CHARTSPIKE v CHAHOUD [2000] NSWSC 625

CHARTSPIKE v CHAHOUD [2000] NSWSC 625

The proceedings were validly commenced as the actions of the second liquidator, Mr Hamilton, constitute effective ratification of the original commencement of proceedings; the only remaining contract claim is that relating to ongoing breaches post-1 May 1991, as earlier breaches are statute-barred. The question of whether s 1322(4)(d) of the Corporations Law overrides State limitation legislation is premature until a proper application is made. The tort claim should be allowed to proceed due to uncertainty as to when actual loss accrued.

Jurisdiction
Australia
Judgment Date
30 August 2000
Procedural Posture
Civil / Interlocutory – Motions to Dismiss and Amend Pleadings, Separate Question Determination
Outcome
Proceedings not dismissed; contract claim restricted to ongoing breaches post-1 May 1991; leave to replead; costs submissions reserved
Legal Topics
['authority of Liquidator in Litigation' 'ratification of Unauthorised Acts' 'limitation of Actions' 'breach of Retainer by Solicitor' 'strike Out Application' 'application of Corporations Law S 1322']
['contracts' 'corporations Law' 'civil Procedure' 'tort (professional Negligence)'] ['authority of Liquidator in Litigation' 'ratification of Unauthorised Acts' 'limitation of Actions' 'breach of Retainer by Solicitor' 'strike Out Application' 'application of Corporations Law S 1322']

Case Brief

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Procedural Posture

Civil / Interlocutory – Motions to Dismiss and Amend Pleadings, Separate Question Determination

Legal Issues

  1. 1 ['Whether proceedings were validly commenced on behalf of Chartspike Pty Ltd (In Liquidation) with proper authority' 'Whether subsequent ratification by the liquidator validated the commencement of proceedings' 'Whether the actions of the second liquidator constitute effective ratification' 'Whether provisions of the Corporations Law (s 1322(4)(d)) allow expansion of statutory limitation periods for claims by corporations' 'Whether the claims are statute-barred under the Limitation Act' 'Whether claims disclose a reasonable cause of action in contract and tort (professional negligence)']

Ratio Decidendi

The proceedings were validly commenced as the actions of the second liquidator, Mr Hamilton, constitute effective ratification of the original commencement of proceedings; the only remaining contract claim is that relating to ongoing breaches post-1 May 1991, as earlier breaches are statute-barred. The question of whether s 1322(4)(d) of the Corporations Law overrides State limitation legislation is premature until a proper application is made. The tort claim should be allowed to proceed due to uncertainty as to when actual loss accrued.

Court Disposition

Proceedings not dismissed; contract claim restricted to ongoing breaches post-1 May 1991; leave to replead; costs submissions reserved

Orders

  • ['Proceedings are validly commenced by ratification of the liquidator.' 'Strike out all of the existing contract claim except for the ongoing breach pleaded in paragraph 15(h).' 'Leave granted to replead accordingly.' 'Tort claim to stand and be repleaded.' 'Parties to bring in short minutes and make submissions on...