Estate of the late Kate Lewy v Kitchen Elite & Ors [2003] NSWSC 516

Estate of the late Kate Lewy v Kitchen Elite & Ors [2003] NSWSC 516

The court held that since the original claim against Kitchen Elite No 1 had been prosecuted to judgment and that judgment had not been set aside, the proposed cross-claim by the plaintiffs, which was incompatible with the existing judgment, amounted to an abuse of process and leave should not be granted to file it. Whether or not the judgment was a nullity, it would require an order setting it aside, which had not occurred.

Parties
Plaintiffs/first Cross Defendants to First Cross Claim/proposed Second Cross Claimants to Second Cross Claim: Dennis Lewy, Ronny Lewy and Garry Lewy as the Joint Executors of the Estate of the Late Kate Lewy; First Defendant/ First Cross Claimant to First Cross Claim: Kitchen Elite Pty Limited; Second Defendant/ Second Cross Claimant to First Cross Claim: Peter Bazos; Third Defendant/ Third Cross Claimant to First Cross Claim: Suzanne Linda Bazos; Fourth Defendant/fourth Cross Claimant to First Cross Claim: Nicholas Bazos; Second Cross Defendant to First Cross Claim/proposed First Cross Defendant to Second Cross Claim: Wah Chang Off Shore (Hong Kong) Pty Ltd; Defendants/Cross-Claimants to First Cross-Claim
Jurisdiction
Australia
Judgment Date
13 June 2003
Procedural Posture
Civil / Interlocutory Motion Application for Leave to File Cross Claim
Outcome
Notice of Motion dismissed.
Legal Topics
Leave to File Cross Claim, Deregistered Companies, Nullity of Proceedings, Abuse of Process, Enforcement of Judgments
Civil Procedure Property Law Company Law Leave to File Cross Claim Deregistered Companies Nullity of Proceedings Abuse of Process Enforcement of Judgments

Case Brief

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Parties

Dennis Lewy, Ronny Lewy and Garry Lewy as the Joint Executors of the Estate of the Late Kate Lewy

Plaintiffs/first Cross Defendants to First Cross Claim/proposed Second Cross Claimants to Second Cross Claim

Kitchen Elite Pty Limited

First Defendant/ First Cross Claimant to First Cross Claim

Peter Bazos

Second Defendant/ Second Cross Claimant to First Cross Claim

Suzanne Linda Bazos

Third Defendant/ Third Cross Claimant to First Cross Claim

Nicholas Bazos

Fourth Defendant/fourth Cross Claimant to First Cross Claim

Wah Chang Off Shore (Hong Kong) Pty Ltd

Second Cross Defendant to First Cross Claim/proposed First Cross Defendant to Second Cross Claim

Defendants/Cross-Claimants to First Cross-Claim

Procedural Posture

Civil / Interlocutory Motion Application for Leave to File Cross Claim

Legal Issues

  1. 1 Whether plaintiffs can be granted leave to file a cross-claim which is inconsistent with an existing judgment in the same proceedings.
  2. 2 Whether the original proceedings or judgment were a nullity due to the claim being commenced against a deregistered company.
  3. 3 Whether the principles of approbation and reprobation or abuse of process prevent the filing of the proposed cross-claim.

Ratio Decidendi

The court held that since the original claim against Kitchen Elite No 1 had been prosecuted to judgment and that judgment had not been set aside, the proposed cross-claim by the plaintiffs, which was incompatible with the existing judgment, amounted to an abuse of process and leave should not be granted to file it. Whether or not the judgment was a nullity, it would require an order setting it aside, which had not occurred.

Court Disposition

Notice of Motion dismissed.

Orders

  • The Notice of Motion is dismissed.
  • The plaintiffs are to pay the costs of the Notice of Motion.