Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Abouslieman v Mercantile Mutual Insurance (Australia) Limited [2004] FCA 1055
BANKRUPTCY – debt claimed in District Court – whether debt provable
Bankruptcy Act 1966 (Cth) ss 82 (1), (2) and (8) Home Building Act 1989 (NSW) ss 18B, 18C and 18D
Aliferis v Kyriacou (2000) 1 VR 447 applied Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 referred to Reid v Interarch Australia Pty Ltd [2000] FCA 1328 applied Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 referred to Woodside Petroleum Development Pty Ltd v H & R-E & W Pty Ltd (1999) 20 WAR 380 referred to HAMID ABOUSLIEMAN v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799 AND ZEYNAP BASIAK AND NURI BASIAK N 87 of 2004 MOORE J 18 AUGUST 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 87 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: HAMID ABOUSLIEMAN
APPELLANT
AND: MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799
FIRST RESPONDENT
ZEYNAP AND NURI BASIAK
SECOND RESPONDENTS
JUDGE: MOORE J
DATE OF ORDER: 18 AUGUST 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 87 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: HAMID ABOUSLIEMAN
APPELLANT
AND: MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED ACN 000 456 799
FIRST RESPONDENT
ZEYNAP AND NURI BASIAK
SECOND RESPONDENTS
JUDGE: MOORE J
DATE: 18 AUGUST 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an appeal by Mr Abouslieman ("the appellant") against a judgment of a Federal Magistrate of 19 December 2003. His Honour dismissed an application by the appellant for a declaration that an amount claimed against the appellant in District Court proceedings No 10829 of 2001 ("the District Court proceedings") was a provable debt under the Bankruptcy Act 1966 (Cth) ("the Act") and an order restraining the respondents from proceeding with the District Court proceedings in which they were all plaintiffs. The respondents (and District Court plaintiffs) were Mercantile Mutual Insurance (Australia) Limited ("the Insurance Company") and Mr and Mrs Basiak ("the Purchasers"). In the District Court proceedings a claim of $64,155.80 is made for rectification work on a domestic dwelling and $19,557.14 for advertising and the administration of the rectification work (together "the debt"). The Federal Magistrate held that the debt was not provable under the Act. 2 In this appeal, the parties relied on what were said to be the findings of fact made by the Federal Magistrate together with the second further amended ordinary statement of claim filed by the respondents in the District Court proceedings ("the second further amended statement of claim"). For reasons which I will explain below, I entertain some doubt whether it is open to this Court or the Federal Magistrates Court to adjudicate on the application. However I first will deal with the arguments advanced by the parties.
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