Campbell v Brazel [2016] NSWSC 198

Campbell v Brazel [2016] NSWSC 198

The plaintiffs lacked standing to sue at the time proceedings commenced as the causes of action were vested in their trustees in bankruptcy. The later assignment and attempt to amend did not cure this fundamental deficiency; the proceedings are a nullity and must be dismissed.

Parties
Plaintiff: Gregory William Campbell; Plaintiff: Jennifer Campbell; Defendant: Geoffrey Ronald Brazel; Defendant: Peter Gerard Moore; Defendant: Joseph McCarthy
Jurisdiction
Australia
Judgment Date
04 March 2016
Procedural Posture
Civil / Application for Summary Dismissal and Amendment
Outcome
proceedings dismissed as nullity; plaintiffs to pay defendants' costs from 26 February 2015 on indemnity basis from 16 April 2015
Legal Topics
Standing to Sue, Assignment of Causes of Action, Amendment of Pleadings, Nullity of Proceedings, Bankruptcy and Vesting of Causes of Action
Practice and Procedure Bankruptcy Standing to Sue Assignment of Causes of Action Amendment of Pleadings Nullity of Proceedings Bankruptcy and Vesting of Causes of Action

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Parties

Gregory William Campbell

Plaintiff

Jennifer Campbell

Plaintiff

Geoffrey Ronald Brazel

Defendant

Peter Gerard Moore

Defendant

Joseph McCarthy

Defendant

Procedural Posture

Civil / Application for Summary Dismissal and Amendment

Legal Issues

  1. 1 Whether the plaintiffs had standing to commence proceedings at the time the statement of claim was filed
  2. 2 Whether subsequent assignment of causes of action cures lack of standing at commencement
  3. 3 Whether amendment can validate proceedings commenced by parties lacking standing

Ratio Decidendi

The plaintiffs lacked standing to sue at the time proceedings commenced as the causes of action were vested in their trustees in bankruptcy. The later assignment and attempt to amend did not cure this fundamental deficiency; the proceedings are a nullity and must be dismissed.

Court Disposition

proceedings dismissed as nullity; plaintiffs to pay defendants' costs from 26 February 2015 on indemnity basis from 16 April 2015

Orders

  • The plaintiffs' notice of motion filed 13 August 2015 is dismissed.
  • These proceedings are declared incompetent and a nullity.