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Power v Ekstein

Power v Ekstein

Case [2009] NSWSC 130 11 March 2009

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CITATION: Power v Ekstein & 5 Ors [2009] NSWSC 130

HEARING DATE(S): 05/12/08

JUDGMENT DATE :
11 March 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to para 116 of judgment.

CATCHWORDS: Application to amend statement of claim - complex claims of breach of trust and oppression in management of companies - whether allegations disclose arguable causes of action - whether leave should be refused on ground that causes of action are barred by the Limitation Act - whether leave should be refused in order to separate issues - leave granted

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Corporations Act 2001 (Cth)
Limitation Act 1969 (NSW)
Civil Procedure Act 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Power v Ekstein [2000] NSWSC 905
Middleton v O’Neill (1943) 43 SR (NSW) 178
Barnes v Addy (1874) LR 9 Ch App 244
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Oates v Consolidated Capital Services Ltd (2008) 66 ACSR 277
Re Consolidated Nickel Mines Ltd [1914] 1 Ch 883
Club Flotilla (Pacific Palms) Ltd v Isherwood (1987) 12 ACLR 387
Gosford Christian School Ltd v Totonjian (2006) 201 FLR 424
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672
Short v Crawley (No. 30) [2007] NSWSC 1322
Short v Crawley (No. 40) [2008] NSWSC 1302
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Dean-Willcocks v Air Transport International Pty Ltd [2002] NSWSC 525; (2002) 55 NSWLR 64

TEXTS CITED: R P Meagher, J D Heydon & M Leeming, Meagher Gummow & Lehane’s Equity Doctrines & Remedies, 4th ed
LexisNexis Australian Corporation Law Principles and Practice

PARTIES: Kaaren Jarmila Power
v
Paul George Ekstein & 5 Ors

FILE NUMBER(S): SC 6590/04

COUNSEL: Plaintiff: D A Smallbone
1st-6th Defendants: T Rickard
Mr Ward-Harvey - D Fagan SC

SOLICITORS: Plaintiff: Holman Webb
1st-6th Defendants: Horowitz & Bilinsky

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 11 March 2009

6590/04 Kaaren Jarmila Power v Paul George Ekstein & 5 Ors

JUDGMENT

1 HIS HONOUR: This is an application for leave to amend the statement of claim. The controversy has a long history.

2 The proceedings concern the estate of the late Otto Ekstein who died on 13 May 1992. He was the trustee of a trust known as the Otto Ekstein Family Trust. Certain questions concerning the trust deed and the will of Otto Ekstein were decided by Windeyer J on 14 September 2000 (Power v Ekstein [2000] NSWSC 905). His Honour recorded that the beneficiaries of the trust included Paul Ekstein and Helen Ekstein, being children of Otto Ekstein’s first marriage; Misha Ekstein, a son of his second marriage; Kaaren Jarmila Jones (the plaintiff) his step-daughter, being the daughter of his second wife; and his third wife and widow, Sonja Ekstein.

3 The plaintiff is a major beneficiary under…

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 Power v Ekstein

Details

AGLC: Power v Ekstein [2009] NSWSC 130
Case: [2009] NSWSC 130
Decision Date: 11 March 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Power, the applicant, sought leave to amend his statement of claim against Ekstein, the respondent. The applicant brought claims for breach of trust and oppression in the management of several companies, which were part of a larger group of companies. The applicant alleged that the respondent, a director of the companies, breached his fiduciary duties and acted oppressively in his management of the companies. The central dispute involved the applicant's ability to amend his statement of claim to include additional allegations and parties.

The court was required to determine whether the proposed amendments disclosed an arguable cause of action and whether leave should be refused on the basis that the proposed claims were time-barred under the Limitation Act. Additionally, the court had to consider whether it was appropriate to refuse leave to amend in order to avoid the separation of issues that would arise from the proposed amendments.

The court found that the proposed amendments disclosed arguable causes of action in relation to the breach of trust and oppression claims. The court noted that the applicant had provided sufficient particulars to support the allegations, and that the proposed amendments did not introduce new causes of action but rather expanded upon existing claims. The court also concluded that the proposed claims were not time-barred under the Limitation Act, as the applicant had demonstrated that he was unaware of the relevant facts until a certain point in time. The court further found that it was not appropriate to refuse leave to amend in order to avoid the separation of issues, as the proposed amendments related directly to the existing claims and parties. As a result, the court granted the applicant leave to amend his statement of claim.

Orders