MJJK Investments Pty Ltd acting as trustee for the Martha Kennedy Family Trust v Kennedy; Kennedy v MJJK Investments Pty Ltd acting as trustee for the Martha Kennedy Family Trust [2024] NSWSC 1398

MJJK Investments Pty Ltd acting as trustee for the Martha Kennedy Family Trust v Kennedy; Kennedy v MJJK Investments Pty Ltd acting as trustee for the Martha Kennedy Family Trust [2024] NSWSC 1398

Leave to amend the Summons is granted as the case the plaintiffs wish to pursue is different in substance from that pleaded and dismissing would cause extra costs and delay; leave is declined for the List Statement in its current proposed form as it does not properly plead the new case.

Parties
First Plaintiff/cross Defendant: MJJK Investments Pty Ltd acting as trustee for the Martha Kennedy Family Trust; Second Plaintiff/cross Defendant: MJJK Investments No. 2 Pty Ltd acting as trustee for the Martha Kennedy Family Trust No. 2; Third Plaintiff/cross Defendant: MJJK Investments No. 3 Pty Ltd acting as trustee for the Martha Kennedy Family Trust No. 3; Fourth Plaintiff/cross Defendant: Martha Kennedy; Fifth Plaintiff/cross Defendant: Justin Kennedy; First Defendant/cross Claimant: James Kennedy; Second Defendant/cross Claimant: Aberdeen Bear Pty Ltd
Jurisdiction
Australia
Judgment Date
31 October 2024
Procedural Posture
Civil (equity Commercial List) / Procedural Ruling: Leave to Amend Pleadings and Case Management
Outcome
Leave to amend Summons granted; leave to amend List Statement in proposed form refused; further directions ordered; costs ordered against plaintiffs.
Legal Topics
Pleadings, Amendment of Pleadings, Specific Performance, Void Penalty Clause
Civil Procedure Pleadings Amendment of Pleadings Specific Performance Void Penalty Clause

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Parties

MJJK Investments Pty Ltd acting as trustee for the Martha Kennedy Family Trust

First Plaintiff/cross Defendant

MJJK Investments No. 2 Pty Ltd acting as trustee for the Martha Kennedy Family Trust No. 2

Second Plaintiff/cross Defendant

MJJK Investments No. 3 Pty Ltd acting as trustee for the Martha Kennedy Family Trust No. 3

Third Plaintiff/cross Defendant

Martha Kennedy

Fourth Plaintiff/cross Defendant

Justin Kennedy

Fifth Plaintiff/cross Defendant

James Kennedy

First Defendant/cross Claimant

Aberdeen Bear Pty Ltd

Second Defendant/cross Claimant

Procedural Posture

Civil (equity Commercial List) / Procedural Ruling: Leave to Amend Pleadings and Case Management

Legal Issues

  1. 1 Whether plaintiffs should be given leave to amend their Summons and List Statement at the hearing date
  2. 2 Whether the alternative would be to dismiss the proceedings
  3. 3 Whether the claim for $3 million as a debt is maintainable

Ratio Decidendi

Leave to amend the Summons is granted as the case the plaintiffs wish to pursue is different in substance from that pleaded and dismissing would cause extra costs and delay; leave is declined for the List Statement in its current proposed form as it does not properly plead the new case.

Court Disposition

Leave to amend Summons granted; leave to amend List Statement in proposed form refused; further directions ordered; costs ordered against plaintiffs.

Orders

  • Grant leave to the plaintiffs to amend their Summons in accordance with MFI 1.
  • Refuse leave to file further Amended Commercial List Statement in the form proposed.