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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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Today, the DJ struck out our claim, refused an application

Customer Question

Today, the DJ struck out our claim, refused an application to amend POC, refused leave to appeal.
We are a small company which had a documented fraudulent misrepresentation and breach of restrictive covenant not to compete.
I issued proceedings in the name of the company with an application to amend to include myself as 2nd Claimant to pursue the misrepresentationq
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

When did you realise it was wrong? How long after when you realised it was wrong did you apply to amend please?

JACUSTOMER-o5zmg97k- : The signatory to the Contract was my wife- she is Chinese-she assigned the shares to me, in trust to clothe me with the authority to sue .
JACUSTOMER-o5zmg97k- : I made application to amend and add myself as soon as the shares were transferred-2months after issuing proceedings.
JACUSTOMER-o5zmg97k- : The Company pleaded breach of restrictive covenant not to compete. I made submissions to the DJ that he could not strike out the whole claim as the Company had locus.
JACUSTOMER-o5zmg97k- : Should we appeal the strike out on the breach only and then commence a new action legitimately pleaded for the fraudulent misrepresentation or, should we appeal the whole?
Alex Watts :

From the time you knew to amend, to the time you made the application - how long was it?

JACUSTOMER-o5zmg97k- : 2 months
JACUSTOMER-o5zmg97k- : There was a procedural Order from the DJ stating the shareholders should be added-I had made the Application before the Order
Alex Watts :

Its bad news I am afraid.

Alex Watts :

There is a case of Mitchell that was handed down this week that says if someone needs to apply for relief from sanctions (to rectify a defect) they need to act asap any no delay will be accepted.

Alex Watts :

Here you waited 2 months.

Alex Watts :

If you knew this then you should have applied to amend 2 months when you knew.

Alex Watts :

However to salvage this situation you are now entitled to issue proceedings in the correct name and discontinue against the wrong party.

Alex Watts :

Therefore sadly whilst you can try an appeal I consider that any appeal would fail.

Alex Watts :

Can I clarify anything for you about this today please?