Gomez v Carrafa (Trustee) (No 3)

Link copied
Case Copied 11 min read

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 dismissed  
Legislation:

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:

  1. 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.

  2. For the reasons that follow the appeal is dismissed.

    Background

  3. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Gomez v Carrafa (Trustee) (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2019] FCA 1793
Decision Date

CaseChat Overview and Summary

The appeal by Mr Gomez against the order of the Federal Circuit Court to dispose of assets is dismissed. The appellant, Mr Gomez, had appealed against the decision of the Federal Circuit Court to order the sale of certain properties held by the bankrupt, Ms Gomez, to realise funds for distribution to creditors. This appeal followed the dismissal of Mr Gomez’s previous appeal in the Federal Court and his unsuccessful application for special leave to appeal to the High Court. The primary legal issues before the court were whether the Federal Circuit Court had the jurisdiction to make the orders in question, and if so, whether those orders were appropriate and just. The court held that the Federal Circuit Court had the necessary jurisdiction under the Bankruptcy Act 1966 (Cth) to make the orders. The reasoning of the court was that the orders were necessary to ensure the fair distribution of Ms Gomez’s assets among her creditors, following the previous determination that certain transactions were void due to fraud or preference. The court also noted the vexatious nature of Mr Gomez’s appeals and applications, which were considered an abuse of the judicial process. The court concluded that the appeal should be dismissed and that Mr Gomez should pay the respondents' costs of and incidental to the appeal.

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

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 of the bankrupt’s interest in certain properties. On 5 April 2019 in Carrafa v Gomez [2019] FCCA 1188 the Circuit Court made orders concerning the sale of the properties (the Enforcement Judgment). On 23 April 2019 Mr Gomez filed a notice of appeal against the Enforcement Judgment. I adopt the above definitions in the balance of this appeal. On 22 August 2019, in Gomez No 2 I denied the appellant leave to amend his notice of appeal. In the period this protracted litigation has been on foot at least ten applications concerning the relief granted in the Primary Judgment or relevant to the First Appeal or dismissal of applications to the High Court have been made by Mr Gomez in the original and appellate jurisdictions of the High Court. See Gomez, In the matter of an application for leave to issue or file [2019] HCATrans 185. In dismissing the tenth application, Justice Edelman said (Gomez, In the matter of an application for leave to issue or file [2019] HCATrans 185): For broadly the same reasons that I have given in matter M86 of 2019, there is no arguable basis to this application. The application is vexatious and an abuse of process. It should be dismissed without an oral hearing pursuant to r 13.03.1 of the High Court Rules 2004 (Cth).As the applicant recognised in his ninth application, persistent attempts to relitigate the same subject matter are capable of being characterised as vexatious. Under s 77RN of the Judiciary Act 1903 (Cth), this court has the power, on its own initiative, to make a vexatious proceedings order. The point at which it should be considered whether to make such an order, and if so the terms of the order, has now well and truly been reached.Appeal grounds and submissions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.