Pakefx Pty Ltd v Dickson (No. 2) - [2015] NSWSC 1152

Supreme Court

New South Wales

Medium Neutral Citation: Pakefx Pty Ltd v Dickson (No. 2) [2015] NSWSC 1152
Hearing dates: 7 August 2015
Decision date: 07 August 2015
Jurisdiction: Equity Division
Before: White J
Decision:
Order that the first defendant’s notice of motion filed on 1 July 2015 be dismissed with costs.

Catchwords: PRACTICE AND PROCEDURE – application for leave to file cross-claim out of time – proposed cross-claim seeks relief against the plaintiff’s solicitors – application made almost three years after proceeding commenced – no satisfactory explanation given for the delay – at least two of the three proposed sets of claims are of dubious merit – further delays and expense would likely arise if leave were granted – application dismissed with costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Pakefx Pty Ltd v David F Dickson [2014] NSWSC 1424
Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 3) [2011] FCA 912
Category: Procedural and other rulings
Parties: Pakefx Pty Ltd (Plaintiff)
David Frank Dickson (1st Defendant)
Villa 33 Pty Ltd (2nd Defendant)
Representation:
Counsel:
M Condon SC (Plaintiff)
J Glissan QC with L A Walsh (Defendants)
Solicitors:
Somerset Ryckmans (Plaintiff)
Doyles Construction Lawyers (Defendants)

File Number(s): 2012/261506

Judgment

HIS HONOUR: By notice of motion filed on 1 July 2015 the first defendant seeks leave to file a proposed cross-claim. The application is opposed on the grounds of delay, prejudice, and lack of apparent merit of the cross-claim.
It is, unfortunately, necessary to say something about the lengthy history of the proceedings. The proceedings were commenced by statement of claim filed on 14 August 2012; that is, almost three years ago. Rule 9.1(a) of the Uniform Civil Procedure Rules 2005 provides that a party may file a cross-claim within the time limit for it to file a defence or such further time as the Court might allow. The time prescribed by r 14.3 for the filing of a defence was twenty-eight days after service of the statement of claim or such further time as the Court might allow. Thus, prima facie, times were vastly exceeded in this case.
The slow progress was due to a number of factors, including the defendants’ making an application for security for costs, which was attended by its own additional interlocutory disputes. It was also in large part due to extensive correspondence between the parties’ solicitors as to the adequacy of the plaintiff’s statement of claim, which underwent a number of amendments, with associated excessive requests for particulars. There were also delays, particularly by the plaintiff, in the service of evidence.
The defendants’ application for security for costs was filed on 24 September 2012. On 26 September 2012 the Registrar ordered that the defendants’ defence and any cross-claim were to be filed within fourteen days following determination of the motion for security for costs. That motion was determined on 24 May 2013. The plaintiff was ordered to pay $60,000 by way of…

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.

Continue reading Pakefx Pty Ltd v Dickson (No. 2)

Details

AGLC: Pakefx Pty Ltd v Dickson (No. 2) [2015] NSWSC 1152
Case: [2015] NSWSC 1152
Decision Date: 07 August 2015

CaseChat Overview and Summary

The matter before the court involved an application by Pakefx Pty Ltd for leave to file a cross-claim outside the prescribed time. The applicant sought to bring a cross-claim against the plaintiff's solicitors, almost three years after the original proceedings had commenced. The application was made without a satisfactory explanation for the significant delay in filing the cross-claim. The proposed cross-claim included claims against the plaintiff's solicitors, which were considered dubious in at least two of the three sets of claims. The court was required to determine whether the applicant should be granted leave to file the cross-claim despite the delay and the questionable merit of the claims.

The court considered the factors relevant to granting leave to file a cross-claim out of time, including the explanation for the delay, the merits of the proposed claims, and the potential for further delay and expense if the application were to be granted. The applicant provided no satisfactory explanation for the delay, and the court found that at least two of the proposed sets of claims were of dubious merit. The court concluded that granting leave would likely result in further delays and expense, which was not in the interests of justice. The court found that the application should be dismissed with costs, reflecting the need to uphold the integrity of the court process and discourage unnecessary delays.

The court's reasoning was based on the principle that the court has discretion to grant leave to file a cross-claim outside the prescribed time, but this discretion should be exercised judiciously. The court found that the applicant had not provided a satisfactory explanation for the delay, and the proposed claims were of dubious merit. The court concluded that granting leave would likely result in further delays and expense, which was not in the interests of justice. The court dismissed the application with costs, reflecting the need to uphold the integrity of the court process and discourage unnecessary delays.

The final orders of the court were that the application for leave to file a cross-claim out of time was dismissed with costs. The court found that the application should be dismissed due to the lack of a satisfactory explanation for the delay, the dubious merit of at least two of the proposed sets of claims, and the potential for further delays and expense if the application were to be granted. The costs were awarded against the applicant, reflecting the need to uphold the integrity of the court process and discourage unnecessary delays.

Orders