Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2022] NSWSC 234

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2022] NSWSC 234

ANZ was not a necessary or proper party because, by the Deed of Assignment, whatever rights ANZ had as secured creditor to Ostwald's assets, including the judgment debt, had been absolutely assigned to RSA. If Seymour's substantive contentions meant ANZ had no entitlement to the judgment debt, ANZ assigned nothing to RSA; if those contentions affected the value or existence of the secured rights, the consequences would be felt by RSA, not ANZ. ANZ therefore did not have or claim an interest in the subject matter, and the relief sought would not directly affect ANZ's rights, interests or liabilities.

Jurisdiction
Australia
Judgment Date
09 March 2022
Procedural Posture
Civil Procedure Application for Removal of Party, Alternatively Dismissal of Proceedings as Frivolous and Vexatious / Interlocutory Motion in Equity Commercial List
Outcome
Second defendant removed from the proceedings pursuant to rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW).
Legal Topics
['removal of Party' 'necessary or Proper Party' 'assignment of Security Interest' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'corporations Act Set Off' 'mortgage Debenture' 'crystallisation of Floating Charge']
['civil Procedure' 'equity' 'commercial Law' 'construction Law' 'insolvency' 'security Interests'] ['removal of Party' 'necessary or Proper Party' 'assignment of Security Interest' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'corporations Act Set Off' 'mortgage Debenture' 'crystallisation of Floating Charge']

Case Brief

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Procedural Posture

Civil Procedure Application for Removal of Party, Alternatively Dismissal of Proceedings as Frivolous and Vexatious / Interlocutory Motion in Equity Commercial List

Legal Issues

  1. 1 ['Whether Australia and New Zealand Banking Group Ltd should be removed as a party under rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether ANZ had or claimed an interest in the subject matter of the proceedings after assigning its rights under the Mortgage Debenture to RSA Equity Pty Ltd.' "Whether the relief sought by Seymour would directly affect ANZ's rights, interests or liabilities, or only affect RSA as assignee." 'Whether proceedings against ANZ should alternatively be dismissed under rule 13.4.']

Ratio Decidendi

ANZ was not a necessary or proper party because, by the Deed of Assignment, whatever rights ANZ had as secured creditor to Ostwald's assets, including the judgment debt, had been absolutely assigned to RSA. If Seymour's substantive contentions meant ANZ had no entitlement to the judgment debt, ANZ assigned nothing to RSA; if those contentions affected the value or existence of the secured rights, the consequences would be felt by RSA, not ANZ. ANZ therefore did not have or claim an interest in the subject matter, and the relief sought would not directly affect ANZ's rights, interests or liabilities.

Court Disposition

Second defendant removed from the proceedings pursuant to rule 6.29 of the Uniform Civil Procedure Rules 2005 (NSW).

Orders

  • ['Pursuant to rule 6.29 of the Uniform Procedure Rules 2005 (NSW), remove the second defendant from these proceedings.' "Order the plaintiff to pay the second defendant's costs of the Notice of Motion dated 15 December 2021." 'Direct the plaintiff to file and serve a Further Amended Summons and Further Amended...