Riva NSW Pty Ltd v Key Nominees Pty Ltd [2014] NSWCA 381

Riva NSW Pty Ltd v Key Nominees Pty Ltd [2014] NSWCA 381

Leave to appeal was refused because the decisions challenged were discretionary interlocutory decisions on practice and procedure and the applicants identified no House v R error. The primary judge had considered whether dismissal, rather than further leave to re-plead, was appropriate; the applicants had repeatedly failed to plead a coherent case after prior opportunities, the amended statement of claim remained prolix, embarrassing and defective, and no draft pleading was proffered on the leave application. The personal claims of the bankrupt Ferellas were also doomed to failure absent assignment from the Official Trustee. As to Mr Stomo, dismissal was open to the primary judge and the...

Jurisdiction
Australia
Judgment Date
07 November 2014
Procedural Posture
Application for Leave to Appeal From Interlocutory Decisions on Practice and Procedure / Leave to Appeal
Outcome
The summons seeking leave to appeal filed 23 June 2014 was dismissed, and the applicants were ordered to pay the respondents' costs.
Legal Topics
['strike Out of Pleadings' 'dismissal of Proceedings' 'leave to Appeal From Interlocutory Decisions' 'abuse of Process' 'vesting of Causes of Action in Bankruptcy' 'mortgagee Sale and GST Allegations']
['civil Procedure' 'appeals' 'bankruptcy'] ['strike Out of Pleadings' 'dismissal of Proceedings' 'leave to Appeal From Interlocutory Decisions' 'abuse of Process' 'vesting of Causes of Action in Bankruptcy' 'mortgagee Sale and GST Allegations']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal From Interlocutory Decisions on Practice and Procedure / Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from interlocutory judgments striking out pleadings and dismissing the proceedings against Key Nominees Pty Ltd and Christopher Stomo.' 'Whether the primary judge erred by dismissing the proceedings, rather than giving the applicants a further opportunity to re-plead.' 'Whether any personal causes of action of Angelo Ferella and Gustavo Ferella had vested in the Official Trustee because they were bankrupt when the causes of action arose.' 'Whether the applicants could show House v R error in discretionary interlocutory decisions on practice and procedure.']

Ratio Decidendi

Leave to appeal was refused because the decisions challenged were discretionary interlocutory decisions on practice and procedure and the applicants identified no House v R error. The primary judge had considered whether dismissal, rather than further leave to re-plead, was appropriate; the applicants had repeatedly failed to plead a coherent case after prior opportunities, the amended statement of claim remained prolix, embarrassing and defective, and no draft pleading was proffered on the leave application. The personal claims of the bankrupt Ferellas were also doomed to failure absent assignment from the Official Trustee. As to Mr Stomo, dismissal was open to the primary judge and the...

Court Disposition

The summons seeking leave to appeal filed 23 June 2014 was dismissed, and the applicants were ordered to pay the respondents' costs.

Orders

  • ['The summons seeking leave to appeal filed 23 June 2014 be dismissed.' "The applicants pay the respondents' costs."]