Dimitrovski v Boland [2023] NSWSC 1371

Dimitrovski v Boland [2023] NSWSC 1371

The repleaded case disclosed potential causes of action concerning the affairs of the Company, but the plaintiffs' standing depended on the disputed factual question whether Mr Dimitrovski held 500,000 ordinary shares in the Company on trust for Ms Vasil. That discrete issue should be tried first because, if determined adversely to the plaintiffs, the repleaded claim would fail. Mr Reid should not remain a party because no wrongdoing or ultimate relief was sought against him. The plaintiffs were liable for indemnity costs in relation to the abandoned hopeless claim and costs thrown away by the amendment.

Jurisdiction
Australia
Judgment Date
26 October 2023
Procedural Posture
Equity Applications List; Civil Procedure Application for Leave to Amend, Strike Out or Summary Dismissal, and Separate Question / Hearing of Notices of Motion Filed 19 September 2023 and 14 February 2023
Outcome
Leave to file the repleaded proposed third further amended statement of claim granted; proceedings against Mr Reid discontinued; separate question ordered; motions otherwise disposed of with costs orders.
Legal Topics
['amendment of Pleading' 'originating Process' 'strike Out or Summary Dismissal' 'separate Question' 'standing' 'derivative Claim' 'deregistered Company' 'fiduciary Duty' 'indemnity Costs']
['civil Procedure' 'equity' 'corporations'] ['amendment of Pleading' 'originating Process' 'strike Out or Summary Dismissal' 'separate Question' 'standing' 'derivative Claim' 'deregistered Company' 'fiduciary Duty' 'indemnity Costs']

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Procedural Posture

Equity Applications List; Civil Procedure Application for Leave to Amend, Strike Out or Summary Dismissal, and Separate Question / Hearing of Notices of Motion Filed 19 September 2023 and 14 February 2023

Legal Issues

  1. 1 ['Whether the plaintiffs should have leave to file a repleaded proposed third further amended statement of claim.' 'Whether the proceedings should continue against Murray Charles Reid when no allegation of wrongdoing or final relief was sought against him.' 'Whether a separate question should be determined as to whether Mr Dimitrovski held shares in the Company on trust for Ms Vasil.' 'Whether costs of the abandoned pleading and motions should be ordered on an indemnity basis.']

Ratio Decidendi

The repleaded case disclosed potential causes of action concerning the affairs of the Company, but the plaintiffs' standing depended on the disputed factual question whether Mr Dimitrovski held 500,000 ordinary shares in the Company on trust for Ms Vasil. That discrete issue should be tried first because, if determined adversely to the plaintiffs, the repleaded claim would fail. Mr Reid should not remain a party because no wrongdoing or ultimate relief was sought against him. The plaintiffs were liable for indemnity costs in relation to the abandoned hopeless claim and costs thrown away by the amendment.

Court Disposition

Leave to file the repleaded proposed third further amended statement of claim granted; proceedings against Mr Reid discontinued; separate question ordered; motions otherwise disposed of with costs orders.

Orders

  • ['Leave granted to file the repleaded proposed third further amended statement of claim.' "Leave granted to discontinue the proceedings against Murray Charles Reid on the usual terms that the plaintiffs pay Mr Reid's costs of the proceedings." "A separate question ordered as to the nature of Mr Dimitrovski's...