| 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 |
| v | |
| 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order to be administered subject to the interests of justice and consistently with the purposes for which it was originally made – Application for the variation dismissed on the ground that it would not be in the interests of justice.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…
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- Case
- [2019] VSC 56
- Decision Date
CaseChat Overview and Summary
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
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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