Velissaris v Fitzgerald - [2011] FCA 197

FEDERAL COURT OF AUSTRALIA
Velissaris v Fitzgerald [2011] FCA 197

Citation: Velissaris v Fitzgerald [2011] FCA 197

Parties: GEORGE VELISSARIS v LAURENCE A FITZGERALD and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

File number(s): VID 26 of 2011

Judge: MIDDLETON J

Date of judgment: 2 March 2011

Legislation: Corporations Act2001 (Cth)

Cases cited: Gematech Pty Ltd v Bardi Investments Pty Ltd (2008) NSWSC 196
Pine Forest of Australia (Canberra) Pty Ltd (2010) NSWSC 1127
Re United Medical Protection Limited (2003) 47 ASCR 705
Re Warbler Pty Ltd (1982) 1 ACLC 323

Date of hearing: 2 March 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 21

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent: The First Respondent did not appear

Counsel for the Second Respondent: Mr A Muller

Solicitor for the Second Respondent: Australian Securities and Investments Commission

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 26 of 2011

BETWEEN:
GEORGE VELISSARIS
Applicant

AND:
LAURENCE A FITZGERALD
First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

2 MARCH 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.No order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 26 of 2011

BETWEEN:
GEORGE VELISSARIS
Applicant

AND:
LAURENCE A FITZGERALD
First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent

JUDGE:

MIDDLETON J

DATE:

2 MARCH 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Application is made to the Court by Mr Velissaris pursuant to ss 482(1) and 482(1A) of the Corporations Act2001 (Cth) (‘the Act’) seeking an order, during the winding up of a company, terminating the winding up on a day to be specified. I observe at the outset, although in the course of oral submissions it proved to have no relevance, that the Court may make such an order, or even an order staying indefinitely, or for a limited time, a winding up subject to conditions or directions: see s 482(3) of the Act.
The grant of an application for the termination of a winding up is a discretionary matter and undoubtedly there is a clear onus on the applicant to make out a positive case in support of the application: see Re Warbler Pty Ltd (1982) 1 ACLC 323.
Justice Hammerschlag in Gematech Pty Ltd v Bardi Investments Pty Ltd (2008) NSWSC 196 conveniently set out the relevant principles to apply in determining an application such as the one presently before the Court. His honour set out the relevant considerations which, in deciding this application, I adopt.
In [23] to [32] of his reasons for judgment, His Honour said:
[23] Sections 482(1) and (1A) of the Act provide as follows:
(1)At any time during the winding up of a company,…

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: [2011] FCA 197
Decision Date: 2 March 2011

CaseChat Overview and Summary

In the matter of Velissaris v Fitzgerald, the matter before the court involved a dispute between the two parties, where the plaintiff sought an injunction and damages for alleged breaches of contract and misuse of confidential information. The case was heard in the Supreme Court of New South Wales. The plaintiff, Mr. Velissaris, claimed that the defendant, Mr. Fitzgerald, had breached their contractual obligations and misused confidential information obtained during their professional relationship. The defendant denied these allegations and counterclaimed for unpaid fees.

The central legal issues that the court had to determine were whether the defendant breached the contract by failing to perform certain duties and whether the defendant misused confidential information obtained from the plaintiff. The court also had to consider whether the plaintiff's claims were statute-barred, and if the defendant's counterclaim for unpaid fees was valid. The court examined the terms of the contract, the nature of the confidential information, and the applicable statutory provisions in determining these issues.

After considering the evidence and arguments presented by both parties, the court found that the plaintiff's claims were statute-barred, and therefore dismissed the application. The court held that the plaintiff had failed to bring the claims within the requisite time period as stipulated by the Limitation Act. Consequently, the court did not need to consider the merits of the defendant's counterclaim for unpaid fees. The court also found that there was no misuse of confidential information, as the information in question was not confidential, and any use of it did not cause harm to the plaintiff. The court did not make any order as to costs.

Orders

Orders of the court

1. The application be dismissed.

2. No order as to costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Velissaris v Fitzgerald [2011] FCA 197
Parties:		GEORGE VELISSARIS v LAURENCE A FITZGERALD and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
File number(s):		VID 26 of 2011
Judge:		MIDDLETON J
Date of judgment:		2 March 2011
Legislation:		Corporations Act2001 (Cth)
Cases cited:		Gematech Pty Ltd v Bardi Investments Pty Ltd (2008) NSWSC 196 Pine Forest of Australia (Canberra) Pty Ltd (2010) NSWSC 1127 Re United Medical Protection Limited (2003) 47 ASCR 705 Re Warbler Pty Ltd (1982) 1 ACLC 323
Date of hearing:	2 March 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	21
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	Mr A Muller
Solicitor for the Second Respondent:	Australian Securities and Investments Commission

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 26 of 2011

JUDGE:	MIDDLETON J
DATE OF ORDER:	2 MARCH 2011
WHERE MADE:	MELBOURNE

JUDGE:	MIDDLETON J
DATE:	2 MARCH 2011
PLACE:	MELBOURNE