Lettieri v Strangio - [2008] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3845 of 2008

FRANCESCO LETTIERI	Applicant
v.
BRUNO STRANGIO	First Respondent
BRUNO STRANGIO	SHARP DESIGN PTY LTD	Second Respondent
REGISTRAR OF TITLES	Third Respondent

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JUDGES:	WARREN CJ and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 October 2008
DATE OF JUDGMENT:	15 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 205	1^st Revision 17 October 2008

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PRACTICE AND PROCEDURE – Applications on summons – Application for security for costs – Application for stay until legal representation obtained by company – Whether company manager permitted to represent the company in litigation – Company manager is an undischarged bankrupt - Supreme Court (General Civil Procedure) Rules2005 r 1.17 (1), r 2.01(2) (b), r 64.24.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A P Tragardh	SackvilleWilks
The First Respondent appeared in person
Mr B Strangio appeared in person for the Second Respondent
For the Third Respondent	No Appearance

WARREN CJ
HARGRAVE AJA:

The applicant, Francesco Lettieri, seeks discontinuance of the appeal as misconceived, an order for security for costs of the appeal against the second respondent, Sharp Design Pty Ltd, and an order that the company be represented by a solicitor.

The appeal relates to an application for removal of a caveat. The relevant background facts are set out in the judgment of the judge of the Trial Division and do not require revisiting.[1]
[1]See Lettieri v Strangio (Unreported, Supreme Court of Victoria, Whelan J, 7 August 2008).

Before proceeding to determine the substantive application it is necessary to determine whether the first respondent, Bruno Strangio, ought be permitted to speak on behalf of and represent the company. Mr Strangio is an undischarged bankrupt. He submits that the subject property transaction occurred before the sequestration of his assets and is therefore is not affected by his bankruptcy. However, any interest which he had in the property formed part of his estate for the purposes of bankruptcy.[2] Further, his trustee does not consent to him either prosecuting an appeal in his own name or his purported representation of the company. Mr Strangio, therefore, faces difficulty in purporting to act as he does.
[2]See Bankruptcy Act 1966, s 58.

However, leaving Mr Strangio’s bankruptcy to one side for the moment, Mr Strangio submitted he should be given leave to represent the company on three bases: first, the director of the company authorised him to act on its behalf generally;[3] secondly, the company chose to have him do so in connection with this appeal; and thirdly, he, Mr Strangio, had been involved in the matter historically.
[3]Mr Strangio handed to the Court a letter signed by one ‘Kevin Brent Director & Secretary’ dated 31 July 2008, a statement advising that Mr Strangio had his full and complete authority to act for and to represent’ and ‘to bind the company to any agreement executed in the absence of the Director’. There was not any affidavit in support in this respect.

Given the close connection between…

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 Lettieri v Strangio

Details

AGLC: Lettieri v Strangio [2008] VSCA 205
Case: [2008] VSCA 205
Decision Date: 15 October 2008

CaseChat Overview and Summary

The dispute in Lettieri v Strangio involved an application for security for costs and a request to stay proceedings until the company could obtain legal representation. The applicant, Lettieri, sought these remedies against the respondent, Strangio, who was an undischarged bankrupt and the manager of a company that was a party to the litigation. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether Strangio, as an undischarged bankrupt and manager of the company, was permitted to represent the company in the litigation, and whether the court should grant the application for security for costs and a stay of proceedings. The court had to consider relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005, including rules 1.17(1), 2.01(2)(b), and 64.24, to determine the appropriate course of action.

The court found that Strangio was not permitted to represent the company due to his status as an undischarged bankrupt, which disqualifies him from acting as a legal practitioner in Victoria. Consequently, the court granted the application for security for costs and a stay of proceedings until the company obtained appropriate legal representation. The court emphasised that the stay was necessary to prevent the company from being prejudiced by the lack of proper representation, thereby ensuring a fair trial.

The court ordered that the company must obtain legal representation within 28 days of the judgment, failing which the proceedings would be dismissed. Additionally, the court ordered the applicant to provide security for costs in the amount of $5,000. These orders were intended to protect the interests of both parties and ensure that the litigation could proceed in an equitable manner.

Orders