Re Haidar, M. v Ex parte Haidar, R. & Ors [1995] FCA 628

FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES REGISTRY ) No NB 305 of 1993 BANKRUPTCY DIVISION ) RE: MASON HAIDAR Bankrupt EX PARTE: RAIF HAIDAR & RAMZI ISMAIL HAIDAR Applicants AND: HUGH JENNER WILY First Respondent AND: GEORGE LIONEL CADDY Second Respondent CORAM: SACKVILLE J PLACE: SYDNEY DATE: 7 AUGUST 1995 HIS HONOUR: In these proceedings, the applicants seek an order that a notice that has been served pursuant to section 139ZQ of the Bankruptcy Act 1966 (Cth) ("the Act") be set aside. That notice was issued in accordance with the procedural requirements specified in the Act. It requires one of the applicants, Mr Ramzi Haidar, to pay to the Trustee of the bankrupt, who is the first respondent to these proceedings, the sum of $74,582. This sum was said to be the value of a half interest in a property transferred to the applicants at a time when the bankrupt was insolvent. The notice under s.139ZQ, addressed to Mr Ramzi Haidar, invokes s.122 of the Act, as well as s.120 of the Act, as the basis for setting aside the transaction. I was informed by Mr Skinner, who appears for the Trustee, that only one notice was issued under s.139ZQ. No notice was apparently issued to the other transferee of the property, Mr Raif Haidar. When the matter came on for hearing today, I was informed by Mr Skinner, and by Mr Gruzman, who appeared for the applicants, that the matter had been resolved in principle. However, Mr Skinner indicated that, as a matter of caution, prior to the orders being made, he wished the Court to approve the compromise that had been reached between the Trustee and the applicants. Mr Skinner bases his application upon s.135(1)(h) of the Act. That section allows the Trustee, with the leave of the Court, to make a compromise in respect of a claim exceeding $20,000 or such greater amount as is prescribed, arising out of the administration of the estate of the bankrupt, whether the claim is made by or against the Trustee. Mr Skinner indicated that it was not entirely clear that the approval of the Court is necessary in order to protect the Trustee. However, as a matter of more abundant caution, the Trustee wished to have that protection. The proposed compromise between the parties involves the setting aside of the notice issued to Mr Ramzi Haidar, dated 19 September, 1994 and a consequential order that the Trustee remove any caveat or charge presently registered on the title of the property, which is known as lot 3 in deposited plan 2208, 135 Illawarra Road, Arncliffe in the state of New South Wales. The agreement between the parties also provides that the setting aside of the notice and the order for the removal of the caveat will take effect upon the payment by the applicants to the respondents of the sum of $20,000. Mr Skinner has referred to two matters in particular that make the compromise appropriate. The first is that, although the notice, in effect, assumes that one half of the net equity in the property transferred to the applicants is worth approximately $74,500, other evidence indicates that a further mortgage was taken out over the property. This suggests that one half of the net equity would be worth approximately $30,000, rather than $74,500. Secondly, Mr Skinner points out that there is evidence put on by the applicants supporting their claim that the bankrupt had made no financial contribution to the acquisition of the property. Accordingly, the conduct of the case would involve the resolution of a disputed issue of fact, the outcome of which, in the nature of things, would be uncertain. In these circumstances, it seems to me that it is appropriate for the Court to make an order directing that the Trustee would be justified in entering into a compromise in accordance with the short minutes of order that have been handed up to me today and which I shall initial and date and place with the papers. On that basis, I make orders in accordance with paragraphs 1 and 2 of the short minutes of order that have been handed up and signed by counsel for the applicants and counsel for the first respondent and have been initialled and dated by me. I also note the agreement between the parties contained in paragraphs 3 to 6 of the short minutes of order. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Dated: Heard: 7 August, 1995 Place: Sydney Decision: 7 August, 1995 Appearances: Mr A. Gruzman, instructed by Johnston Vaughan, Solicitors, appeared for the applicants. Mr B. Skinner, instructed by Brown & Partners, Solicitors, appeared for the first respondent. The second respondent, by his solicitors, Sally Nash & Co., filed an appearance on 22 February 1995 submitting to all orders and judgments of the Court, save as to costs.