Lutfi v Tucker [2026] FedCFamC2G 38

1. These reasons for judgement relate to inter-related proceedings under the Bankruptcy Act 1966 (Cth).[1] Firstly, they relate to an application brought by Ihab Anthony Rockwell Lutfi to review a decision of a registrar of the court (Registrar Colbran) to dismiss his application to set aside a bankruptcy notice issued against him on the instigation of David John Tucker.
2. Registrar Colbran's decision and the orders following from it were made on 22 September 2025. Concurrently with the order, the Registrar extended the time for compliance with the notice to 4.30 pm on that date. Needless to say, the sum sought in the bankruptcy notice ($73,500.00) remains outstanding.
3. Secondly, as a consequence of the failure of Mr Lutfi to expiate the bankruptcy notice, Mr Tucker filed a creditor's petition on 3 November 2025 seeking to sequestrate Mr Lutfi's estate and make him bankrupt.
4. Accordingly, the two applications are inter-related. If Mr Lutfi is successful in his review application, it will render the bankruptcy notice ineffective. However, if he is unsuccessful, from Mr Tucker's perspective, Mr Lutfi will have committed an act of bankruptcy, and Mr Tucker claims that the hearing of his petition should be dealt with concurrently by the court with the rejection of his review.
5. Necessarily, Mr Lutfi opposes the court dealing with the petition so expeditiously. However, his opposition to both the bankruptcy notice and the creditor's petition rest on the same factual assertion - namely that he has a valid counterclaim against Mr Tucker for a sum greater than the amount sought by Mr Tucker from him. The sum sought is approximately $1m.
6. Section 41 of the Act deals with the issue of bankruptcy notices. In particular subsection (6A) provides the court with a discretion to extend the time for compliance with such a notice if satisfied that proceedings to set aside the judgement or order, which led to the issue of the relevant notice, have been instituted by the relevant debtor.
7. However, this discretion is subject to subsection (6C) which require the court to examine the nature of such proceedings in order to reach an opinion that they have instituted bona fide and are being prosecuted with due diligence.
8. Similar considerations relate to the court's power to make a sequestration order, which depend on the court being satisfied that an act of bankruptcy has occurred on the basis of non-compliance with a bankruptcy notice. Such an act of bankruptcy will not be established if the court is satisfied that the relevant debtor has a counterclaim against the relevant creditor, which is greater than the amount of the relevant judgment debt.
9. This is the major issue in the case - the validity and bona fides of Mr Lutfi's claim against Mr Tucker. Collateral to this issue are other considerations relating to the discretion incumbent in the court not to make a sequestration order, if sufficient other cause exists [see section 52(2)(b)]. In general terms, Mr Lutfi submits there are such reasons because of the overall circumstances in the case, which he characterises as unusual and complex.
10. The review of Registrar Colbran's decision involves a fresh hearing of Mr Lutfi's review application. If I am satisfied that the time for compliance with the bankruptcy notice should not be extended or the notice dismissed, the next question to be determined will be whether the court should proceed with the relevant creditor's petition, which has issued prior to the resolution of the review application but after the period for compliance with the bankruptcy (as extended by Registrar Colbran) has expired.
11. If the court proceeds with the petition, pursuant to the provisions of section 52(1), it is incumbent on Mr Tucker to prove the matters stated in his petition and the debt owed to him remains unpaid and that the petition itself has been properly served on Mr Lutfi. Mr Lutfi does not accept that the petition was properly served upon him and in general terms asserts that it would not be fair or just for the court to proceed immediately with the petition, regardless of the outcome of his review application.
12. The review application was filed by Mr Lutfi on 10 October 2025. As noted above the petition was filed on 3 November 2025. Both were first listed before me on 19 November 2025 with the review application being fixed for hearing on 12 December 2025 and the petition listed for mention on the same day.
13. It is Mr Lutfi's view that Mr Tucker is agitating the matter with unseemly haste and it would not be fair for the petition to proceed. Those advising Mr Tucker assert that the petition alluded to the review application and if it fails, it will be axiomatic that Mr Lutfi has committed an act of bankruptcy, and no useful purpose will be served by deferring the petition further. In general terms, these are the various matters to which these reasons for judgment are directed.

1. Mr Lutfi has not, as yet, commenced any proceedings to recover the debt he claims he is owed by Mr Tucker. He informed me that he has retained the services of senior counsel and a solicitor, who are prepared to assist him on a pro bono basis and the appropriate forum for his action is the District Court of South Australia. Neither the counsel nor solicitor appeared in the current proceedings in which Mr Lutfi has represented himself and prepared his own documents and written submissions.
2. In his oral submission to me, Mr Lutfi candidly conceded, after it became apparent that one of the authorities referred to him in these written submissions did not exist, that his written submissions had been complied by some form of computer-generated artificial intelligence. In this context, he pointed to the fact that he is not legally qualified; had received scant, if any, legal advice; and the area of law involved must be regarded as complex for a lay person.
3. Essentially, he asserted that he was doing the best he could, with the resources available to him, but his case remained the same - he had a strong and valid claim against Mr Tucker for a significant sum of money; Mr Tucker was using the current bankruptcy proceedings to oppress him and prevent him advancing his claim - not only in the District Court but in other proceedings in the Federal Court; and if he was able, he would seek to appeal the decision which led to the judgment debt being entered against him.
4. Mr Lutfi further submitted that he has been given to understand that the District Court of South Australia is the appropriate forum in which he should seek recovery of his alleged debt from Mr Tucker. However, this court was not apparently prepared to accept his suit in this regard (which has not, as yet, been provided in these proceedings) until he had provided a formal letter of demand to Mr Tucker.
5. This letter of demand has been provided in this proceeding. It was also prepared by Mr Lutfi and is dated 11 December 2025 - the day prior to the hearing of Mr Lutfi's review application. It was received into evidence and essentially replicates the contents of other affidavits sworn and filed by Mr Lutfi.[2]
6. As will be detailed in greater detail, in due course, Mr Lutfi and Mr Tucker are former business associates, who were both involved as the directors of a company - Green Grain Processing Technologies Pty Ltd.[3] The company was placed into liquidation on 28 November 2023, on the basis that it was insolvent and Thomas Otway and Alan Scott were appointed as its joint liquidators.
7. In general terms, both Mr Lutfi and Mr Tucker claim to be secured creditors of Green Grain. The company apparently has some assets, some of which have been paid into the Federal Court. As a result of this status, both Mr Lutfi and Mr Tucker are interested parties in proceedings before O'Sullivan J in the Federal Court of Australia sitting at Adelaide regarding the priority and quantum of loans said to have been advanced by each of them to the company and which are asserted to be secured by way of a fixed charge on the company's assets.
8. In this context, it would appear to be the case that a further controversy has arisen between them (and indeed the liquidators), which concerns what occurred during a period when the company had been placed into receivership. The joint receivers are Dominic Cantone and Nicholas Cooper. This issue concerns two sums of money, which were withdrawn from the company allegedly to the sole benefit of Mr Lutfi. The sums concerned were $250,000.00 and $34,013.00 respectively.
9. On 4 April 2024, Mr Tucker's solicitors filed an interlocutory application in the Federal Court proceedings seeking that Mr Lutfi pay these sums into that court's suitors' fund asserting that the monies had been diverted to corporate entities controlled by Mr Lutfi.
10. It would appear to be the case that in response to this application Mr Lutfi claimed that he had been entitled to the two sums in question as they represented monies owed to him for expenses incurred by him whilst he had been employed by Green Grain and his superannuation guarantee payments which were due to his self-management superannuation fund - again as a consequence of his employment.
11. This explanation was not acceptable to Mr Tucker and nor was an apparent assertion by Mr Lutfi that the sums in question remained available to him. In these circumstances, on 11 April 2024, O'Sullivan J made orders requiring Mr Lutfi to file evidence explaining the current whereabouts of the two sums and annexing documentary evidence in respect of the transfer of the sums in question.
12. It is apparent from ex tempore reasons for judgment delivered by O'Sullivan J that he found Mr Lutfi's response to these orders to be unacceptable. In general terms, it seems to be the case that there was no documentary basis to support Mr Lutfi's assertion that the funds remained available and further that there had been demonstrated wilful non-compliance with his order.[4]
13. In these circumstances, it was apparent that Mr Tucker's application for payment of the relevant sums into court was otiose and this was due to Mr Lutfi's dereliction. As a consequence, he sought indemnity costs from Mr Lutfi. This application was dealt with by O'Sullivan J on 27 September 2024.[5]
14. His Honour determined that the justice of the case required an order for indemnity costs be made against Mr Lutfi. He further directed that if the parties were unable to agree on a lump sum of such costs, the necessary amount would be assessed by a registrar of the Court and once so assessed paid within 28 days. It is apparent the cost could not be agreed, and the amount was assessed, as directed, with a certificate of taxation issuing in the amount of $73,500.00 on 12 May 2025.
15. The costs judgment remains unsatisfied. On 13 June 2025 the Official Receiver issued a bankruptcy notice against Mr Lutfi requiring the payment of this sum ($73,500.00) within 21 days of the service of the notice upon him. It is Mr Lutfi's position that he was not properly served with the notice.
16. Pursuant to relevant provisions of the Bankruptcy Act the failure of a debtor to satisfy a bankruptcy notice constitutes an act of bankruptcy and so provides jurisdiction for the court to make a sequestration order.
17. Specifically, section 40(1) of the Act provides an exhaustive list of matters which constitute acts of bankruptcy and so can serve as the basis for the issue of a creditor's petition. Of particular application in the current mater is section 40(1)(g) which provides as follows:

(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i) where the notice was served in Australia--within the time specified in the notice; or

(ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counterclain, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counterclain, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;

1. The power granted to the Official Receiver, to issue bankruptcy notices, arises pursuant to section 41(1)(a) of the Act, which reads as follows:

(1) An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

(a) a final judgment or final order that:

(i) is of the kind described in paragraph 40(1)(g); and

(ii) is for an amount of at least the statutory minimum;

The statutory minimum is $10,000.00.[6] There is no challenge to the issue of the bankruptcy notice.

1. The form a bankruptcy notice must take is prescribed by the Regulation 9 of the Bankruptcy Regulations and schedule 1 made under it. In general terms it contains the consequences of non-compliance with the terms of any bankruptcy notice. It also provides information about the following:
   • Applying to extend time for compliance with the notice on the basis that an application has been made to set aside the judgement or order on which the notice is based;
   • Applying to set aside the notice on the basis of a cross-claim, set-off or cross demand, which is greater than the amount claimed in the notice, which could not have been instituted in the proceedings in which the relevant judgment, founding the notice, was obtained.
2. On 4 July 2025, Mr Lutfi applied to this court to set aside bankruptcy notice issued against him on 13 June 2025. In his application he indicated that he had been served with the notice on 17 June 20225, when he had received an email from Mr Tucker's solicitors.
3. It was from this complicated matrix of facts that the judgment debt, which is the subject of the relevant bankruptcy notice, arises. In general terms, Mr Lutfi asserts that he has a good claim against the assets of the company on the basis of monies advanced by him over many years, which were secured by way of a charge on its assets.
4. In addition, and more germane to the current proceedings, he asserts that there was an agreement between him and Mr Tucker that each would contribute equally to the financial resources required to fund the operations of Green Grain. However, he asserts that he contributed significantly more than Mr Tucker over the years to the company and therefore Mr Tucker is liable to reimburse him a sum sufficient to bring about an equality of financial contributions by both men.
5. This is the basis of Mr Lutfi's claim that Mr Tucker owes him approximately $1.098m, which he arrives at by oversetting half of Mr Tucker's total personal contributions against half of his contributions as per the agreement concluded between them.
6. In this context, Mr Lutfi submits that the evidence indicates that Mr Tucker has rushed into bankruptcy proceedings against him as a tactic to gain leverage over him in both his potential claim against him to bring about an equalisation of the monies advanced to Green Grain and in the proceedings in the Federal Court relating to what is owed by the company to each of them and which is secured against its assets.
7. He characterises the $73,500.00 judgment debt against him as being trivial in comparison to the other sums involved in both the current litigation in the Federal Court and his foreshadowed litigation against Mr Tucker in the District Court of South Australia. In this context, Mr Lutfi asserts that Mr Tucker has ulterior motives for issuing the relevant bankruptcy notice against him which can be summarised as follows:
   • To pressure him to abandon his claim against Mr Tucker for the $1.098m debt owed by him as well as other fees owed to Mr Lutfi in respect of managerial services provided by him to Green Grain;
   • To force Mr Lutfi out of directorial positions and as a beneficiary of a unit trust which owns valuable land which he was instrumental in securing and which has appreciated significantly in value since its acquisition.
8. In his written submissions, Mr Lutfi contends as follows:

In summary, the factual context reveals that [Mr Lutfi] is not a typical judgment debtor hopeless unable to pay a debt. Rather [he] holds far greater claims against the creditor and has been attempting in good faith to resolve the parties' mutual financial rights. Mr Tucker, on the other hand, has acted in bad faith by refusing to cooperate in distributions, reneging on agreements, and employing the bankruptcy notice as a weapon to advance his personal interests.

In essential terms, Mr Lutfi characterises the bankruptcy notice (and indeed the resulting creditor's petition) as an abuse of the court's processes, which should be set aside by the court to protect its integrity in the exercise of the discretion conferred upon it to do so.

1. As noted above, the relevant bankruptcy notice issued on 13 June 2025. Sally Monaghan, a solicitor representing Mr Tucker has deposed as to the service of the notice on Mr Lutfi by electronic means and by express post, in the context of the more recently filed creditor's petition.[7]
2. There can be no doubt that Mr Lutfi received the bankruptcy notice as he commenced proceedings to have it set aside on 4 July 2025. On the face of his self-drafted application, Mr Lutfi indicated that he was served, with the notice, on 17 June 2025, when he received an email from Ms Monaghan dated 16 June 2025.
3. Ms Monaghan has deposed to having caused this email to be sent on behalf of Mr Tucker and to having sent the same correspondence, enclosing the relevant bankruptcy notice, to what she understood to be Mr Lutfi's residential address in Glenelg. This being the address provided by Mr Lutfi in his address for service filed in the proceedings in the Federal Court before O'Sullivan J.
4. The Bankruptcy Regulations regulate service of documents pursuant to the Act. In particular section 102 provides as follows:

(1) Unless the contrary intention appears, if a document is required or permitted by the Act or this instrument to be given or sent to, or served on, a person (other than the Inspector‑General, the Official Receiver or the Official Trustee), the document may be:

(a) sent by a courier service to the person at the address of the person last known to the person serving the document; or

(b) left, in an envelope or similar packaging marked with the person's name and any relevant document exchange number, at a document exchange where the person maintains a document exchange facility; or

(c) given in a manner specified in section 28A of the Acts Interpretation Act 1901; or

(d) sent, in accordance with the information technology requirements in subsection (3) of this section:

(i) by a kind of electronic communication that transmits the document to a facility maintained by the person for receipt of electronically transmitted documents; or

(ii) by a kind of electronic communication such that, in the ordinary course of events, the document could be reasonably expected to be received by the person.

1. Subsection (3) provides that the expression information technology requirements envisage that at the time the document is sent, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference. In this context, it is a requirement that the relevant document so electronically transmitted is readily convertible into either plain text or on of a number of specified commercial software packages.
2. Section 28A of the Acts Interpretation Act provides a statutory definition of the expression serve, give or send in the context of a document, which includes, amongst other things sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document.
3. In addition, the provisions of section 309(2) of the Act provide the court with a wide discretion in respect of the service of bankruptcy documents. It provides as follows:

(2) Where a notice or other document is required by this Act to be served on or given to a person, the Court may, in a particular case, order that it be given or served in a manner specified by the Court, whether or not any other manner of giving or serving the notice or other document is prescribed.

1. Mr Lutfi's application of 4 July 2025 purported to seek the dismissal of the bankruptcy notice. However, in formal terms, it invoked the provisions of section 41(6A) & (7) which deal with extension of time for compliance.
2. His application also sought leave to appeal against the cost order made by O'Sullivan J. Neither I nor Registrar Colbran have authority to make such an order and it is apparent that Mr Lutfi has not formally sought to engage any appeal rights available to him in the Federal Court and O'Sullivan J has himself indicated that this aspect of the case is concluded so far as his authority is concerned.
3. The former section reads as follows:

(6A) Where, before the expiration of the time fixed for compliance with a bankruptcy notice:

(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b) an application has been made to the Court to set aside the bankruptcy notice;

the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

1. The operation of section 41(6A) is subject to the provisions of section 41(6C) which reads as follows:

(a) a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and

(b) the Court is of the opinion that the proceedings to set aside the judgment or order:

(i) have not been instituted bona fide; or

(ii) are not being prosecuted with due diligence;

the Court shall not extend the time for compliance with the bankruptcy notice.

1. The effect of section 41(7) of the Act is to automatically extend time for compliance with a notice until such time as any relevant application brought pursuant to section 41(6A) has been dealt with by the court.
2. Mr Lutfi filed an affidavit in support of his application. It is not an easy document to follow. Doing the best I can, in summary, Mr Lutfi apparently deposed as follows:
   • The receivers of Green Grain reported in November of 2023 finding that the company's surplus assets, after payment of fees, amounted to $134,000.00, which should be divided equally between Mr Lutfi and Mr Tucker;
   • This was unacceptable to Mr Tucker, leading to the associated litigation in the Federal Court and monies being paid into court;
   • Green Grain is the registered proprietor of land at Carslake Road, Dublin, which has been described as the Alexandria Park Food Innovation Precinct;
   • It was purchased in 2015 for $288,000.00 but is worth significantly more now;
   • The land is leased (or has the potentially to be leased) for $65,000.00 per annum;
   • Mr Lutfi is entitled to a proportion of the rent received by the company for the land;
   • Mr Lutfi's expertise and services rendered to the company let to the land being re-zoned and he was the guiding hand behind it becoming the Alexandria Park Food Innovation Precinct;
   • Mr Lutfi created significant wealth in the company and is owed $395,000.00 for his services provided over seven years;
   • Mr Tucker had vetoed the sale of additional land owned by the company adjoining the Carslake Road, Dublin property, which could have netted significant sums, if sold;
   • Mr Tucker and the receivers knew of the monies withdrawn from the company, which formed the basis of O'Sullivan J's indemnity costs order against him.
3. On the basis of this evidence, again as best I can understand, Mr Lutfi asserts that he has a counterclaim against Mr Tucker in the following amounts:
   • Firstly, between $70,000.00 and $140,000.00 in respect of the monies held in the Federal Court;
   • Secondly, approximately $19,000.00 in respect of rent collected in respect of Carslake Road, Dublin;
   • Thirdly, unpaid fees paid to him for services rendered to the company, since May of 2023, in an amount of $395,000.00.
   • Fourthly, $4m relating to loss of the sale of land asserted to be owned by the company.
4. Mr Tucker responded to this affidavit, in succinct terms, on 31 July 2025. He denied that Mr Lutfi had any viable counterclaim against him personally. He deposed as to the existence of a deed of charge securing the sum of $415,000.00, which had been granted by Green Grain to him and Mr Lutfi, over its assets in November of 2009.
5. However, he asserted that the origin of this sum was that one half had been advanced by him personally with the remaining half being borrowed from him by Mr Lutfi and as yet unpaid. The import of this evidence being that Mr Lutfi had either misconceived or misrepresented the nature of the proceedings before the Federal Court.
6. Mr Tucker denied that Mr Lutfi was personally owed any fees for services rendered by him either to Green Grain and certainly not to him personally. Any such invoices having been rendered by Mr Lutfi's company Lutfi Procter Holdings Pty Ltd.[8]
7. He also denied that Mr Lutfi was entitled personally to any rent from the Carslake Road land. He provided documentary evidence that the registered proprietor of the land was Green Grain, which is the corporate trustee of a unit trust known as Green Grain Producers Unit Trust.[9]
8. In this context, Mr Tucker produced a copy of the unit trust register, which reveals that companies related to self-managed superannuation funds controlled by him and Mr Lutfi respectively own an equal number of units. The import of this evidence being that he could have not personal liability for any sum claimed in this respect and Mr Lutfi personally had not entitlement to claim such a sum.
9. Mr Tucker conceded that, in its capacity as corporate trustee of GGPUT, Green Grain owned land at Dublin but the applicant could have no interest in this land in his personal capacity. He also denied that Mr Lutfi had any claim for professional fees from Green Grain and certainly not from him personally.
10. In this overall context, he characterised the sums which had been withdrawn from the company by Mr Lutfi and which had been the subject of the adverse comment by O'Sullivan J were axiomatically unauthorised and potentially fraudulent. He attached a lengthy letter which he had sent to Mr Lutfi on 19 May 2025, which at some length catalogued the various breaches of his directorial obligations which he asserted Mr Lutfi had committed as a director of Green Grain.
11. In summary, Mr Tucker described a relatively complex situation involving a unit trust; a corporate trustee; and units held by self-managed superannuation funds. However, the gravamen of his evidence can be reduced to the following salient points:
    • The bankruptcy notice remained unsatisfied;
    • Any claim for professional fees, which could conceivably be mounted by Mr Lutfi lay against Green Grain not him;
    • Such claims were claims of LPH not Mr Lutfi;
    • Mr Lutfi had exhausted his rights to appeal against the orders leading to the judgment debt issued by O'Sullivan J;
    • In these circumstances, the evidence collated by Mr Lutfi did not establish that he (Mr Lutfi) had any cause of action or counterclaim against him personally.
12. In the lead up to the hearing before the Registrar, both Mr Lutfi and Mr Tucker filed further affidavits, and each provided a submission of principles said to be applicable in the form of a case outline.
13. Again, I found Mr Lutfi's affidavit difficult to comprehend. It did however confirm my earlier impression that he and Mr Tucker, in their business dealings, were largely engaged with one another through various independent entities rather than through some form of direct contractual relationship, such as employer/employee. Certainly, Mr Lutfi did not provide any invoices in respect of services said to have been rendered by him to Mr Tucker directly.
14. In his affidavit, Mr Tucker produced a string of interrelated loan agreements between Green Wheat Freekeh Pty Ltd[10] - the corporate predecessor to Green Grain - and Mr Tucker and Mr Lutfi for relatively modest amounts, commencing with $15,000.00 in November of 2009, which are immediately followed by loan agreements between Mr Tucker as lender and Mr Lutfi as borrower for one half of the sum asserted to have been advanced.
15. These various loan agreements resulted in Green Wheat granting a charge over its assets in favour of Mr Tucker and Mr Lutfi, which is apparently at the centre of the matters in dispute in the Federal Court suit, particularly its degree of priority. At a later stage, Mr Tucker and Mr Lutfi as directors of Green Wheat apparently resolved to have the company issue convertible notes in their respective favours, which related to these loans.
16. In this context, in his second affidavit, Mr Tucker deposed that it was, in effect, fanciful, for Mr Lutfi to assert that his and Mr Tucker's financial contributions were equal merely because of the existence of the joint charge or that these documents created any liability on him personally to pay half the amount of the sum charged to Mr Lutfi.
17. Mr Lutfi has also provided voluminous accounting records which seem to relate to loans taken from Green Wheat by him. Mr Tucker acknowledges that he also had a loan account with Green Wheat and the company's accountant kept records of these drawings by each. However, he refutes that this created any obligation on him personally to pay the loan back to Mr Lutfi. In this context, Mr Tucker, in his second affidavit, has provided some of Green Wheat's financial returns.
18. These indicate that the company did produce income and it would appear to be the case that these loans were the catalyst for the decision for it to issue the convertible notes referred to above. However, it is to be noted that these were not granted in favour of either Mr Lutfi and Mr Tucker personally but in favour of the corporate trustee of their respective superannuation funds.
19. It is the effect of Mr Tucker's evidence that staff of Green Wheat and then Green Grain kept appropriate accounting records of the amounts involved, and axiomatically no direct personal liability arose between him and Mr Lutfi or vice versa from these arrangements. In these circumstances, he contends that any counterclaim said to be available against him personally, by Mr Lutfi, cannot be viable in any conceivable sense of the word.
20. Mr Tucker disputes that he personally has any obligation to pay fees said to be due to Mr Lutfi for services rendered. If there are such fees, which he disputes, they are claimable against Green Grain, not him.
21. Mr Tucker agrees that GGPUT is the beneficial owner of land at Dublin. However, it is his position that the land does not have the potential to be sold for anywhere near the sums asserted by Mr Lutfi. Mr Tucker has deposed that no subdivision plan has been approved and is not likely to be so until a water main has been constructed to the land, which is estimated to cost $1m, a sum which Green Grain does not have the potential to raise.
22. In all these circumstances, Mr Tucker contends that Mr Lutfi has failed to discharge the onus on him regarding the viability of his purported counterclaim against him. Rather he asserts that he himself has provided documentary evidence, in the form of the direct loan agreements between him and Mr Lutfi that he has, in fact, a claim against Mr Lutfi for the various loans advance to him, which he (Mr Tucker) calculates to be currently an amount of around $750,000.00.
23. It is further Mr Tucker's case that the indemnity costs order made in his favour by O'Sullivan J is solely attributable to the fact that His Honour found that Mr Lutfi had been disingenuous in his account of how monies had come to be withdrawn by him from Green Grain. He points to the fact that this order has been made in his personal favour; whereas, in contrast, at best, any potential suit of Mr Lutfi's can only be against Green Grain or corporate entities related to it.
24. Given these factors, it was Mr Tucker's position that Mr Lutfi's various assertions of having counterclaims against him personally lacked sufficient substance to justify either setting aside or extending the period of time for compliance with the bankruptcy notice. Rather he characterised Mr Lutfi's case as a catalogue of unsupported assertions.
25. It is not necessary to detail Mr Lutfi's written submissions to the Registrar in any great detail as they largely re-state what he had deposed in his two affidavits. I do not quibble with any statements of legal principle contained in the submissions other than one principle, unexceptional in itself, is supported by an authority which does not, in fact exist, and as such, in the current jargon, appears to be an hallucination of the AI program utilised by Mr Lutfi.
26. Necessarily the position would not be the same if a legal practitioner had fallen into the same error. However, Mr Lutfi is not legally qualified and is not subject to any form of professional discipline. It would also appear to be the case that the issue did not, in itself, put Mr Tucker to any additional expense.
27. It is unacceptable that Mr Lutfi relied on an authority which was fallacious submission. I can understand how it came about and accept that he did not mean to mislead. No direct mischief has occurred and no additional expense spared. However, in general terms, it cannot help Mr Lutfi's overall credit and reinforces my impression, arising from the judgment of O'Sullivan J, that he will do and say whatever he can to negate Mr Tucker's application.
28. Other members of the public, who represent themselves in proceedings before the court, need to take heed of what has occurred and take all necessary precautions to protect themselves from the siren's call of AI in all future proceedings. Necessarily the court, in protecting the integrity of its own processes, may not so easily countenance, such lapses, in future.
29. Otherwise, in general terms, those advising Mr Tucker took exception to much of Mr Lutfi's affidavit material describing it as being riddled with scandalous, frivolous and vexatious material. More particularly, it was asserted that the affidavits were oppressive and burdensome and to a large extent incomprehensible. I share these concerns. I have done my best to decipher what is Mr Lutfi's case, which in my view, does largely rely on his unsupported assertion that Mr Tucker owes him a large sum of money because the two were in business together.
30. Axiomatically, they were in business together, but this business was conducted at arm's length through a complex group of corporate entities which they controlled. This was all well and good when they trusted one another, and perhaps when their business prospects were better, but clearly that trust is now long gone.
31. The Registrar published some brief reasons for her orders dismissal of Mr Lutfi's application. The relevant portion of which reads as follows:

I am not satisfied that the Applicant has done more than assert the existence of a counter claim. Even if the Applicant does have a claim for money owing to him, I am also not satisfied that the debt upon which the Bankruptcy Notice is based and the off­ setting claim are mutual and due in the same right and capacity. In other words, Applicant's claims are not against the Respondent as the creditor.

1. The application for review was filed on 13 October 2025. It is formulated in terms of an appeal asserting that the Registrar had misapplied the law relating to whether he had a genuine and substantial counterclaim; dismissing his application that the bankruptcy notice should be dismissed as an abuse of process; and finding that the debts alleged to be due to him were not mutual and due in the same right and capacity.
2. The court allocated 19 November 2025 as the date specified for the review application's first hearing before the court.
3. Pursuant to section 254 of the Federal Circuit & Family Court of Australia Act 2021 (Cth)[11] the Chief Judge of Division 2 of the court may make rules to delegate some aspects of judicial power to registrars appointed in Division 2. As a consequence of this power, the Federal Circuit & Family Court of Australia (Division 2) (Bankruptcy) Rules 2021[12] have been created.
4. One such power which has been delegated to registrars of the court is the authority to extend the time for compliance with a bankruptcy notice pursuant to the provisions of section 41(6A) of the Act. However, the corollary of this delegation is the unfettered right of any person affected by an order made pursuant to such a delegation to seek a review of the relevant decision.
5. Time limitations apply to any application for review. Pursuant to Rule 3.06 of the Federal Circuit & Family Court of Australia (Division 2) (General Federal Law) Rules 2025[13] any such application must be made within 21 days after the day on which the power is exercised. In this case the relevant date of exercise was 22 September 2025; with the review application being filed on 10 October 2025.
6. Accordingly, the application is in time. However, there is no evidence that Mr Lutfi formally served the application either personally on Mr Tucker or on his solicitors. Rule 3.07 of the Rules explicitly indicates that an application for review does not operate as a stay of the exercise of the power subject to review.
7. In these circumstances, from Mr Tucker's perspective, given the fact the Registrar Colbran had only notionally extended the relevant bankruptcy notice to the close of business on which she exercised the power, Mr Lutfi had committed an act of bankruptcy on 13 October 2025 by his non-compliance with the notice, which justified the filing of the relevant petition on 22 October 2025. The petition was allocated the same first return date as the review application by the court.
8. This particular scenario engages the provisions of Rule 4.04 of the Bankruptcy Rules which specifies the contents of the affidavit which is to accompany any such petition. It reads as follows:

(1) If a creditor's petition is founded on an act of bankruptcy specified in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by:

(i) that the records of the Court and the records of the Federal Court have been searched and no application in relation to the bankruptcy notice has been made; or

(ii) that an application was made in the Court or in the Federal Court (as the case may be) for an order setting aside the relevant bankruptcy notice and the application has been finally decided; or

(iii) that an application was made in the Court or in the Federal Court (as the case may be) for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and

(b) an affidavit of service of the relevant bankruptcy notice.

1. Mr Tucker filed such an affidavit, in support of his petition, which was lodged on 22 October 2025 but accepted for filing on 3 November 2025. The relevant portion reads as follows:

On 10 October 2025 the respondent filed an application for review of Registrar Colbran's decision in the Federal Circuit and Family Court of Australia (proceedings number ADG359/2025). This application is listed for hearing on 19 November 2025.

1. By necessary implication, Mr Tucker (or those advising him) did search the records of the court and discovered Mr Lutfi's review application. In these circumstances, notwithstanding the lack of formal service of the review, prior to the lodgement of the petition, Mr Tucker was aware of the review application but nonetheless elected to proceed with the petition.
2. As previously noted, I am not conducting an appeal of the Registrar's decision. Rather I am required to conduct a hearing de novo. The procedure to be followed in such a hearing is set out in Rule 3.08 of the Rules which provides as follows:

(1) The review of an exercise of power by a Registrar must proceed by way of a hearing de novo.

(2) In the review, the Court:

(a) may receive as evidence any affidavit or exhibit tendered before the Registrar; and

(b) may with leave receive further evidence; and

(c) may receive as evidence:

(i) any transcript of the proceeding before the Registrar; or

(ii) if there is no transcript - an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.

1. In Totev v Sfar[14] the Full Court described the nature of a hearing de novo, albeit in the context of a review of a registrar's decision to make a sequestration order, in the following terms:

In the case of a hearing de novo, however, the judge reviewing the order begins afresh and exercises for himself or herself any discretion exercised by the registrar. The parties commence the proceeding again, subject to any rules concerning the use of evidence adduced before the registrar. The hearing de novo involves the exercise of the original jurisdiction and the petitioner, in the case of a bankruptcy petition, must start again, call witnesses and make out the petitioner's case.

Because the hearing of an application for review of a sequestration order is a hearing de novo, it would not be sufficient for the reviewing judge to be satisfied that the registrar made no error and simply to dismiss the application for review. The judge who hears the review application must hear the petition afresh and must be satisfied as to the matters referred to in s52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of:

• the matters stated in the petition;

• the service of the petition; and

• the fact that the debt or debts on which the petitioning creditor relies is or are still owing.

The reviewing judge must also exercise afresh the discretions conferred by s 52(2).

1. Accordingly, on an application for review of a registrar's decision, the court:
   • is engaged in fresh proceedings;
   • does not scrutinise the original reasons to ascertain error; and
   • makes its own decision on the merits of the case.
2. In my view, nothing turns on Mr Lutfi's misapprehension of the principles to be applied on his review application. In my assessment, he has reiterated his earlier complaints about the bankruptcy notice as an abuse of process; asserted that he has a significant counterclaim against Mr Tucker; and remains aggrieved at the order for costs made against him by O'Sullivan J. He relies on the evidence in his two previous affidavits to this effect, which I have endeavoured to summarise in these reasons for judgment, as best I am able.
3. In these circumstances, I turn to that evidence and Mr Lutfi's evidence and, in effect, step into the shoes of the registrar. In this context, it is to be noted that Mr Lutfi has filed two further affidavits, which have been allocated to the file created by the court in response to Mr Tucker's creditor's petition.[15] This would seem to be because Mr Lutfi has utilised the file number allocated to the creditor's petition to each of these documents.
4. Thie first affidavit contains criticisms germane to the service of the petition upon him and therefore can have no relevance to the review application per se. The second is an ostensibly more detailed and certainly lengthy affidavit, which purports to expands upon issues relating to his counterclaim submissions and to which is annexed some of the documents annexed to his two earlier affidavits.
5. I will approach the second affidavit on the basis that Mr Lutfi wishes to rely upon it in both the review application and, in due course, the sequestration application. As I am at pains to point out, there is an overlap between both sets of proceedings, the success of the former, from Mr Lutfi's perspective depending on him establishing a bona fide counterclaim against Mr Tucker; and in the case of the latter, such a counterclaim being prophylaxis against bankruptcy.

1. Section 41(6A) has two limbs. Firstly, it provides discretion to extend time for compliance with a bankruptcy notice if there are proceedings to set aside the judgment which gave rise to the notice. This reflects general principles. A court exercising jurisdiction in bankruptcy should not proceed, certainly to sequestration, if an appeal is pending which is based on genuine and arguable grounds.[16]
2. In the present matter, there is no appeal pending. It is clear that O'Sullivan J has completed his deliberations in respect of the matter and provided reasons in respect of it. The costs have been assessed by the appropriate court officer and have not been subject to challenge.
3. More significantly, no actual appeal has been lodged and no potential grounds provided in the current proceedings. In these circumstances, it is a matter of conjecture as to what any possible grounds of appeal could be - certainly whether they could be considered to be genuine and arguable. The first limb can have no application.
4. The second limb provides a discretion to extend time if there is an application to set aside the relevant notice. There is such an application. This is the focus of Mr Lutfi's case. As I understand his submission, it is his position that the subsequent bankruptcy petition brought against him is destined to fail because he has a valid and viable counterclaim against Mr Tucker for a sum greater than the judgment debt on which the notice is brought. By necessary implication he seeks to extend time for compliance with the current notice until that counterclaim has been determined, presumably in the District Court.
5. There is no explicit power within the Act to set aside a bankruptcy notice. However, as noted above, section 41(6A) alludes to such a process. However, in[ ]Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation1717 Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310. Toohey J considered that section 30(1) of the Act, which provides the court with all necessary powers to d_ecide all questions coming within its cognisance and to make orders necessary for carrying out or giving effect to the Act_ necessarily authorised the court to set aside a bankruptcy notice.
6. A more interesting question is the overlap of this power with those relating to sequestration and how the court is to manage any overlap between the two. These issues are germane in the current matter given the coincidence of the review application - relating to the bankruptcy notice - and the subsequently filed petition.
7. The discretion created by section 41(6A) is not unfettered. It is subject to the operation of section 41(6C). The section also contains two limbs. Firstly, the court must be satisfied that proceedings to set aside the relevant judgment debt have been instituted by the relevant debtor and secondly the proceedings are both genuine and being prosecuted with due diligence.
8. As at the date of hearing, no such proceedings have actually been formally instituted by Mr Lutfi. All he has done is formulate a demand, which he has addressed to Mr Tucker. In my view, it is clear that the various controversies arising between Mr Lutfi and Mr Tucker have been in germination for many years.
9. It is only in the context of the bankruptcy notice, which arises from the cost order in the Federal Court proceedings that Mr Lutfi has floated the idea of him bringing proceedings against Mr Tucker in the District Court. These proceedings remain, in my view, both theoretical and prospective. These are matters which must have implications for how the court assesses the bona fides of his intention to bring such a suit against Mr Tucker, which has not as yet eventuated.
10. However, on a more fundamental basis, which also has implications for whether Mr Lutfi has committed an act of bankruptcy within the parameters envisaged by section 40(1)(g) of the Act, is the issue of whether Mr Lutfi has, in the words of the provision a counter-claim, set off or cross demand that he or she could not have set up in the action or proceedings in which the judgment or order was obtained.
11. In my view, this is clearly the nub of both the review application and, if required, the sequestration application. The answer to this question must also have implications for whether this court, exercising its jurisdiction in bankruptcy, can look behind the order of O'Sullivan J which gave rise to the bankruptcy notice and when is the appropriate time to consider doing so.
12. At the time of the challenge to the notice or when any petition is filed. The nicety of the issue being that it may be necessary to extend time for compliance to enable to such an exercise to take place. In modern jargon, a sequencing issue.
13. Mr Lutfi claims that he has provided evidence which he asserts supports his claim that Mr Tucker is personally indebted to him in an amount significantly greater than that specified in the relevant bankruptcy notice.
14. This evidence is contested by Mr Tucker, who contends that Mr Lutfi either does not understand that whatever controversies arise from the operations of Green Grain and its predecessor Green Wheat are between the various corporate entities involved rather than he and Mr Lutfi personally - the charitable view; or Mr Lutfi has consciously manipulated his evidence to asserts things that are patently untrue and unsupported by any documentary evidence - the uncharitable view.
15. In my assessment, there is an obvious distinction between the factual matrix which gave rise to the costs order against Mr Lutfi and the issues which he asserts give rise to him having a number of potential actions against Mr Tucker personally. This is notwithstanding the fact that there is some degree of commonality between them.
16. In the first, Mr Tucker complained that Mr Lutfi had abused his position as a director of Green Grain to make advances to himself and his superannuation fund from the company's resources. As a consequence, he (Mr Tucker) in his personal capacity issued interlocutory proceedings, in the litigation commenced by the receivers, in which both he and Mr Lutfi are interested parties and which concern the management of Green Grain, to seek an explanation as to what had become of those advances.
17. Both Mr Tucker and ultimately O'Sullivan J found the explanation proffered by Mr Lutfi to be unacceptable and, as Mr Tucker had been put to the personal and additional expense of bringing the application, he was awarded indemnity costs. The costs were incurred as a result of Mr Lutfi unreasonable conduct and are due to Mr Tucker personally.
18. In the second, Mr Lutfi claims that Mr Tucker personally is indebted to him in respect of the funding and operation of Green Grain of which both were directors. However, he has not provided any documentary evidence regarding a direct contractual relationship between the two or one based on Mr Tucker personally employing Mr Lutfi. The only contracts, directly relating to the two individuals concerned, are the loan agreements through which Mr Tucker advanced monies to Mr Lutfi, rather than vice versa.
19. It seems apparent to me, that the two men were largely engaged through the legal personalities of the various corporate entities which they controlled, other than in any personal capacity - the exception being that Mr Tucker sought to secure monies he had advanced in respect of Mr Lutfi's entity could be recovered from Mr Lutfi personally. Mr Lutfi does not contend that he is the lender to Mr Tucker as evidenced by any similar loan agreement.
20. In this context, it is striking that Mr Lutfi's claim that he has a significant counterclaim against Mr Tucker personally, arising from the operation of Green Grain and its corporate predecessor, over many years, is made only after the relevant bankruptcy notice is issued, which is itself a product of Mr Lutfi's conduct in other proceedings - themselves an inquiry, initiated into some aspects of the affairs of that company, by its receivers. In my view, these factors must have significant implications for the overall bona fides of any counterclaim which Mr Lutfi may ultimately pursue and its validity.
21. In essential terms, he raises the issue of him having significant claims against Mr Tucker personally only when he is subject to a personal judgment debt in Mr Tucker's favour and long after these claims are said to have arisen. In addition, in my assessment his claims that Mr Tucker is personally indebted to him rest on his assertion to this effect, without any clear documentary evidence.
22. Necessarily, given Mr Lutfi's application to set aside the bankruptcy notice and his subsequent opposition to the petition which was issued against him are inter-related based as they are on the same legal principle, namely he has not committed an act of bankruptcy because he has a counterclaim against Mr Tucker.
23. In Re Sterling; Ex parte Esanda Ltd[18] Lockhart J noted that the court had an inherent power to set aside bankruptcy notice based on its power to control its own practices and procedures and to avoid injustice. In this context he described the power of the court to extend time for compliance with the requirements of a bankruptcy notice as an aid of the power to set aside the notice itself. Once the court has heard the application to set aside the notice it may dismiss it or set the notice aside. In either case, exercise of the power to extend time for compliance will then be spent.
24. Lockhart J further indicated that it was not possible to list exhaustively all the matters which must be established to grant an extension of time for compliance with a bankruptcy notice. As indicated above the power created by section 41(6A) is one directed towards the efficient administration of the bankruptcy regime. Necessarily such a power is necessary to ensure that the hearing of issues does not have to be duplicated and in order to ensure that actual acts of bankruptcy do not occur whilst legitimate controversies, particularly appeals remained outstanding.
25. Significantly, Lockhart J indicated that such extensions of time were not to be made as a matter of course bur were dependent on the facts of the case concerned, which might entail some form of preliminary inquiry as to whether it was likely that, at some future stage, the court would be persuaded to go behind the judgment in question.
26. This would appear to be Mr Lutfi's position. In seeking the discharge of the bankruptcy notice, he invites the court to go behind the notice and characterise it as an abuse of process and likely to be circumvented by him establishing, in due course, a viable counterclaim. In this context, an obvious question arises, what is the point of doing that in the context of a bankruptcy notice, when there is a petition on foot, on the hearing of which Mr Lutfi will almost certainly attempt to canvas the same issues again.
27. Given the power to extend time is essentially an aid to assist in the efficient administration of justice - in broad terms, it is likely to be both appropriate and necessary to extend time, if a proper appeal process is on foot. In the present matter, it seems to me that the application to extend time can serve no useful purpose, particularly as there is no proceeding on foot to set aside the judgment debt on which the notice is based and a petition has already issued.
28. In Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation[19] Toohey J differentiated between an application to set aside a bankruptcy notice and the hearing of a creditor's petition in the following terms:

It seems to me that, however formulated, the grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice itself, service of the notice or the existence of the debt upon which the judgment and in turn the notice is founded. Having regard to the language of para.40(1)(g), reference to the existence of a debt must include the existence of a counter-claim, set-off or cross demand equal to or exceeding the amount of the debt.

A court hearing an application to set aside a bankruptcy notice is not hearing a petition for sequestration and the provisions of sub-s.52(2), whereby a court may dismiss a petition if satisfied that the debtor is able to pay his debts or that for other sufficient cause a sequestration order ought not be made, cannot be imported into such an application. In my view a court faced with an application to set aside a bankruptcy notice is constrained to look only at the regularity of the notice itself (including service) and otherwise at the circumstances surrounding the existence of the judgment debt and any demand which the debtor may have against the creditor for a comparable amount.

1. In my view, there is nothing irregular in the bankruptcy notice in this matter. I accept that it was validly served on Mr Lutfi, in accordance with the information technology requirements specified in section 102 of the Bankruptcy Regulations. It was reasonably to be expected that Mr Lutfi would be able to readily access the notice, which he clearly did.
2. The judgment debt on which the notice was based was regularly entered after a hearing before a judge of the Federal Court, with written reasons provided. The quantum of the costs ordered has been determined. No appeal has been lodged in respect of either such process. No stay has been obtained in respect of the costs order of O'Sullivan J. In those circumstances, the only remaining matters to support a dismissal of the notice are the submissions relating to counterclaim and abuse of process.
3. In my view, Mr Lutfi has only provided various assertions that he has a viable counterclaim against Mr Tucker. Certainly, no such claim is before any court, and, as such it remains prospective in nature. The same can be said in respect of his claim that the bankruptcy proceedings are some form of abuse of process.
4. This submission rests on the correlation of the bankruptcy notice with the bitterly contested proceedings in the Federal Court from which Mr Lutfi asserts that the only inference which can be reached as to why Mr Tucker caused the notice to issue is a desire, on his part, to stymie Mr Lutfi's capacity to take part in those proceedings. I accept that court has a wide discretion to set aside a bankruptcy notice which is an abuse of process. However, this power is to be reserved for clear cut cases. In my view, this is not such a case and Mr Lutfi has been unable to muster sufficient cogent evidence to justify so.
5. In Xu v Wan Ze Property Development (Aust) Pty Ltd (in Liquidation)[20] Robertson J said as follows:

Except in a clear case, questions of fraud, collusion, lack of good faith and miscarriage of justice, or whether substantial reasons have been shown for questioning whether behind the judgment there was in truth and reality a debt due to the judgment creditor, are more apt to be dealt with after the exhaustion of those remedies and where the Court is dealing with an application to make a sequestration order against the estate of the debtor. No doubt the circumstances in which the Court will go behind a judgment cannot be formulated precisely.

1. In the materials advanced in respect of the application to discharge the bankruptcy notice (which are acknowledged to be the same as those mustered in opposition to the creditor's petition), in my assessment, Mr Lutfi has not been able to provide such a clear case of abuse of process and notwithstanding the fact that Mr Lutfi describes the amount he is liable to pay Mr Tucker as being trifling when compared to what he asserts Mr Tucker owes him, the fact remains that he has provided no evidence that he is able to satisfy the relevant judgment.
2. In any event, in my view, the various matters raised by Mr Lutfi, in this context - the existence of a counterclaim and the abusive of process submissions - are matter more properly to be considered on the hearing of a petition, as they fall within the parameters of section 52(2) of the Act, particularly whether there is sufficient cause not to make a sequestration order.
3. In this sense, in my view, in circumstances in which there is no appeal against the judgment debt, the notice in question is regular in form and has been properly served; and it remains unsatisfied; the application to set aside the notice is misconceived.
4. In addition, in my view, given the fact that there is a petition currently on foot - albeit one which is subject to challenge on multiple bases, including improper service and potentially irregularities regarding the requirements of Rule 4.4 of the Bankruptcy Rules there is no utility in extending time for compliance with the notice. In this context, in written submissions filed on his behalf in the proceedings before the Registrar, counsel for Mr Tucker relied on recent authority of the Federal Court Owen v Sandu[21] in which Feutrill J provided the following criteria to be applied in the respect of the exercise of the court's discretion to extend time for compliance with a bankruptcy notice:
   • Whether proceedings to set aside the judgment or order have been instituted (including proceedings of that nature such as an appeal).
   • Whether a stay of the judgment or order has been sought or obtained.
   • The failure to comply with a bankruptcy notice is an act of bankruptcy that is a different order of gravity for the change of status brought about by the making of a sequestration order.
   • The interests of the judgment creditor and other creditors of the judgment debtor in ensuring that, if ultimately a sequestration order is made, the relevant act of bankruptcy occurs earlier rather than later.
   • In the absence of a stay of the judgment or order, the extent to which there is evidence of the means of the debtor to satisfy the judgment debt and, in any event, whether it would be appropriate to order security for the debt as a condition of any extension of the time for compliance.
   • Notwithstanding the undesirability of the court undertaking a provisional review to determine the correctness of the order giving rise to the relevant judgement debt, in some cases, particularly special leave applications, it may be appropriate to determine whether prospects of success range from slight to unusually strong.
5. I reiterate that there is no such appeal. There seem to be limited prospects of Mr Lutfi being able to satisfy the notice - certainly in the six months since the notice issues, he has not pointed to any capacity to do so. In these circumstances, it seems to me to be preferable that the court consider the overall matters relating to Mr Lutfi's solvency and the significant issues which he wishes to ventilate sooner rather than later.
6. For these reasons, I am not prepared to either dismiss the relevant bankruptcy notice or extend time for compliance with it further. It therefore follows that the application for review of the registrar's decision must be dismissed.

1. Before coming to the substance of Mr Lutfi's objections to the petition being dealt with by the court, it seems to me to be necessary for the court to resolve to significant procedural issues. Firstly, the issue of service of the petition on Mr Lutfi. Secondly, procedural irregularities relating to Mr Tucker commencing the sequestration proceedings whilst Mr Lutfi's review application remained unresolved and, at least, in theoretical terms, there existed the possibility that the bankruptcy notice would be dismissed or time for compliance would be extended.
2. The creditor's petition was lodged with the court on 22 October 2025, however not actually accepted for filing until 3 November 2025. Why this was so is unclear to me. It was at this stage that the date for the first mention of the petition - 19 November 2025 - became apparent.
3. Accompanying the petition was an affidavit of service of the bankruptcy notice but not of the petition itself. However, in a subsequent application for substituted/deemed service, which was filed by Mr Tucker's solicitors on 9 December 2025, it became apparent that the petition had been sent, by electronic means, to what was believed to be Mr Lutfi's email address and by pre-paid express post to his residential address in Glenelg.
4. In this context, it is to be noted that, on 17 November 2025, Mr Lutfi filed a notice of opposition to the petition, which was endorsed with the following email address; flutfi@lphplc.com.au and provided as his address for service 703/8 South Esplanade, Glenelg. These addresses were consistent with those endorsed on his application for review filed on 4 July 2025.
5. As with the bankruptcy notice, the issue of service of the petition is primarily governed by the Bankruptcy Rules and section 102 of the Bankruptcy Regulations. Other provisions in the Rules deal with provisions relating to service and applications for substituted service and deemed service.
6. Rule 4.05 of the Bankruptcy Rules provides as follows:

Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor's petition, the applicant creditor must serve on the respondent debtor:

(a) the creditor's petition; and

(b) a copy of the affidavit, or affidavits, verifying the petition required by subsection 47(1) of the Bankruptcy Act; and

(c) if applicable, a copy of the affidavits relating to the petition required by rule 4.04; and

(d) a copy of any consent to act as trustee of the debtor's estate filed under section 156A of the Bankruptcy Act.

1. In his grounds of opposition to the petition, Mr Lutfi complains that these provisions were not complied with. In an affidavit filed concurrently with this document, he deposed that he had been away and without internet services until 16 November 2025. In this context, he further deposed that, on the evening of 16 November 2025, while checking [his] emails, [he] had found an email from Mr Tucker's solicitors, which contained both the relevant petition and notice that his review application and the petition had been listed for 19 November 2025.
2. Rule 8.05 provides that all originating process is to be personally served on the respondent named in it. Specifically, by virtue of Rule 10.01 that is done by leaving the relevant document with the individual so named.
3. Rule 10.13 is headed Deemed Service and provides as follows:

A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date referred to in the order if:

(a) it is not practicable to serve a document on the person in a way required by these Rules; and

(b) the party provides evidence that the document has been brought to the attention of the person to be served.

1. Rule 10.14 is head Substitutes Service and provides as follows:

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a) substituting another method of service; or

(b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c) specifying that the document is taken to have been served:

(i) on the happening of a specified event; or

(ii) at the end of a specified time; or

1. In addition, Rule 10.09 deals with situations in which a party has filed a notice of address for service. In such cases, the person serving the notice is deemed to have been personally served on the date on which such notice was filed or if the person appears at court on that date.
2. On the same day as Mr Lutfi filed these documents, Ms Chryssidis, one of Mr Tucker's legal representatives, filed an affidavit in which she deposed as to her attempts to service the petition personally on Mr Lutfi. The contents of her affidavit can be summarised in the following terms:
   • On 3 November 2025, following receipt of the filed documents from the court she retained a process server to personally serve Mr Lutfi at his Glenelg address;
   • The process server had attended these premises on 3 occasions between 6 & 10 November 2025 but Mr Lutfi had not answered his intercom;
   • On 10 November 2025, she had sent the documents to Mr Lutfi's email address.
3. In my view, there is no great discrepancy between Mr Lutfi's evidence and that of Ms Chryssidis. It is entirely possible that Mr Lutfi was away from him home and this explains why he did not answer his intercom. However, the contents of Mr Lutfi's affidavit of 17 November 2025 seem to have precipitated the application for substituted service which was made on 8 December 2025 and which was supported by an affidavit of Mr Tucker.
4. This application was prefaced as being authorised by section 309(2) of the Act, to which reference has already been made. It sought the following orders:
   • Dispensation of personal service of the petition;
   • An order that service of the petition be deemed to have occurred on 10 November 2025 when it had been despatched to Mr Lutfi;
   • In the alternative, the service of the petition be deemed to have occurred four days after it had been posted to Mr Lutfi at his address in Glenelg.
5. In his affidavit, Mr Tucker deposed as to the attempts to personally serve Mr Lutfi and confirmed that the petition and supporting documents had been sent to his email address, which Mr Lutfi had confirmed was correct in several pieces of correspondence filed in the court. In addition, Mr Lutfi himself had confirmed receipt of the petition, albeit some days after it had been sent. In addition, he pointed to the fact that Mr Lutfi had attended at court on the first hearing of the petition and had been able to file grounds of opposition.
6. As previously indicated, on 19 November 2025, the review application was fixed for hearing on 12 December 2025, and the petition was adjourned until the same day. In this context, Mr Lutfi elected to file further grounds of opposition, supported by a further affidavit. In addition, as previously indicated, he had drafted a letter of demand, which he asserted foreshadowed his instigation of proceedings in the nature of a counterclaim against Mr Tucker personally, which had not been actually filed in the District Court because of its rules which required such a pre-action demand.
7. The email address on this document was the address to which the petition had been despatched and indeed this was the email address on Mr Lutfi's review application filed on 4 July 2025. Clearly, in my view, Mr Lutfi became aware of the petition when he checked his emails on 16 November 2025.
8. In my view, given Mr Lutfi's consistent provision and use of this email address, it would not have been unreasonable for those advising Mr Tucker to have had an expectation that he would have received the petition on the date of its despatch, which was 10 November 2025. In this sense, in my view, there has been compliance with section 102(1)(d) of the Regulations. In addition, I note the discretion conferred upon the court by section 309(2) of the Act and find that the petition was served on Mr Lutfi, by electronic communications.
9. I note that the petition was not personally served on Mr Lutfi and I am prepared to accept that he did not actually receive it five clear days prior to its listing by the court, in the absence of any evidence in rebuttal.
10. In addition, I accept that there has been a failure of the petitioner to comply with the import of Rule 4.04 of the Bankruptcy Rules in the sense that the petition was commenced whilst Mr Lutfi's application for a review of the registrar's decision not to extend time for compliance with the relevant bankruptcy notice or to extend time for compliance with it remained outstanding.
11. Given these factors, is it just and reasonable for the court to proceed with the petition concurrently with the review application. Necessarily those advising Mr Tucker contend that it is on two bases.
12. Firstly, fundamental principles of bankruptcy law dictate that issues of insolvency are to be determined expeditiously. In this context, it is to be noted that the bankruptcy notice was issued on 13 June 2025 and remains outstanding.
13. Secondly, the grounds on which Mr Lutfi seeks to oppose the sequestration order are essentially the same as those on which he sought to dismiss the bankruptcy notice and he has been given ample opportunity to elaborate on these grounds in the material which he has filed in court.
14. Accordingly, it is implicit in this submission that it is consistent with the proper administration of justice and the court's overarching purpose in conducting the civil litigation contained in section 190 of the FCFCOA Act, which directs the court to facilitate matters quickly, inexpensively and efficient that the petition be determined immediately following the resolution of the review application.
15. Mr Lutfi did not formally apply for the adjournment of the petition and, on 12 December 2025 provided his brief oral but consistent submissions that he should not be made bankrupt. As previously noted, he filed a further affidavit opposing the petition on 10 December 2025.
16. In this context, in my view, there was no prejudice accorded to Mr Lutfi arising from the court electing to proceed with the petition upon the dismissal of the review application. What prejudice arises relates to its ultimate outcome. For obvious reasons, Mr Lutfi would want to delay this for as long as possible. The question for the court being what will be served by further delaying the petition.
17. Having resolved the issue of service, in my view, any other potential irregularities in respect of the petition should be approached in the context of the provisions of section 306(1) of the Act, which reads as follows:

(1) Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.

This section mirrors the provisions of section 189 of the FCFCOA Act.

1. In Bates v Bechara (No 3)[22] Judge Kelly considered section 306 should be read in conjunction with section 30(1)(b) of the Act which reads as follows:

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

1. Judge Kelly also differentiated between requirements of the Act, which were to be approached as being substantive and other which were to be approached as irregularities in form and so more easily excused. The distinction between the two being drawn in the context of the significant nature of bankruptcy proceedings for the debtor concerned, with sequestration resulting in a change in status for the individual concerned. In this context, the court was obliged to give consideration to the desirability of their being a level of insistence with the requirements of due formality.
2. I will return to those considerations, in more detail, at a later stage of these reasons for judgment. But at this stage I have reached the conclusion that these various matters do not preclude the court from hearing Mr Tucker's petition and the defects in process, so identified, are not of such moment, when the overall context of the case is considered, to negate the court's authority to excuse them pursuant to the provisions of section 306(1).
3. In my estimation, they do not result in Mr Lutfi suffering injustice, which require the court to either dismiss the petition or more importantly justify its adjournment. In my view, such an adjournment would not achieve anything of substantive. For those reasons, I propose to deal with the submissions of each of the parties in respect of the petition.

1. The court's jurisdiction to make a sequestration order is founded in section 43(1) of the Bankruptcy Act. It depends upon the petitioning creditor establishing the commission of an act of bankruptcy by the debtor concerned.
2. In addition, the section provides a number of other conditions which must be satisfied which include residence in Australia, at the time of the commission of the act of bankruptcy. It is also clear that the authority to make a sequestration order is discretionary in nature.
3. Section 40 provides an exhaustive list of circumstances which constitute an act of bankruptcy. Of particular relevance in the following matter, is section 40(1)(g) which provides as follows:

(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:

(i) where the notice was served in Australia--within the time specified in the notice; or

(ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service;

comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;[23]

1. As previously indicated, Mr Lutfi relies on this provision and asserts that he has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the judgement debt open to him in the form of the District Court proceedings foreshadowed by him. That is not end of his opposition to the petition. He seeks that the court exercise its discretion not to make a sequestration order.
2. Section 52(1) of the Act provides the process which the court is required to follow at the hearing of a creditor's petition and the evidentiary matters which must be satisfied before a sequestration order is made. The section is in the following terms:

(1) At the hearing of a creditor's petition, the Court shall require proof of:

(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b) service of the petition; and

(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

1. It is clear from the use of the word may in section 52(1) that the court's authority to make a sequestration order is discretionary. It is also subject to the considerations contained in section 52(2), which reads as follows:

If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

(a) that he or she is able to pay his or her debts; or

(b) that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

1. In this context, in his grounds of opposition to the petition, in addition to the counterclaim, Mr Lutfi submits the following:
   • He is solvent;
   • The petition is an abuse of process and, as such, the court should look behind the costs order made against him and assess its veracity and the motivation of Mr Tucker for obtaining the bankruptcy notice against him.
2. For the reasons provided above, I am satisfied as to service of the petition. Ms Chryssidis has filed an affidavit indicating that the judgment debt against Mr Lutfi remains unsatisfied. Ms Chryssidis has filed a further affidavit indicating her search of the National Personal Insolvency Index, which indicates that Mr Lutfi is not subject to an existing sequestration order or personal insolvency agreement.[24] I also find that Mr Lutfi is a resident of Australia.
3. In these circumstances, it seems to me that Mr Tucker has satisfied the various criteria necessary for a sequestration order to be made pursuant to section 52. It therefore falls to Mr Lutfi to establish that there is sufficiently potent reasons as to why it should not be made. I acknowledge that the expression other sufficient cause had been broadly interpreted in the past and has connotations of public interest.
4. However, as Allsop J (as he then was) said, at first instance, in Totev v Sfar:[25]

On proof of the matters in section 52(1) of the Act, the Court will generally proceed to make an order for sequestration. It is for the debtor to persuade the Court that the public interest in the dealing with the insolvent debtor and the rights of individual creditors are outweighed by other considerations.

1. I have already attempted to summarise the position of each of the parties in respect of this aspect of the case in the context of the bankruptcy notice proceedings. In this context, it is not sufficient for Mr Lutfi to assert that he has a counterclaim or some form of cross demand. The onus is on him to establish both the bona fides of his claim and its overall viability.
2. Mr Lutfi seeks the dismissal of the petition or by necessary implication its indefinite adjournment to enable him to pursue as an unfiled application in the District Court. Relevant authority indicates that this court, in entertaining such an application must consider the overall merits of the proceedings concerning, whilst falling short of actually determining what the outcome is likely to be. This exercise was described by the High Court in Guss v Johnstone[26] as involving the

... weighing up of considerations as to the legal and factual merit of the claim relied upon by the debtor and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim.

1. In this context, I rely on what was said by Lindgren J in Glew v Harrowell; in the matter of Glew[27]

Perhaps little more can usefully be said than that a debtor must satisfy the Court that there is sufficient substance to the counter-claim, set-off or cross demand asserted to make it one which the debtor should, in justice, be permitted to have heard and determined in the usual way, rather than be forced to comply with the bankruptcy notice by payment or to commit an act of bankruptcy.

1. I am not satisfied that Mr Lutfi has satisfied the court that there is sufficient substance to his counterclaim against Mr Tucker personally given the matter raised by him, which as previously indicated relate to claims that he is due monies for services rendered to Green Grain; in respect of financial contributions said to have been made by him to this company and its predecessor; and in relation to the alleged loss of land sales by the company.
2. Mr Lutfi has not provided any documentary evidence of any contract of employment between him and Mr Tucker. Rather, in my assessment he has made an uncorroborated assertion that he his due significant monies in respect of unpaid professional fees.
3. In this context, as previously noted, it is significant that Mr Tucker's judgement against him is one of a personal nature, arising from the omissions of Mr Lutfi in the Federal Court proceedings. It is not related to the operation of either Green Grain or Green Wheat per se.
4. In this context, Ms Chryssidis points to the lack of mutuality between the judgment debt, in Mr Tucker's personal favour, which founds the petition and Mr Lutfi's case for a counterclaim which is against various entities which at relevant times were controlled by him and Mr Tucker but which are distinct legal personalities from each of them. She relies on the following passage from Stec v Orfanos:[28]

Thus a claim by a judgment creditor personally cannot be answered by a claim against the creditor as a member of a partnership or an executor or trustee.

1. In his most recent affidavit, Mr Lutfi asserts that he is solvent in terms of the definition provided by section 5(2) of the Act in the sense that, other than for the machinations of Mr Tucker, he would be able to pay his debts as and when they become due and payable. Essentially, Mr Lutfi submits that he is able to pay his debts and therefore the court cannot be satisfied of the matter contained in section 52(2) of the Act and so should not make a sequestration order.
2. As best I can understand this claim it is based on the submission that Mr Tucker has blocked his access to the assets of the company and the rent which it is entitled to receive from the land which it owns and he (Mr Tucker) is guilty of some species of fraud or malfeasance in respect of the convertible notes issued by the company in favour of the corporate trustee of his (Mr Lutfi's) self-managed superannuation fund_._
3. Although the Bankruptcy Act is concerned with issues of personal insolvency, it does not utilise such terminology, speaking rather of the ability to pay debts. The High Court, in Sandell v Porter,[29] provided the following elaboration on what is meant by the phrase:

Insolvency is expressed in s. 95 as an inability to pay debts as they fall due out of the debtor's own money. But the debtor's own moneys are not limited to his cash resources immediately available. They extend to moneys which he can procure by realization by sale or by mortgage or pledge of his assets within a relatively short time - relative to the nature and amount of the debts and to the circumstances, including the nature of the business, of the debtor. The conclusion of insolvency ought to be clear from a consideration of the debtor's financial position in its entirety and generally speaking ought not to be drawn simply from evidence of a temporary lack of liquidity. It is the debtor's inability, utilizing such cash resources as he has or can command through the use of his assets, to meet his debts as they fall due which indicates insolvency. Whether that state of his affairs has arrived is a question for the Court and not one as to which expert evidence may be given in terms though no doubt experts may speak as to the likelihood of any of the debtor's assets or capacities yielding ready cash in sufficient time to meet the debts as they fall due

1. Accordingly, it would seem to me to be that the relevant test as to the ability of a person to pay one's debts requires the court to ascertain whether the debtor concerned is able to pay his or her debts from cash or realisable assets within a relatively short period - relative to the size and amount of the debts and to the circumstances, including the nature of the business, of the debtor.
2. In other words, what is required is for the court to look at the objective fiscal circumstances of the debtor concerned. Significantly, insolvency is concerned with an assessment of a person's capacity to pay all debt, with a level of expediency appropriate in the circumstances.
3. Whether Mr Lutfi will or will not be entitled to any monies from Green Grain is not able to be resolved by me, at this stage. I note, however, that the company is in liquidation. As such, it is not the case that it will be in a position to yield any funds to Mr Lutfi in a reasonable time frame. Otherwise, he had provided no evidence that he is in a position to defray funds to satisfy the judgment debt against him. In essence, he has not established that he is solvent.

1. In this context, Mr Lutfi submits that he has provided sufficient cause to justify the court, in effect, going behind the costs judgment against him and declining to make the sequestration order sought. This rest on his characterisation of the proceedings as an abuse of the court's process and the use of bankruptcy proceedings against him disproportionate and oppressive in the context of the other litigation in which he and Mr Tucker are involved in the Federal Court.
2. At the outset, it is important to note the special nature of bankruptcy proceedings, which are not directed merely to the collection of debts. In Culleton v Balwyn Nominees Pty Ltd[30] the Full Court emphasised the fundamental change in status wrought upon a person who was rendered bankrupt and the fact that such a change in status was very often replete with connotations of moral failure. As such, it remined first instance courts, such as this one, not to forget the human reality of bankruptcy and the potential emotional significance it held for the individuals affected by it.
3. I acknowledge the potential significance for Mr Lutfi of a sequestration order being made against him personally. The Full Court said as follows:

Bankruptcy is not just a variety of inter partes litigation; it does not deal only with the private rights and obligations of the debtor and creditor; it is not a form of judgment execution. It is directed to the estate of a person who is insolvent. In that sense it has a public interest, through the general body of creditors and potential creditors of the debtor and prospective bankrupt, and through what is referred to as the change of status of the person who becomes a bankrupt. That status is changed because of the provisions of the Act which inhibit conduct and affect rights and obligations of the bankrupt, including making the bankrupt susceptible to criminal punishment for what would otherwise be innocent conduct.[31]

1. However, the fact remains Mr Tucker has a judgment in his favour. In these circumstances, the following exegesis of principle, provided by the High Court in Ramsay Health Care Australia Pty Ltd v Compton[32] seems to me to be germane to the current matter:

In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as "res judicata" between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary processes of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order A Bankruptcy Court has a statutory duty to be "satisfied" as to the existence of the petitioning creditor's debt; a creditor should not be able to make a person bankrupt on a debt which is not provable.

1. Given this authority, in my view, I am not in a position to overlook the legitimacy of Mr Tucker's entitlement to seek payment of the judgment debt made in his favour by O'Sullivan J in recompense of the expense to which he was put by what His Honour characterised as Mr Lutfi's recalcitrance in the conduct of the litigation before him. As Fuetrill J indicated in Owen v Sandhu:[33]

Courts are reluctant to exercise the jurisdiction where the judgment was entered after a full investigation of the issues at a trial where both parties appeared and had ample opportunity to put their cases

1. The debt arose after Mr Lutfi had the opportunity to make submissions to the court and was a result of the court's careful deliberation resulting in a published decision. Thereafter the quantum of the costs has been calculated by the court's registrar. Neither process has been subject to challenge. Accordingly, the propriety of the debt itself is not open to challenge.
2. It is not improper for Mr Tucker to seek the payment of costs awarded to him. In essential terms, this was not a default judgment or one which arose in the absence of Mr Lutfi. In these circumstances, in my view, it is difficult for this court to go behind or challenge its legitimacy.
3. I accept that this court can go behind a judgement in order to determine whether there is in truth and reality a debt due to the creditor concerned. I also accept that the circumstances it which this will be permissible cannot be completely categorised.
4. However, a substantial reason must be advanced to go behind a judgment, and it will not occur as a matter of course. The most frequent circumstances in which a court is justified in going behind a judgment are fraud, collusion and miscarriage of judgment. None of which, in my view, are relevant to the current matter.
5. As previously noted, it is also a part of Mr Lutfi's case that, given he and Mr Tucker are involved in other litigation relating to the receivership and then liquidation of Green Grain, Mr Tucker has an ulterior motive for bringing the sequestration proceedings and thus it can be characterised as an abuse of the court's processes.
6. As I understand his submission in this regard, he contends that Mr Tucker wishes to prevent him taking part in the Federal Court proceedings and so enable him to obtain a judgment from the court which is advantageous to him (Mr Tucker) and disadvantageous to him.
7. In addition Mr Lutfi contends that Mr Tucker is aware of his obligation to pay him approximately $1m to equalise their contributions to Green Grain and so knows that Mr Lutfi is solvent; the same submission is advanced in respect of the monies said to be due to him for professional services; it is noteworthy that Mr Tucker has not sought to utilise other enforcement processes to secure payment of the costs order or sent him a formal demand for payment.
8. Accordingly, in these circumstances, the resort to bankruptcy proceedings is to be characterised as heavy handed and designed to accord him embarrassment and disadvantage rather than to collect the debt. Thus, it is abusive in nature.
9. As previously indicated, the burden is on Mr Lutfi to establish his contentions and it is a heavy one to discharge.[34] To assert that a proceeding represents an abuse of process is a serious allegation; it is not one that can be made without a sufficient factual foundation.[35]
10. I accept that the concept of what constitutes an abuse of process is not to be regarded as a closed category of matters but depends on the individual circumstances of each case. In Tomlinson v Ramsey Food Processing Pty Ltd[36] the majority of the High Court said as follows:

Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.

1. In Rogers v R McHugh J noted that abuse of procedures usually falls into one of three categories as follows:

(1) the court's procedures are invoked for an illegitimate purpose;

(2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or

(3) the use of the court's procedures would bring the administration of justice into disrepute.

The yardstick to be applied to such criteria being that the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice and unfairness. [37]

1. The essence of an abuse of process is that the proceedings concerned have been brought not to prosecute them to their proper legal conclusion but rather as a means of obtaining some advantage, for which they are not designed or some collateral advantage beyond what the law offers. Again, there is a heavy onus on the person alleging abuse of process. As such to establish abuse more than mere assertion is required.[38]
2. In terms of Mr Lutfi's submission that the bankruptcy notice and the resulting petition are directed towards embarrassing him or pressuring him, when Mr Tucker is well aware of his (Mr Lutfi's) counterclaim and by extension that it will be ultimately determined that Mr Tucker is indebted to him in a sum in excess of $1m, apart from Mr Lutfi's assertion of these matter, in my view, there is no cogent evidence of such a personal level of indebtedness. As previously noted, there is a distinction between any indebtedness arising from the relationship between the various corporate entities in which the two men are involved.
3. I acknowledge that if it is apparent to the court that the purpose of a bankruptcy notice is to put pressure on a debtor to pay a debt, rather than to invoke the court's insolvency jurisdiction, the issuing of the bankruptcy notice will be an abuse of process. However, such a power is discretionary and arises where it is established that the creditor concerned has no real intention of seeking payment.
4. In Killoran v Duncan[39] Gyles J observed:

Whilst there is no debate about the jurisdiction of the Court to set aside a bankruptcy notice as an abuse of process where it can be concluded that it was simply to put pressure on the debtor rather than to genuinely invoke the Court's jurisdiction, I am not satisfied that that is the position here. There is nothing to indicate that the respondent creditor does not genuinely intend to pursue the matter if there is default in complying with the notice. In my opinion, there is nothing special about abuse of process in this field, and, if a person wishes to resort to the jurisdiction of the Court for appropriate orders, then it will be an unusual case in which that will be prevented.

There is no evidence here of any collateral purpose or of any undue pressure being applied. It is correct, I think, that the time to judge abuse of process is the time that the bankruptcy notice is issued and that subsequent events have relatively slight relevance. They may be relevant insofar as they throw light upon circumstances which might have been appreciated and foreseen at the time of the issue of the notice.

If, contrary to my view, however, there were a prima facie case of abuse of process, the remedy is discretionary and, in my view, if circumstances following that time had altered significantly so that it would not be appropriate to set aside the notice, I think that the jurisdiction of the Court is wide enough to give effect to that. I have in mind here that whilst the immediate parties to the application are those with the most interest in the matter, the body of creditors generally also have an interest and I cannot be certain one way or the other about the position of solvency. It may be most unfortunate if a bankruptcy notice were set aside in circumstances where the debtor is in fact insolvent.

1. It seems axiomatic, in the present case, that Mr Tucker does seek to enforce the judgment debt against Mr Lutfi, as he is entitled to do so. The remedy which Mr Lutfi seeks is a discretionary one. In this context, the relevant judgment debt arose as a consequence his recalcitrance to a court order rather than vice versa.
2. In my view, there is no evidence to support Mr Lutfi's assertion that the petition has been brought to stifle the litigation in the Federal Court. In this context, I note that the relevant proceedings have been brought by the receivers, who seek directions from the court, which are likely to have implications for both Mr Lutfi and Mr Tucker. This litigation can continue and will ultimately determine what is to happen to the sum held by the court.
3. For these reasons, I have come to the conclusion that Mr Lutfi has not established sufficient cause as to why the court should not make a sequestration order against his estate. He has not established the existence of a meritorious counterclaim or that the proceeding themselves are an abuse of process. The judgment debt followed a contested hearing and remains outstanding. Mr Lutfi has no proposal to pay it in a reasonable time frame.

1. As noted above the application to review the registrar decision is dismissed. I determine that the relevant petition was served on Mr Lutfi on 10 November 2025. Upon hearing the petition, I have come to the conclusion that the statutory requirements for making a sequestration order have been made out. I find that the date of the act of bankruptcy was 22 September 2025.
2. The applicant's costs are to be taxed and paid from Mr Lutfi's estate in accordance with the provisions of the Act. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

[1] Hereinafter referred to as "the Act".

[3] Hereinafter referred to as "Green Grain" or "the company".

[4] See Cooper (Receiver), in the matter of Green Grain Processing Technologies Pty Ltd (Receivers Appointed) (No 2) [2024] FCA 683 at [7] & [14].

[5] See Cooper (Receiver), in the matter of Green Grain Processing Technologies Pty Ltd (Receivers Appointed) (No 3) [2024] FCA 1142.

[6] See Regulation 10A of the Bankruptcy Regulations 2021 - hereinafter referred to as the Bankruptcy Regulations.

[7] See affidavit of Sally Monaghan filed on 3 November 2025.

[10] Hereinafter referred to as "Green Wheat".

[11] Hereinafter referred to as the FCFCOA Act.

[12] Hereinafter referred to as "the Bankruptcy Rules".

[13] Hereinafter referred to as "the Rules".

[14] Totev v Sfar [2008] FCAFC 35 at [13] - [14].

[15] Affidavits of Ihab Lutfi filled 17 November 2025 and 9 December 2025 respectively.

[16] See Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312; (1987) 76 ALR 137 at 148 .[ ]

[18] Re Sterling; Ex parte Esanda Ltd [1980] FCA 61; (1980) 30 ALR 77.

[19] Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (1986) 12 FCR 310 at 312.

[20] Xu v Wan Ze Property Development (Aust) Pty Ltd (in Liquidation) [2014] FCA 461 at 311.

[21] Owen v Sandu [2024] FCA 198 at [71].

[22] Bates v Bechara (No 3) [2021] FedCFamC2G 155.

[23] See Bankruptcy Act 1966 (Cth) s 40(1)(g).

[24] See affidavits of Helene Chryssidis filed 18 November 2025 and more recently on 11 December 2025.

[25] Totev v Sfar [2006] FCA 470 at [37].

[26] Guss v Johnstone [2000] HCA 26.

[27] Glew v Harrowell; in the matter of Glew [2003] FCA 373 at [12].

[28] Stec v Orfanos [1999] FCA 457 at [24].

[29] Sandell v Porter (1966) 115 CLR 666 at 670 per Barwick CJ.

[30] Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8.

[32] Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 261 CLR 132 at [54] per Kiefel CJ, Keane and Nettle JJ.

[33] Owen v Sandhu (supra) at [46].

[34] See Williams v Spautz [1992] HCA 34 at [42].

[35] See Royal v Nazloomian; in the matter of Royal [2019] FCA 555 at [37].

[36] See Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; [2015] 256 CLR 507 at [25].

[37] Rogers v R [1994] HCA 42; (1984) 181 CLR 251 at 286.

[38] See Davidoa v Murphy [2009] FCA 601 at [91] per Flick J.

[39] Killoran v Duncan [1999] FCA 1574 at [12] - [14].