FEDERAL COURT OF AUSTRALIA
Gomez v Carrafa (Trustee) (No 3) [2019] FCA 1793
Appeal from: Carrafa v Gomez [2019] FCCA 1188 File number: VID 399 of 2019 Judge: ANASTASSIOU J Date of judgment: 11 November 2019 Catchwords: BANKRUPTCY AND INSOLVENCY -
appeal against order of Federal Circuit Court to dispose of assets – appeal dismissedLegislation: Commonwealth of Australia Constitution Act
Judiciary Act 1903 (Cth)
Cases cited: Gomez v Carrafa (Trustee) (No 2) [2019] FCA 1750
Gomez, In the matter of an application for leave to issue or file [2019] HCATrans 185
Gomez v The Honourable Justice Moshinsky Federal Court of Australia & Ors [2019] HCATrans 22
Date of hearing: 28 October 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 18 Appearance for the Appellant: The appellant appeared in person by Ms Selvi Gomez with leave Counsel for the Respondent: Mr T. Sowden Solicitor for the Respondent: Zervos Lawyers ORDERS
VID 399 of 2019 BETWEEN: IRWIN GOMEZ
Appellant
AND: MICHAEL CARRAFA AS THE TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF KALAISELVI
Respondent
JUDGE:
ANASTASSIOU J
DATE OF ORDER:
11 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondents costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Anastassiou J:
The appellant, Mr Gomez, seeks to overturn orders made by the Federal Circuit Court concerning the bankruptcy of his wife, Ms Gomez. I allowed Ms Gomez to appear on Mr Gomez’s behalf in this appeal.
For the reasons that follow the appeal is dismissed.
Background
On 24 October 2019 in Gomez v Carrafa (Trustee) (No 2) [2019] FCA 1750 (Gomez No 2) I set out the background of the present appeal as follows (at [2]-[7]):
On 21 August 2014 a sequestration order was made against Ms Gomez’s estate. The bankruptcy notice was served on Ms Gomez on 10 June 2014 and came into effect due to her non-compliance on 2 July 2014. Shortly before 2 July 2014 Ms Gomez transferred her interests in two pieces of real estate and a sum of money to Mr Gomez.
The Trustee applied to the Federal Circuit Court for declarations and consequential orders under the Bankruptcy Act 1966 (Cth) to set aside these and other transactions. The application was allowed. See Carrafa v Gomez & Anor (No 3) [2016] FCCA 3139 (the Primary Judgment).
Mr Gomez appealed. The appeal was dismissed by Justice Moshinsky in Gomez v Carrafa (Trustee) [2018] FCA 201 (the First Appeal).
Mr Gomez sought special leave in the High Court. Special leave was refused on 15 August 2018: Gomez v Carrafa & Anor [2018] HCASL 225.
On 23 October 2018, following the unsuccessful special leave application in respect of the First Appeal, the Trustee applied to the Federal Circuit Court for orders concerning the sale and realisation…
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- Case
- [2019] FCA 1793
- Decision Date
CaseChat Overview and Summary
The court emphasised that the Federal Circuit Court had correctly exercised its powers under the Bankruptcy Act 1966 (Cth) to ensure that the bankrupt's assets were properly distributed to creditors. It found no error in the exercise of jurisdiction or in the orders made by the Federal Circuit Court. The court reiterated its previous findings that the transactions in question were indeed void and that the orders for their setting aside were justified. Furthermore, the court took into account the repetitive and vexatious nature of Mr Gomez's appeals and applications, noting that they had no arguable basis and were an abuse of the judicial process. Consequently, the appeal was dismissed, and Mr Gomez was ordered to pay the respondents' costs of and incidental to the appeal. The final orders of the court were that the appeal be dismissed and that Mr Gomez pay the respondents' costs of and incidental to the appeal.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant pay the respondents costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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