The Official Trustee In Bankruptcy V. Mahmoud [2007] NSWSC 3

New South Wales Supreme Court

CITATION : The Official Trustee In Bankruptcy V. Mahmoud [2007] NSWSC 3

HEARING DATE(S) : Tuesday 9 January 2007

JUDGMENT DATE : 12 January 2007

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : The notice of motion is dismissed. The applicant is to pay the respondent's costs

LEGISLATION CITED : Bankruptcy Act 1966 (Cth)

CASES CITED : The Official Trustee in Bankruptcy v. Mahmoud [2006] NSWSC 1194 Mahmoud v. The Owners Corporation, Strata Plan No. 811 [3] [2006] FMCA 1742

PARTIES : THE OFFICIAL TRUSTEE IN BANKRUPTCY v. Tosson Hussein MAHMOUD

FILE NUMBER(S) : SC No. 15839 of 2005

COUNSEL : Plaintiff: Ms. S. Nash Defendant: In person

SOLICITORS : Plaintiff: Sally Nash & Co. Defendant: N/A

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HALL, J.

FRIDAY 12 JANUARY 2007

No. 15839 of 2005

THE OFFICIAL TRUSTEE IN BANKRUPTCY v. TOSSON HUSSEIN MAHMOUD

JUDGMENT

1 HIS HONOUR: The applicant on the notice of motion before the Court, Tosson Mahmoud, sought orders as set out in a notice o f motion filed in court on Tuesday 9 January 2007. The notice of motion was supported by an affidavit sworn by the applicant on the same date. 2 The order sought in the notice of motion was in the following terms:- "1. An order that the Writ of Possession and its execution and the Notice to vacate, a copy of which is annexed in the white folder and marked annex A, be stayed." 3 The applicant's affidavit referred to urgency based upon the fact that the Sheriff had served him with a notice to vacate his residential premises "before 9 January 2007". Annexed to the affidavit were medical reports by Dr. Makrim Girgis dated 10 April 2006, 17 April 2006, 29 December 2006 and 5 January 2007. 4 The Sheriff was due to evict the applicant at 12.00 pm on the date of hearing, 9 January 2007. By reason of the fact that the hearing could not be completed by that time, the respondent to the motion made arrangements cancelling the eviction of the applicant upon my indication that further time was required on that day to complete the hearing in circumstances in which there were other matters in the vacation Duty Judge list. 5 On 9 January 2007, I reserved judgment in the matter. 6 At the hearing, the applicant indicated that he wished to appeal or seek leave to appeal from an order of Rothman, J. made on 2 August 2006 and in respect of his Honour's judgment given on 14 November 2006. He handed a copy of a document entitled "Notice of Appeal" which was marked as MFI 1 in the present proceedings. 7 Later in his argument, the applicant sought to tender a number of documents which he says related to the proposed appeal proceedings in a white folder. The respondent objected to the documents in the folder being admitted on this application on the grounds of relevance. I proceeded upon the basis that I would receive the documents provisionally, that is to say, that the documents would be marked as an exhibit subject to relevance. The folder was marked as Exhibit A in the proceedings. 8 I had available to me, for the purposes of this application, a copy of the judgment of Rothman, J. in proceedings entitled The Official Trustee in Bankruptcy v. Mahmoud [2006] NSWSC 1194 and Ms. S. Nash, who appeared on behalf of the respondent, provided a copy of a judgment of the Federal Magistrates' Court of Australia in Mahmoud v. The Owners Corporation, Strata Plan No. 811 [3] [2006] FMCA 1742. The latter judgment of Lucev, FM. related to an application by Mr. Mahmoud for annulment of the sequestration order that had been made. The applicant had moved the Court on 25 October 2006 for the hearing of an application for the annulment of the sequestration order. 9 In the latter judgment, the learned magistrate concluded that there was no evidence that the sequestration order was not bound to be made and the application for annulment, accordingly, was dismissed. An order to that effect was made on 7 December 2006.