Piccolo v McVeigh (No.2) - [2002] FMCA 34

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PICCOLO & ANOR v McVEIGH (No.2)

[2002] FMCA 34

ORDERS – Variation – Injunction.

Applicant:

SHARON DENISE PICCOLO & WOODARDS (CENTRAL) PTY LTD

Respondent:

DEAN ROYSTON McVEIGH

File No:

MZ 21 of 2002

Delivered on:

1 March 2002

Delivered at:

Melbourne

Hearing Date:

16 January 2002

Judgment of:

Connolly FM

REPRESENTATION

Counsel for the Applicant:

Mr J Tsalanidis

Solicitors for the Applicant:

Best Hooper
563 Little Lonsdale Street
MELBOURNE VIC 3000

Counsel for the Respondent:

Mr A Rodbard-Bean

Solicitors for the Respondent:

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

ORDERS

The Respondent's application for a variation of paragraph one of the Order made 15 January 2002 be dismissed.
That both parties costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 21 of 2002

SHARON DENISE PICCOLO &
WOODARDS (CENTRAL) PTY LTD

Applicant

And

DEAN ROYSTON McVEIGH

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by the Respondent who sought to apply on 16 January 2002 for a variation of paragraph 1 of the Orders made on 15 January 2002, whereby the Respondent was restrained from dealing with certain money paid to him by the First Applicant.

The draft minute of the variation to paragraph 1 of the Order made
15 January 2002 sought inter alia:
(1)             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 First applicant pursuant to the Terms of Settlement being exhibit SDP 12 to the affidavit sworn by Sharon Denise Piccolo on 11 January 2002, save and except:
(a)          the reasonable legal expenses of the Respondent incurred in defending this proceeding in the future but limited to an amount of no more than $30,000 or such other amount as may be agreed to by the parties in writing or otherwise ordered by the Court;
(b)             the reasonable legal expenses of the Respondent incurred in defending the interlocutory application of the Applicants made 11 January 2002 but limited to an                   amount of no more than $15,000 or such other amount as may be agreed to by the parties in writing;
(c)              the legal expenses of the Respondent incurred in prosecuting the partition proceedings commenced in the Supreme Court of Victoria between the Respondent and the First Applicant No 5819 of 2000 ("the partition proceedings") but limited to an amount of no             more than $62,055 or such other amount as may be agreed to by the parties in writing;
(d)             the legal costs of the National Australia Bank ("the bank") ordered to be paid by the Respondent to the bank in Federal Court proceedings V 200 of 1999 and on appeal thereafter, [see McVeigh, In the matter of Piccolo v National Australia Bank Ltd [2000] FCA                   187];
(e)             the costs of the bank arising from the partition proceedings but limited…

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 Piccolo v McVeigh (No.2)

Details

AGLC: Piccolo v McVeigh (No.2) [2002] FMCA 34
Case: [2002] FMCA 34
Decision Date: 1 March 2002

CaseChat Overview and Summary

The respondents, Piccolo, brought an application in the Federal Court of Australia against the appellant, McVeigh, seeking a variation to a prior court order that was made on 15 January 2002. The respondents sought an increase in the amount of the security that McVeigh was required to provide to cover costs for the proceedings. The primary judge dismissed the respondents' application and reserved the question of costs for later determination. McVeigh appealed the decision to the Full Court of the Federal Court.

The central legal issue before the court was whether the primary judge had erred in law by dismissing the respondents' application for a variation to the security for costs. The respondents argued that there had been a significant increase in the costs of the proceedings and that the original security was insufficient. They submitted that the primary judge should have ordered an increase in the security for costs. McVeigh, on the other hand, maintained that the original security was adequate and that the primary judge was correct in dismissing the application.

The Full Court considered the principles governing security for costs and the circumstances in which such security may be varied. The Court noted that security for costs is intended to protect a party from being financially prejudiced by the actions of the other party, and that the amount of the security should be sufficient to cover the anticipated costs of the proceedings. The Court held that the primary judge had correctly exercised his discretion in dismissing the application for an increase in the security for costs, as the respondents had not demonstrated that the original security was inadequate. The Full Court dismissed the appeal and affirmed the primary judge's decision.

Orders

Orders of the court

The Respondent's application for a variation of paragraph one of the Order made 15 January 2002 be dismissed.

That both parties costs be reserved.

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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