Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 124

Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 124

The res judicata and issue estoppel strike out application failed because it was not plain that the relevant items were precluded and the General Steel test was not met. However, fraud allegations should only be determined in proceedings constituted to bind all necessary parties, including those alleged to have perpetrated the fraud, because Supreme Court Act 1970 s 63 and Supreme Court Rules 1970 Part 8 require the Court to avoid multiplicity and ensure affected parties are joined.

Jurisdiction
Australia
Judgment Date
22 February 2002
Procedural Posture
Notice of Motion in Equity Proceedings Seeking to Strike Out Items in a Scott Schedule in a Statutory Application Under the Corporations Act 2001 (cth) / Pre Trial Interlocutory Application Before Trial Fixed for 10 April 2002
Outcome
Kation's motion was dismissed insofar as it sought to strike out portions of the claim on res judicata or issue estoppel grounds; the proceedings were to be constituted so that fraud claims would bind all necessary parties; the first category of issues was left for the parties to define further.
Legal Topics
['strike Out' 'joinder of Parties' 'res Judicata' 'issue Estoppel' 'fraud Allegations' 'summary Disposal' 'scott Schedule']
['civil Procedure' 'equity' 'corporations'] ['strike Out' 'joinder of Parties' 'res Judicata' 'issue Estoppel' 'fraud Allegations' 'summary Disposal' 'scott Schedule']

Case Brief

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Procedural Posture

Notice of Motion in Equity Proceedings Seeking to Strike Out Items in a Scott Schedule in a Statutory Application Under the Corporations Act 2001 (cth) / Pre Trial Interlocutory Application Before Trial Fixed for 10 April 2002

Legal Issues

  1. 1 ['Whether items in the Scott Schedule should be struck out because they did not arise in the statutory application under the Corporations Act 2001 (Cth).' "Whether items should be struck out because they were precluded by res judicata or issue estoppel arising from Young CJ in Eq's judgment on separate questions." 'Whether allegations of fraud were improperly or inadequately made in proceedings not constituted to make the alleged perpetrators defendants to the fraud claims.']

Ratio Decidendi

The res judicata and issue estoppel strike out application failed because it was not plain that the relevant items were precluded and the General Steel test was not met. However, fraud allegations should only be determined in proceedings constituted to bind all necessary parties, including those alleged to have perpetrated the fraud, because Supreme Court Act 1970 s 63 and Supreme Court Rules 1970 Part 8 require the Court to avoid multiplicity and ensure affected parties are joined.

Court Disposition

Kation's motion was dismissed insofar as it sought to strike out portions of the claim on res judicata or issue estoppel grounds; the proceedings were to be constituted so that fraud claims would bind all necessary parties; the first category of issues was left for the parties to define further.

Orders

  • ['Parties involved in the proceedings but not defendants to claims for fraud involving them are to be made defendants to the fraud claims.' 'Portions of claim subject to defences of res judicata and issue estoppel are not struck out.' "Liberty to restore the matter on 12 hours' notice." 'Costs of the motion are...