Kang v Goldsmith (No.3) and Kang v Goldsmith (No.3)

[2017] FCCA 1569

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANG v GOLDSMITH (No.3) and KANG v GOLDSMITH (No.3) [2017] FCCA 1569

Catchwords:
BANKRUPTCY – Instalment application denied – failure to comply with costs orders – applicant charged with contempt.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.19.01.

Applicant: EDWARD KANG

Respondent: BARRIE GOLDSMITH

File Number: SYG 2860 of 2016

Applicant: EDWARD KANG

Respondent: BARRIE GOLDSMITH

File Number: SYG 619 of 2017

Judgment of: Judge Street

Hearing date: 5 July 2017

Date of Last Submission: 5 July 2017

Delivered at: Sydney

Delivered on: 5 July 2017

REPRESENTATION

Solicitors for the Applicant: Mr G McDonald
Ziman and Ziman Solicitors

Solicitors for the Respondent: Ms E Ginges
Goldsmiths Lawyers

ORDERS

In proceeding No.SYG 2869/2016:

1. The application in a case on 22 June 2017 is dismissed.

2. Mr Edward Kang is hereby directed to appear before this Court to state his defence to the charge and for the determination of the charge on 19 July 2017 at 9:30am in respect of each matter.

3. The applicant is ordered to pay the costs of the respondent in the cost of $375.00.

In proceeding No.SYG 619/2017:

1. The application in a case on 22 June 2017 is dismissed.

2. Mr Edward Kang is hereby directed to appear before this Court to state his defence to the charge and for the determination of the charge on 19 July 2017 at 9:30am in respect of each matter.

3. The applicant is ordered to pay the costs of the respondent in the cost of $375.00.

CHARGES

In proceeding No.SYG 2869/2016: 

1. Mr Edward Kang is hereby charged with civil contempt by reason of the continuing deliberate failure in the face of Court to not pay order 4 made in the proceedings SYG 2860 of 2016 made on 27 April 2017.

In proceeding No.SYG 619/2017:   

1. Mr Edward Kang is hereby charged with civil contempt by reason of the continuing deliberate failure in the face of Court to not pay order 4 made in the proceedings SYG 619 of 2016 made on 27 April 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2860 of 2016

EDWARD KANG

Applicant

And

BARRIE GOLDSMITH

Respondent

SYG 619 of 2017

EDWARD KANG

Applicant

And

BARRIE GOLDSMITH

Respondent

REASONS FOR JUDGMENT

1. On 22 June 2017, in matter SYG 2860 of 2016 and in matter SYG 619 of 2017, the applicant by an application in a case sought instalment orders for payment of costs orders made by this Court on 27 April 2017. Filed in support of that application in each matter was an affidavit, identifying a wish by the applicant to make an instalment payment for the respondent’s legal costs. No other evidence was adduced in support of those applications.

2. The costs orders were made in two proceedings in circumstances that reflected a continuing deliberate attempt by Mr Kang to avoid paying outstanding legal fees to his former solicitor, Mr Goldsmith. The protracted delay in payment by Mr Kang to Mr Goldsmith raised completely meritless disputes. Further, in the course of those two proceedings it became apparent that Mr Kang was paying other creditors and not Mr Goldsmith. Whilst this Court may have power to revisit an order for the payment of costs in an appropriate case made on a timely basis and properly supported by evidence of financial position and ability to pay the instalments within a reasonable timeframe, that is not what has occurred in this case. No explanation for the delay has been made and the applications in a case are patently deficient on the information identified in the affidavits.

3. At the time the Court made orders on 27 April 2017, no request was made for payment by instalments or for a stay of the orders. The orders had been in place since 27 April 2017 and, on the material before the Court, there has been a deliberate continuing failure by Mr Kang to pay Mr Goldsmith in accordance with those orders. In these circumstances, the Court proposes to dismiss the application in a case filed on 22 June 2017 in each matter, and the Court proposes to take further steps to ensure that there is compliance with orders that it has made if the applicant is convicted of civil contempt by the issue of an order in the nature of a writ of sequestration.

4. The applicant in each application in a case was asked to come forward to the bar table and stand. The Court charged Mr Kang under r.19.01 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) with civil contempt in the face of the Court by reason of continuing deliberate failure to the the costs order, being order number 4 made by the Court in proceedings SYG 860 of 2016 on 27 April 2017. The Court further charged him under r.19.01 with civil contempt in the face of the Court by reason of the deliberate failure to pay the costs order, being order number 4 made in proceedings SYG 619 of 2017, made by the Court on 27 April 2017.

5. The Court explained that, while a warrant was not issued for the arrest of the applicant on this occasion, the applicant was directed by the Court to appear before the Court to state his defence to the charge and for the determination of the charge on 19 July 2017 at 9:30 a.m. in respect of each matter.

6. The applicant was also ordered to pay the costs of the respondent for the appearance today and also for the future necessary appearance on 19 July 2017 as well as for the provision of consent from two sequesters. The Court explained that the alleged civil contempt can be purged by payment and that any defence will need to include the evidence as to whether there is a continuing deliberate failure to pay. The Court explained that, if convicted of the civil contempt, an order in the nature of a writ of sequestration is likely to be issued and that the purpose of that writ is to ensure compliance with the Court’s orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 July 2017