De Lorenzo v De Lorenzo [2019] NSWSC 534

Supreme Court New South Wales

Medium Neutral Citation: De Lorenzo v De Lorenzo [2019] NSWSC 534 Hearing dates: 26 April 2019 Decision date: 15 May 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Subject to order 2, order that the plaintiff have leave to file in Court a verified statement of claim in the form of the statement of claim appearing at CB 38ff in substitution for the summons filed 8 November 2018, such statement of claim to take effect from the date of the filing of the statement of claim. 2. Order that the leave granted in order 1 be conditional on the plaintiff undertaking to the Court that, unless authorised by the Court so to do, he will not claim indemnification for the costs of the conduct of the proposed proceedings (whatever the outcome of those proceedings) out of the deceased's estate. 3. Otherwise dismiss the plaintiff's notice of motion filed 14 November 2018. 4. Order that the costs of the plaintiff's notice of motion filed 14 November 2018 be costs in the cause. 5. Note that, to the extent that the plaintiff has a direct and obvious personal interest in the outcome of the proceedings that he intends to bring in his capacity as executor of the deceased's estate, and has sought leave to do so without seeking judicial advice as to whether he would be justified in so doing on behalf of the estate, he does do at the risk that he will not be entitled to indemnification out of the assets of the estate for the costs of those proceedings irrespective of the outcome of the proceedings and that he will be personally liable for those costs. Catchwords: SUCCESSION – PRACTICE AND PROCEDURE –notice of motion seeking leave to file statement of claim replacing summons – continuation of matter on pleading – whether plaintiff should be appointed to represent interests of estate – plaintiff has personal interest in outcome of proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61 and 64 Companies (New South Wales) Code 1981 (NSW), sch 3 Competition and Consumer Act 2010 (Cth), sch 2, ss 20, 236 and 237 Corporations Act 2001 (Cth) Fair Trading Act (1987) NSW, s 28 Trustee Act 1925 (NSW), ss 59, 63 Uniform Civil Procedure Rules 2005 (NSW), rr 6.6 and 7.10 Cases Cited: Byers v Overton Investments Pty Limited (2001) 109 FCR 554; [2001] FCA 760 Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 Drummond v Drummond [1999] NSWSC 923 Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705; (2009) 3 ASTLR 407 HIH Insurance Ltd (In Liq) ACN 008 636 575; FAI General Insurance Company Ltd (In Liq and subject to a scheme of company arrangement) [2018] NSWSC 1886 Holt v Cox [1994] 15 ACSR 313 John v John [2010] NSWSC 937 Jones & Devlin Ltd (1910) 11 CLR 492; [1910] HCA 61 Kauter v Kauter [2003] NSWSC 741 King v Hudson [2009] NSWSC 1500 Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13 Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Porker v Richards (No 2) [2017] SASC 11 Premiership Investments Pty Ltd and Another v White Diamond Pty Ltd (1995) 61 FCR 178 Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 Public Trustee v Nash (1921) 38 NSW WN 142 Ramage v Waclaw (1988) 12 NSWLR 84 Re Atkinson, deceased [1971] VR 312 Re Challis [2010] WASC 333 Re Estate Nitopi, deceased [2018] NSWSC 1560 Re Estate of Trotter; Johnson v Trotter [2006] NSWSC 67; (2006) 12 BPR 23,339 Smith v Smith (12 July 1996; unreported) Stedman v O'Hearn; Hosemans v O'Hearn [2006] NSWSC 1122 Szabo v Balogh [2007] VSC 232 TAL Life Ltd v Shuetrim (2016) NSWLR 439; [2016] NSWCA 68 Talacko v Talacko [2015] VSC 624; (2015) 305 FLR 353 Toll (FHL) Pty Ltd v Prixcar Services Pty Ltd (2007) 17 VR 632; [2007] VSCA 285 Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492; [1910] HCA 61 Warton v Yeo [2015] NSWCA 115 Texts Cited: Nil Category: Procedural and other rulings Parties: Vincent De Lorenzo (Plaintiff) Anthony De Lorenzo (First Defendant) Christopher John De Lorenzo (Second Defendant) De Lorenzo Hair & Cosmetic Research Pty Ltd (Third Defendant) De Lorenzo Australia Pty Ltd (Fourth Defendant) Jo-Ann De Lorenzo (Fifth Defendant) Representation: Counsel: T Maltz (Plaintiff) JS Burnett (First, Third, Fourth and Fifth Defendants) FJ McNeil (Second Defendant)