Secure Funding Pty Ltd v Linienko [2023] NSWSC 224

Secure Funding Pty Ltd v Linienko [2023] NSWSC 224

Because Ms Linienko had died before the proceedings commenced, the plaintiff only learned of the death after commencement, and searches showed that no application for probate or letters of administration had been made, it was appropriate to remove Ms Linienko as a party and substitute the NSW Trustee and Guardian as first defendant. The plaintiff was also granted leave to amend the Statement of Claim.

Jurisdiction
Australia
Judgment Date
15 March 2023
Procedural Posture
Possession Proceedings / Notice of Motion for Substitution of Party and Leave to Amend Statement of Claim
Outcome
Orders made granting leave to file the notice of motion nunc pro tunc, substituting the NSW Trustee & Guardian for Svetlana Anita Linienko as first defendant, and granting leave to amend the Statement of Claim.
Legal Topics
['parties' 'possession Proceedings' 'substitution of Defendant' 'deceased Defendant' 'leave to Amend Statement of Claim']
['civil Procedure'] ['parties' 'possession Proceedings' 'substitution of Defendant' 'deceased Defendant' 'leave to Amend Statement of Claim']

Case Brief

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Procedural Posture

Possession Proceedings / Notice of Motion for Substitution of Party and Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should have leave to file a notice of motion nunc pro tunc.' 'Whether the NSW Trustee and Guardian should be substituted for a defendant who died before proceedings commenced where no grant of probate or administration had been made.' 'Whether the plaintiff should have leave to amend the Statement of Claim.']

Ratio Decidendi

Because Ms Linienko had died before the proceedings commenced, the plaintiff only learned of the death after commencement, and searches showed that no application for probate or letters of administration had been made, it was appropriate to remove Ms Linienko as a party and substitute the NSW Trustee and Guardian as first defendant. The plaintiff was also granted leave to amend the Statement of Claim.

Court Disposition

Orders made granting leave to file the notice of motion nunc pro tunc, substituting the NSW Trustee & Guardian for Svetlana Anita Linienko as first defendant, and granting leave to amend the Statement of Claim.

Orders

  • ['Leave to plaintiff to file Notice of Motion dated 6 December 2022 nunc pro tunc.' 'Pursuant to Rules 6.24, 6.29 and 6.32(1)(d) of the Uniform Civil Procedure Rules 2005, the NSW Trustee & Guardian be substituted for Svetlana Anita Linienko as first defendant in this proceeding.' 'Pursuant to section 64 of Civil...