Chahwan v Euphoric Pty Ltd trading as Clay & Michael & anor [2009] NSWSC 805

Reported Decision : 73 ACSR 252

New South Wales Supreme Court

CITATION : Chahwan v Euphoric Pty Ltd trading as Clay & Michael & anor [2009] NSWSC 805

HEARING DATE(S) : 10 June 2009 JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 12 June 2009

DECISION : Leave to amend granted

CATCHWORDS : TRUSTS AND TRUSTEES – exceptional circumstances jurisdiction - Proceeding by beneficiary against third party where trustee will not sue – application for leave to amend to make clear basis on which plaintiff claims standing – where sufficiently arguable that liquidator which controls trustee will not bring proceedings – where leave under Corporations Act, s 237, previously refused - whether determined on preliminary application. AMENDMENT – Whether claim must fail due to limitations defence – where limitation is at least arguably not applicable – arguably limitation issue should not be determined at preliminary stage – whether amendment adds an additional cause of action – (NSW) Civil Procedure Act 2005, s 64, s 65(2)(a), (c). ESTOPPEL – Whether proceedings barred by Anshun estoppel arising out of failure to raise issue in earlier District Court proceedings – where previously held that no clear case of Anshun estoppel given District Court's lack of corporations and limited equitable jurisdiction – held: not reason to reject amendment. AMENDMENT – Discretionary grounds – where no additional prejudice will be occasioned by allowing amendment that simply clarifies basis upon which standing is claimed

(CTH) Corporations Act 2001 s 237 LEGISLATION CITED : (NSW) Civil Procedure Act 2005 s 64(1), s 64(2), s 64(3), s 65, s 65(2)(a), s 65(2)(c) (NSW) Contracts Review Act 1980