Vasil v Boland

Case [2022] NSWSC 1534


Supreme Court


New South Wales

Medium Neutral Citation: Vasil v Boland [2022] NSWSC 1534
Hearing dates: 4 November 2022
Decision date: 10 November 2022
Jurisdiction:Equity - Applications List
Before: Meek J
Decision:

Dismiss application for summary dismissal. Amended statement of claim stuck out. Leave granted to plaintiff to file a further amended statement of claim by 24 November 2022.

Catchwords:

CIVIL PROCEDURE — Proceedings brought by two plaintiffs being adult siblings claiming representations made encouraging investment into a company and alleged consequential loss — Claim by first named plaintiff earlier summarily dismissed on the basis that the property subject of the claim vested in his trustee in bankruptcy — Second plaintiff earlier permitted leave to replead — minimal changes to pleaded case Second application for summary dismissal — Summary dismissal refused — Alternative application for strike out of amended statement of claim pleadings — Amended statement of claim struck out — leave given to further amend claim

SUMMARY DISMISSAL — Caution in deciding limitation questions in interlocutory proceedings particularly in cases of alleged economic loss

TRUSTS — Indicia of beneficial interests — Requirements of declaration of trust regarding shares — Appropriate party to bring proceedings for loss suffered by a trust

LEGAL PROFESSION — Barristers — entitlement to appear on direct access brief

PRACTICE — Appearance — Procedure — Representation of company by director — Whether representation by entitlement or Court’s indulgence — Uniform Civil Procedure Rules 2005 (NSW) rr 7.1(2)(a), 7.2(1)(a)

PRACTICE AND PROCEDURE — Abuse of process –– second application made for summary dismissal and strike out — Whether such application an abuse of process — No abuse of process

COSTS — Self-represented litigants –– Ordinarily cannot recover costs because costs are awarded as a partial indemnity for professional legal costs actually incurred in the conduct of litigation

Legislation Cited:

Australian Consumer Law

Australian Securities and Investments Commission Act2001 (Cth)

Civil Procedure Act 2005 (NSW)

Corporations Act2001 (Cth)

Evidence Act1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29

Brimaud v Honeysett Instant Print Pty Ltd (1998) 217 ALR 44

Doe on the demise of Bennett v Hale and Davis (1850) 117 ER 423

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

In the matter of Elegance Swan (in liquidation) (controllers appointed) [2022] NSWSC 1451

Keesing v Adams [2010] NSWSC 336

Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44

Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115

May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75

Mendonca v Matthews…

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AGLC
Vasil v Boland [2022] NSWSC 1534
Case
[2022] NSWSC 1534
Decision Date

CaseChat Overview and Summary

Two siblings, Vasil and his sister, initiated proceedings against Boland, asserting claims for representations made encouraging investment into a company, as well as the consequential loss they allegedly suffered. The first plaintiff's claim was previously dismissed summarily due to the property in question being vested in his trustee in bankruptcy. The second plaintiff was allowed to amend her pleadings with minimal changes. Boland sought summary dismissal of the amended claim and a strike-out of the amended statement of claim, which was denied. The amended statement of claim was subsequently struck out, but leave was granted to further amend the claim. The court exercised caution in deciding limitation questions in interlocutory proceedings, especially in cases of alleged economic loss. The court examined the indicia of beneficial interests in trusts and the requirements of a declaration of trust regarding shares. It also considered the appropriate party to bring proceedings for loss suffered by a trust. The court ruled that a company director could represent the company, either by entitlement or by the court's indulgence, in accordance with the Uniform Civil Procedure Rules 2005 (NSW). The court found that Boland's second application for summary dismissal and strike-out did not constitute an abuse of process. Lastly, the court highlighted that self-represented litigants generally cannot recover costs as costs are awarded as a partial indemnity for professional legal costs actually incurred in the conduct of litigation.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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