Cargnello v Total Asset Protection (Australia) Pty Ltd
[1999] VSC 85
•23 March 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT
Not Restricted
No. 12103 of 1992
JOHN CARGNELLO Plaintiff v. TOTAL ASSET PROTECTION (AUSTRALIA) PTY. LTD. & OTHERS Defendants
No. 12104 of 1992
JOHN CARGNELLO Plaintiff v. TOTAL ASSET PROTECTION (AUSTRALIA) PTY. LTD. & OTHERS Defendants
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JUDGE: BEACH, J. WHERE HELD: MELBOURNE DATE OF HEARING: 23 MARCH 1999 DATE OF JUDGMENT: 23 MARCH 1999 CASE MAY BE CITED AS: CARGNELLO v. TOTAL ASSET PROTECTION MEDIA NEUTRAL CITATION: [1999] VSC 85
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APPEARANCES: Counsel Solicitors For the Plaintiff Mrs. S. Marks Blake Dawson Waldron For the Defendants Mr. P. Hayes Q.C. Athony Zita
HIS HONOUR:
Overnight I have considered the documentary material relied upon by the parties in support of their applications.
Having done so it is my opinion that it would be inappropriate to make any orders in the two proceedings other than an order that each proceeding be re-instated.
If the plaintiff has failed to comply with the terms of settlement as the second defendant contends he has, then it may well be arguable that the second defendant is not entitled to enter judgment against the plaintiff either for the sum of $30,000 or the sum of $20,000.
It may only be possible to determine that issue once the plaintiff has been given the opportunity to answer the affidavit of the second defendant which was not served on the solicitors for the second defendant until yesterday morning.
I order therefore that each proceeding be re-instated.
I order that any further affidavit material to be relied upon by the second defendant be filed and served by 4.00 p.m. on 1 April 1999.
I order that any affidavits to be relied upon by the plaintiff in reply be filed and served by 4.00 p.m. on 15 April 1999.
I refer the two proceedings to the Listing Master on a date to be fixed by the Associate to the Listing Master to give any further directions that are necessary concerning the hearing of the application.
I authorise any Master of the Court to vary any of the times specified in this order.
I order that within 48 hours this order be prepared by the solicitors for the plaintiff and be brought to me for authentication.
I order that within 7 days of its authentication a copy of this order be served upon the Associate to the Listing Master.
I reserve liberty to the parties to apply.
These applications first came before the Court on 18 February 1999. By consent of the parties they were adjourned to 22 March.
I can see no reason why the second defendant could not have filed and served the affidavit on which he now relies well prior to that latter date. After all his solicitor filed an affidavit in relation to the applications as long ago as 5 February 1999.
In the circumstances I order that the second defendant pay the plaintiff's costs of the day of 22 March.
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