Piccolo v McVeigh (No. 1) - [2002] FMCA 8

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PICCOLO & ANOR v McVEIGH (No. 1)

[2002] FMCA 8

INJUNCTIONS – Interlocutory

Applicant:

SHARON DENISE PICCOLO &

WOODARDS (CENTRAL) PTY LTD

Respondent:

DEAN ROYSTON McVEIGH

File No:

MZ 21 of 2002

Delivered on:

15 January 2002

Delivered at:

Melbourne

Hearing Date:

14 January 2002

Judgment of:

Connolly FM

REPRESENTATION

Counsel for the Applicant:

Mr Tsalanidis

Solicitors for the Applicant:

Best Hooper
563 Little Lonsdale Street
MELBOURNE VIC 3000

Counsel for the Respondent:

Mr Rodbard-Bean

Solicitors for the Respondent:

Abbott Stillman & Wilson
Level 4, 575 Bourke Street
MELBOURNE VIC 3000

UPON the Applicants by their counsel undertaking:

(a)To submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and
(b)To pay compensation referred to in (a) to the person there referred to.

THE COURT ORDERS

The Respondent whether by his servants, agents or otherwise howsoever be restrained until the hearing and determination of this proceeding or further order from disposing of, applying or otherwise dealing with any money paid to him by or on behalf of the Applicants pursuant to the Terms of Settlement being exhibit SDP 12 to the affidavit sworn by Sharon Denise Piccolo on 11 January 2002.
The Applicants file and serve a statement of claim on or before
25 January 2002.
The Respondent file and serve a defence and any cross claim on or before 4 February 2002.
The Applicants file and serve a defence to the cross claim on or before
11 February 2002.
The parties exchange a list of documents on or before
15 February 2002.
The Applicants file and serve any further affidavits relied upon on or before 22 February 2002.
The Respondent file and serve any further affidavits relied upon on or before 1 March 2002.
The Applicants file and serve any other affidavits relied upon on or before 8 March 2002.
The parties exchange contentions of fact and law on or before
15 March 2002.
The matter be listed for final hearing on 20 March 2002 with an estimated hearing time of 3 to 4 days.
The costs of both parties be reserved.
The Applicant prepare and file a court book containing current pleadings, any affidavits relied upon and any documents to be referred to on or before 12 March 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 21 of 2001

SHARON DENISE PICCOLO &
WOODARDS (CENTRAL) PTY LTD

Applicants

And

DEAN ROYSTON McVEIGH

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an extempore judgment arising from the application by the applicants dated 11 January 2002, for the following interlocutory relief:
a)an injunction to restrain the respondent, whether by his servants, agents or otherwise, howsoever until the hearing and determination of this proceeding or further order from…

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: [2002] FMCA 8
Decision Date: 15 January 2002

CaseChat Overview and Summary

In the Federal Magistrates Court, Sharon Denise Piccolo and Woodards (Central) Pty Ltd filed an application against Dean Royston McVeigh seeking an interlocutory injunction and other relief. The case revolves around the settlement terms of a property sale and ensuing claims for equitable contribution and indemnity. McVeigh, as the trustee of Peter Piccolo's estate, had received payments under the settlement terms, which the applicants now seek to enjoin from being distributed until the substantive claims are resolved. The legal issues before the court included whether there was a serious question to be tried and whether the balance of convenience favoured granting the injunction. The court held that there were indeed serious questions regarding the applicants' claims for equitable contribution and indemnity, which warranted further investigation. Additionally, the applicants demonstrated that damages would not be an adequate remedy, and the balance of convenience favoured granting the injunction to prevent potential dissipation of funds. Consequently, the court granted the injunction, restraining McVeigh from disposing of the funds received until the final determination of the case. The applicants were also directed to file their statements of claim and other procedural steps were outlined for the progression of the case.

Orders