Baker v Sheridan (No 3)

[2005] NSWSC 155

CITATION:	Baker v Sheridan (No 3) [2005] NSWSC 155
HEARING DATE(S):	26/05/04-28/05/04,31/05/04,01/06/04-04/06/04,23/08/04-26/08/04,30/08/04,01/09/04-03/09/04,08/09/04-09/09/04,06/12/04-07/12/04,09/12/04-10/12/04
JUDGMENT DATE :	10 March 2005
JUDGMENT OF:	James J at 1
DECISION:	Verdict on the second cross-claim for the cross-claimant

PARTIES:	Dawn Marie Baker v Paul Sheridan & 2 Ors (No 3)
FILE NUMBER(S):	SC 20124/01
COUNSEL:	SC Campbell SC/CP Taylor - Plaintiff G Curtin - 1st Defendants TGR Parker - 2 Defendant
SOLICITORS:	Paul Stubbs Law Office Colin Biggers & Paisley Maurice Blackburn Cashman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT`
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Thursday 10 March 2005

20124/01 Dawn Marie BAKER v Paul SHERIDAN & 2 Ors (No 3)

JUDGMENT

1 HIS HONOUR: In these proceedings I have already delivered a principal judgment in which I determined the plaintiff’s claims against the three defendants and another judgment in which I determined the first cross-claim brought by the second defendant against the first defendants. In this judgment I will determine the second cross-claim, which was brought by the second defendant against the third defendant.

2 The second cross-claim was pleaded in pars 12 and 13 of the amended cross-claim served on the cross-defendant Mr Baker in July 2003, as follows:-

“12. It was a term of the deed of residence that Rigg and Trevor Baker would:
(a) at their own expense maintain the homestead; and
(b) pay all council rates, land tax and insurance and other charges associated with the homestead.
13. In paying the homestead expenses Rigg has discharged the joint liability of Trevor Baker under the deed of residence and is thereby entitled to contribution in respect of the homestead expenses.”

3 No amendment was made to these paragraphs by the further amended cross-claim filed in May 2004.

4 Par 12 of the amended cross-claim accurately summarises the provisions of cl 4 and 5 of the deed of residence, which are set out in full in par 30 of the principal judgment.

5 In par 56 of his affidavit of 5 August 2003 Mr Rigg gave evidence of payments made by him falling within cl 4 or cl 5 of the deed of residence, totally $20,353.83.

6 In par 3 of his affidavit of 26 May 2004 Mr Rigg gave evidence of further payments made by him falling within cl 4 or cl 5 of the deed of residence, totalling $3,606.69.

7 Having himself discharged these liabilities which under the deed of residence were joint liabilities of himself and Trevor Baker, Mr Rigg claims contribution as to half of the amounts paid by him. In his submissions counsel for Mr Rigg referred to Meagher, Gummow and Lehane Equity Doctrines & Remedies (4th Ed) ch 10-Contribution.

8 Mr Trevor Baker was not legally represented at the hearing and I had some concern whether he understood that, in addition to being sued by his mother, he was also being sued by Mr Rigg. On the second day of the hearing I spoke to Mr Baker in Court about the claim Mr Rigg had brought against him. Counsel for the plaintiff then offered to have his instructing solicitor speak to Mr Baker about the cross-claim which had been brought by Mr Rigg against Mr Baker. After the next adjournment I was informed by counsel for the plaintiff that his solicitor had spoken to Mr Baker during the adjournment. Mr Baker then confirmed to me that he did not wish to seek an adjournment for the purpose of obtaining legal advice and that he was not seeking legal representation. In these circumstances, I permitted the hearing including the hearing of the second cross-claim to proceed.

9 Mr Baker did not defend Mr Rigg’s claim for contribution and did not dispute any of the items of expenditure which Mr Rigg claimed he had paid.

10 In my opinion, the first cross-claim is well founded in principle and is supported by the evidence adduced by Mr Rigg and not challenged by Mr Baker. There should be a verdict on the second cross-claim for the cross-claimant Mr Rigg.

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