Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham (No 2) [2012] NSWSC 794

Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham (No 2) [2012] NSWSC 794

The interests of justice favoured joining the Club as Second Plaintiff because the injustice to the Club of being unable to raise claims and the risk of an issue as to Ms Correa's standing substantially exceeded any injustice to Mr Whittingham. Most proposed amendments were allowed because they concerned legal consequences of facts substantially in evidence or narrow issues whose prejudice could be managed, but particulars (q) and (r) were refused because they raised new factual questions requiring further evidence at a late stage, and the further proposed amendment concerning disclosure to members was refused because the alleged statutory or fiduciary breach and its legal consequences...

Jurisdiction
Australia
Judgment Date
13 March 2012
Procedural Posture
Interlocutory Applications / Application for Joinder and Leave to Amend Originating Process and Points of Claim at the Commencement of a 10 Day Hearing
Outcome
Application granted in part; joinder ordered, amendments allowed in part, further amendment refused, and costs orders made.
Legal Topics
['joinder' 'amendment of Pleadings' 'deed of Company Arrangement' 'voluntary Administration']
['practice and Procedure' 'corporations'] ['joinder' 'amendment of Pleadings' 'deed of Company Arrangement' 'voluntary Administration']

Case Brief

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Procedural Posture

Interlocutory Applications / Application for Joinder and Leave to Amend Originating Process and Points of Claim at the Commencement of a 10 Day Hearing

Legal Issues

  1. 1 ['Whether The Spanish Club Limited should be removed as First Defendant and joined as Second Plaintiff in the proceedings.' 'Whether leave should be granted to file a Second Further Amended Originating Process and Amended Points of Claim under ss 58 and 64 of the Civil Procedure Act 2005 (NSW).' 'Whether proposed amendments concerning the date of appointment of the administrator and consequences for the administration and deed of company arrangement should be permitted.' 'Whether proposed particulars (q) and (r) to paragraph 8, alleging no AGM since 2005 and no valid board, should be permitted.' 'Whether a further amendment alleging failure to disclose to members that a release would be included in DOCA variations should be permitted.']

Ratio Decidendi

The interests of justice favoured joining the Club as Second Plaintiff because the injustice to the Club of being unable to raise claims and the risk of an issue as to Ms Correa's standing substantially exceeded any injustice to Mr Whittingham. Most proposed amendments were allowed because they concerned legal consequences of facts substantially in evidence or narrow issues whose prejudice could be managed, but particulars (q) and (r) were refused because they raised new factual questions requiring further evidence at a late stage, and the further proposed amendment concerning disclosure to members was refused because the alleged statutory or fiduciary breach and its legal consequences...

Court Disposition

Application granted in part; joinder ordered, amendments allowed in part, further amendment refused, and costs orders made.

Orders

  • ['The Spanish Club Ltd (Subject to a Deed of Company of Arrangement) be removed as First Defendant in the proceedings and be joined as Second Plaintiff in the proceedings.' 'The Plaintiffs have leave to file a Second Further Amended Originating Process, and an Amended Points of Claim, in the form of the documents...