May v Cutler Hughes and Harris; May v Brahmbhatt

The applicants, May, sought leave to appeal an interlocutory decision of the primary judge who had struck out their cross-claim against the first respondents, Cutler Hughes and Harris, and the second respondent, Brahmbhatt. The primary judge found that the cross-claim had not been properly pleaded.

The central legal issue before the Court of Appeal was whether the primary judge erred in striking out the cross-claim, and consequently, whether leave to appeal should be granted. The Court was required to consider the adequacy of the pleading of the cross-claim and the implications of its being struck out.

The Court of Appeal, comprising Sackville AJA and Tobias AJA, dismissed the application for leave to appeal. Their Honours reasoned that the primary judge's decision to strike out the cross-claim was sound, as it was not properly pleaded. Crucially, the Court noted that the applicant was not prevented from filing a fresh, properly formulated cross-claim, meaning the strike-out did not create an insurmountable barrier to pursuing their claim.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the first respondents' costs of the application.