JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CENTRAL EXPLORATION PTY LTD -v- ZUKS [2020] WASC 46
CORAM: ALLANSON J
HEARD: 18 DECEMBER 2019
DELIVERED : 21 FEBRUARY 2020
FILE NO/S: CIV 2917 of 2017
BETWEEN: CENTRAL EXPLORATION PTY LTD
First Plaintiff
CENTRAL AREAS LTD
Second Plaintiff
RTG MINING INC
Third Plaintiff
AND
NIKOLAJS ZUKS aka NIKS ZUKS, NICHOLAIS ZUKS, NICHOLAS ZUKS, NIKOLIS ZUKS AND NIKOLAIS ZUKS
First Defendant
KALIA HOLDINGS PTY LTD
Second Defendant
KALIA LTD
Third Defendant
DAVID ALBERT LLOYD JOHNSTON
Fourth Defendant
TERRENCE ARTHUR LARKANFifth Defendant
ADAM NIKOLAIS ZUKS
Sixth Defendant
Catchwords:
Practice and procedure - Application to extend time to file application for summary judgment - Where application based on possible failure of condition precedent - Whether time should be extended to enable application at indefinite future time
Practice and procedure - Application by defendant to be released from undertaking given voluntarily in response to plaintiffs' application for interim injunction - Where information on application for injunction incomplete - Where undertaking in force for more than two years - Where the plaintiffs' position has materially changed since undertakings given - Where difficulties in enforcement of undertaking
Practice and procedure - Application to strike out pleadings for failure to disclose a reasonable cause of action
Practice and procedure - Application to strike out - Where plaintiffs plead matters which have arisen since issue of writ
Practice and procedure - Where defendants apply to strike out claims on ground that they may prejudice, embarrass or delay the fair conduct of the proceedings - Whether allegation of dishonest or unlawful conduct pleaded with sufficient clarity and precision - Whether plaintiff should be given leave to re‑plead
Practice and procedure - Where defendant applies for order requiring plaintiff to write and send letter to third party in terms provided by defendant - Where defendant has brought no counterclaim - Whether application in effect for mandatory injunction
Legislation:
Corporations Act 2001 (Cth), s 1317H, pt 1.2 div 2
Partnership Act 1895 (WA), s 7
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 20 r 10, O 20 r 19, O 37 r 6
Result:
Application to extend time for strike out application dismissed
Application to strike out granted in part
Plaintiff to have leave to re-plead
Application to be released from undertaking granted
Application for order requiring letter to third party dismissed
Category: B
Representation:
Counsel:
| First Plaintiff | : | A Rumble & M L Bennett |
| Second Plaintiff | : | A Rumble & M L Bennett |
| Third Plaintiff | : | A Rumble & M L Bennett |
| First Defendant | : | M P Bruce |
| Second Defendant | : | A Pieterse |
| Third Defendant | : | A Pieterse |
| Fourth Defendant | : | A Mossop & S M Davies SC |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | M P Bruce |
Solicitors:
| First Plaintiff | : | Bennett + Co |
| Second Plaintiff | : | Bennett + Co |
| Third Plaintiff | : | Bennett + Co |
| First Defendant | : | Bruce Legal Consultants (Perth) |
| Second Defendant | : | Tottle Partners |
| Third Defendant | : |
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- Case
- [2020] WASC 46
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved the interpretation and application of procedural rules in the context of the plaintiff's summary judgment application, the enforceability of the undertaking given in response to the interim injunction application, and the validity of the claims made by both parties. The court had to determine whether the plaintiff's application for an extension of time was justified, whether the defendant should be released from the undertaking, and whether certain claims should be struck out due to procedural deficiencies or potential prejudice to the defendant.
The court found that the plaintiff's application for an extension of time should be denied, as it was not clear when, or if, the condition precedent would be satisfied. The court held that the defendant should be released from the undertaking, as the plaintiff's position had materially changed and it was difficult to enforce the undertaking. The court also struck out certain claims made by the defendant, finding that they did not disclose a reasonable cause of action and could prejudice the fair conduct of the proceedings. The court denied the plaintiff's request to re-plead, finding that the claims were insufficiently clear and precise. Lastly, the court rejected the defendant's application to require the plaintiff to write a letter to a third party, finding that it was effectively an application for a mandatory injunction, which was not supported by the defendant's lack of a counterclaim.
The court ordered that the plaintiff's application for an extension of time be dismissed, the defendant be released from the undertaking, certain claims by the defendant be struck out, and the plaintiff's request to re-plead be denied. The court also dismissed the defendant's application to require the plaintiff to write and send a letter to a third party.
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