Jim Wortzman

The court considered whether to dismiss the Schembri Action and strike Schembri’s defence in the Way Action due to Schembri’s repeated, prolonged, and intentional failure to comply with documentary disclosure obligations, including undertakings and multiple court orders.

The court found Schembri’s conduct deliberate and unjustified, resulting in significant delay and prejudice.

Applying the principles from Falcon Lumber and related appellate authorities, the court held that the exceptional remedy of dismissal and striking pleadings was proportionate and necessary to uphold the integrity of the justice system.

The court-appointed Liquidator of two companies sought advice and direction regarding the application of issue estoppel to claims by a shareholder, Christos Kommatas, and the payment of funds to another shareholder, George Vastis.

The core dispute involved whether Kommatas was precluded from seeking an order for the Liquidator to conduct a claims process as part of the liquidation, an issue previously raised and denied at trial.

The court found that Kommatas was indeed precluded by issue estoppel, as this specific issue was distinctly put before and decided against Kommatas in the prior trial.

The court also authorized the payment of $250,000 to Vastis as previously ordered.