12 July 2019
Litigation – Removing wrongly joined parties
I act for a defendant company in debt recovery proceedings pursuant to a contract dispute.
The plaintiff has also named my client's directors as second and third defendants, despite not being guarantors to the contract, and the pleadings do not support any such claim against them.
I am filing the defence today on behalf of all parties.
I would like to ask the court to summarily dismiss the proceedings against the second and third defendants on the basis that the pleadings and subsequent further particulars make no claim against the directors.
Do I do this by way of notice of motion? If so, should it be done with the defence or afterward?
Thank you for the question.
Yes, a notice of motion is required. It should seek an order to remove the directors pursuant to r 6.29(a) of the Uniform Civil Procedure Rules 2005. If applicable, the motion should seek in the alternative to dismiss the proceedings as frivolous and vexatious against the directors pursuant to r 13.4(1)b). An affidavit in support of the application will be required.
The notice of motion may be filed at the same time as the defence or later. Either way, the defence on behalf of the directors should include a statement that they are wrongly joined and that the plaintiff’s pleading discloses no reasonable cause of action against them.
A draft of the motion should be sent to the plaintiff before filing, allowing them the opportunity to amend the claim by removing the directors. This will assist with any costs application if the motion is then required and successful.
Regards,
Mentor
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