Van Der Velde v Ng (No. 2) [2009] FCA 538

Van Der Velde v Ng (No. 2) [2009] FCA 538

Despite the applicants’ history of non-compliance and deficient pleadings, the discretion to dismiss the proceeding was not exercised because the difficulties predominantly stemmed from the conduct of the applicants' legal advisers, a real question to be tried was discernible on the face of existing pleadings, and dismissal would have had the effect of barring the statutory claim under s 588FF(3) of the Corporations Act. Instead, the motions for strike out and for leave to amend were adjourned, costs were ordered against the applicants, and directions were made for further progress of the proceeding.

Jurisdiction
Australia
Judgment Date
22 May 2009
Procedural Posture
Corporations – Application to Strike Out Proceeding and Application for Leave to File Further Amended Statement of Claim / Interlocutory Orders and Reasons, Hearing on Motions for Strike Out and for Leave to Amend
Outcome
Adjournment of motions; refusal to strike out proceeding; leave to amend subject to compliance; costs ordered against applicants forthwith.
Legal Topics
['strike Out Application' 'leave to Amend Pleading' 'voidable Transactions' 'limitation Period' 'costs' 'failure to Prosecute' 'liquidation' 'fiduciary Duty']
['corporations Law' 'practice and Procedure'] ['strike Out Application' 'leave to Amend Pleading' 'voidable Transactions' 'limitation Period' 'costs' 'failure to Prosecute' 'liquidation' 'fiduciary Duty']

Case Brief

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Procedural Posture

Corporations – Application to Strike Out Proceeding and Application for Leave to File Further Amended Statement of Claim / Interlocutory Orders and Reasons, Hearing on Motions for Strike Out and for Leave to Amend

Legal Issues

  1. 1 ['Whether the proceeding should be struck out for failure to prosecute and systemic pleading failures' 'Whether leave should be granted to file a further amended statement of claim' 'Whether limitation period under s 588FF(3) of the Corporations Act 2001 (Cth) precludes future proceedings if this one is dismissed']

Ratio Decidendi

Despite the applicants’ history of non-compliance and deficient pleadings, the discretion to dismiss the proceeding was not exercised because the difficulties predominantly stemmed from the conduct of the applicants' legal advisers, a real question to be tried was discernible on the face of existing pleadings, and dismissal would have had the effect of barring the statutory claim under s 588FF(3) of the Corporations Act. Instead, the motions for strike out and for leave to amend were adjourned, costs were ordered against the applicants, and directions were made for further progress of the proceeding.

Court Disposition

Adjournment of motions; refusal to strike out proceeding; leave to amend subject to compliance; costs ordered against applicants forthwith.

Orders

  • ['The Notices of Motion filed on 11 May 2009 (applicants), 15 May 2009 (third respondent), and 21 May 2009 (first respondent) are adjourned.' "The applicants shall pay the respondents' costs of and incidental to the adjournment of each Notice of Motion on a solicitor client basis, such costs to be paid forthwith."...