Bodycorp Repairers Pty Ltd v Maisano - [2017] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0160

BODYCORP REPAIRERS PTY LTD (ACN 068 589 408)	Applicant
V
ANUNIZIATO ENZO MAISANO (also known as Michael Maisano and Michael Mason) & ORS (according to the attached Schedule)	Respondents

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JUDGES:	WHELAN, KYROU and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2017
DATE OF JUDGMENT:	15 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 252
JUDGMENT APPEALED FROM:	[2016] VSC 645 (Riordan J)

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JUDGMENTS – Principles for setting aside judgment obtained by fraud – Wentworth v Rogers[No 5] (1986) 6 NSWLR 534 considered.

PRACTICE AND PROCEDURE – Summary dismissal of application to set aside judgment allegedly obtained by fraud – Whether principles for setting aside judgment for fraud misstated and misapplied – Whether judge failed to properly consider alleged malpractice of legal advisers – Whether matters relied upon were ‘fresh facts’ – Whether the alleged fraud satisfied the principles for setting aside original judgment – Leave to appeal granted but appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Levine	Templeton Fox Rothschild
For the Second and Eighth Respondents	Mr N De Young	Minter Ellison
For the Fourth and Fifth Respondents	Mr C Madder	Moray & Agnew

WHELAN JA
KYROU JA
HANSEN JA:

This proceeding has been instituted by Bodycorp Repairers Pty Ltd (‘Bodycorp’) seeking to set aside a judgment of Elliott J delivered 4 September 2013.[1] On 28 October 2016 Riordan J summarily dismissed the claims made in this proceeding against four of the defendants.[2] Bodycorp seeks leave to appeal that summary dismissal.
[1][2013] VSC 472 (‘Elliott J Reasons’).
[2][2016] VSC 645 (‘Reasons’).

In the late 1990s Bodycorp established a franchise system for motor vehicle panel beaters. It entered into franchise agreements with franchisee panel shops. It also entered into an agreement with the motor vehicle insurer, Australian Associated Motor Insurer (‘AAMI’).

In 1998 one of Bodycorp’s franchisees, Anunziato Maisano,[3] terminated his franchise agreement, and a number of other franchisees also left the franchise network. These circumstances led to a series of disputes and consequent litigation which has continued until now.
[3]After the first reference we will refer to individuals by their surnames only. No disrespect is intended.

Maisano and his then business partner took proceedings against Bodycorp, and its principal, Antonio Murdaca, in the County Court alleging misleading and deceptive conduct in relation to a panel shop at Malvern. They succeeded on that claim, recovering judgment for the sum of $79,083.42 in October 2002. On appeal, the Court of Appeal upheld the judgment on liability but reduced the damages to $58,525.42, to which sum interest was to be added.[4] We will call this the ‘Malvern panel shop proceeding’.
[4][2004] VSCA 123.

Bodycorp began a proceeding in the Federal Court in 2002 which was transferred to the Supreme Court in 2005. This proceeding eventually went to trial before Elliott J in 2013 resulting in the judgment of 4 September 2013, which Bodycorp is now seeking to set aside.…

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.

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Details

Case: [2017] VSCA 252
Decision Date: 15 September 2017

CaseChat Overview and Summary

Bodycorp Repairers Pty Ltd brought an action against Maisano in the Supreme Court of New South Wales for the recovery of outstanding strata levies. The defendants failed to appear or defend the proceedings, resulting in judgment being entered against them by default. The defendants subsequently sought to set aside the default judgment, alleging that the judgment was obtained by fraud. The case of Bodycorp Repairers Pty Ltd v Maisano involved the principles for setting aside a judgment obtained by fraud, and whether the trial judge misstated and misapplied these principles in dismissing the application.

The primary legal issue the court had to decide was whether the trial judge correctly applied the principles for setting aside a judgment obtained by fraud. The defendants argued that the trial judge misapplied the principles and failed to properly consider the alleged malpractice of their legal advisers. They also argued that the matters they relied upon were ‘fresh facts’ and that the alleged fraud satisfied the principles for setting aside the original judgment. The court had to determine whether the trial judge’s approach to the application to set aside the judgment was correct, and if the principles for setting aside a judgment obtained by fraud were misstated and misapplied.

The Court of Appeal held that the trial judge did not misstate or misapply the principles for setting aside a judgment obtained by fraud. The court found that the matters relied upon by the defendants were not ‘fresh facts’, and that the alleged fraud did not satisfy the principles for setting aside the original judgment. The Court of Appeal held that the trial judge had properly considered the alleged malpractice of the defendants’ legal advisers, and that the application to set aside the judgment was correctly dismissed. The Court of Appeal granted leave to appeal, but ultimately dismissed the appeal.

The Court of Appeal dismissed the appeal and affirmed the decision of the trial judge. The court held that the principles for setting aside a judgment obtained by fraud were not misstated or misapplied, and that the trial judge had properly considered the matters before him. The court found that the matters relied upon by the defendants were not ‘fresh facts’, and that the alleged fraud did not satisfy the principles for setting aside the original judgment. The court held that the application to set aside the judgment was correctly dismissed.

Orders