Comin Enterprises Pty Ltd v Dayroll Pty Ltd - [2007] NSWSC 1440

CITATION: Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440

HEARING DATE(S): 4 December 2007

JUDGMENT DATE :
12 December 2007

JUDGMENT OF: Price J at 1

DECISION: (i) That Reliance Financial Services Pty Limited be removed as the second cross-claimant. (ii) That the name Patricia Cassaniti be struck out of paragraph 1 of the relief claimed in the cross-claim. (iii) That the defendant is to file and serve an amended cross-claim on or before 4pm 14 January 2008. (iv) That the defendant is to pay the plaintiff’s costs of the motion in case number 15418/05. (v) That Reliance Financial Services Pty Limited and Dayroll Pty Limited are to pay the plaintiff’s costs of the motion in case number 15415/05. (vi) That Reliance Financial Services Pty Limited and Dayroll Pty Limited are to pay the plaintiff’s costs of the motion in case number 15417/05.

CATCHWORDS: Civil Procedure - cross-claim by a non party - joinder.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Pt 9 r 9.1(1),
Pt 6 r 6.19(1),
Civil Procedure Act 2005 s 3, s 22

CASES CITED: Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496
Payne v Young (1980) 145 CLR 609

PARTIES: Comin Enterprises Pty Limited (plaintiff/first cross-defendant)
Dayroll Pty Limited (first defendant/third cross-claimant)
Sam Peter Cassaniti (second defendant/first cross-claimant)
Reliance Financial Services Pty Limited (third defendant/second cross-claimant)

FILE NUMBER(S): SC 15418/2005

COUNSEL: Mr Carnovale (Plaintiff)
Mr Allen (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

12 December 2007

15415 of 2005 Comin Enterprises Pty Limited v
Sam Peter Cassaniti & 3 others

15417 of 2005 Comin Enterprises Pty Limited v
Sam Peter Cassaniti & 3 others
15418 of 2005 Comin Enterprises Pty Limited v

JUDGMENT

1 HIS HONOUR: Before the court were three notices of motion for hearing. They are interrelated. Comin Enterprises Pty Limited is the plaintiff in each proceeding. At the outset of the hearing, Mr Allen of counsel who appears for Reliance Financial Services Pty Limited (Reliance) and Dayroll Pty Limited (Dayroll) informed the court that orders removing Reliance and Dayroll as defendants and striking out the cross-claims as regards Reliance and Dayroll were consented to in case numbers 15415/05 and 15417/05. These orders have been made. Orders for costs in favour of the plaintiff in each motion were, however, resisted. Before dealing with the question of costs I propose to consider the motion in number 15418/05 in which case there is no agreement that the cross-claim is to be struck out.

The motion in case no 15418 of 2005

2 By a notice of motion filed 15 March 2007 the plaintiff and the first, second, third, fifth, seventh, eight, ninth, tenth, eleventh and twelfth cross-defendants seek orders that:

Reliance Financial Services Pty Limited) be removed as parties to the proceedings.

2. An order that the cross-claim filed on 27 February 2007 be struck out.

3 In…

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: [2007] NSWSC 1440
Decision Date: 12 December 2007

CaseChat Overview and Summary

In the case of Comin Enterprises Pty Ltd versus Dayroll Pty Ltd, the parties were engaged in a dispute involving the enforcement of a contract and related claims. The proceedings were heard in the Supreme Court of New South Wales. The plaintiff, Comin Enterprises, sought to enforce a contract against the defendant, Dayroll Pty Ltd, and claimed damages for breach of contract. However, Comin Enterprises also sought to include a third party, who was not originally a party to the proceedings, by way of a cross-claim. The third party was alleged to have played a significant role in the alleged breach of contract, and Comin Enterprises argued that this party should be joined to the proceedings to ensure a complete resolution of the issues.

The central legal issue before the court was whether the non-party could be joined to the proceedings and, if so, under what conditions. Comin Enterprises argued that the non-party's involvement was integral to the dispute and that a complete resolution of the claims could not be achieved without their inclusion. Dayroll Pty Ltd opposed the joinder, asserting that the court lacked the jurisdiction to join a non-party to the proceedings and that the proper course of action would have been for Comin Enterprises to initiate a separate proceeding against the non-party. The court had to determine whether the provisions of the Uniform Civil Procedure Rules allowed for the joinder of a non-party in these circumstances and, if so, what criteria should be applied in deciding whether to grant the joinder.

The court found that while the Uniform Civil Procedure Rules do provide for the joinder of additional parties under certain circumstances, they do not explicitly allow for the joinder of a non-party. The court held that the inclusion of a non-party would require an amendment to the Rules, which was not permissible in the absence of legislative action. The court also considered the practical implications of joining a non-party, including the potential for increased complexity and delay in the proceedings. Ultimately, the court ruled that the non-party could not be joined to the proceedings, and Comin Enterprises was required to pursue their claims against the non-party in a separate proceeding. This decision highlights the importance of carefully considering the scope of the claims and the parties involved in a dispute before initiating legal proceedings.

Orders