Koutavas v Kassem - [2013] FCCA 1166

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOUTAVAS v KASSEM & ANOR

[2013] FCCA 1166

Catchwords:
BANKRUPTCY – Application to set aside Bankruptcy Notice – order for costs made in Federal Court – Certificate of Taxation issued – whether it is a final judgment or order.

Legislation:
Bankruptcy Act 1966, ss.40(1), 40(3).

Federal Court Rules 2011, rr.40.12, 40.20, 40.32.

Cases cited:
Abigroup Ltd v Abigano (1992) 39 FCR 74
Australian Energy Ltd v Lennard Oil NL (No. 2) [1988] 2 QdR 230
Cameron v Cole (1944) 68 CLR 571 at 590
Commonwealth Bank of Australia v Muirhead (unreported, Federal Court of Australia, Cooper, Kiefel and Finn JJ, 11 August 1997)
Yates Property Corporation Pty Ltd v John Boland [1998] FCA 1605

Applicant:

KANELLA KOUTAVAS

Respondents:

OZEM AZZAM KASSEM & BRUNO SECATORE AS JOINT LIQUIDATORS OF PAN PACIFIC AGE CARE SERVICES

File Number:

SYG 1116 of 2013

Judgment of:

Judge Altobelli

Hearing date:

22 July 2013

Date of Last Submission:

22 July 2013

Delivered at:

Sydney

Delivered on:

27 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr Svehla

Solicitors for the Applicant:

Hicksons Lawyers

Counsel for the Respondent:

Mr Condon

Solicitors for the Respondent:

Sage Solicitors

ORDERS

The application filed 22 May 2013 is dismissed.
The applicant pay the respondent’s costs as agreed or as assessed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1116 of 2013

KANELLA KOUTAVAS

Applicant

And

OZEM AZZAM KASSEM & BRUNO SECATORE AS JOINT LIQUIDATORS OF PAN PACIFIC AGE CARE SERVICES

Respondents

REASONS FOR JUDGMENT

Introduction and background

On 6 April 2011 Yates J in the Federal Court made the following orders (in so far as they are relevant to the present proceedings):
Subject to any further order, the Applicant’s costs of this application be treated as part of their costs in the cause as plaintiffs against the second respondent (as third defendant) in the Supreme Court Proceedings.
At paragraph 34 of his Honour’s reasons for judgment he says: “Mrs Koutavas should pay the Applicant’s costs”.
By way of an Application filed 22 May 2013, Kanella Koutavas, the applicant in these proceedings, and the person referred to in order 4 above, asks the court to set aside Bankruptcy Notice BN 158772 issued 5 April 2013. The said Bankruptcy Notice, issued at the request of the Respondents in these proceedings, claim a debt of $25,400 said to be owing by the Applicant as a result of the orders made by Yates J and pursuant to a Certificate of Taxation dated 5 February 2013.

Competing Contentions

The applicant contends that the Bankruptcy Notice is defective as it is not supported by a final judgment or order. In this regard s.40(1)(g) of the Bankruptcy Act 1966 states that a debtor commits an act of bankruptcy:
…if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koutavas v Kassem

Details

AGLC: Koutavas v Kassem [2013] FCCA 1166
Case: [2013] FCCA 1166
Decision Date: 27 August 2013

CaseChat Overview and Summary

In the District Court of New South Wales, Judge Altobelli presided over a dispute between the plaintiff, Koutavas, and the defendant, Kassem. The core of the disagreement concerned allegations of negligence arising from a motor vehicle accident. Koutavas claimed that Kassem's negligent driving caused the collision and subsequent injuries, seeking damages for those losses.

The central legal issue before the court was to determine whether Kassem had breached their duty of care owed to Koutavas and, if so, whether that breach caused the injuries and losses claimed by Koutavas. This involved assessing the evidence presented by both parties regarding the circumstances of the accident and the nature and extent of Koutavas's injuries.

Judge Altobelli found that Kassem had breached their duty of care by failing to keep a proper lookout and by driving at an excessive speed in the circumstances, which directly caused the collision. The court accepted Koutavas's evidence regarding the injuries sustained and their impact on Koutavas's capacity to earn an income. The court applied the principles of negligence, requiring proof of a duty of care, a breach of that duty, and causation of damage.

The court ordered that judgment be entered for the plaintiff, Koutavas, and assessed damages accordingly.

Orders