Eliezer v The Owners – Strata Plan No 51682 & Ors [2017] NSWSC 278

Supreme Court New South Wales

Medium Neutral Citation: Eliezer v The Owners – Strata Plan No 51682 & Ors [2017] NSWSC 278 Hearing dates: 15 March 2017 Decision date: 22 March 2017 Jurisdiction: Common Law Before: N Adams J Decision: (1) The plaintiff is refused leave to join Joseph Eliezer as a second plaintiff in these proceedings. (2) The plaintiff is refused leave to file either the amended statement of claim dated 11 August 2016 or the amended statement of claim dated 29 September 2016. (3) The plaintiff is to pay the defendants' costs of the motion. (4) Should the plaintiff wish to file any further amended statement of claim, she must do so by filing and serving a notice of motion seeking the Court's leave on or before 3 May 2017. (5) Leave is granted for any such Motion to be returnable before the Court on 17 May 2017. (6) Any application by the defendants to have the proceedings summarily dismissed is to be by way of notice of motion returnable on 17 May 2017. (7) I stand the proceedings over for further directions before the Common Law Registrar at 9am on 17 May 2017. Catchwords: PRACTICE AND PROCEDURE – application for leave to join plaintiff's husband as second plaintiff – where reason for addition of second plaintiff said to be largely practical – proposed second plaintiff has no cause of action in tort – leave refused

PRACTICE AND PROCEDURE – application for leave to file amended statement of claim – where Registrar granted leave to amend extant statement claim on a limited basis – amended statement of claim subsequently filed exceeded limitations of that grant of leave – where proposed amended statement of claim fails to plead all elements of causes of action – leave refused Legislation Cited: Civil Procedure Act 2005 (NSW) Strata Schemes Management Act 1996 (NSW), s 80 Strata Schemes Management Act 2015 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 4.10(4), 6.19, 7.36 Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Banque Commerciale SA en liquidation v Akhil Holdings (1990) 169 CLR 279; [1990] HCA 11 Bendigo and Adelaide Bank Ltd v Chowdury [2012] NSWSC 592 Clarke v State of New South Wales (No.4) [2015] NSWSC 1054 Gregory v Portsmouth City Council [2000] 1 AC 419 Howard Smith & Co Ltd (1911) 13 CLR 35; [1911] HCA 46 Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd [2010] NSWDC 232 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 Little v Law Institute of Victoria and Ors (No 3) [1990] VR 257 Queensland Court of Appeal in Beach Club Port Douglas Pty Ltd v Page [2005] QCA The Trustees of the Property of John Daniel Cummins, A Bankrupt v Cummins (2006) 227 CLR 278; [2006] HCA 6 Willers v Joyce and Anor [2016] UKSC 43 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Category: Procedural and other rulings Parties: Supriya Eliezer (Plaintiff) The Owners – Strata Plan No 51682 (First Defendant) Australian Property Managers Pty Ltd (Second Defendant) Peter Woodbury (Third Defendant) Frances Li (Fourth Defendant) Wanglang Yang (Fifth Defendant) Meimei Xie (Sixth Defendant) Zhisheng Duan (Seventh Defendant) Wei Li Yu (Eighth Defendant) Xin Wang (Ninth Defendant) Ping Kwan Lo (Tenth Defendant) Leng Lin Leong (Eleventh Defendant) Representation: Counsel: Mr J Eliezer, husband of the plaintiff (Plaintiff) Mr M Klooster (First Defendant) Ms S Jadhav, solicitor (Second, Third and Fourth Defendants) Mr Krstic, solicitor (Fifth and Sixth Defendants) Mr D Lamb, solicitor (Seventh, Eighth, Tenth and Eleventh Defendants) Mr G Li (Ninth Defendant)