:

A.Mr Warren for the Applicant acted as solicitor-advocate who was supported by an instructing solicitor.  It is the view of the Court that it was right and proper for the efficient administration of justice that an instructing solicitor was engaged in this proceeding to assist Mr Warren.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 5 of 2013

ABDUL RAFAY SYED

Applicant

And

GREEN LION PTY LTD

First Respondent

ANDREW REGINALD YEO (AS TRUSTEE IN BANKRUPTCY)

Second Respondent

GESS MICHAEL RAMBALDI (AS TRUSTEE IN BANKRUPTCY)

Third Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter before me today is in its second day of hearing.  It concerns an application by a bankrupt seeking to set aside, in effect, a sequestration order made on 16 October 2012 by Registrar Caporale.  There have been submissions in writing provided setting out the applicant’s position, and they have been countered by submissions in writing by the respondent and also by the representative of the trustees.

2. The applicant sought to withdraw his application during

   
   

   cross-examination when, as I understood it, he was exposed as untruthful.  Leave was granted on the basis that his application be dismissed.

3. Evidence has been given by Mr Abdul Rafay Syed, he being the applicant in these proceedings, to the effect that he had not lived at the address where service was effected, of requisite Court documents, nor had his wife.  Although, I might add, he did make a concession when I questioned him about never living there, he said, “You know, one or two days, a couple of weeks when my wife is overseas; things of that nature”.  So it was almost never. 

4. There were concerns raised in my mind throughout the proceeding about the veracity of Mr Abdul Rafay Syed. I got the distinct impression that there was an attempt to burden his brother Abdul Nafay Syed with the bankruptcy, suggesting as he did, that the name on the sequestration order, “Abdul Syed” was his brother’s name; the benefit of doing so was to, I suspect, shift the burden to his brother who was in a lesser financial position than the applicant.  In other words, the brother was to “take a hit” for him; that within the family of Abdul Syeds, the brother was identified as the person best able to suffer the bankruptcy.

5. A critical point arose in the cross-examination when Mr Abdul Rafay Syed was asked to identify signatures in documents. Having identified one signature as his brother’s, when asked to then identify another on the second tagged page of the exhibit that he was referred to, there was a ghostly silence.  Then, when Mr Bowden had an opportunity to also examine the exhibit, which unfortunately he had not seen up till then, Mr Bowden sought leave, which was granted, for him to discuss matters with his client.  When the matter proceeded after that, the applicant indicated he was prepared to consent to an order dismissing his application.

6. I think, clearly, what flowed from that course of action, and it is not unreasonable to draw these inferences and conclusions, is that his case lacked merit and the critical issue of his credibility was about to be exposed. He prudently, in my view, with the assistance of good advice, decided to withdraw his application.  There was a convoluted, in my view, attempt, conspiratorial in nature that seemed to involve other parties, including his brother, to try and frustrate the due and rightful exercise by the trustees of their responsibilities under the bankruptcy – namely, to execute against properties owned by Mr Abdul Rafay Syed.

7. As I indicated before, one got the very strong impression – although there was not ever any questions about it, but it was leading to this – that there was an attempt to shift the burden of the bankruptcy to someone in a lesser financial position than himself and in so doing, frustrate the judgment creditor; and the trustees and their entitlement, no doubt, to their proper costs in the administration of the estate and in respect of this proceeding. 

Only one extant issue for determination

1. Mr Bowden objects, on instructions, to the nature of the proposed orders sought in respect to the trustees’ request to amend the sequestration order to give the proper, full name of the applicant. 

2. Mr Bowden objects to, in effect what amounts to a rectification of a flawed, if I can put it that way – but not fatally flawed - bankruptcy order in that there is a middle name omitted from the name of the bankrupt, and there is under the proposed orders an attempt to right that wrong by amending the original sequestration order to refer to the bankrupt as “Abdul Rafay Syed”. 

3. In my view, as I have already indicated earlier, it is most appropriate that a line be drawn under this litigation; that there should be no further burden placed upon the trustees to act in a way that potentially still leaves them open to accusations of moving against an innocent party - that they are still not executing their responsibilities against the appropriate person, as Mr Abdul Rafay Syed had earlier alleged. 

4. In respect of 18-22 Tillbush Close, Hoppers Crossing, the place at which the requisite Court documents were served and at which the applicant said he “never resided”, I was told some 16-17 Abdul “something or other” Syeds lived there.  There might be other volunteers, like the brother, to put their hand up to “take a hit” for the applicant.

5. So in light of that, for there not to be any potential scope for litigation in the future in a similar vein as this proceeding, it is appropriate, in my view, to make the proposed orders as sought, amending the sequestration order to show the bankrupt as “Abdul Rafay Syed”.  

6. I note that the applicant concedes on the question of costs that they should be on an indemnity basis.

7. Leave is granted to all the parties to inspect and copy material produced at Court under subpoena.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge O’Dwyer

Associate: 

Date:  15 July 2013