Vial v Cossa

[1999] NSWSC 298

CITATION:	Vial v Cossa [1999] NSWSC 298
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	6244 of 1991
HEARING DATE(S):	1 April 1999
JUDGMENT DATE:	1 April 1999
PARTIES :	Susan Elizabeth Vial (P & Cr-D) Antonio Stephano Cossa (D & Cr-Cl)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. L. Aitkin (P) Mr. K. Ottesen (D)
SOLICITORS:	Horowitz & Bilinsky (P) Watsons (D)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 1 April 1999

6244/91 SUSAN ELIZABETH VIAL -v- ANTONIO STEFANO COSSA

JUDGMENT

1 MASTER: On 12 February 1999 I heard an application by the plaintiff, Susan Elizabeth Vial, for summary judgment pursuant to Part 13 rule 2 of the Supreme Court Rules. After a contested hearing of that application for summary judgment, I delivered my reasons for judgment and made the following orders:

1. I direct that on or after 22 February 1999 judgment be entered for the plaintiff against the defendant in the sum of $147,850, together with interest upon such sum from 28 June 1996 at Supreme Court rates.
2. I reserve to the defendant liberty to apply to me on twenty-four hours' notice on or before 19 February 1999 for an order varying the sum of $147,850 referred to in Order 1 hereof.

2    I made consequential and other orders in the matter. The reason for Order 2 was that it appeared that, as disclosed in my reasons for judgment, there was a dispute in the evidence as to the precise amount which had been paid by the defendant of the total amount of his indebtedness to the plaintiff under a deed, in the sum of $400,000. 3    I said in my reasons for judgment that, in proposing to reserve to the defendant liberty to apply for a variation of the amount asserted by the plaintiff in her affidavit evidence, I would expect that the parties would be able to perform a calculation as to how much had actually been paid. 4    Pursuant to the liberty reserved by me, the defendant, on 19 February 1999, filed a Notice of Motion seeking an order varying the sum of $147,850 as the amount of the judgment in favour of the plaintiff. The Notice of Motion did not specify the amount to which the defendant sought the summary judgment should be varied. 5    The hope which I had expressed in my reasons for judgment on 12 February 1999, that the parties would be able to perform some calculation as to how much had actually been paid by the defendant has not been fulfilled. 6    In his affidavit sworn 30 March 1999 the defendant, in paragraphs 7, 8 and 9, refers to payments made by him and says that of the total amount of $400,000 which, under the deed, he was liable to pay, there is presently outstanding an amount of $87,075.50. 7    He calculates that amount by setting forth a schedule of payments as annexure A to that affidavit. That schedule of payments totals $306,300. To that schedule he also adds certain infringement fines and penalties totalling $7942 in respect of which he says, in paragraph 7, that the plaintiff is, under the terms of the deed, liable to indemnify him, and that that figure should be added to the amount of $306,300. 8    He also claims an amount of $182.50 for an unpaid bill for a meal for three persons, consumed allegedly by the plaintiff and two other persons at a restaurant conducted by the defendant. It is quite clear that in the present proceedings I am not embarking upon some form of general accounting of all financial relationships between the parties. I am dealing only with the liability of the defendant to the plaintiff under the terms of the deed. Accordingly, any amount which the plaintiff might have incurred for meals at the defendant's restaurant is certainly not something which is the subject of the present proceedings. 9    The amount which the defendant asserts should be brought to his credit under the terms of the deed in respect to the infringement notices and liabilities incurred by the plaintiff in relation to the motor vehicle, being a sum of $7942, now appears to include a fine of $800 imposed upon the defendant himself at the Waverley Court on 13 November 1990. That sum can in no way be regarded as the plaintiff's responsibility. 10    The reference in clause 9 of the deed is to the plaintiff indemnifying the defendant in respect of any claims arising from the plaintiff's use of the motor vehicle, such claims to include the traffic infringements notices incurred personally by the plaintiff. Accordingly, the figure of $7942, which the defendant in his affidavit seeks should be credited to him, must be reduced to $7142, in order to take account of the fine personally imposed upon him. 11    The plaintiff disputes that the defendant has paid to her the totality of $306,600 as set forth in the schedule, which is annexure A to the defendant's affidavit of 30 March 1999. The payments in that schedule accord with the bank records of the defendant and, in particular, accord with cheque butts of the defendant. The plaintiff, however, asserts in respect to a number of those payments that she has no recollection of having received the cheque. 12    The plaintiff, however, was not able to place before the Court at today's hearing any documentary material which would support her assertion of not having a recollection of receiving cheques which are included amongst the payments which the defendant, in annexure A to his affidavit, says that he has made to her. 13    The plaintiff is presently residing in the United States of America. She returned to Sydney only a week ago. She said that she had placed in storage at Mascot documentary records which she had had at an earlier stage in these proceedings and that since her return to Sydney a week ago she had made search for three days at the storage facilities for those records, but to no avail. 14    The situation in which the Court is placed is that there is documentary evidence supporting the assertion of the defendant that he has paid to the plaintiff amounts totalling $306,300. 15    There is only the oral evidence of the plaintiff, based upon her recollection and not supported by any documentary material, that the amounts which she received from the defendant total considerably less than $306,300. It was upon the basis of the evidence given by the plaintiff in her affidavit of 12 March 1998 in support of the application for summary judgment that the defendant had paid to her only a total of $252,150 that the Court directed entry of summary judgment for the plaintiff in the amount of $147,850. 16    It seems to me that, when confronted by the oral testimony of the plaintiff, based upon her present recollection of payments received by her throughout a period from December 1990 until July 1994, and evidence given by the defendant, supported by a very considerable quantity of statements from his bank and of cheque butts, that the Court must accept the evidence which is supported by the documentary material. 17    In those circumstances, therefore, I am satisfied, on the balance of probabilities, that I should accept the evidence of the defendant that he has made payments totalling $306,300. In addition, he should also be given credit for an amount of $7142 in respect to the various traffic infringement notices incurred whilst the motor vehicle was in the possession of and under the control of the plaintiff. 18    However, among the payments made by the defendant to the plaintiff, was a cheque for $2000, being cheque number 48, in an amount of $2000 dated 19 June 1991, payment of which cheque was stopped by the defendant. Accordingly, the amount of $306,300 will be reduced to $304,300. 19    I do not accept the submission made on behalf of the plaintiff that, because the motor vehicle was registered in the name of the defendant, the plaintiff should, thereby, be absolved from the liability in respect of penalties under infringement notices which that motor vehicle attracted whilst used by her and allowed to remain by her on a public street whilst unregistered. 20    It follows, therefore, that the amount which the defendant has paid, $304,300, and the amount for which he should be credited in respect of the traffic infringement notices and penalties of $7142, being in a total amount of $311,442, should be deducted from the total liability of the defendant under the deed in the sum of $400,000, leaving an outstanding balance of $88,558, which is the amount which the defendant is presently liable to pay to the plaintiff and is the amount to which the amount of the summary judgment will be varied. 21    I propose to order that the amount of the summary judgment to which the plaintiff is entitled should be varied to the amount of $88,558. 22    (Counsel addressed on costs.) 23    The defendant has been substantially successful on the present Notice of Motion. I consider that he is entitled to have his costs of that motion. I make the following orders:

1. I order that the sum of $147,850 referred to in order 1 made on 12 February 1999 be varied by substituting therefor the sum of $88,558.
2. I order that the plaintiff pay the costs of the defendant of the Notice of Motion filed by the defendant on 19 February 1999 (marked A for identification).
3. The exhibits may be returned.

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