Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd

Ascot Vale Self Storage Centre Pty Ltd initiated proceedings against Nom De Plume Nominees Pty Ltd, and others, seeking to recover sums owing under a deed of settlement and for breach of fiduciary duties. The defendants raised a number of defences and counterclaims, including an exoneration defence to an insolvent trading claim. The third party defendant, Mr Leggo, sought to claim equitable contribution from the other defendants in the event that he was found liable for insolvent trading. The Court heard a number of interlocutory applications, including applications for separate trials of the exoneration defence and third party proceedings, for leave to commence a derivative proceeding, and for summary judgment on the third party proceeding. The Court was required to consider whether the separate trials of the exoneration defence and third party proceeding were appropriate, whether leave should be granted to commence a derivative proceeding, and whether summary judgment should be granted on the third party proceeding. The Court held that the applications for separate trials were not appropriate in the circumstances. The Court held that the derivative proceeding was unlikely to be of any utility if the Court rejected aspects of the defence and counterclaim. The Court held that the third party proceeding was an appropriate matter for determination at trial, in part because there was a question as to whether the claim was subject to the limitation period in s 24(4) of the Wrongs Act 1958 (Vic). The Court dismissed the applications for separate trials, for leave to commence a derivative proceeding, and for summary judgment on the third party proceeding.