Goulston v Bogasi Pty Ltd [2024] NSWSC 47

Goulston v Bogasi Pty Ltd [2024] NSWSC 47

The proposed amendments were refused because the new issues concerning removal of Bogasi Pty Ltd as trustee and the share transfer were an entirely new, factually independent case and were not necessary amendments under s 64(2). There was no sworn explanation for the delay in bringing the application, the substance of the removal complaints had been known and agitated since 2020 and 2021, Bogasi could not be ready to meet the new issues by the fixed April 2024 hearing, allowing the amendments would prejudice Bogasi, other parties and the administration of the Court's list, and refusal would not prejudice Mr Sundell because separate proceedings remained available and Bogasi undertook not...

Jurisdiction
Australia
Judgment Date
29 January 2024
Procedural Posture
Notice of Motion for Leave to File a Second Further Amended Second Cross Claim / Interlocutory Application Before Trial
Outcome
First cross-claimant's notice of motion filed 21 November 2023 dismissed with costs.
Legal Topics
['pleadings Amendment' 'necessary Amendments' 'overriding Purpose' 'removal of Trustee' 'share Transfer Registration' 'anshun Estoppel' 'costs']
['civil Procedure' 'equity' 'trusts' 'corporations'] ['pleadings Amendment' 'necessary Amendments' 'overriding Purpose' 'removal of Trustee' 'share Transfer Registration' 'anshun Estoppel' 'costs']

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Procedural Posture

Notice of Motion for Leave to File a Second Further Amended Second Cross Claim / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether the proposed amendments were necessary amendments for the purposes of s 64(2) of the Civil Procedure Act 2005 (NSW).' 'Whether the Court should exercise its discretion to allow amendments introducing claims for removal of Bogasi Pty Ltd as trustee and registration/correction of shares shortly before the fixed hearing.' 'Whether delay, prejudice to Bogasi Pty Ltd and other parties, and the availability of separate proceedings justified refusing the amendments.']

Ratio Decidendi

The proposed amendments were refused because the new issues concerning removal of Bogasi Pty Ltd as trustee and the share transfer were an entirely new, factually independent case and were not necessary amendments under s 64(2). There was no sworn explanation for the delay in bringing the application, the substance of the removal complaints had been known and agitated since 2020 and 2021, Bogasi could not be ready to meet the new issues by the fixed April 2024 hearing, allowing the amendments would prejudice Bogasi, other parties and the administration of the Court's list, and refusal would not prejudice Mr Sundell because separate proceedings remained available and Bogasi undertook not...

Court Disposition

First cross-claimant's notice of motion filed 21 November 2023 dismissed with costs.

Orders

  • ["The first cross-claimant's notice of motion filed 21 November 2023 is dismissed." "The first cross-claimant is to pay the fourth cross-defendant's costs of the motion." 'Note the undertaking of Bogasi Pty Ltd to the Court by its Senior Counsel that in any future proceedings which may be brought against it by Mr...