Moustach Pty Ltd & Anor v Takchi & Ors [2015] NSWSC 1013

Supreme Court New South Wales

Medium Neutral Citation: Moustach Pty Ltd & Anor v Takchi & Ors [2015] NSWSC 1013 Hearing dates: 7 July 2015 Decision date: 07 July 2015 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Order paragraph 25 of the Amended Statement of Claim be struck out. Plaintiff have leave to file and service Further Amended Statement of Claim, repleading its claim under s 37A of the Conveyancing Act 1919 (NSW). Grant leave to Third and Fourth Defendants to file and serve any further application to disallow the amendments made by the Further Amended Statement of Claim. Order the Plaintiff to pay the costs of and incidental to the hearing of the motion today, as agreed or as assessed. Catchwords: PRACTICE AND PROCEDURE – application to disallow amendments to the amended statement of claim – where contended that amended statement of claim cannot be established on evidence – where the form of the pleading attacked – whether amended statement of claim does not sufficiently plead elements necessary to exclude indefeasability under s 42 of the Real Property Act 1900 (NSW) – whether to disallow the amendment under the Uniform Civil Procedure Rules 2005 (NSW). Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 56(1), 98 - Conveyancing Act 1919 (NSW) ss 37A, 37A(3), 39 Real Property Act 1900 (NSW) s 42 - Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 19.4. Cases Cited: - Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 - Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 - Bowden v Weldon [2014] NSWSC 109 - General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 - Marcolongo v Chen (2011) 242 CLR 546 - McGuirk v University of New South Wales [2009] NSWSC 1424 - Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607 - Simmons v NSW Trustee and Guardian [2014] NSWCA 405 - Young v Smith [2015] NSWSC 400 Category: Procedural and other rulings Parties: Moustach Pty Ltd (First Plaintiff) Moussa Moussa (Second Plaintiff) Salima Moussa (Third Plaintiff) Arlette Takchi as executrix of the estate of the late Eddie Takchi (First Defendant) Arlette Takchi (Second Defendant) DMRJ Pty Limited (Third Defendant) TBT Investments Pty Limited (Fourth Defendant) Representation: Counsel: D C Eardley (Plaintiffs) K T Stanton (First and Second Defendants) J M Ireland (Third and Fourth Defendants)