Perpetual Corporate Trust Limited v Tsiamoulis [2024] NSWSC 1544

Perpetual Corporate Trust Limited v Tsiamoulis [2024] NSWSC 1544

It is not appropriate, at the interlocutory stage, to summarily dismiss or strike out the Second Cross Claim or deny amendment of Perpetual's Reply and Cross Claim, as factual and legal matters—including the factual basis of alleged forgery, the question of what the registered mortgage secures, the operation of the limitation statutes, and any fraudulent concealment of causes of action—are arguable and require full investigation at trial; and deficiencies in pleading fraudulent concealment can be cured by amendment. The threshold for summary dismissal is not met.

Parties
Plaintiff; Second Cross Claimant; Respondent to Motion: Perpetual Corporate Trust Limited; Defendant: Zacharenya Tsiamoulis; First Defendant to Second Cross Claim; Applicant on Motion: Judy Louey; Second Defendant to Second Cross Claim: Seek Home Loans Proprietary Limited
Jurisdiction
Australia
Judgment Date
03 December 2024
Procedural Posture
Civil Procedure – Summary Dismissal/strike Out Application (interlocutory) Re: Possession, Mortgage, Cross Claim / Interlocutory (notice of Motion for Summary Dismissal/striking Out Cross Claim and Amendment Applications)
Outcome
The Notice of Motion of 3 April 2024 is dismissed.
Legal Topics
Summary Judgment, Striking Out Pleadings, Limitation Periods, Registered Mortgage, Forgery, Breach of Warranty of Authority, Negligence, Misleading and Deceptive Conduct, Fraudulent Concealment
Civil Procedure Property Law Torts Equity Statutory Consumer Protection Summary Judgment Striking Out Pleadings Limitation Periods +6 more

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Parties

Perpetual Corporate Trust Limited

Plaintiff; Second Cross Claimant; Respondent to Motion

Zacharenya Tsiamoulis

Defendant

Judy Louey

First Defendant to Second Cross Claim; Applicant on Motion

Seek Home Loans Proprietary Limited

Second Defendant to Second Cross Claim

Procedural Posture

Civil Procedure – Summary Dismissal/strike Out Application (interlocutory) Re: Possession, Mortgage, Cross Claim / Interlocutory (notice of Motion for Summary Dismissal/striking Out Cross Claim and Amendment Applications)

Legal Issues

  1. 1 Whether the Second Cross Claim should be summarily dismissed or struck out as disclosing no reasonable cause of action or being statute barred
  2. 2 Whether Perpetual should be allowed to amend its Reply and Second Cross Claim to plead additional material facts and a claim under s 12GF of the ASIC Act for misleading and deceptive conduct
  3. 3 Whether any part of the Second Cross Claim is statute barred given the dates of the relevant conduct and the alleged discoverability of the cause of action by Perpetual

Ratio Decidendi

It is not appropriate, at the interlocutory stage, to summarily dismiss or strike out the Second Cross Claim or deny amendment of Perpetual's Reply and Cross Claim, as factual and legal matters—including the factual basis of alleged forgery, the question of what the registered mortgage secures, the operation of the limitation statutes, and any fraudulent concealment of causes of action—are arguable and require full investigation at trial; and deficiencies in pleading fraudulent concealment can be cured by amendment. The threshold for summary dismissal is not met.

Court Disposition

The Notice of Motion of 3 April 2024 is dismissed.

Orders

  • The Notice of Motion of 3 April 2024 is dismissed.
  • Leave is granted to Perpetual to amend paragraph 4(d) of Perpetual's Reply to the Second Cross Claim of 29 April 2024 by inserting: '(a) says that the Warranty of Authority Representation and Identification Representation were false, and were known by Ms Louey to be false;'.