Moustach Pty Limited v Eddie Takchi
[2015] NSWSC 2078
•03 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: Moustach Pty Limited v Eddie Takchi [2015] NSWSC 2078 Hearing dates: 3 August 2015 Date of orders: 03 August 2015 Decision date: 03 August 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Amendments to further amended statement of claim disallowed; proceedings against third and fourth defendants dismissed.
Catchwords: PROCEDURE – amendments to statement of claim – motion to disallow amendments to statement of claim – where several amendments already made and struck out – where amendments introduce claims against persons not joined to proceedings – where amendments introduce claims which could not possibly succeed – where impugned pleadings defective and incoherent – held, proceedings against third and fourth defendants dismissed. Legislation Cited: (NSW) Conveyancing Act 1919, s 37A Category: Procedural and other rulings Parties: Moustach Pty Ltd (first plaintiff)
Moussa Moussa (second plaintiff)
Salima Moussa (third plaintiff)
Arlette Takchi as executrix of the Estate of Eddie Takchi (first defendant)
Arlette Takchi (second defendant)
DMRJ Limited (third defendant)
TBT Investments Pty Limited (fourth defendant)Representation: Counsel:
Solicitors:
D C Eardley (plaintiffs)
M B Holmes (first and second defendants)
J M Ireland (third and fourth defendants)
Russo & Partners (plaintiffs)
Barraket Stanton Lawyers (first and second defendants)
McGirr Lawyers (third and fourth defendants)
File Number(s): 2013/205000
Judgment (ex tempore)
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HIS HONOUR: In the substantive proceedings, the plaintiffs' claim against the first and second defendants concerns the recovery by various means of monetary sums said to have been misappropriated by the first defendant from the first plaintiff company in breach of his director's and fiduciary duties, and against the third and fourth defendants orders under the (NSW) Conveyancing Act 1919, s 37A, for the transfer of a parcel of land at Arcadia.
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In March this year, the proceedings were set down for hearing for three days commencing on 18 August. On 18 May, the third and fourth defendants applied for dismissal of the proceedings against them and on 1 June 2015, I made an order striking out the pleading against the third and fourth defendants under Conveyancing Act, s 37A but granted leave to re-plead. The plaintiffs filed an amended pleading pursuant to that leave, and the third and fourth defendants moved again for it to be struck out. On 7 July 2015, Black J ordered that paragraph 25 of the amended statement of claim (which was the re-pleading of the s 37A cause of action) be struck-out, but granted leave to re-plead by 13 July.
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On 16 July, the plaintiffs filed and served a further amended statement of claim. Before the Court today are motions filed by the first and second defendants, and also by the third and fourth defendants, for the disallowance of the amendments made in that further amended statement of claim.
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The effect of the amendments made is to impugn the transfer of two additional parcels of property which were formerly owned by a company, Budget Nursery Pty Limited (which is not a party to the proceedings), and were transferred by it to three transferees, two of whom are the third and fourth defendants, and the third of whom is also not a party to the proceedings. On that basis alone, it is manifest that had leave to make these amendments been sought when or before they were made, it would have been refused, because they cannot possibly succeed unless the proceedings are re-constituted by the joinder of Budget Nursery and the third transferee.
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While that is sufficient to dispose of the present application and require that the Court must disallow the amendments, it would also be apparent from the discussions that have taken place in the course of submissions that there are many other defects and incoherencies in the pleading of the s 37A case.
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If the proceedings were re-constituted in order to enable it to proceed, then the additional party could not have been expected to meet it for a hearing commencing on 8 August. The plaintiffs have had repeated opportunities to put the s 37A pleading in order, and repeated indications from the Court as to what should be done in that respect. In those circumstances, it seems to me that the appropriate course is that the proceedings against the third and fourth defendants should, as a consequence, now be dismissed. By operation of the (NSW) Civil Procedure Act 2005, s 91, that does not preclude them from bringing another case based on the same cause of action. Moreover, the third and fourth defendants proffer an undertaking to the Court, which the Court will record, not to take any issue estoppel, Anshun estoppel or similar point in that respect. That course will then enable the much narrower case against the first and second defendants, not involving any s 37A questions, to proceed on the date set down for hearing.
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In those circumstances, the plaintiffs' motion for vacation of the hearing date is not necessary and will not be granted.
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The plaintiffs, by their motion, also sought leave to rely on an affidavit of an accountant, Schon Condon, who had been retained as an expert. Examination of Mr Condon’s report indicates that it would be of no assistance to the Court on the questions to be determined, because it does not address any matter relevant to those questions.
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Accordingly, the Court orders that:
The amendments contained in the further amended statement of claim filed on 16 July 2015 be disallowed.
The proceedings as against the third and fourth defendants be dismissed.
The plaintiffs’ notice of motion filed on 4 July 2015 be dismissed.
The plaintiffs pay the third and fourth defendants' costs of the proceedings, including all reserved costs.
The plaintiff pay the First and Second defendants' costs of the motions heard today.
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Decision last updated: 13 April 2016
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