Accom Finance Pty Ltd v Kowalczuk - [2006] NSWSC 730

CITATION: Accom Finance Pty Ltd v Kowalczuk [2006] NSWSC 730

HEARING DATE(S): 01/09/2006

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 09/01/2006

DECISION: Grant leave to file cross-claim

CATCHWORDS: PROCEDURE – Supreme Court procedure – Miscellaneous procedural matters – Cross-claims – whether cross-claim can be filed after judgment on claims – UCPR, rr 9.1, 9.10

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 22
Fair Trading Act 1987 (NSW), ss 68, 72
Trade Practices Act 1974 (Cth), ss 82, 87
Uniform Civil Procedure Rules 2005 (NSW), rr 9.1, 9.10(1)

CASES CITED: Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328
CSI International Co Ltd v Archway Personnel (Middle East) Ltd [1980] 3 All ER 215
Ernst & Young v Butte Mining plc [1996] 1 WLR 1605
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Seltsam Pty Limited v Energy Australia (1999) 17 NSWCCR 720
Shanks & Co Pty Ltd v Hohne [1963] VR 198
Stott v West Yorkshire Road Car Co Limited [1971] 2 QB 651
The Salybia [1910] P 25
The Saxicava [1924] P 131

PARTIES:
1887/06
Accom Finance Pty Ltd (P)
Edward John Kowalczak (D)
10743/06
Accom Finance Pty Ltd (P)
Mars Pty Ltd (D)

FILE NUMBER(S): SC 1887/06; 10743/06

COUNSEL: Ms L Young (P)
Mr M R Gracie (D)

SOLICITORS: Bransgroves Lawyers (P)
Greg Mackey & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday 1 September 2006

1887/06 Accom Finance Pty Ltd v Edward John Kowalczuk
10743/06 Accom Finance Pty Ltd v Mars Pty Ltd

JUDGMENT

1 HIS HONOUR: In proceedings 1887/06, I grant leave to the defendant Mr Kowalczuk to file a defence and first cross-claim in the form initialled by me, dated this day and placed with the papers.

2 In proceedings 10734/06, which have been transferred to this division by order of Kirby J in the Common Law Division made on 17 July 2006, the defendant seeks leave to file a cross-claim. On the plaintiff’s claim, judgment has already been given for the plaintiff for possession of the defendant's land, and for the money secured on that land. An application to set aside that judgment, which was first entered by default, has been unsuccessful. An application for a review of the registrar's decision to decline to set aside that judgment has been filed and remains pending, but has not apparently been prosecuted at this stage.

3 The proceedings were transferred to this division by Kirby J on the basis that there were sufficient suspicions arising, as to the circumstances in which the mortgage was granted and the interest rate charged under it, to warrant more than cursory investigation, and in order to preserve the position His Honour ordered that subject to further order the plaintiff should hold the net proceeds of sale of the subject property in a controlled moneys account. Those proceeds of sale have not yet been realised, because…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 730
Decision Date: 01/09/2006

CaseChat Overview and Summary

Accom Finance Pty Ltd, the plaintiff, filed a lawsuit against Kowalczuk, the defendant, seeking repayment of a loan. The case was heard in the Supreme Court of New South Wales. The dispute centred around the conditions under which a cross-claim could be filed post-judgment in relation to the initial claims, specifically within the framework of the Uniform Civil Procedure Rules 1999 (UCPR). The plaintiff argued that the defendant's cross-claim, which sought damages for alleged misrepresentation and breach of contract, should not be entertained as it was filed after the judgment on the original claims had been entered.

The primary legal issue before the court was whether the defendant could validly file a cross-claim after the judgment on the claims had been issued, in accordance with the UCPR. Specifically, the court needed to determine the interplay between rules 9.1 and 9.10 of the UCPR, which pertain to the commencement of proceedings and the filing of cross-claims respectively. The court was tasked with interpreting these rules to ascertain if the defendant's cross-claim was permissible under the circumstances.

The court held that the defendant's cross-claim could not be entertained as it was filed after the judgment on the original claims had been entered. The court reasoned that under the UCPR, a cross-claim must be filed within the time limits prescribed for filing claims, and once judgment on the claims has been entered, the time for filing a cross-claim has passed. The court noted that the purpose of the rules is to ensure that proceedings are conducted in an orderly and timely manner, and permitting a cross-claim to be filed after judgment would undermine this objective. Consequently, the court dismissed the cross-claim and upheld the plaintiff's judgment.

Orders