Dominic Iacullo and Lillian Iacullo v Luigi Iacullo & Ors [2014] NSWSC 787

Dominic Iacullo and Lillian Iacullo v Luigi Iacullo & Ors [2014] NSWSC 787

Leave is granted to proceed on the basis of those paragraphs of the proposed further amended cross-claim (FAXC) that were not challenged, or in respect of which leave has been granted as set out in the judgment. Leave is refused for other identified paragraphs (including those involving allegations of dishonesty or knowing participation that are not properly pleaded/particularised or suffer from multiplication of alternatives). The Cross-Claimants are not permitted a further opportunity to amend. The matter should now proceed to trial based on the permitted pleadings.

Jurisdiction
Australia
Judgment Date
13 June 2014
Procedural Posture
Interlocutory Application / Application for Leave to File Further Amended Cross Claim and Associated Strike Out Applications
Outcome
Application for leave to file a further amended cross-claim allowed in part; leave granted in respect of specified paragraphs; leave refused for others; no further opportunity to amend; no order as to costs (save as to usual order for costs thrown away).
Legal Topics
['pleadings' 'strike Out Applications' 'trustee Duties' 'cross Claims' 'fiduciary Duties' 'knowing Participation' 'remedies for Breach of Trust']
['civil Procedure' 'equity' 'trusts Law' 'corporations Law'] ['pleadings' 'strike Out Applications' 'trustee Duties' 'cross Claims' 'fiduciary Duties' 'knowing Participation' 'remedies for Breach of Trust']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Leave to File Further Amended Cross Claim and Associated Strike Out Applications

Legal Issues

  1. 1 ['Whether leave should be granted to file a further amended cross-claim (FAXC) in the form proposed;' 'Whether particular paragraphs of the proposed FAXC are properly pleaded or should be struck out/leave refused;' 'Whether the proposed FAXC pleads material facts with sufficient clarity;' 'Whether multiplicity of alternatives and failure to plead dishonesty/fraud with particularity justifies refusing leave;' 'Whether Cross-Claimants should have any further leave to amend.']

Ratio Decidendi

Leave is granted to proceed on the basis of those paragraphs of the proposed further amended cross-claim (FAXC) that were not challenged, or in respect of which leave has been granted as set out in the judgment. Leave is refused for other identified paragraphs (including those involving allegations of dishonesty or knowing participation that are not properly pleaded/particularised or suffer from multiplication of alternatives). The Cross-Claimants are not permitted a further opportunity to amend. The matter should now proceed to trial based on the permitted pleadings.

Court Disposition

Application for leave to file a further amended cross-claim allowed in part; leave granted in respect of specified paragraphs; leave refused for others; no further opportunity to amend; no order as to costs (save as to usual order for costs thrown away).

Orders

  • ['Trial to proceed on the basis of specified paragraphs of proposed further amended cross-claim not challenged or where leave is granted.' 'Cross-claimants not to be allowed a further opportunity to amend the cross-claim.' 'Parties to be heard as to the time for filing of proposed cross-claim and directions as to...