Jambrecina v Pyramid Building Society (In Liq) & Anor [2001] NSWSC 175

Jambrecina v Pyramid Building Society (In Liq) & Anor [2001] NSWSC 175

The statement of claim was dismissed because the plaintiff had not rectified the pleading deficiencies identified in the earlier proceedings, the claims as pleaded were statute barred, and the causes of action were res judicata because the matters were or should have been raised in the 1992 proceedings resolved by consent orders for possession. Since the plaintiff's claim was dismissed, his motion for leave to proceed against the companies in liquidation was also dismissed.

Jurisdiction
Australia
Judgment Date
21 March 2001
Procedural Posture
Summary Judgment; Leave to Proceed Against a Company in Liquidation / Hearing of the Plaintiff's Notice of Motion for Leave to Proceed Under S 471 B Corporations Law and the Defendants' Notice of Motion to Stay, Dismiss or Strike Out the Proceedings
Outcome
Plaintiff's statement of claim and notice of motion dismissed; plaintiff ordered to pay the defendants' costs.
Legal Topics
['summary Judgment' 'strike Out of Statement of Claim' 'abuse of Process' 'res Judicata' 'issue Estoppel' 'leave to Proceed Against a Company in Liquidation' 'limitation Period' 'legal Disability' 'consent Orders for Possession']
['civil Procedure' 'corporations Law' 'limitation of Actions' 'bankruptcy' 'mortgage Law'] ['summary Judgment' 'strike Out of Statement of Claim' 'abuse of Process' 'res Judicata' 'issue Estoppel' 'leave to Proceed Against a Company in Liquidation' 'limitation Period' 'legal Disability' 'consent Orders for Possession']

Case Brief

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Procedural Posture

Summary Judgment; Leave to Proceed Against a Company in Liquidation / Hearing of the Plaintiff's Notice of Motion for Leave to Proceed Under S 471 B Corporations Law and the Defendants' Notice of Motion to Stay, Dismiss or Strike Out the Proceedings

Legal Issues

  1. 1 ["Whether the plaintiff's statement of claim should be stayed, dismissed or struck out under the Supreme Court Rules." "Whether the pleaded claims were statute barred and whether the plaintiff's bankruptcy suspended time under s 52 of the Limitation Act 1969." 'Whether the current claims were res judicata or subject to issue estoppel by reason of earlier 1992 consent orders and 1999 proceedings.' 'Whether leave should be granted to proceed against companies in liquidation under s 471B Corporations Law.']

Ratio Decidendi

The statement of claim was dismissed because the plaintiff had not rectified the pleading deficiencies identified in the earlier proceedings, the claims as pleaded were statute barred, and the causes of action were res judicata because the matters were or should have been raised in the 1992 proceedings resolved by consent orders for possession. Since the plaintiff's claim was dismissed, his motion for leave to proceed against the companies in liquidation was also dismissed.

Court Disposition

Plaintiff's statement of claim and notice of motion dismissed; plaintiff ordered to pay the defendants' costs.

Orders

  • ["The plaintiff's statement of claim filed 31 October 2000 is dismissed." "The plaintiff's notice of motion filed 28 September 2000 is dismissed." "The plaintiff is to pay the defendants' costs of the motions and of the proceedings."]