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
[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.
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Details
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.