Momentum Mortgages Limited (Receivers and Managers Appointed) v Mark Anthony Elmowy [2014] NSWSC 972

Supreme Court New South Wales

Medium Neutral Citation: Momentum Mortgages Limited (Receivers and Managers Appointed) v Mark Anthony Elmowy [2014] NSWSC 972 Hearing dates: 17 July 2014 Decision date: 24 July 2014 Before: Harrison J Decision: 1. Subject to orders (2) and (3) below, grant leave to Mr Meehan and Ezcape Street Projects Pty Ltd to amend the cross-claim in the form of the document attached to their submissions filed on 3 June 2014 in support of the application to amend. 2. Refuse leave to amend to include a claim alleging a breach of duty by a mortgagee in possession to sell the property at or for not less than its market value. 3. Order that paragraphs 83 to 86 of the proposed amended cross-claim be struck out but grant leave to Mr Meehan and Ezcape Street Projects Pty Ltd to replead those paragraphs in accordance with the rules if so advised. 4. Order that Mr Meehan and Ezcape Street Projects Pty Ltd pay the costs of this application to amend. 5. Grant liberty to apply on 7 days' notice in respect of these orders. 6. Otherwise stand the proceedings into the Registrar's list for directions on 4 August. 2014. Catchwords: PROCEDURE - amendment - application to amend cross-claim - whether amended cross claim pleads causes of action barred by limitation periods - whether amendments based upon evidence that goes beyond what has been exchanged - whether proposed form of cross-claim is deficient Legislation Cited: Corporations Act 2001 Property Law Act 1974 (Qld) Category: Procedural and other rulings Parties: Momentum Mortgages Limited (Receivers and Managers Appointed) (First Plaintiff) Equity Trustees Limited ATF Bookmakers Superannuation Fund (Second Plaintiff) Mark Anthony Elmowy (First Defendant) Christopher Scott Meehan (Second Defendant) Ezcape Street Projects Pty Limited (Third Cross Claimant) Representation: Counsel: R Harper SC (First Plaintiff) M Condon SC (Second Plaintiff) N Kidd SC (First Defendant, Second Defendant and Third Cross Claimant) Solicitors: Garland Hawthorn Brahe (First Plaintiff) Holman Webb (Second Plaintiff) Levitt Robinson (First Defendant, Second Defendant and Third Cross Claimant) File Number(s): 2009/294349 Publication restriction: Nil