Damien v Combined Home Loans Pty Limited [2016] NSWSC 559

Damien v Combined Home Loans Pty Limited [2016] NSWSC 559

The evidence established a common intention that the deed assign Combined's claim against Mr Guy Rinaldi personally, not 'Rinaldi Lawyers'; the use of 'Rinaldi Lawyers' in the deed was an error. Rectification was ordered to delete 'Rinaldi Lawyers' and insert 'Mr Guy Rinaldi' in recital A. Leave to proceed against Combined Home Loans Pty Limited in liquidation was also granted under s 471B of the Corporations Act 2001 (Cth).

Jurisdiction
Australia
Judgment Date
28 April 2016
Procedural Posture
Equity Proceedings / Interlocutory – Application for Leave and Rectification
Outcome
Leave granted to proceed against company in liquidation; rectification of deed ordered.
Legal Topics
['rectification' 'assignment of Chose in Action' 'corporate Liquidation' 'professional Negligence' 'offer of Compromise']
['equity' 'corporations Law'] ['rectification' 'assignment of Chose in Action' 'corporate Liquidation' 'professional Negligence' 'offer of Compromise']

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Procedural Posture

Equity Proceedings / Interlocutory – Application for Leave and Rectification

Legal Issues

  1. 1 ['Whether leave should be granted under s 471B Corporations Act 2001 (Cth) to proceed against a company in liquidation' 'Whether recital A to the deed dated 15 August 2012 should be rectified to reflect the common intention of the parties']

Ratio Decidendi

The evidence established a common intention that the deed assign Combined's claim against Mr Guy Rinaldi personally, not 'Rinaldi Lawyers'; the use of 'Rinaldi Lawyers' in the deed was an error. Rectification was ordered to delete 'Rinaldi Lawyers' and insert 'Mr Guy Rinaldi' in recital A. Leave to proceed against Combined Home Loans Pty Limited in liquidation was also granted under s 471B of the Corporations Act 2001 (Cth).

Court Disposition

Leave granted to proceed against company in liquidation; rectification of deed ordered.

Orders

  • ['Leave granted to the plaintiff pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed against Combined Home Loans Pty Limited (in liquidation) on its claims in these proceedings.' "Recital A to the deed made on 15 August 2012 between Combined Home Loans Pty Limited and Timothy Mark Damien be rectified by...