Mahommed v Unicomb [2018] NSWSC 291

Mahommed v Unicomb [2018] NSWSC 291

The statement of claim and further amendments fail to adequately plead facts capable of supporting claims against Mrs Unicomb under contract, under s 197 Corporations Act, under Barnes v Addy or Hardoon v Belilios; the claims are misconceived or precluded by the trust deed. Plaintiffs are granted one final opportunity to seek leave to amend only if properly supported by evidence addressing the identified deficiencies, to minimise further oppression to Mrs Unicomb. No leave will be given to proceed on the Hardoon v Belilios claim as it is excluded by the trust instrument.

Parties
First Plaintiff: Peter Shah Mahommed; Second Plaintiff: Loire Consultants Pty Ltd; First Defendant: Pamela Margaret Unicomb; Second Defendant: Greenhills Securities Pty Ltd
Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Equity Civil Procedure / Trusts / Interlocutory Judgment on Pleadings: Application to Strike Out/amend Statement of Claim
Outcome
Plaintiffs’ statement of claim struck out as against Mrs Unicomb; leave to apply for further amendment strictly limited and subject to affidavit evidence justifying any re-pleading; limited leave to proceed against Greenhills regarding certain debts; costs to Mrs Unicomb reserved pending submissions.
Legal Topics
Pleadings Amendment and Strike Out, Directors’ Liability of Corporate Trustee, Admissibility of Affidavit Evidence, Barnes V Addy Liability, Hardoon V Belilios Indemnity
Civil Procedure Equity Trusts and Trustees Company Law Pleadings Amendment and Strike Out Directors’ Liability of Corporate Trustee Admissibility of Affidavit Evidence Barnes V Addy Liability +1 more

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Parties

Peter Shah Mahommed

First Plaintiff

Loire Consultants Pty Ltd

Second Plaintiff

Pamela Margaret Unicomb

First Defendant

Greenhills Securities Pty Ltd

Second Defendant

Procedural Posture

Equity Civil Procedure / Trusts / Interlocutory Judgment on Pleadings: Application to Strike Out/amend Statement of Claim

Legal Issues

  1. 1 Whether leave should be granted to further amend the statement of claim
  2. 2 Whether the statement of claim (and proposed amendments) disclose facts capable of supporting the pleaded claims against Mrs Unicomb
  3. 3 Whether the statement of claim should be struck out for deficiency

Ratio Decidendi

The statement of claim and further amendments fail to adequately plead facts capable of supporting claims against Mrs Unicomb under contract, under s 197 Corporations Act, under Barnes v Addy or Hardoon v Belilios; the claims are misconceived or precluded by the trust deed. Plaintiffs are granted one final opportunity to seek leave to amend only if properly supported by evidence addressing the identified deficiencies, to minimise further oppression to Mrs Unicomb. No leave will be given to proceed on the Hardoon v Belilios claim as it is excluded by the trust instrument.

Court Disposition

Plaintiffs’ statement of claim struck out as against Mrs Unicomb; leave to apply for further amendment strictly limited and subject to affidavit evidence justifying any re-pleading; limited leave to proceed against Greenhills regarding certain debts; costs to Mrs Unicomb reserved pending submissions.

Orders

  • FASOC (statement of claim) against Mrs Unicomb struck out
  • Leave to apply to replead s 197 Corporations Act and Barnes v Addy claims against Mrs Unicomb strictly limited and subject to conditions (affidavit evidence supporting claim)