IIB Global NV & Anor v Scott Darren Pascoe & Ors (No 3) [2011] NSWSC 1407 (3 November 2011)

Last Updated: 30 November 2011

Supreme Court New South Wales

Case Title:	IIB Global NV & Anor v Scott Darren Pascoe & Ors (No 3)
Medium Neutral Citation:	[2011] NSWSC 1407
Hearing Date(s):	3 November 2011
Decision Date:	03 November 2011
Jurisdiction:	Equity Division
Before:	Black J
Decision:	Leave to file notice of motion refused
Catchwords:	PRACTICE AND PROCEDURE - Leave to file notice of motion
Legislation Cited:	- Civil Procedure Act 2005 (NSW) ss 56-58, 64 - Uniform Civil Procedure Rules 2005 (NSW) r 6.24
Cases Cited:
Texts Cited:	- Ritchie's Uniform Civil Procedure NSW
Category:	Interlocutory applications
Parties:	Linden Prescott Dyason (Plaintiff) Scott Darren Pascoe, Elizabeth Ann Occleshaw and Lindsey Jane Dyason (First Defendant) Scott Darren Pascoe (Second Defendant)
Representation
- Counsel:	Counsel: The Second Plaintiff appeared in person B.J. Skinner (S.D. Pascoe & E.A. Occleshaw)
- Solicitors:	Solicitors: The Second Plaintiff appeared in person Goldrick Farrell Mullan (S.D. Pascoe & E.A. Occleshaw)
File number(s):	11/294682
Publication Restriction:

JUDGMENT

1. These proceedings were listed before me today to deal with a notice of motion filed 5 October 2011 by which Mr Scott Pascoe and Ms Elizabeth Occleshaw, as trustees of the bankrupt estate of Arthur Dyason, seek orders that paragraphs 2 and 6 of the relief sought in the plaintiff's summons filed on 13 September 2011 be struck out or dismissed. Mr Pascoe and Ms Occleshaw also seek certain other orders.

2. A preliminary issue has arisen because, on 1 November 2011, the Second Plaintiff, Mr Linden Dyason sent a notice of motion to my Associate which sought orders including that a new plaintiff, Australian Sustainable Forestry and Timber Pty Limited ("ASFT") be recognised by the Court in place of the First Plaintiff, IIB Global, that ASFT be represented by its director, Mr Dyason and that The Trust Company Limited ("The Trust Company") be joined to the proceedings and repay an amount to ASFT.

3. That motion was not filed in the Registry in the usual way. I must exercise my discretion whether to grant leave for the motion to be filed in Court having regard to ss 56-58 of the Civil Procedure Act 2005 (NSW) and in particular having regard to the overriding objective of the just, quick and cheap resolution of the matters in dispute. I have concluded that I should not grant leave to file the motion in court because the motion is not capable of succeeding in its present form. There are, in my view, fundamental difficulties with the substance of the motion as well as issues of form concerning it.

4. The motion seeks to substitute ASFT in place of IIB Global as plaintiff in the proceedings, although Mr Dyason does not have authority to represent IIB Global in the proceedings and does not do so. (I should add that IIB Global was no longer the first plaintiff in the proceedings when the motion was heard, having been dismissed from them by orders which I made on 21 September 2011, but neither the parties nor I recognised this when the matter was argued and I delivered an ex tempore judgment). In my view, the substitution that is sought is outside the scope of the Court's power to join another party under r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW), or at least is such that the Court would not exercise its discretion in favour of such a substitution. Ritchie's Uniform Civil Procedure NSW notes, and I proceed on the basis that, the power of substitution does not authorise a reconstruction of proceedings by the substitution of a new plaintiff with a new cause of action if an old plaintiff or cause of action is not longer maintainable. In substance, the application which is brought is a substitution not only of ASFT for IIB Global but also of a new cause of action asserted by ASFT against The Trust Company and another new cause of action asserted by ASFT against Mr Pascoe, in place of the cause of action previously maintained by IIB Global against Mr Pascoe.

5. A third factor which is important for the exercise of my discretion, having regard to the matters identified in ss 56-68 and s 64 of the Civil Procedure Act , is that it would not, in my view, be in the interests of the just, quick or cheap resolution of the proceedings to make the orders sought. The joinder of ASFT has the capacity to deprive Mr Pascoe of his right to a prompt determination of his strike out application. It has no countervailing advantage because Mr Dyason has conceded that ASFT would not be prejudiced by bringing separate proceedings against The Trust Company and Mr Pascoe in respect of the causes of action which it asserts, and each of The Trust Company, Sydneywide Mortgage Management Limited (which was the lender for which The Trust Company acted as bare trustee) and Mr Pascoe have very properly confirmed and undertaken before me that they will not take any point in any other proceedings which may be brought by ASFT that those proceedings cannot be brought because matters were not raised in these proceedings. Accordingly, there seems to me to be no advantage from the joinder of ASFT in these proceedings and no disadvantage to ASFT in being left to bring separate proceedings in a proper form that would balance the considerable disadvantage involved in a recasting of the proceedings, even if it were otherwise available.

6. It has also emerged in the course of submissions before me (albeit I do not have evidence of this matter) that The Trust Company held the relevant mortgage as bare trustee for Sydneywide Mortgage Management Limited, which has not been, as I understand it, served with the motion. Finally, the motion raises matters that would best be included in a pleading such as a Statement of Claim so as to identify the substantive claim brought and which are best addressed by such a pleading rather than in the text of the motion.

7. In these circumstances, I do not grant leave to file the notice of motion in Court.

8. The Trust Company seeks its costs of the application today. The ordinary rule is that costs follow the event and nothing has occurred that would misplace that ordinary rule. Accordingly, I order that Mr Dyason pay The Trust Company's costs of and incidental to the motion heard before me today. The costs of Mr Pascoe in respect of the motion are reserved.

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