Fay v Moramba Services Pty Ltd (No 4) [2008] NSWSC 1398

Fay v Moramba Services Pty Ltd (No 4) [2008] NSWSC 1398

Leave to amend was granted to specify sums paid and to substitute certain allegations as not plainly untenable, but refused with respect to claims imposing liabilities on solicitors who are not joined as parties. Claims against non-parties and for repayment were considered disruptive and unsupported by requisite material facts.

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Equity Proceedings / Interlocutory Application for Leave to Amend Statement of Claim and Summons
Outcome
Leave to amend granted in part and refused in part.
Legal Topics
['amendment of Pleadings' 'costs' "director's Duties" 'breach of Trust']
['civil Procedure' 'equity'] ['amendment of Pleadings' 'costs' "director's Duties" 'breach of Trust']

Case Brief

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Procedural Posture

Equity Proceedings / Interlocutory Application for Leave to Amend Statement of Claim and Summons

Legal Issues

  1. 1 ['Whether leave should be granted to amend Statement of Claim and Summons to add new claims for relief' 'Whether amendments imposing liabilities on third parties (solicitors) should be allowed without joinder' 'Whether directors owe fiduciary duties to beneficiaries of inter vivos settlements' 'Whether allegations of excessive costs and breach of duties are sufficiently arguable']

Ratio Decidendi

Leave to amend was granted to specify sums paid and to substitute certain allegations as not plainly untenable, but refused with respect to claims imposing liabilities on solicitors who are not joined as parties. Claims against non-parties and for repayment were considered disruptive and unsupported by requisite material facts.

Court Disposition

Leave to amend granted in part and refused in part.

Orders

  • ['In proceeding 5032/06, leave granted to amend Statement of Claim by substituting proposed new paragraph 28C; otherwise leave refused.' 'In proceedings 3365/07, leave granted to amend Summons by adding claim for assessment of costs; otherwise leave refused.']