Jacobsen v Jacobsen [2017] NSWSC 1590

Jacobsen v Jacobsen [2017] NSWSC 1590

Leave to amend was refused because the proposed amended statement of claim did not disclose a reasonably arguable cause of action and was liable to be struck out. The fiduciary duty and fraud allegations were inadequately pleaded, unconscionable conduct was pleaded only in conclusory terms, and the pleading did not articulate any established basis for imposing a constructive trust in favour of Kevin or his family over shares formerly owned by KJPL and transferred by KJPL's receivers to Zoulos. Any viable claims arising from the transfer or recovery of those shares would be claims belonging to KJPL, not Kevin. Because the defects were fundamental rather than merely drafting defects, and...

Jurisdiction
Australia
Judgment Date
22 November 2017
Procedural Posture
Civil Procedure; Pleadings; Service; Equity Proceedings Concerning Alleged Constructive Trust Over Shares / Interlocutory Motions for Leave to Amend, Summary Dismissal or Strike Out, Substituted Service, and Setting Aside Service
Outcome
Plaintiff's application for leave to amend dismissed; leave to re-plead refused; proceedings dismissed with costs; service motions dismissed with no order as to costs.
Legal Topics
['leave to Amend Pleadings' 'summary Dismissal' 'strike Out' 'substituted Service' 'constructive Trust' 'fiduciary Duties' 'unconscionable Conduct in Equity' 'assignment of Causes of Action' 'standing' 'service Outside Australia']
['civil Procedure' 'equity' 'corporations' 'bankruptcy'] ['leave to Amend Pleadings' 'summary Dismissal' 'strike Out' 'substituted Service' 'constructive Trust' 'fiduciary Duties' 'unconscionable Conduct in Equity' 'assignment of Causes of Action' 'standing' 'service Outside Australia']

Case Brief

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Procedural Posture

Civil Procedure; Pleadings; Service; Equity Proceedings Concerning Alleged Constructive Trust Over Shares / Interlocutory Motions for Leave to Amend, Summary Dismissal or Strike Out, Substituted Service, and Setting Aside Service

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to amend the statement of claim to plead claims based on alleged oral agreements, fiduciary duties, unconscionable conduct, misrepresentation, fraud, estoppel and constructive trust.' 'Whether the proposed amended pleading disclosed a reasonably arguable cause of action or was liable to be struck out.' 'Whether the plaintiff had standing to claim relief in respect of shares formerly owned by KJPL and transferred to Zoulos.' 'Whether leave to re-plead should be granted if leave to amend was refused.' 'Whether time for service should be extended, substituted service ordered, or service set aside in relation to Amber, Dalys and Clayton.']

Ratio Decidendi

Leave to amend was refused because the proposed amended statement of claim did not disclose a reasonably arguable cause of action and was liable to be struck out. The fiduciary duty and fraud allegations were inadequately pleaded, unconscionable conduct was pleaded only in conclusory terms, and the pleading did not articulate any established basis for imposing a constructive trust in favour of Kevin or his family over shares formerly owned by KJPL and transferred by KJPL's receivers to Zoulos. Any viable claims arising from the transfer or recovery of those shares would be claims belonging to KJPL, not Kevin. Because the defects were fundamental rather than merely drafting defects, and...

Court Disposition

Plaintiff's application for leave to amend dismissed; leave to re-plead refused; proceedings dismissed with costs; service motions dismissed with no order as to costs.

Orders

  • ["Dismiss the plaintiff's application for leave to amend the statement of claim." 'Refuse leave to re-plead.' 'Dismiss the proceedings with costs.' 'Dismiss the respective motions as to service with no order as to costs.' 'If Colin and Zoulos press their application for indemnity costs, short written submissions are...