Hudson v Sigalla (No.4)
[2018] FCCA 3099
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUDSON v SIGALLA (No.4) | [2018] FCCA 3099 |
| Catchwords: PRACTICE AND PROCEDURE – Application for the payment out of court of funds paid into court – competing claims for the funds. |
| Cases cited: Hudson v Sigalla [2014] FCCA 1652 Hudson v Sigalla (No.2) [2015] FCCA 542 Hudson v Sigalla (No.3) [2016] FCCA 2140 Hudson v Sigalla [2016] FCA 1204 Hudson v Sigalla (No.2) [2017] FCA 339 |
| Applicant: | FRANK HUDSON |
| Respondent: | ANDREW JOHN SIGALLA |
| File Number: | SYG 793 of 2014 |
| Judgment of: | Judge Driver |
| Decided without oral hearing |
| Date of Last Submission: | 27 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2018 |
ORDERS
The sum of $3,224.15 held in court pursuant to Order 1 made on 25 January 2018 be paid to Andrew John Sigalla, or to some other person named by him in writing to receive the funds.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 793 of 2014
| FRANK HUDSON |
Applicant
And
| ANDREW JOHN SIGALLA |
Respondent
REASONS FOR JUDGMENT
Introduction and background
These proceedings have been before the Court for over four years. The proceedings arose out of a gambling debt asserted by Mr Hudson and numerous applications have been made, leading to several judgments of this Court and the Federal Court.[1]
[1] Hudson v Sigalla [2014] FCCA 1652; Hudson v Sigalla (No.2) [2015] FCCA 542; Hudson v Sigalla (No.3) [2016] FCCA 2140; Hudson v Sigalla [2016] FCA 1204; Hudson v Sigalla (No.2) [2017] FCA 339
I made a costs order against Mr Hudson on the failure of his principal proceedings and that was quantified in Hudson v Sigalla (No.3). A difficulty then arose because Mr Sigalla had not paid his lawyers who claimed a lien over the fruit of the costs order. I ordered Mr Hudson to pay a lump sum to Mr Sigalla’s solicitors (Kemp Strang) and ordered the solicitors to pay senior counsel (Mr Reynolds) who had acted for Mr Sigalla and junior counsel (Mr Botsman) specified amounts. The solicitors were also required to pay to Mr Sigalla any disbursements paid by him during the proceedings. Those orders were varied on appeal by Katzmann J.[2] Subsequently, the orders were further varied by agreement which permitted Mr Hudson to pay Mr Reynolds and Mr Botsman directly. The balance due was paid to Kemp Strang.
[2] Hudson v Sigalla (No.2) [2017] FCA 339
Kemp Strang identified the sum of $3,224.15 as due to Mr Sigalla for disbursements (transcript) paid for by him. That sum was paid into court pursuant to orders made by me on 25 January 2018. Kemp Strang had applied for those orders because the firm was confronted by competing directions by Mr Sigalla to pay sums of money to three people including Mr Botsman, each of which exceeded the amount identified as due to Mr Sigalla. Kemp Strang had also identified potential claims on the funds by three other people. The solicitors were required by my orders to give notice of the application to each potential claimant.
On 3 July 2018, Mr Sigalla contacted the Court in order to claim the funds paid into court. The Court made enquiries as to who else might have any claim on the funds. The only other person who made a claim was Mr Botsman. On 17 August 2018 I made orders for submissions from Mr Sigalla and Mr Botsman as well as the provision of evidence. It was agreed that the matter would be dealt with on the papers. The timetable was a lengthy one because Mr Sigalla is currently serving a term of imprisonment and required a substantial amount of time.
Consideration
Mr Sigalla provided submissions by letter dated 1 October 2018. In that letter he was extremely critical of Mr Botsman (and his other lawyers) for their conduct of the proceedings on his behalf. His allegations include an allegation of fraud. He contends that Mr Botsman has already been amply rewarded for his services and should receive nothing further.
Mr Botsman provided submissions by email on 29 October 2018. He relies upon an affidavit made by him on 23 August 2018 in proceedings in the Supreme Court of NSW, and an authority and direction dated 5 September 2016 signed by Mr Sigalla which Mr Botsman contends is evidence that Mr Sigalla authorised Kemp Strang to pay the disputed sum to him.
Mr Botsman also relies upon a deed signed by Mr Sigalla on 14 April 2015 in which Mr Sigalla acknowledged indebtedness to Mr Botsman in the amount of $420,707.
Mr Botsman finally relies upon an email from him to Mr Sigalla and his then solicitor, Brendan Pigott, dated 26 August 2016, which attaches the work product which is said to have resulted in a promise to pay Mr Botsman $6,000.
Mr Sigalla had until 7 December 2018 to file and serve any evidence in reply. He provided submissions in reply on 27 November 2018 in which he relevantly:
a)asserted than an agreement to pay Mr Botsman $90,000 was signed under duress and had been rescinded;
b)claimed that Mr Botsman had overcharged for his services; and
c)asserted that the debt of $420,707 had been settled by a transfer of shares in a company called National Health Services.[3]
[3] I note that a company by that name was deregistered in February 2018
The reality is that Mr Sigalla appears to owe money to many people. Mr Botsman’s claim has no more force than debts apparently due to others. Further, his claim arises out of proceedings in the Supreme Court of NSW, not the proceedings in this Court and the Federal Court. On the other hand the funds identified by Kemp Strang as being due to Mr Sigalla arose out of the proceedings in this Court, which is why Kemp Strang applied to pay the funds into court in this Court rather than the Supreme Court.
I accept that Mr Sigalla authorised Kemp Strang to pay the sum of $6,000 to Mr Botsman in relation to work Mr Botsman had performed in the NSW Supreme Court proceedings. He also authorised Kemp Strang to pay two other people. There are, as noted, debts apparently due to three additional people.
I conclude that the disputed funds should be paid to Mr Sigalla. He can account to his various creditors (including Mr Botsman) as agreed with them, or in the absence of any agreement, as required by law. In his submissions in reply, Mr Sigalla requests that the money held in court be paid to his wife. I assume that that person is Melissa Anne Sigalla, also known as Melissa Caplice. Ms Sigalla has played no part in these proceedings, except as a conduit for documents. If Mr Sigalla wishes her to receive the funds held in court, he should provide a written direction for the funds to be paid to her by name.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 December 2018
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