Masadabanc International Group Pty Limited v Michael Sfar

[2005] NSWSC 500

CITATION:	Masadabanc International Group Pty Limited v Michael Sfar & Ors [2005] NSWSC 500
HEARING DATE(S):	26 May 2005
JUDGMENT DATE :	26 May 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The claims made against the fourth, fifth and sixth defendants are struck out; the plaintiff is to pay the costs of the fourth, fifth and sixth defendants to date; the statement of claim be amended so that the name of the plaintiff is now "Masadabanc International Group Pty Limited"; the fourth, fifth and sixth defendants are to have their costs paid on an indemnity basis.

CATCHWORDS:	No question of principle
PARTIES:	Masadabanc International Group Pty Limited (Plaintiff) Michael Sfar (First Defendant) Hassy Sfar (Second Defendant) Justin Zappacosts aka Guistino Zappacosta (Third Defendant) United Industries International Pty Limited (Fourth Defendant) Maria Ugov (Fifth Defendant) Maurizia Zappacosta (Sixth Defendant)
FILE NUMBER(S):	SC 13122/04
COUNSEL:	Mr J Laucis (Plaintiff) Mr B Pluznyk (Fourth & Fifth Defendants) Mr Macrae (Sixth Defendant)
SOLICITORS:	Roderick Storie (Plaintiff) Joseph G Capogreco & Assoc (Fourth & Fifth Defendants) Lee & Lyons (Sixth Defendant)

LOWER COURT JURISDICTION:

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

26 May 2005

13122 of 2004 Masadabanc International Group Pty Limited v Michael Sfar & Ors

JUDGMENT – on fourth, fifth, and sixth defendants’ notices of motion

1 Master: These proceedings were commenced by a statement of claim filed on 23 September 2004. The fourth, fifth and six defendants now move to have the claims made against their clients struck out. A reading of the statement of claim reveals that no cause of action whatsoever is advanced in that document against those defendants.

2 It is conceded by counsel for the plaintiff that the statement of claim insofar as it seeks to bring claims against those defendants requires amendment. As I understand the submissions, his client is not presently in a position to formulate any amended claim against the fourth, fifth and six defendants. This continues to be the position, despite the plaintiff having had more than ample opportunity to amend the statement of claim.

3 It seems to me that it is in the best interests of all parties that the fourth, fifth and sixth defendants be removed from the proceedings so that the parties will not be placed in the position of needlessly incurring costs in relation to a claim that at the moment is admittedly hopeless.

4 It remains open to the plaintiff to make further inquiries, and should those inquiries reveal that there is a reasonable cause of action against any of the fourth, fifth or sixth defendants to make application to the court for leave to amend the statement of claim so as to enable such cause of action to be litigated against any of the fourth, fifth and six defendants.

5 I strike out the claims that are made against the fourth, fifth and sixth defendants. The plaintiff is to pay the costs of the fourth, fifth and sixth defendants to date.

6 By way of clarification, I have been asked to comment on the erroneous description of the plaintiff in the process. The named plaintiff is not an entity at law.

7 It is common ground that at all times instructions to bring these proceedings came from Masadabanc International Group Pty Limited and that until today the real plaintiff has been erroneously described in the statement of claim.

8 An application is made that the costs be payable on an indemnity basis. The asserted claim is, and at all times has been, manifestly hopeless. The statement of claim should never have been filed in its present form.

9 In the circumstances the fourth, fifth and sixth defendants are entitled to have their costs on an indemnity basis and I so order.

**********