BETWEEN:
A.K.K. HUSSEIN
Appellant
AND:
THE OFFICIAL RECEIVER
Respondent
Counsel: Appellant in Person
Mr W. Archibald for Respondent
Hearing: 10th May 2000
Judgment: 26th May 2000
p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT
This is an appeal against the decision of the Suva Magistrates Court of 19th October 1999, dismissing the Appellant’s application
to have a receiving order in respect of him, rescinded.
The court record shows that this action has a long and chequered history. On 24th September 1990 judgment was entered against the
Appellant in respect of a debt owed by him to Diners Club (NZ) Ltd. in the sum of $3,671.85. On 19th November 1990, a bankruptcy
notice was sent to the Appellant by the creditor. The notice was served on the Appellant on 22nd November 1990.
On 3rd December the creditor filed the affidavit verifying the petition for a receiving order. The act of bankruptcy specified to
been committed was (at pagt page 14 of the record):
“That the said A.K. Hussein failed before the 30th day of November 1990 to comply with the requirements of a Bankruptcy Notice duly
served on him on the 23rd day of November 1990 before the hour of six o’clock in the afternoon.”
The Petition was ordered to be heard on 8th January 1991. On 6th December 1990, the Appellant filed a Moti set aside the Bankruptcy
Ntcy Notice of 19th November. The supporting affidavit of A.K. Hussein, states that the reason why he had not complied with the Bankruptcy
Notice was that he had been sick in bed, and that he had informed the clerk of the court by phone, followed by a letter. The motion
and affidavit sought to set aside the Bankruptcy Notice and the default judgment.
The Appellant did not appear in court on 8th January 1991 when his motion to set asidault judgment was heard. In an affidavit dated
the same daye day as the hearing, he explained his absence by saying that his car had broken down on his way to court. He was later
told that his application had been dismissed.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On 25th February the Appellant filed a “Notice Specifying Statements” denying his debt to the creditor, and cla that his motion to
set asit aside default judgment was still pending.
On 9th May 1991 the learned Resident Magistrate dismissed the Appellant’s application to set aside default judgment and bankruptcy
notice saying that he was not satisfied that the defence filed was a good and valid one, or that the explanation for failure to attend
court, was true.
On the same day the Appellant filed a Notice of Intention to A. An application for stay pending appeal was refused, because the Appellant
was not prepareepared to deposit the amount of $3,671.85 into court.
No time was appointed for the holding of Public Examination unte 24th of July 1992.
1">
The Appellant wrote to the Magistrates Court on 20th J992, informing the Magistrate that he had prior appointments and could not attend.
He said said that the matter was on appeal and that he thought that the Receiving Order had been rescinded. He enclosed letters he
had written to the then Attorney-General and Deputy Official Receiver, claiming bias on the part of the Magistrate.
The Appellant did not appear on the 24th of July, and a bench warrant was issued for his arrest. He was arrested and brought before
thrt on 5th May 1995, when heen he said he was not aware that he had to appear in court.
The matter was adjourned, and the Appellant then on 5th of August 1993, requested the Chief Magistrate to appoint anotherstrate to
preside over the the case. Although the documents read “Motion to set aside Receiving Order” the application seems to have been
treated by everyone, as an application for transfer to another Magistrate.
No decision appears to have been made on this motion, but the Appellant on 8th April 1999, made another application to resthe receiving
order of 9th 9th May 1991. This was heard by the Resident Magistrate on 16th April 1999. The Official Receiver asked for time to
file a report. The Appellant, who continued to appear in person, asked for, and was given time to reply to the report. The Appellant
also made written submissions. The application to rescind the receiving order of 9th May 1991, was refused on 19th October 1999.
The Appellant’s appeal is in respect of this decision.
The grounds of appeal are as follows:
n>
2. &nbssp;&nnbsp;;&bsp; &bsp; &nnbp;& &nTHan>THan>THAT accT accordingly in dismissing the Appe’s aption the Learned Magistrate misdirected herself in law and/or on practice
and/or d/or proceprocedure and/or jurisdiction.
3. &nbbsp;&&nsp;;&nsp; ;&sp;; &&nsp;; &nTHan>THan>THAT theT the Learned Magistrate erred in law and in fact for not considerin trutt theurablrt vid its“Rule” under the Bankruptcy Act when made the disputed sted said Raid Receiveceiving Oing Order rder as foas follows:
“That the said AKK Hussein failed befor 30th day of November 1990 to comply with the requirements ents of the Bankruptcy Notice duly
served on him on the 23rd day of November 1990 before the hour of six o’clock.”
The most important fact here is that Appellant filed the required documents at the Court Registry on the 26th day of November 1990.
The Appellant did complied all requirements of the Bankruptcy Act and did not breach any rules and therefore the said Receiving Order is nullity.
4. &nnbsp;;&bspp; bsAT tHe Leae Learned Magistrate erred in law and in fact in failing to take iake into account relevant and material
fac put rd byAppelin his Affidavit sworn on the 8th day of April 1999 and submisubmissionssions reps reply daly dated 9/6/99 and
31/8/99 respectively. The Court failed to consider the fact the subject Action was on appeal and the File mysteriously disappeared
and could not be located now I had to file fresh Motion to revive this Action.
p class=Quick1 stylestyle="margin-top: 1; margin-bottom: 1"> 5. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp; THAT tHAT the Learned Magistrate erred in law and in fact for failing to consider the fact the said Bankruptcy Petitionbasedalse mony
and that it was the duty e Honourable Court to examineamine the the credicredibilitbility of the Creditor and/or Agents and/or all
parties concerned.
6. &nbbsp;& &bsp; p;&nssp; THAT theT the LearnLearned Magistrate errelaw and/or in fact in accepting and/or holding that submissions made by Mr. M. Azam Khan,
tan, the Deputy Official Receiver was proper authority and therefore made the decision by virtue of said submissions.
7. &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;& Tpan>THAT the Learned Magistrate erred in law and/or in fact by accepting Mr. M. Azam Khan’s submission which he filed contrary to
the “Order o Courhe suion should have been filed withiwithin 14 n 14 days expired on 23/7/99 but, he filedfiled on 18/8/99 which
was in Breach and in Contempt of the Honourable Court. Further the said document was served to the Appellant approximately 5 minutes
prior the Court resumed. That according to the Rules of the High Court documents could not be filed out of time without the leave
of the Court. The Appellant referred the matter to the Court but it was rejected hence there has been miscarriage of justice.
8. &nbbsp;&&nsp;;&nsp; ;&sp;; &&nsp;; &nTHan>THan>THAT theT the Creditor’s petition was for the amount of $3,671.55 and the Apnts A are $25500. Teditomitted acts of cruelty
to undermine the security of a ci a citizentizen and and made made mockemockery ofry of the guarantee on the fundamental human rights
and freedoms of the individual as laid down in the Constitution of the State. The Appellant has been humiliated, disgraced, suffering
with lot of hardship and technically paralysed, ruined and has become a burden to family and friends.”
The reasons given for the dismissal of the Appellant’s application are at page 102 o record. The Learned Magistrate found:
“The debtor’s motion is dismissed for reason that the formal decree dated 24th September 1990 (judgment) on which the Bankruptcy Notice
initiating these proceedings is grounded, has not been set aside. The debtor’s application is premature further that he has failed
to address the court on the legal principles relevant and which ought to be applied to his application.”
The grounds of appeal, which are almost identical to the Appellant’s reply to the Official Receiver e rescission of receiving order
application, state (ground ound 3) that the Receiving Order was invalid because the Appellant had responded to the Bankruptcy Notice
served on him on 23rd November 1990. The Appellant claims that he had filed an affidavit dated 26th November 1990, in response to
the Bankruptcy Notice.
Section 3 of the Bankruptcy Act Cap 48, provides as follows:
“(1) A debtor commits an act of bankruptcy in each of the following cases:-
(g) & p; if a creditor has has obtained a final judgment ornt or final order against him for any amount, and, execution thereon
not h beened, hrved on him in Fiji, or, by leave of the court, elsewhere, a bankruptcyuptcy noti notice unce under this Act, and
he does not within seven days after service of the notice, in case the service is effected in Fiji, .... either comply with the requirements
of the notice, or satisfy the court that he has a counter-claim, set-off or cross-demand which equals or exceeds the amount of the
judgment debt or sum ordered to be paid, and which he could not set up in the action in which the judgment was obtained, or the proceedings
in which the order was obtained.”
The Bankruptcy Notice (at page 4 of the record) complies with section 4 of the Bankruptcy Act. The Appellant does not suggest that it does not comply.
However, he argues that he filed an affidavit dated 26th November 1990 purporting to “reply” for the purposes of the Bankruptcy Notice.
That affidavit was considered by the Learned Magistrate when he heard the application to set aside the default judgment on 9th May
1991. In that judgment (at pages 93, 94) the Learned Magistrate considered this affidavit in considering, correctly, whether there
was a meritorious defence, and whether the Appellant had given acceptable reasons for the delay. The Learned Magistrate correctly,
in my view, found that the draft defence, (that payment of the Diner’s Club debt had been made in Sydney) was not meritorious. The
affidavit and defence failed to disclose any detail of the alleged payments. Furthermore, the reason for non-appearance on the date
of hearing of 24th September 1990, was his illness. This was not supported by a medical certificate and the Magistrate also, in my
opinion, correctly rejected this explanation.
The appeal against this decision of the Learned Magistrate was never heard. Instead, the Appellant made another application to set
aside the Receiving Order, dated 8th April 1999.
The affidavit in support, sworn on 6th April 1999 states that the Aant had replied to the Bankruptcy Notice within the prescribed
time, that no affidavit had had been filed verifying the debt, that the Motion to set aside the receiving order had never been heard,
and that the file became missing when the Chief Magistrate was due to hear the matter on 17th September 1993.
This affidavit is erroneous in several respects. Firstly the affidavit dated 26th November 1990, does not appear to have been filed
on that day. Even if it had been, it does not comply with the requirements of section 4 of the Bankruptcy Act. It does not allege a counter-claim, a set-off or cross-demand which exceeds the amount owed.
Furthermore, since the affidavit seeks to set aside default judgment, and since that application was refused, the receiving order
in that it alleges non-compliance with the Bankruptcy Act, is valid.
The Appellant is therefore in error when he says that this motion had never been heard. The application which had not been heard,
was his application to transfer the matter to another Magistrate. However, since the decision refusing to set aside judgment, and
the decision refusing to stay proceedings pending appeal, had already been made, there was nothing pending for another Magistrate
to hear.
In any event, another Magistrate did subsequently hear the Appellant’s second motion to rescind the reng order.
Finally, although regrettably no action was taken on the file forst six years, there is no evidence that the file was missing.
The Receiving Order
Full submissions were heard by the Learned Trial Magistratehe validity of the receiving order of 9th May 1991.
The Appellant not only repeated his statements about the non-compliance with the Bankruptcy Notice, he also claims that he was not
served with notices of Public Examination, and that he lost his assets which were sold for more than the judgment debt.
The Official Receiver in response said that the Appellant had not applied for stay of bankruptcy proceedingst he had responded to
the nthe notice of Public Examination and had been
arrested for failing to appear. He said that the properties sold had been sold to realise securities for secured creditors who were
unted by other claims. On then these bases the Official Receiver objected to the rescission of the receiving order.
The application, which is the subject of this appeal, was refused on the ground that the defaudgment had not been set aside, and because
the Appellant hant had failed to show the court the legal basis of the application.
It is difficult to find fault with this decision. The default judgment was not sede. The Appellant had failed to raise any of the
grounds inds in section 4 of the Bankruptcy Act which might have prevented the issuing of the Receiving Order.
The receiving order was clearly valid. The Appelfailed to raise any issue to justify the rescission of the order.
The questions of magisterial bias, transfer to another magistrate, missing files, stay orders and appeal petitions that went nowhere,
obscured the real issues. The real issues in this case were a debt of $3671.85 which was not paid, the accused’s absence at the hearing
date, and a refusal to set aside a default judgment which was the basis of the bankruptcy notice.
It is unfortunate that this case has dragged on for so long.
I find that the Learned Magistrate did not err when she refused to allow the Appellant’s application to rescind the receiviner against
him. I find that that the matters raised by the Appellant in support of his motion and his grounds of appeal were largely irrelevant.
Grounds 1, 2 and 3 are dismissed for the reasons I have already canvassed. Ground 4 is also dismissed. Although there was no decision
on the transfer
application, and no movement on the appeal petition, the Appellant himself filed the motion to rescind the receiving order in April
1999 before a new magistrate. It appears that the Appellant chose this avenue of setting aside the receiving order, rather than the
pursuing of his appeal.
Ground 5 (that the Bankruptcy Petition was based on false testimony) has no substance. Tis nothing to suggest that the contents of
the Petition aren are false. The Appellant’s affidavit of 26th November 1990 did not in fact comply with the Bankruptcy Notice served
on him on 23rd November 1990. Ground 5 is therefore dismissed.
Grounds 6 and 7 are also dismissed. The Appellant replied to the Official Receiver’s report, ande appears to have been no prejudice
suffered by the late fite filing of submissions.
Ground 8 is also dismissed. The realisation of the Appellant’s securities in respect of secured creditors do not in any waylidate
the bankruptcy proceprocedures followed by the execution creditor, or the Official Receiver.
The appeal is wholly dismissed. The Appellant must pay the Respondent’s costs of this appeal which I set at
Nazhat Shameem
JUDGE
At Suva
26th May 2000
Hba0006j.00s
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