Power v Ekstein & 5 Ors [2009] NSWSC 130

Power v Ekstein & 5 Ors [2009] NSWSC 130

Leave to amend the statement of claim is granted, as the proposed amendments disclose arguable causes of action and are sufficiently particularised; possible defences (including limitation) are not grounds to refuse the amendments at this stage. The claims concerning breach of trust and company law are sufficiently connected to be heard together. Certain clarifications and particulars are required, and specific paragraphs are to be amended or omitted as indicated.

Jurisdiction
Australia
Judgment Date
11 March 2009
Procedural Posture
Application to Amend Pleadings in Equity Proceedings / Interlocutory Application for Leave to Amend Statement of Claim
Outcome
Leave to the plaintiff to file and serve amended statement of claim and originating process, subject to specified amendments and directions.
Legal Topics
['breach of Trust' 'oppression in Management of Companies' 'amendment of Pleadings' 'derivative Actions' 'limitation Period in Equity' 'joinder of Parties and Causes' 'family Provision' 'account and Administration' 'oppression Remedies Under Corporations Act']
['equity' 'trusts and Estates' 'corporations Law'] ['breach of Trust' 'oppression in Management of Companies' 'amendment of Pleadings' 'derivative Actions' 'limitation Period in Equity' 'joinder of Parties and Causes' 'family Provision' 'account and Administration' 'oppression Remedies Under Corporations Act']

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Procedural Posture

Application to Amend Pleadings in Equity Proceedings / Interlocutory Application for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether the application to amend the statement of claim should be granted concerning complex claims of breach of trust and oppression.' 'Whether the proposed amendments disclose arguable causes of action.' 'Whether leave to amend should be refused because claims are barred by statute of limitations.' 'Whether oppression and trust claims can be joined in single proceedings.' "Whether the pleadings concerning directors' conduct, share valuation, distributions, and company management are sufficiently pleaded to disclose viable claims."]

Ratio Decidendi

Leave to amend the statement of claim is granted, as the proposed amendments disclose arguable causes of action and are sufficiently particularised; possible defences (including limitation) are not grounds to refuse the amendments at this stage. The claims concerning breach of trust and company law are sufficiently connected to be heard together. Certain clarifications and particulars are required, and specific paragraphs are to be amended or omitted as indicated.

Court Disposition

Leave to the plaintiff to file and serve amended statement of claim and originating process, subject to specified amendments and directions.

Orders

  • ['Grant leave to the plaintiff to file and serve an amended statement of claim and amended originating process as particularised, subject to specified amendments and provision of particulars.' 'Order that as between the plaintiff and Mr Paul Ward-Harvey, costs of the application for leave to amend be costs in the...