Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1173

Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1173

The consequential orders were made to reflect the interlocutory judgment: the unsuccessful derivative leave, Luxcon, wages/entitlements and freezing order applications were dismissed; cross-claim and notice to produce material tied to refused claims was struck out or set aside; limited nunc pro tunc leave was appropriate to allow the Second and Third Defendants to file a defence and defend the NCAT proceedings on behalf of REW to avoid default consequences, subject to conditions protecting the Second and Third Plaintiffs; and costs were awarded according to the substantive success and failure on the motions, with unresolved or limited-success matters excluded or reserved.

Jurisdiction
Australia
Judgment Date
25 August 2014
Procedural Posture
Equity Division Proceedings Concerning Interlocutory Motions, Derivative Leave, Notices to Produce, Cross Claim, Freezing Orders and Costs / Consequential Orders Following Interlocutory Judgment
Outcome
Orders made dismissing specified paragraphs of the Amended Notice of Motion, striking out specified prayers and paragraphs of the Statement of Cross-Claim, setting aside specified paragraphs of notices to produce, granting limited nunc pro tunc leave under s 237 of the Corporations Act 2001 (Cth), noting agreement...
Legal Topics
['derivative Action Leave Under S 237 of the Corporations Act 2001 (cth)' 'striking Out Cross Claim' 'notices to Produce' 'leave to Defend Proceedings on Behalf of a Company' 'ncat Proceedings' 'freezing Orders' 'costs Following the Event']
['civil Procedure' 'corporations Law' 'costs'] ['derivative Action Leave Under S 237 of the Corporations Act 2001 (cth)' 'striking Out Cross Claim' 'notices to Produce' 'leave to Defend Proceedings on Behalf of a Company' 'ncat Proceedings' 'freezing Orders' 'costs Following the Event']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Interlocutory Motions, Derivative Leave, Notices to Produce, Cross Claim, Freezing Orders and Costs / Consequential Orders Following Interlocutory Judgment

Legal Issues

  1. 1 ['Whether paragraphs 3, 4, 7 and 8 of the Amended Notice of Motion filed 26 June 2014 should be dismissed.' 'Whether prayers and paragraphs of the Statement of Cross-Claim should be struck out following refusal of leave under s 237 of the Corporations Act 2001 (Cth).' 'Whether paragraphs 1-6 of the two Notices to Produce dated 18 March 2014 should be set aside.' 'Whether the Second and Third Defendants should be granted leave, nunc pro tunc, to file a Defence on behalf of the First Defendant.' 'Whether the Second and Third Defendants should be granted leave, nunc pro tunc, to defend NCAT proceedings on behalf of the First Defendant and on what conditions.' "Whether the Court should note the parties' agreement about payment of ongoing business expenses and order invoices to be provided." "What costs orders should be made on the plaintiffs' and defendants' motions."]

Ratio Decidendi

The consequential orders were made to reflect the interlocutory judgment: the unsuccessful derivative leave, Luxcon, wages/entitlements and freezing order applications were dismissed; cross-claim and notice to produce material tied to refused claims was struck out or set aside; limited nunc pro tunc leave was appropriate to allow the Second and Third Defendants to file a defence and defend the NCAT proceedings on behalf of REW to avoid default consequences, subject to conditions protecting the Second and Third Plaintiffs; and costs were awarded according to the substantive success and failure on the motions, with unresolved or limited-success matters excluded or reserved.

Court Disposition

Orders made dismissing specified paragraphs of the Amended Notice of Motion, striking out specified prayers and paragraphs of the Statement of Cross-Claim, setting aside specified paragraphs of notices to produce, granting limited nunc pro tunc leave under s 237 of the Corporations Act 2001 (Cth), noting agreement...

Orders

  • ['Dismiss paragraphs 3, 4 and 8 of the Amended Notice of Motion filed 26 June 2014.' 'Prayers 1-3 and 6-11 and paragraphs 1-38 of the Statement of Cross-Claim filed 14 March 2014 be struck out.' 'Paragraphs 1-6 of the two Notices to Produce to Court dated 18 March 2014 issued by the Cross-Claimants to the...