Cargnello v Total Asset Protection (Australia) Pty Ltd

Case [1999] VSC 85

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:

  1. Overnight I have considered the documentary material relied upon by the parties in support of their applications.

  2. 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.

  3. 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.

  4. 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.

  5. I order therefore that each proceeding be re-instated.

  6. 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.

  7. 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.

  8. 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.

  9. I authorise any Master of the Court to vary any of the times specified in this order.

  10. I order that within 48 hours this order be prepared by the solicitors for the plaintiff and be brought to me for authentication.

  11. I order that within 7 days of its authentication a copy of this order be served upon the Associate to the Listing Master.

  12. I reserve liberty to the parties to apply.

  13. These applications first came before the Court on 18 February 1999. By consent of the parties they were adjourned to 22 March.

  14. 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.

  15. In the circumstances I order that the second defendant pay the plaintiff's costs of the day of 22 March.

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Details
AGLC
Cargnello v Total Asset Protection (Australia) Pty Ltd [1999] VSC 85
Case
[1999] VSC 85
Decision Date

CaseChat Overview and Summary

The Supreme Court of Victoria presided over two cases, Cargnello v. Total Asset Protection (Australia) Pty Ltd, involving John Cargnello, the plaintiff, and Total Asset Protection (Australia) Pty Ltd and others, the defendants. The dispute centred around alleged non-compliance with settlement terms by Cargnello, with the second defendant contending that if this was the case, they were not obligated to enter judgment against Cargnello for either $30,000 or $20,000. The proceedings were initially heard on 23 March 1999 by Judge Beach, who determined that it was inappropriate to make any orders at that stage, given the need for further clarification on the settlement terms and the late filing of a critical affidavit by the second defendant.

The primary legal issues for the court to decide were whether Cargnello had indeed failed to comply with the settlement terms, and if the second defendant was entitled to enter judgment against Cargnello in light of this alleged non-compliance. The court needed to consider the procedural fairness in how the affidavits were filed and served, particularly noting the delay in serving the critical affidavit from the second defendant. This procedural fairness was crucial in determining the appropriate course of action for the proceedings.

Judge Beach concluded that the matter required further investigation, particularly focusing on the settlement terms and the procedural aspects of the affidavits. The court decided to reinstate both proceedings, giving Cargnello the opportunity to respond to the second defendant's affidavit. The judge ordered the second defendant to file and serve their further affidavit material by 4.00 p.m. on 1 April 1999, and the plaintiff to file and serve their reply by 4.00 p.m. on 15 April 1999. The cases were then referred to the Listing Master for further directions and hearings. Additionally, the judge ordered the second defendant to pay Cargnello's costs incurred on 22 March due to the late filing of the affidavit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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