In the matter of Bevillesta Creditors' Trust [2013] NSWSC 162

In the matter of Bevillesta Creditors' Trust [2013] NSWSC 162

There is sufficient basis that, by legitimate amendment relying on s 81 of the Trustee Act 1925 (NSW), the plaintiffs may be able to secure an order empowering trustees to extend the time for instituting proceedings, thus their summonses are not doomed to fail and should not be summarily dismissed or struck out as abuse of process.

Parties
Plaintiff: Clio Natural Life Pty Ltd; Plaintiff: Hobbysew Australia Pty Ltd; Plaintiff: Dawa Development & Investment Pty Ltd; Plaintiff: The Greater Union Organisation Pty Ltd; Plaintiff: Beba Enterprises Pty Ltd; Plaintiff: Pumpkin Patch Originals Limited; First Defendant: Peter Krejci as Joint Trustee of the Bevillesta Creditors' Trust; Second Defendant: Martin John Green as Joint Trustee of the Bevillesta Creditors' Trust; Third Defendant: Top Ryde Funding Pty Ltd
Jurisdiction
Australia
Judgment Date
22 February 2013
Procedural Posture
Interlocutory Applications / Leave to Amend Summons; Application for Summary Dismissal/strike Out
Outcome
Leave granted to plaintiffs to file amended summonses; defendants' notices of motion dismissed.
Legal Topics
Trustee Powers, Summary Dismissal, Abuse of Process, Time Limit Extension, Proof of Debt, Creditors' Trusts
Equity Civil Procedure Trusts and Trustees Trustee Powers Summary Dismissal Abuse of Process Time Limit Extension Proof of Debt +1 more

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Parties

Clio Natural Life Pty Ltd

Plaintiff

Hobbysew Australia Pty Ltd

Plaintiff

Dawa Development & Investment Pty Ltd

Plaintiff

The Greater Union Organisation Pty Ltd

Plaintiff

Beba Enterprises Pty Ltd

Plaintiff

Pumpkin Patch Originals Limited

Plaintiff

Peter Krejci as Joint Trustee of the Bevillesta Creditors' Trust

First Defendant

Martin John Green as Joint Trustee of the Bevillesta Creditors' Trust

Second Defendant

Top Ryde Funding Pty Ltd

Third Defendant

Procedural Posture

Interlocutory Applications / Leave to Amend Summons; Application for Summary Dismissal/strike Out

Legal Issues

  1. 1 Whether proceedings should be summarily dismissed or struck out as an abuse of process due to being commenced outside the time limits under the trust deed;
  2. 2 Whether the court has power under s 81(1) Trustee Act 1925 (NSW) to empower trustees to extend the time for instituting proceedings.

Ratio Decidendi

There is sufficient basis that, by legitimate amendment relying on s 81 of the Trustee Act 1925 (NSW), the plaintiffs may be able to secure an order empowering trustees to extend the time for instituting proceedings, thus their summonses are not doomed to fail and should not be summarily dismissed or struck out as abuse of process.

Court Disposition

Leave granted to plaintiffs to file amended summonses; defendants' notices of motion dismissed.

Orders

  • Leave given to plaintiffs to file amended summonses.
  • Defendants' notices of motion dismissed.