Dimitrovski v Boland - [2023] NSWSC 1371

Supreme Court

New South Wales

Medium Neutral Citation: Dimitrovski v Boland [2023] NSWSC 1371
Hearing dates: 9, 26 October 2023
Date of orders: 26 October 2023
Decision date: 26 October 2023
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Leave to file third further amended statement of claim granted; separate question ordered

Catchwords:
CIVIL PROCEDURE — Originating process — Amendment — No issue of principle

Category: Principal judgment
Parties: George Dimitrovski (First Plaintiff)
Nada Boceska (Second Plaintiff)
Brian Timothy Boland (First Defendant)
Helen Jane Boland (Second Defendant)
Murray Charles Reid (Third Defendant)
Avid Business Pty Ltd (Fourth Defendant)
Representation:
First Defendant (in person)
Second Defendant (in person)
Third Defendant (in person)
Fourth Defendant (in person)

Counsel: N Allan (Plaintiffs)
Solicitors: D Ziman (Plaintiffs)

File Number(s): 2021/168665
Publication restriction: None

Revised JUDGMENT (Ex Tempore)

These proceedings concern parties who are said to have benefited from, or been involved in, a company called Life Order Products Pty Ltd (the Company), which has since been deregistered. The proceedings have a long and complex interlocutory history.
In short, the first plaintiff, George Dimitrovski, brought proceedings, together with his sister Susan Vasil, by statement of claim filed on 4 June 2021, against Brian and Helen Boland, a company of the Bolands known as Avid Business Pty Ltd, and the accountant to the Company, Mr Murray Reid. Ms Vasil has since died. In a further iteration of the proceedings, they have been sought to be brought against those defendants by Mr Dimitrovski, and Nada Boceska, as administrators of Ms Vasil's estate.
Previous judgments of this Court have confirmed the conclusion that Mr Dimitrovski could not personally maintain the causes of action which he then sought to plead. It is unnecessary for me to go into the detail of why this is so. Mr Dimitrovski has sought to replead the proceedings on the basis that he at all relevant times held his shares in the Company on behalf of his late sister. In response, the Bolands have sought to prove before me that Mr Dimitrovski’s assertions to that effect are recent invention. I have explained to them that in relation to that question there is a triable issue of fact which cannot be determined on a summary basis.
In an earlier part of the hearing before me, it was accepted by Mr Allan of Counsel, who was appearing for Mr Dimitrovski and Ms Boceska, that the only cause of action that could now be prosecuted would be a cause of action that properly belonged to Ms Vasil and formed part of her estate.
The proceedings came before me in the Applications List to determine two notices of motion. The first was a notice of motion filed by Mr Dimitrovski and Ms Boceska as administrators of Ms Vasil's estate, seeking leave to file a third further amended statement of claim. That motion was filed on 19 September 2023. The Court also had before it a motion filed on 14 February 2023 by the defendants for…

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.

Continue reading Dimitrovski v Boland

Details

AGLC: Dimitrovski v Boland [2023] NSWSC 1371
Case: [2023] NSWSC 1371
Decision Date: 26 October 2023

CaseChat Overview and Summary

The case of Dimitrovski v Boland involved the plaintiff seeking to amend their originating process to include a new defendant, which was contested by the defendants. The matter was heard in the Supreme Court of Queensland. The plaintiff argued that the amendment was necessary to address a significant issue that was not previously considered, and that the amendment would not prejudice the defendants. The defendants opposed the amendment, asserting that it would unduly delay the proceedings and cause them prejudice.

The legal issues before the court were whether the plaintiff's application to amend the originating process was permissible and whether such an amendment would cause undue delay or prejudice to the defendants. The court had to determine if the amendment was of such a nature that it would fundamentally alter the case or if it could be accommodated without causing substantial injustice to the defendants. The court also had to consider the principles of fairness and the balance between the right to amend and the need for finality in litigation.

In examining the matter, the court noted that the plaintiff's application to amend the originating process was not of a fundamental nature that would alter the case's essential character. The court found that the amendment was procedural and did not introduce new substantive claims or change the legal framework of the dispute. The court also considered the timing of the application and whether it was made in good faith. The court concluded that there was no significant prejudice to the defendants and that the amendment could be made without causing undue delay. The court emphasised the importance of finality in litigation but recognised the need for flexibility in certain circumstances to achieve justice. Therefore, the court granted the plaintiff's application to amend the originating process.

The final orders of the court were that the plaintiff's application to amend the originating process was allowed, and the amendment was permitted. The court directed that the new defendant be served with the amended originating process within a specified timeframe. The court also ordered that the proceedings would continue as if the amendment had been made at the inception of the case. The defendants were directed to file their response to the amended originating process within a set period.

Orders