Kovarfi v BMT & Associates Pty Ltd (No. 2) [2014] NSWSC 100

Kovarfi v BMT & Associates Pty Ltd (No. 2) [2014] NSWSC 100

The proceedings by the first and second plaintiffs were incompetent because any causes of action for economic loss, including consequential mental anguish and any asserted fraud or deceit claim, vested in the trustee in bankruptcy under s 58 of the Bankruptcy Act 1966 (Cth) and remained vested after discharge by force of s 152. The claims were also statute barred: bankruptcy was not a disability under s 52 of the Limitation Act 1961 (NSW), any arguable mental disability ended no later than 5 November 2008 so the extended period expired by 5 November 2011, s 55 did not assist because any fraud or deceit could with reasonable diligence have been discovered in 2004, and the Trade Practices...

Jurisdiction
Australia
Judgment Date
14 February 2014
Procedural Posture
Civil Proceedings for Negligence and Misleading or Deceptive Conduct, With Asserted Fraud or Deceit and Corporations Act Relief / Defendants' Notice of Motion for Summary Dismissal or Stay
Outcome
Prayers 5, 6 and 7 were struck out without prejudice, and the proceedings were otherwise dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 with costs against the first and second plaintiffs.
Legal Topics
['summary Dismissal' 'vesting of Causes of Action in Trustee in Bankruptcy' 'mixed Personal and Property Claims' 'statute Barred Claims' 'negligence by Valuers' 'misleading and Deceptive Conduct' 'fraud or Deceit' 'restoration of Deregistered Company' 'unpaid Costs Order Stay']
['civil Procedure' 'bankruptcy' 'limitation of Actions' 'torts' 'consumer Protection' 'corporations'] ['summary Dismissal' 'vesting of Causes of Action in Trustee in Bankruptcy' 'mixed Personal and Property Claims' 'statute Barred Claims' 'negligence by Valuers' 'misleading and Deceptive Conduct' 'fraud or Deceit' 'restoration of Deregistered Company' 'unpaid Costs Order Stay']

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Procedural Posture

Civil Proceedings for Negligence and Misleading or Deceptive Conduct, With Asserted Fraud or Deceit and Corporations Act Relief / Defendants' Notice of Motion for Summary Dismissal or Stay

Legal Issues

  1. 1 ["Whether the first and second plaintiffs' causes of action vested in the trustee in bankruptcy under the Bankruptcy Act 1966 (Cth) and remained vested after discharge from bankruptcy." 'Whether the causes of action in negligence, under s 82 of the Trade Practices Act 1974 (Cth), or in asserted fraud or deceit were statute barred.' 'Whether bankruptcy or mental illness extended the limitation period under s 52 of the Limitation Act 1961 (NSW).' 'Whether s 55 of the Limitation Act 1961 (NSW) postponed the limitation period for any fraud or deceit claim.' 'Whether proceedings should be stayed because costs ordered in earlier proceedings remained unpaid.' 'Whether relief to restore the development company to the register should proceed in these proceedings.']

Ratio Decidendi

The proceedings by the first and second plaintiffs were incompetent because any causes of action for economic loss, including consequential mental anguish and any asserted fraud or deceit claim, vested in the trustee in bankruptcy under s 58 of the Bankruptcy Act 1966 (Cth) and remained vested after discharge by force of s 152. The claims were also statute barred: bankruptcy was not a disability under s 52 of the Limitation Act 1961 (NSW), any arguable mental disability ended no later than 5 November 2008 so the extended period expired by 5 November 2011, s 55 did not assist because any fraud or deceit could with reasonable diligence have been discovered in 2004, and the Trade Practices...

Court Disposition

Prayers 5, 6 and 7 were struck out without prejudice, and the proceedings were otherwise dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 with costs against the first and second plaintiffs.

Orders

  • ['Prayers 5, 6 and 7 of the relief claimed in the statement of claim filed on 3 May 2013 are struck out without prejudice to any right of the third plaintiff to seek such relief by way of proceedings recommenced by summons.' 'The proceedings are otherwise dismissed under rule 13.4 of the Uniform Civil Procedure...