Carrafa v Gomez and Anor (No.2)
[2016] FCCA 1511
•14 June 2016
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 reasons of an ethical nature for being unable to continue to represent him.
The solicitors notified the court of these circumstances towards the end of last week. At that point, the court advised that the solicitors would need to attend court today to seek leave as, under the rules, it was too close to the final hearing date for them to withdraw without leave. The solicitors did attend court this morning, and were granted that leave.
The first respondent has not appeared today, either for the hearing of his application in a case or for the hearing of the substantive matter, notwithstanding that he is a witness to the substantive matter and needed to be available for cross examination. The second respondent, JNGO Pty Ltd (“JNGO”), which is a company directed by Mr Nathan Gomez, has not appeared today either. Mr Nathan Gomez is the son of the bankrupt of whom the applicant is the trustee, and also the son of the first respondent. JNGO was represented by solicitors when this matter first began. However, they have withdrawn from the record.
JNGO sought a variation of a freezing order some weeks ago, to enable it to obtain legal representation. That application was refused, for reasons given at the time. There was an application to the Federal Court for leave to appeal against that decision. However, that application came before Moshinsky J on Friday, 10 June 2016, and the decision of this court was upheld.
The court attempted to telephone the first respondent during the hearing this morning, on the mobile telephone number set out as his contact number on his application in a case. The telephone was answered by a woman who said that the first respondent was not available. When pressed, she said he was in hospital.
That is perhaps an exaggeration. The affidavit in support of the application in a case said that the first respondent had an appointment at 3pm this afternoon at Western Health Cardiology. The letter from Western Health states that it is a health check appointment only, and the first respondent is able to eat and drink before the appointment. The affidavit also said that the first respondent is booked for a coronary angiogram on 27 June 2016. There is nothing in the documents provided by the first respondent in support of his application which suggests that his heart problems are urgent, or that he is currently in hospital.
In the normal course, one would expect that the first respondent would have been able to make an appointment that would fit in with his other commitments. The affidavit sworn by the first respondent, in support of the application in a case, alleges that he has “longsuffering” heart and kidney conditions, that he is in need of emergency procedures, and that he will be going in and out of hospital for the next two to three months. However, there is no evidence from a doctor to say that the first respondent has any such conditions. The only material of an objective, third party nature are two confirmations of appointments from Western Health, one saying there is a review check this afternoon, and the other saying there is to be an angiogram on 27 June 2016.
It does not seem to me that it is possible to conclude, on that information, that the first respondent’s description of his health problems is accurate. It appears that all that is proposed are investigative procedures, which are not being undertaken with any particular urgency.
All in all, I am not persuaded that the reasons that the first respondent has provided are adequate to adjourn the hearing of this matter yet again. As I have mentioned, his appointment today is at 3pm. There has been no evidence given in a proper manner explaining why the first respondent could not attend court this morning to press his application for an adjournment.
Clearly the application in a case could also have been dismissed for non-appearance. I accept that the first respondent did not have much notice that the application in a case would be listed at 10am this morning. However, rationally there was no other time when it could have been listed. The first respondent appears to have had some experience in the legal system, and could be expected to know that if he wanted to press his application, he needed to appear to do so.
In the circumstances, it seems to me that the only proper order on the application in a case is that it be dismissed. That is for two reasons. Firstly, that the applicant has not appeared to prosecute his application in a case. Secondly, on the material he has provided, there does not appear to be an adequate reason for an adjournment.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riley.
Date: 21 June 2016
0
0