Lesso Building Material Trading (Sydney) Pty Ltd v PSM Stone Pty Ltd [2019] NSWSC 1008

Lesso Building Material Trading (Sydney) Pty Ltd v PSM Stone Pty Ltd [2019] NSWSC 1008

The cross-claim was struck out because the second cross-claimant was a creditor under the deed of company arrangement, the claims sought to be made by cross-claim related to conduct before the deed, the deed had been wholly effectuated, and the claims had been released or discharged so that there was no tenable...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 August 2019
Procedural Posture
Civil Procedure and Corporations Application / Application for Leave to Proceed With an Amended Notice of Motion and for Summary Disposal of a Cross Claim
Outcome
Leave granted to proceed with the amended notice of motion; cross-claim struck out; costs of the application to be the plaintiff's costs in the cause; matter remitted for directions.
Legal Topics
['summary Disposal' 'strike Out of Cross Claim' 'deed of Company Arrangement' 'leave Under S 500(2) of the Corporations Act 2001 (cth)' 'abuse of Process']
['civil Procedure' 'corporations'] ['summary Disposal' 'strike Out of Cross Claim' 'deed of Company Arrangement' 'leave Under S 500(2) of the Corporations Act 2001 (cth)' 'abuse of Process']

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Procedural Posture

Civil Procedure and Corporations Application / Application for Leave to Proceed With an Amended Notice of Motion and for Summary Disposal of a Cross Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be given leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to proceed with the amended notice of motion against the first and third cross-claimants.' 'Whether the cross-claim should be dismissed or struck out under r 13.4 or r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the claims in the cross-claim had been released or discharged under the deed of company arrangement and could be met by the deed as an absolute bar and defence.']

Ratio Decidendi

The cross-claim was struck out because the second cross-claimant was a creditor under the deed of company arrangement, the claims sought to be made by cross-claim related to conduct before the deed, the deed had been wholly effectuated, and the claims had been released or discharged so that there was no tenable argument for maintaining the cross-claim; maintaining it would be an abuse of process.

Court Disposition

Leave granted to proceed with the amended notice of motion; cross-claim struck out; costs of the application to be the plaintiff's costs in the cause; matter remitted for directions.

Orders

  • ['The Plaintiff be given leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to proceed with the Amended Notice of Motion filed on 27 June 2019 against the First and Third Cross-Claimants.' 'Pursuant to r 13.4 or alternatively r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) the Cross-Claim filed by...