Belcastro v Gabriel Nakhl & Ors [2014] NSWSC 1305

Belcastro v Gabriel Nakhl & Ors [2014] NSWSC 1305

The application for leave to continue proceedings against the companies in liquidation is granted, as the liquidators neither oppose nor participate and the claims are bona fide, serious, complex, and contingent on insurance recovery. Leave to join the insurers is refused until the plaintiffs re-plead their claims with sufficient clarity and compliance with procedural rules, as the current form is liable to cause prejudice, embarrassment or delay; the plaintiffs are given the opportunity to re-plead within 28 days. Joinder is otherwise appropriate under the Ashmere Cove line of authority provided an adequate pleading is filed.

Jurisdiction
Australia
Judgment Date
24 September 2014
Procedural Posture
Interlocutory Application / Ruling on Amended Notice of Motion Regarding Leave to Proceed, and Joinder of Insurers
Outcome
Leave granted to proceed against companies in liquidation; leave to file amended Statement of Claim excluding claims against SydFA's insurers; leave to re-plead as against SydFA's insurers within 28 days; amended Notice of Motion otherwise dismissed; costs in the cause; directions order made.
Legal Topics
['adequacy of Pleadings' 'joinder of Parties' 'leave to Proceed Against Company in Liquidation' 'professional Indemnity Insurance' 'statutory Charge Under Law Reform (miscellaneous Provisions) Act 1946 (nsw)']
['civil Procedure' 'corporations Law' 'insurance Law'] ['adequacy of Pleadings' 'joinder of Parties' 'leave to Proceed Against Company in Liquidation' 'professional Indemnity Insurance' 'statutory Charge Under Law Reform (miscellaneous Provisions) Act 1946 (nsw)']

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Procedural Posture

Interlocutory Application / Ruling on Amended Notice of Motion Regarding Leave to Proceed, and Joinder of Insurers

Legal Issues

  1. 1 ['Whether leave should be granted to continue proceedings against companies in liquidation under s 500(2) Corporations Act 2001' 'Whether the insurers of the second defendant should be joined pursuant to Rule 6.24 UCPR' 'Whether the proposed amended Statement of Claim is sufficiently pleaded against the insurers']

Ratio Decidendi

The application for leave to continue proceedings against the companies in liquidation is granted, as the liquidators neither oppose nor participate and the claims are bona fide, serious, complex, and contingent on insurance recovery. Leave to join the insurers is refused until the plaintiffs re-plead their claims with sufficient clarity and compliance with procedural rules, as the current form is liable to cause prejudice, embarrassment or delay; the plaintiffs are given the opportunity to re-plead within 28 days. Joinder is otherwise appropriate under the Ashmere Cove line of authority provided an adequate pleading is filed.

Court Disposition

Leave granted to proceed against companies in liquidation; leave to file amended Statement of Claim excluding claims against SydFA's insurers; leave to re-plead as against SydFA's insurers within 28 days; amended Notice of Motion otherwise dismissed; costs in the cause; directions order made.

Orders

  • ['Under s 500(2) Corporations Act 2001 grant plaintiffs leave nunc pro tunc to commence and proceed with proceedings against SydFA Pty Ltd (in Liquidation), Sydney Financial Advisors Pty Ltd (in Liquidation) and Australian Financial Services Ltd (in Liquidation).' 'Grant leave to plaintiffs to file and serve the...