Bodycorp Repairers Pty Ltd v Maisano
[2018] VCC 448
•13 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
EXPEDITED LIST
Case No. CI-16-03922
| BODYCORP REPAIRERS PTY LTD and ANTONIO MURDACA v | Plaintiffs |
| ANUNIZIATO ENZO MAISANO (aka MICHAEL MAISANO & MICHAEL MASON) and ANOR | Defendants |
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JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2018 | |
DATE OF JUDGMENT: | 13 April 2018 | |
CASE MAY BE CITED AS: | Bodycorp Repairers Pty Ltd & Anor v Maisano & Ors | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 448 | |
REASONS FOR JUDGMENT
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Catchwords: Practice and procedure – Defendant’s application to set aside judgment entered in default of appearance – Proceeding to set aside judgment on the basis that it had been procured by fraud – Judgment entered in 2000 and judgment sum varied on appeal in 2002 – Judgment in present proceeding entered on 31 January 2018 without notice to the defendant applicant – Issues raised by the application –Hearing refixed and directions given.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R Van de Weil QC and Mr J Levine | Templeton Fox Rothschild Lawyers (Victoria) Pty Ltd |
| For the First Defendant Oakley Thompson & Co | Mr Maisano in person Mr J Vagg | Oakley Thompson & Co |
HIS HONOUR:
1 On 10 April 2018, I commenced hearing an application by the first defendant, Mr Maisano, by summons dated 5 March 2018 to set aside a judgment entered against him by His Honour Judge Cosgrave on 31 January 2018. I was unable to complete the hearing and the matter was adjourned and relisted as a special fixture before the Commercial Division Duty Judge on 16 and 17 May 2018.
2 As I will be unable to hear the matter on those dates, because of the completion of my present engagement as a Reserve Judge of the Court, I will make further orders relating to the preparation of the matter for the hearing next month and will attempt to record in these reasons the issues raised during the hearing on 10 April 2018.
3 The present action was commenced by Writ dated 31 August 2016. There were 10 defendants named in the Writ. By order of Her Honour Judge Lewitan made 29 May 2017, judgment was given in the proceeding for each of the third to tenth defendants against the plaintiffs. Her Honour’s reasons are at [2017] VCC 631.
4 The first and second defendants had been the plaintiffs, and the two plaintiffs had been the defendants in proceeding number 7955 of 2000 in the County Court. The matter was tried by His Honour Judge Hanlon, who delivered judgment on 16 October 2002 in favour of the plaintiffs in the 2000 proceeding for $79,083.42, together with interest.
5 An appeal by the defendants in the 2000 proceeding to the Court of Appeal, at [2004] VSCA 123, was successful, but only to the extent of reducing the damages by the sum of $20,559, making a new total of $58,525.42, together with reduced interest. By the Statement of Claim in this proceeding, the present plaintiffs alleged that false evidence had been given at the trial before his Honour Judge Hanlon by the plaintiffs in the 2000 proceeding and by witnesses giving evidence on their behalf. It was alleged that documents made available after the trial to the defendants in the 2000 proceeding had deliberately been concealed by the plaintiffs in the 2000 proceeding.
6 The present plaintiffs alleged in their Statement of Claim that, as a consequence, his Honour Judge Hanlon had been misled at the trial and, if he has been apprised of the falsity of the evidence of the plaintiffs and their witnesses and the concealed documents, Judge Hanlon would have dismissed the plaintiffs’ claims in the 2000 proceeding. Accordingly, the judgment in favour of those plaintiffs “was obtained by fraud and that judgment should be set aside”.
7 The prayer for relief in the Statement of Claim went further than seeking the setting aside of the judgment. It also sought that “the proceeding be reinstated and dismissed”, and “damages”.
8 The Writ was served by email on Mr Maisano. It appears that no affidavit of service was sworn at the time of service, although later affidavit material was filed deposing to further matters which the plaintiffs relied upon as constituting “informal service” pursuant to Rule 6.11.
9 The plaintiffs issued a Summons in the proceeding dated 5 April 2017 which was filed on 7 April 2017. The document is headed “Summons pursuant to Regulation 22.04” and seeks the following relief against Mr Maisano:
“1. The Plaintiff have summary judgment against the First Defendant for the relief that is sought in the statement of claim that includes an order that the judgment of Judge Hanlon made on 16 October 2000 be set aside with damages to be assessed.
2. Alternatively, the Plaintiff have judgment against the First Defendant in default of the First Defendant filing a notice of appearance, and/or defence for the relief that is sought in the statement of claim that includes an order that the judgment of Judge Hanlon made on 16 October 2000 be set aside with damages to be assessed.
3. Costs on an indemnity basis”.
10 It would appear that, notwithstanding the heading of the document, the plaintiffs’ application in paragraph 1 of the Summons was pursuant to Rule 22.02, and the alternative application in paragraph 2 of the Summons was made pursuant to Rule 21.04.
11 The Summons and supporting affidavits were served on Mr Maisano by email on 7 April 2017. This is deposed to by an “affidavit of service” of Niren Raj sworn 28 April 2017. The Summons was returnable on 1 May 2017.
12 The Summons was ultimately heard by his Honour Judge Macnamara on 15 June 2017. Mr Maisano did not appear. His Honour discussed the service of the Writ on Mr Maisano and Mr Maisano’s later participation in the proceeding by filing an affidavit dated 14 June 2017 and by corresponding with the Chambers of His Honour Judge Cosgrave. At paragraph [8] of his reasons at for decision on the Court file, His Honour said he was satisfied “that service has been effected and … no appearance has been entered” and that therefore “the basic requirements for a judgment in default of appearance have been made out”.
13 However, Judge Macnamara dismissed the plaintiffs’ Summons on the basis that Judge Hanlon had entered judgment in favour of both the plaintiffs in the 2000 proceeding (Mr Attard and Mr Maisano) and to set aside the judgment in part or whole in circumstances where Mr Attard (a joint judgment creditor) had not been served with the Summons would deny him natural justice.
14 The plaintiffs issued a further Summons on 15 November 2017. The Summons was addressed to both the first and second defendants and sought similar relief against them as had been sought against Mr Maisano in the earlier Summons. The Summons dated 15 November 2017 was served on Mr Attard as he had filed an appearance, but not on Mr Maisano.
15 On 31 January 2018, Judge Cosgrave set aside the judgment of Judge Hanlon (as varied by the Court of Appeal) in favour of Mr Maisano and ordered Mr Maisano to “pay the plaintiffs’ damages to be assessed”. In “Other Matters” it was recorded that, “the Court notes although the first defendant was not represented, the Court was satisfied that the first defendant was served with the writ and statement of claim”.
16 The issues raised before me at the hearing on 10 April 2018 were as follows:
a. Mr Vagg, a solicitor with Oakley Thompson & Co, who was originally the third defendant in the proceeding, sought leave to address the court in support of the application by Mr Maisano. This was opposed by the plaintiffs. Although I allowed Mr Vagg the opportunity to address me on occasions, no decision was made by me as to whether Mr Vagg should be permitted to take part in the hearing of the application;
b. The volume of documentation relevant to the application is extensive. It generally comprises, Mr Maisano’s affidavit sworn 20 March 2018 and affidavits sworn in opposition by Mr Murdaca on 10, 14 and 26 March 2018. The affidavits have extensive exhibits and make reference to other court documents, including earlier affidavits which were not always exhibited;
c. I did suggest to the parties that the hearing of the application would be facilitated by the preparation of a paginated Court Book;
d. The parties referred to other proceedings, involving many of the same parties, in the Supreme Court and specifically to decisions made in those proceedings by Elliott J at [2015] VSCA 73, Riordan J at [2018] VSC 96 and Randall AJ. A transcript of proceedings before the Court of Appeal on 22 February 2018 in a related Supreme Court proceeding includes questioning by the Court of present plaintiff’s counsel of what his Honour Judge Cosgrave was told “about the various accounts that Mr Maisano has given of the relevant circumstances”;
e. As Judge Cosgrave’s order dated 31 January 2018 was made pursuant to Order 21, Rule 21.07 permitted the court to “set aside or vary any judgment entered or given”;
f. The plaintiffs’ summons filed 15 November 2017 was an application pursuant to Rule 22.02, as well as an alternative application under Rule 21.04. Pursuant to Rule 22.03(4), the summons and supporting affidavits should have been served on Mr Maisano;
g. It was submitted by Mr Vagg that the judgment entered by Judge Cosgrave may be irregular for the following reasons:
i. Mr Maisano was not served personally with the Writ and Rule 21.01(3) provides that “judgment [in default of appearance] shall not be entered or given for the plaintiff unless there is filed - … (b) an affidavit proving service of the writ on the defendant”;
ii. the claim for damages should have been separated from the part of the proceeding claiming that the judgment of Judge Hanlon should be set aside as a result of the fraud of the plaintiffs in the 2000 proceeding. If the judgment were set aside, the original claim of the plaintiffs in the 2000 proceeding should be reheard;
h. Mr Maisano relied upon the fact that he had not been served with the plaintiffs’ Summons filed 15 November 2017, as his reason for not appearing at the hearing on 31 January 2018. He gave as his reason for not filing an appearance in the proceeding that in a conversation after he received the Writ dated 5 April 2016 by email, he had asked Mr Murdaca: “‘Do I have to reply’? And he said ‘No, it is just to get the judgment against AAMI set aside …’”. Mr Maisano said that he assisted Mr Murdaca as required and Mr Murdaca had told him that “once this was done, I wouldn’t be in the case anymore”. On the other hand, the plaintiffs referred to a statement by Mr Maisano in his affidavit sworn 14 June 2017 that, “I will not object to having the judgment set aside as I am not in a good state of mind to represent myself”. That statement needs, however, to be read in context of the other statements in the affidavit.
i. It was suggested by the plaintiffs that Mr Maisano had not disclosed a defence on the merits. In Mr Maisano’s affidavit sworn 20 March 2018, he stated, “I have never given false evidence in relation to this matter and I have never withheld any documents”. He stated that similar issues had been litigated in relation to the related Supreme Court proceedings without any adverse finding as to his personal credibility as a witness. In this regard, the transcript for the related matter before the Court of Appeal on 22 February 2018 may have some relevance.
17 I will make the following orders:
1. The first defendant’s summons filed 5 March 2018 shall be heard by the Commercial Division Duty Judge on 16 May 2018 (estimate 1-2 days).
2. Any further affidavits by the parties must be filed and served no later than 27 April 2018.
3. Any affidavits, limited to responding to matters raised in the affidavits permitted by paragraph 2 hereof, must be filed and served no later than 8 May 2018.
4. By 4.00pm on 11 May 2018, the parties must file and serve the following documents:
a. a list of all documents to which it intends at the hearing to either rely upon or refer to;
b. summary submissions referring to each of the matters referred to in the reasons for decision delivered with this order, limited to no more than six standard A4 pages.
5. The costs of the hearing on 10 April 2018 are reserved.
6. Reserve liberty to apply.
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Certificate
I certify that these 6 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 13 April 2018.
Dated: 13 April 2018.
Zeinab Ali
Associate to His Honour Judge Anderson
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