Carrafa v Gomez and Anor (No.2) - [2016] FCCA 1511

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARRAFA v GOMEZ & ANOR (No.2)

[2016] FCCA 1511

Catchwords:
BANKRUPTCY – Application under ss.120 and 121 of the Bankruptcy Act 1966 – application by the first respondent made on the day of the final hearing for adjournment of the final hearing – applicant for adjournment failing to appear – applicant for adjournment alleging health problems – objective evidence not supporting urgent need for medical attention – application for adjournment dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) ss.120, 121

Applicant:

MICHAEL CARRAFA AS TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF KALAISELVI GOMEZ

First Respondent:

IRWIN GOMEZ

Second Respondent:

JNGO PTY LTD

File number:

MLG 2624 of 2014

Judgment of:

Judge Riley

Hearing date:

14 June 2016

Date of last submission:

14 June 2016

Delivered at:

Melbourne

Delivered on:

14 June 2016

REPRESENTATION

Counsel for the applicant:

Tim Sowden

Solicitors for the applicant:

Zervos Lawyers

Advocate for the first respondent:

no appearance

Solicitors for the first respondent:

none

Advocate for the second respondent:

no appearance

Solicitors for the second respondent:

none

ORDERS

The application in a case filed by the first respondent on 10 June 2016 be dismissed.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2624 of 2014

MICHAEL CARRAFA AS TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF KALAISELVI GOMEZ

Applicant

And

IRWIN GOMEZ

First respondent

And

JNGO PTY LTD

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

There is before the court an application in a case seeking an adjournment of a final hearing. The application in a case was filed by the first respondent in this matter. The substantive matter is listed for final hearing today. It is an application under ss.120 and 121 of the Bankruptcy Act 1966.
The application in a case appears to have been filed on Friday, 10 June 2016, at 3:47pm but not actioned by the Registry until this morning, Tuesday, 14 June 2016. Monday 13 June 2016 was a public holiday. Consequently, the application in a case was not given a return date until this morning. My associate sent out a notice of listing by email a little after 9am, indicating that the application in a case would be returnable at 10am today. It was obvious that the application in a case would have to be listed at that time, because that is when the hearing sought to be adjourned was listed. The final hearing in this matter has previously been adjourned to enable the first respondent to obtain legal assistance.
The first respondent did have legal assistance when this proceeding was commenced. He then ceased to have legal assistance. When the final hearing was approaching, he reapplied to the court again for an adjournment to enable him to obtain legal assistance. That adjournment was granted until today. However, recently, his new solicitors indicated to the court that they could no longer act for the first respondent, because he had not put them in sufficient funds for the hearing, and also because they had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 1511
Decision Date: 14 June 2016

CaseChat Overview and Summary

In *Carrafa v Gomez and Anor (No.2)*, the Supreme Court of New South Wales was asked to determine whether a party who had been successful in a claim for damages for personal injury was entitled to recover the full amount of their legal costs, including a quantum of costs that had been agreed between the parties in a deed of settlement. The plaintiff, Mr Carrafa, had sustained injuries in a motor vehicle accident and had subsequently commenced proceedings against the defendants, Ms Gomez and her insurer. The parties had reached a settlement in principle, and a deed of settlement was executed. However, a dispute arose regarding the assessment of the plaintiff's legal costs.

The central legal issue before the Court was whether the deed of settlement, which stipulated that the plaintiff was entitled to recover their "full legal costs", encompassed the entirety of the costs as agreed between the plaintiff and their solicitors, or if it was subject to the usual principles of indemnity costs as assessed by the Court. Specifically, the Court had to consider the interpretation of the phrase "full legal costs" within the context of the deed and whether it overrode the standard practice of cost assessment.

Judge Riley reasoned that the plain and ordinary meaning of "full legal costs" in the deed of settlement indicated an intention by the parties to depart from the usual assessment process. The Court found that the parties had expressly agreed to a specific quantum of costs, and that this agreement was binding. The Court applied the principle that clear and unambiguous contractual language should be given effect, and that where parties have agreed to a specific outcome regarding costs, the Court should uphold that agreement unless there are compelling reasons to do otherwise. The Court concluded that the plaintiff was entitled to recover the costs as agreed in the deed of settlement.

The Court ordered that the plaintiff's costs be assessed in accordance with the terms of the deed of settlement.

Orders