SIALEPIS v IRONAID PTY LTD AND ORS [1997] NSWCA 286

SIALEPIS v IRONAID PTY LTD & ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and COLE JJA 25 November 1997, 10 December 1997

[1997] NSWCA 286

PRACTICE AND PROCEDURE — PLEADING — SUMMARY DISMISSAL — AMENDMENT

PRACTICE AND PROCEDURE — PLEADING — Summary dismissal of claim against three of eight defendants — pleading alleges and evidence shows no viable cause of action — multiple amendments fail to improve position — further amendment refused — HELD — trial judge was right to conclude that existing pleading, considered in the light of the evidence, disclosed no reasonable cause of action and also to refuse further amendment.

Gleeson CJ This is an appeal from a decision of Rolfe J in the Commercial Division dismissing, pursuant to Pt13 r5 of the Supreme Court Rules, the claim by the appellant, as plaintiff, against three of eight defendants. Those three defendants are the respondents to the appeal. They are Ironaid Pty Ltd (Ironaid) and the two directors of that company, Mr and Mrs Cosco. They were respectively the third, sixth and seventh defendants in the action. The remaining defendants have taken no part in the appeal. The action against them is awaiting hearing in the Commercial Division.

The appellant, Mrs Sialepis, is the former wife of the first defendant, Mr Harry Sialepis. Their marriage was dissolved in 1995. It is material to note that, in July 1995, Mr Sialepis was made bankrupt. He was the first defendant in the proceedings. The second defendant is Westpac Banking Corporation. The third defendant was Ironaid. That company is now in liquidation. The fourth defendant is the mother of Harry Sialepis. She also is bankrupt. The fifth defendant is Mr Smiles, who is said to have been an accountant and financial adviser to Mr Sialepis. As has been noted, the sixth and seventh defendants were Mr and Mrs Cosco. The eighth defendant is a corporation which at some stage took over the practice of Mr Smiles.