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Vasilaras & Co Pty Ltd v Laprese

Vasilaras & Co Pty Ltd v Laprese

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Case Copied 13 February 2019 66 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROFESSIONAL LIABILITY LIST

S ECI 2018 00678

VASILARAS & CO PTY LTD (ACN 168 127 222) AND ANOR
(according to the schedule)

Plaintiff

MARINA LAPRESE AND ANOR

(according to the schedule)

Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2018
DATE OF JUDGMENT:	13 February 2019
CASE MAY BE CITED AS:	Vasilaras & Co Pty Ltd v Laprese
MEDIUM NEUTRAL CITATION:	[2019] VSC 56 (first revision 14 November 2019)

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PRACTICE AND PROCEDURE – Freezing order – Application for variation to use funds held in a specified account for legal costs in defending the proceeding and related criminal prosecutions – Whether first defendant discharged the onus of establishing she has no other financial resources available to pay the costs – Whether proposed variation in the interests of justice – Freezing order to be administered subject to the interests of justice and consistently with the purposes for which it was originally made – Application for the variation dismissed on the ground that it would not be in the interests of justice.

PRACTICE AND PROCEDURE – Second plaintiff added after initial freezing order made – Freezing order extended on application of first plaintiff when second plaintiff added as a party – Second plaintiff a statutory authority with authority and powers to monitor and enforce consumer interests – No undertaking as to damages given at time of extension of freezing order – First plaintiff contends second plaintiff should give the same undertaking as to damages, it having the benefit of the freezing order – Consideration of the circumstances in which the Crown or a statutory authority may be required to give an undertaking as to damages – Undertakings as to damages required to be given by the second plaintiff if it is to have the benefit of the freezing orders - ACCC v Giraffe World Australia Pty Ltd (1998) 157 ALR 273; Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227; Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318; Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486 referred to.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr AP Tragardh	Colin Biggers & Paisley
For the Second Plaintiff	Mr D Connors	Director of Consumer Affairs Victoria
For the First Defendant	Mr A Sandbach	Katherine Moorhouse Perks
For the Second Defendant

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Procedural background – freezing and search orders................................................................. 2

The plaintiffs’ claims......................................................................................................................... 4

Factual background........................................................................................................................... 6

Laprese’s and One Call Legal’s disclosed assets........................................................................ 13

Laprese’s application....................................................................................................................... 14

Laprese’s contentions................................................................................................................. 15
Vasilaras’ response..................................................................................................................... 18
The Director’s response.............................................................................................................. 19
Black Rock property................................................................................................................... 23

Consideration.................................................................................................................................... 26

Undertaking as to damages – the arguments.............................................................................. 31

Consideration.............................................................................................................................. 34

The recent application..................................................................................................................... 39

Conclusions....................................................................................................................................... 42

HIS HONOUR:

Introduction

There are two applications before me, both referred by a Judge of the Court:[1]

(a) the defendants apply to vary freezing orders made…

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: [2019] VSC 56
Decision Date: 13 February 2019

CaseChat Overview and Summary

Vasilaras & Co Pty Ltd and another company brought a proceeding against Laprese and another defendant. They sought an order that the defendants be restrained from dealing with specified assets and funds. The first instance of the matter involved an application for a variation of a freezing order to allow the defendants to use funds held in a specified account for legal costs in defending the proceeding and related criminal prosecutions. The second instance involved an application for an extension of a freezing order to include a second plaintiff who was added after the initial freezing order was made. The defendants contended that the extension of the freezing order to include the second plaintiff, a statutory authority, should be accompanied by an undertaking as to damages, similar to the requirement for the first plaintiff. The court was required to decide whether the first defendant had discharged the onus of establishing that she had no other financial resources available to pay the costs and whether the proposed variation was in the interests of justice. The court also had to consider the circumstances in which the Crown or a statutory authority may be required to give an undertaking as to damages.

The court found that the first defendant had not discharged the onus of establishing that she had no other financial resources available to pay the costs. The court noted that the defendants had not provided any evidence to support their contention that the first defendant had no other financial resources available. The court also found that the proposed variation would not be in the interests of justice, as it would allow the defendants to use funds that were the subject of the freezing order for legal costs, which was not consistent with the purposes for which the freezing order was originally made. The court found that the freezing order should be administered subject to the interests of justice and consistently with the purposes for which it was originally made. The court held that the second plaintiff, as a statutory authority, should give an undertaking as to damages if it was to have the benefit of the freezing orders, as was required in similar circumstances in previous cases.

The application for the variation of the freezing order was dismissed on the ground that it would not be in the interests of justice. The court ordered that the second plaintiff give an undertaking as to damages if it was to have the benefit of the freezing orders. The court held that the freezing order should be administered subject to the interests of justice and consistently with the purposes for which it was originally made. The court found that the statutory authority, as the second plaintiff, should give an undertaking as to damages if it was to have the benefit of the freezing orders, as was required in similar circumstances in previous cases. The court referred to ACCC v Giraffe World Australia Pty Ltd, Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd, Optus Networks Pty Ltd v City of Boroondara, and Mansfield v Director of Public Prosecutions for Western Australia in its reasoning.

Orders