Estate of the late Kate Lewy v Kitchen Elite & Ors [2003] NSWSC 516

New South Wales Supreme Court

CITATION : Estate of the late Kate Lewy v Kitchen Elite & Ors [2003] NSWSC 516 HEARING DATE(S) : 4 June 2003 JUDGMENT DATE : 13 June 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Notice of Motion is dismissed. The plaintiffs are to pay the costs of the Notice of Motion. The Exhibits may be returned.

CATCHWORDS : Leave to file Cross-Claim by plaintiff - proposed Cross-Claim inconsistent with existing judgment in the proceedings - the proceedings had been brought against a deregistered company - nullity - need to set aside orders - abuse of process. Companies Act 1928, s 230 (Victoria). LEGISLATION CITED : Corporations Law, s 601AD. Supreme Court Act 1970, s 19, s 78. Supreme Court Rules 1970, Pt 2 r 3, Pt 6 r 10. Cameron v Cole (1944) 68 CLR 571. CASES CITED : Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461. United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR 487. Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590. Dennis Lewy, Ronny Lewy and Garry Lewy as the Joint Executors of the Estate of the Late Kate Lewy (Plaintiffs/First Cross-Defendants to First Cross-Claim/Proposed Second Cross-Claimants to Second Cross-Claim) v Kitchen Elite Pty Limited (First Defendant/ First Cross-Claimant to First Cross-Claim) PARTIES : Peter Bazos (Second Defendant/ Second Cross-Claimant to First Cross-Claim) Suzanne Linda Bazos (Third Defendant/ Third Cross-Claimant to First Cross-Claim) Nicholas Bazos (Fourth Defendant/Fourth Cross-Claimant to First Cross-Claim) Wah Chang Off Shore (Hong Kong) Pty Ltd (Second Cross-Defendant to First Cross-Claim/Proposed First Cross-Defendant to Second Cross-Claim) FILE NUMBER(S) : SC 10219 of 1998 Mr P T Russell (Plaintiffs/First Cross-Defendants to First Cross-Claim/Proposed Second Cross-Claimants to Second Cross-Claim) COUNSEL : Mr J Stoljar (Defendants/Cross-Claimants to First Cross-Claim) Mr J Neal (Second Cross-Defendant to First Cross-Claim/Proposed First Cross-Defendant to Second Cross-Claim) Cridlands Lawyers Incorporating Dickson Fisher Macansh (Plaintiffs/First Cross-Defendants to First Cross-Claim/Proposed Second Cross-Claimants to Second Cross-Claim) SOLICITORS : Bowen & Gerathy (Defendants/Cross-Claimants to First Cross-Claim) Minter Ellison (Second Cross-Defendant to First Cross-Claim/Proposed First Cross-Defendant to Second Cross-Claim)