Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 73

New South Wales Supreme Court

CITATION : Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 73

HEARING DATE(S) : 12 February 2007

JUDGMENT DATE : 14 February 2007

JURISDICTION : 15839/05

JUDGMENT OF : Studdert J

DECISION : 1. The notice of motion filed on 12 February 2007 is dismissed. 2. Order that execution of the writ for possession of the premises be stayed until 10.00 am on 2 March 2007.

LEGISLATION CITED : Bankruptcy Act Uniform Civil Procedure Rules

Mahmoud v The Owners Corporation Strata Plan No. 811 (No. 3) [2006] FMCA 1742 CASES CITED : The Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194 The Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3

PARTIES : The Official Trustee in Bankruptcy (Plaintiff/Respondent) Tosson Hussein Mahmoud (Defendant/Applicant)

FILE NUMBER(S) : SC 15839/05

COUNSEL : M. Mantaj (Plaintiff/Respondent) In person (Defendant/Applicant)

SOLICITORS : Sally Nash & Co. (Plaintiff/Respondent) N/A (Defendant/Applicant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 14 February 2007

15839/05 THE OFFICIAL TRUSTEE IN BANKRUPTCY v TOSSON HUSSEIN MAHMOUD

JUDGMENT 1 HIS HONOUR: The applicant, Tosson Mahmoud, has applied to the Court by way of notice of motion for the following orders: "1. An order that the notice to vacate on 16-02-07 issued by the Sheriff and its execution, a copy of which is annexed to the affidavit and marked annex A, and the whole proceedings before the Supreme Court be stayed until the finalization of the proceedings at the Federal Magistrates Court, at the Federal Court and at the High Court in regard to the application to annul the sequestration order which was made by the Registrar of the Federal Magistrates Court on 23-05-2005. 2. In the alternative an order to a stay of two months is requested given the annexed medical certificates to the affidavit of the applicant. 3. A ruling that it is a torture to the Claimant to keep him engaged in the Supreme Court, the Court of Appeal and later on the High Court while he is already engaged in the Federal Magistrates Court, the Federal Court and the intended appeal to the High Court given the very severe trauma the Claimant is suffering and the medical certificates he has as shown in details in the documents in the files of all the cases before all the Courts stated above." 2 The notice to vacate which is referred to in the notice of motion is a notice to vacate premises described as Unit 16, 417 Liverpool Road, Ashfield. Those premises are the applicant's home. (I shall refer to them as "the subject premises".) 3 On 14 November 2006 Rothman J ordered judgment for the Official Trustee in Bankruptcy for possession of the subject premises and granted leave for the issue of a writ for possession. A writ for possession was issued on 4 December 2006 and the notice which prompted the present application followed on the issue of the writ. 4 Before considering the basis of the present application, it is appropriate to record shortly the history of proceedings in the Federal Magistrates Court and in this court. 5 A sequestration order was made against the estate of the applicant on 23 May 2005. By reason of the operation of s 58 of the Bankruptcy Act, upon the applicant becoming a bankrupt, his property vested in the Official Trustee, and that property, of course, included the subject premises to which the notice to vacate relates. 6 The applicant remains an undischarged bankrupt. 7 In proceedings in the Federal Magistrates Court the applicant applied unsuccessfully to have the sequestration order annulled. The application for annulment was determined by judgment delivered on 15 December 2006: Mahmoud v The Owners Corporation Strata Plan No. 811 (No. 3) [2006] FMCA 1742. The reasons for judgment delivered by Mr Lucev FM were expressed as follows: "56 The Applicant has tendered no admissible evidence in support of the Application. There is nothing before me to indicate that the sequestration order was not bound to be made. The Application must therefore be dismissed. 57 In any event, the Court exercises its discretion not to annul the sequestration order, for the following reasons a) the Applicant has not filed a Statement of Affairs, and it is therefore not possible to know precisely who his creditors might be; b) because the Applicant has not filed a Statement of Affairs it is not possible to determine whether he has unencumbered assets sufficient to meet the debts to creditors, including possibly unknown creditors; c) that, notwithstanding the provisions of the Bankruptcy Act relating to the powers and duties of Official Trustee (including ss 18, 19, 109, 129(1), 134, 135, 140, 145, 156A, 165, 173 and 174), the Applicant continues to refuse to recognise the 'existence' of the Official Trustee or the role of the Official Trustee, and refuses to assist the Official Trustee; d) the almost one year delay in making the annulment application; and e) the Applicant has neither given or offered undertakings of any kind." 8 In his application before this Court, the applicant expressed an intention to appeal against the magistrate's decision.