David Frank Lombe in his capacity of the bankrupt estate of Mohammad Tabibar Rahman v Mohammad Tabibar Rahman [2013] NSWSC 1944

Supreme Court New South Wales

Medium Neutral Citation: David Frank Lombe in his capacity of the bankrupt estate of Mohammad Tabibar Rahman v Mohammad Tabibar Rahman [2013] NSWSC 1944 Hearing dates: 28 November 2013 Decision date: 28 November 2013 Jurisdiction: Equity Division Before: Rein J Decision: Application by notice of motion for an order that the plaintiff be awarded $1M as damages for what the plaintiff claims is the wrongful attempt by the defendants to take his property and also an order for "determination[s]" relating to Ms Dubbs and Mr Lombe dismissed. Relief refused. Catchwords: PRACTICE AND PROCEDURE - whether Lindsay J's determination that these proceedings were determined by the outcome in proceedings 2013/179362 could be circumvented by a notice of motion seeking substantive relief inconsistent with the dismissal of those other proceedings Category: Principal judgment Parties: David John Frank in his capacity as trustee of the bankrupt estate of Mohammad Tabibar Rahman (plaintiff) Mohammad Tabibar Rahman (defendant) Representation: Counsel: Mr S. Gray (plaintiff) Solicitors: TressCox Lawyers (plaintiff) Defendant in person File Number(s): 2013/227522

EX TEMPORE Judgment 1REIN J: These reasons should be read with the benefit of the reasons delivered in the proceedings Mohammad Tabibar Rahman v David John Frank Lombe (2013/179362) which I handed down a few minutes ago and which I shall refer to as the "Rahman" proceedings. 2It is clear in my view that the underlying issues in these proceedings are the same as those in the Rahman proceedings. 3On 20 September 2013, Lindsay J dismissed the Rahman proceedings for reasons I have explained but he also treated these proceedings as at an end, I assume because Mr Lombe had obtained registration on the title on the land of Mr Rahman and there was "no subsisting application for relief made" (see Exhibit 1, pp 67-68). Lindsay J noted in the orders made that these proceedings were to be treated as determined and closed. It might have been appropriate for his Honour to simply dismiss these proceedings but that is not the result which Mr Rahman seeks in his notice of motion of 18 November 2013, rather he seeks inter alia an order that he be awarded $1M as damages for what he claims is the wrongful attempt to take his property and also an order for "determination[s]" relating to Ms Dubbs and Mr Lombe. 4As Mr Gray pointed out, even if the order made by Lindsay J in both matters were able to be set aside that would not of itself lead to removal of Mr Lombe's caveat - something more would be required to have any real effect. Lindsay J appeared to take the same view (see T25.8-10, Exhibit 1, pp 67-68). The practical reality of the matter is that Mr Rahman had no proper basis to oppose the caveat or the registration of Mr Lombe, and no basis to seek the relief which he seeks in his earlier or current notice of motion. I therefore dismiss Mr Rahman's notice of motion and order that Mr Lombe's costs be paid out of Mr Rahman's bankrupt estate.