Vasil v Boland [2022] NSWSC 1534

Supreme Court New South Wales

Medium Neutral Citation: Vasil v Boland [2022] NSWSC 1534 Hearing dates: 4 November 2022 Decision date: 10 November 2022 Jurisdiction: Equity - Applications List Before: Meek J Decision: Dismiss application for summary dismissal. Amended statement of claim stuck out. Leave granted to plaintiff to file a further amended statement of claim by 24 November 2022. Catchwords: CIVIL PROCEDURE — Proceedings brought by two plaintiffs being adult siblings claiming representations made encouraging investment into a company and alleged consequential loss — Claim by first named plaintiff earlier summarily dismissed on the basis that the property subject of the claim vested in his trustee in bankruptcy — Second plaintiff earlier permitted leave to replead — minimal changes to pleaded case Second application for summary dismissal — Summary dismissal refused — Alternative application for strike out of amended statement of claim pleadings — Amended statement of claim struck out — leave given to further amend claim SUMMARY DISMISSAL — Caution in deciding limitation questions in interlocutory proceedings particularly in cases of alleged economic loss TRUSTS — Indicia of beneficial interests — Requirements of declaration of trust regarding shares — Appropriate party to bring proceedings for loss suffered by a trust LEGAL PROFESSION — Barristers — entitlement to appear on direct access brief PRACTICE — Appearance — Procedure — Representation of company by director — Whether representation by entitlement or Court's indulgence — Uniform Civil Procedure Rules 2005 (NSW) rr 7.1(2)(a), 7.2(1)(a) PRACTICE AND PROCEDURE — Abuse of process –– second application made for summary dismissal and strike out — Whether such application an abuse of process — No abuse of process COSTS — Self-represented litigants –– Ordinarily cannot recover costs because costs are awarded as a partial indemnity for professional legal costs actually incurred in the conduct of litigation Legislation Cited: Australian Consumer Law Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 Brimaud v Honeysett Instant Print Pty Ltd (1998) 217 ALR 44 Doe on the demise of Bennett v Hale and Davis (1850) 117 ER 423 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 In the matter of Elegance Swan (in liquidation) (controllers appointed) [2022] NSWSC 1451 Keesing v Adams [2010] NSWSC 336 Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44 Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115 May v Christodoulou (2011) 80 NSWLR 462; [2011] NSWCA 75 Mendonca v Matthews Folbigg Pty Ltd [2022] NSWSC 764 Nominal Defendant v Manning [2000] NSWCA 80 Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 Ramage v Waclaw (1998) 12 NSWLR 84 Reid v Commonwealth Bank of Australia [2022] NSWCA 134 Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57 Wickstead v Browne (1992) 30 NSWLR 1 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) Solicitors Manual (NSW) (LexisNexis) Category: Procedural rulings Parties: Susan Vasil (Plaintiff / Respondent to motion) Brian Timothy Boland (First Defendant / Applicant on motion) Helen Jane Boland (Second Defendant / Applicant on motion) Murray Charles Reid (Third Defendant / Respondent to motion) Avid Business Pty Ltd (Fourth Defendant / Applicant on motion) Representation: Counsel: J A Loxton (Plaintiff) In person (First and Second Defendants) R A Clayton (solicitor) (Third Defendant) No appearance (Fourth Defendant) Solicitors: A R Yates & Co (Third Defendant) File Number(s): 2021/168665