George Street Windsor Pty Ltd v Cassaniti; Newton Road WP Pty Ltd v Cassaniti

There was fixed for hearing today for one day a number of applications in matters 2012/00226668 and 2014/00047944. Those matters are ready for hearing, although it has been suggested that there may have been an application for an adjournment by a number of the defendants. As it happens, no application for an adjournment has been made in those proceedings because of what has occurred in related proceedings.

On 23 April 2014, Newton Road WP Pty Limited instituted proceedings against Francesco Cassaniti and 13 others. On 24 April 2014 George Street Windsor Pty Limited instituted proceedings against Francesco Cassaniti and 12 others. Those proceedings were in the usual course given listings before the Court at 9.00am on 22 and 23 May 2014 respectively.

It is sufficient to note that the relief claimed in each of those proceedings is based upon claims that the property that is ultimately the subject of the proceedings and motions that were listed before the Court today is beneficially owned by the plaintiffs in the new proceedings.

The two plaintiffs were given leave to file in court notices of motion today. Those notices of motion sought first, in proceedings 2014/123830, an order restraining the applicant in proceedings 2012/226668 from proceeding with its application before the court today until further order. The notice of motion in proceedings 2014/122284 sought an order that would prevent the Official Trustee in Bankruptcy from lodging for registration any transfer or other registrable dealing as sought in proceedings 2014/47944, until the determination of 2014/122284 or further order.

Each notice of motion also seeks an order that the notice of motion travel with, and be heard in the particular earlier proceedings to which the notice of motion relates.

In short, the plaintiffs in the two new proceedings seek interlocutory injunctions that have the practical effect of preventing the applicants in the proceedings that were fixed for hearing today from proceeding with their applications, or enjoying the fruits of success of those applications.

The plaintiffs in the new proceedings appear to have taken the course of instituting new proceedings, and seeking interlocutory injunctions, partly as a result of the delay that has occurred in commencing the new proceedings, given that the utility of those proceedings will be rendered doubtful if the matters before the court today were heard and determined.

The parties who are respondents to the two notices of motion have not put in issue the proposition that the plaintiffs in the new proceedings have demonstrated that there is a serious question to be tried, that those plaintiffs have rights in relation to the property the subject of the old proceedings which takes priority over all other claimants.

The question of whether the interlocutory injunctions should be granted therefore comes down to the issue of the balance of convenience. I find that the balance of convenience favours the granting of the injunctions.

First, the new plaintiffs, as well as Mr David Salvatore Cassaniti, have offered through their counsel, to give the usual undertaking as to damages. On the basis of the limited evidence before the court, it does appear that the usual undertaking as to damages will provide proper compensation to the other parties, if the new plaintiff's’ claims fail.

Ultimately, the effect of the court granting the interlocutory injunctions is that the other parties will lose the benefit of the hearing date today, and if the new plaintiffs fail, the other parties (whichever of those parties may ultimately succeed) will be delayed in receiving money or property.

Secondly, as Mr David Cassaniti properly and frankly concedes in his affidavit of 27 April 2014, the delay in bringing the new proceedings is not justifiable and is largely inexplicable, and ultimately apparently arose out of relevant persons within the Cassaniti family simply not focussing on the possible existence of the claims sought to be made out by the new proceedings.

In those circumstances, as a condition of granting the interlocutory injunction, I would order the plaintiffs and David Salvatore Cassaniti to pay the costs of the Official Trustee in Bankruptcy and Mr Steven Nichols in any event. I note that I have been informed by Mr Allen and Mr Corbett, who are counsel for the other parties, that they do not seek a similar costs order.

Thirdly, I will put it no more highly than I had some concern about whether the matters before the court could properly proceed today, given an oblique reference in submissions provided to the court that there may be a challenge to the validity of charges asserted by certain parties. That issue was not in any way fully ventilated, and I do not have any final opinion upon it. However, it does introduce some doubt as to whether the case could have been concluded in the day allotted, had it been run fairly in any event.

Finally, it does appear to me, strongly, that even though it is not readily explicable as to why the new claims were not raised earlier, ultimately it is in the interests of the parties and the administration of justice that all of those claims be dealt with at the one time. They do appear to be inextricably linked. However, I cannot pronounce the orders without David Salvatore Cassaniti first being given an opportunity to prove by evidence that he is, as of today's date, a director of George Street Windsor Pty Limited.

After a short adjournment evidence was tendered that proved that Mr David Cassaniti was a director of George Street Windsor Pty Limited.

After a further argument on costs the following orders were made:

I note that in each of proceedings 2012/226668 and 2014/47944 I made the following orders: