Permanent Mortgages Pty Ltd v Sibylle MacFadyen - [2010] NSWSC 1053

CITATION: Permanent Mortgages Pty Ltd v Sibylle MacFadyen [2010] NSWSC 1053

HEARING DATE(S): 8 September 2010

JUDGMENT DATE :
16 September 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The defendant’s notice of motion filed 2 December 2009 is dismissed.
(2) The first and second cross claims filed 2 December 2009 are struck out.
(3) The cross claimant is to pay the cross defendants’ costs as agreed or assessed.

CATCHWORDS: Leave to file cross claims

LEGISLATION CITED: Civil Procedure Act 2005
Contracts Review Act 1980
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440
State Bank of NSW Ltd v White & Anor [1999] NSWSC 887

PARTIES: Permanent Mortgages Pty Limited (Plaintiff)
Sibylle Ulrike MacFadyen (Defendant)
La Trobe Financial Services Pty Limited (First Cross Defendant)
Harry Foteades Legal Pty Ltd (Second Cross Defendant)

FILE NUMBER(S): SC 2008/289028

COUNSEL: R Lewin (Plaintiff & First Cross Defendant)
B McManus (Second Cross Defendant)

SOLICITORS: Kell The Lawyers (Plaintiff & First Cross Defendant)
Colin Biggers & Paisley (Second Cross Defendant)
S MacFadyen (Defendant in Person)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 16 SEPTEMBER 2010

2008/289028 PERMANENT MORTGAGES PTY LIMITED v SIBYLLE ULRIKE MACFADYEN
JUDGMENT (Leave to file cross claims)

1 HER HONOUR: By notice of motion filed 2 December 2009 the defendant seeks orders that she have the leave of the court to serve first and second cross claims on the cross defendants, and an order to join the first and second cross defendants to the proceedings.

2 The plaintiff is Permanent Mortgages Pty Limited (“Permanent Mortgages”). The defendant is Sibylle Ulrike MacFadyen (“Ms MacFadyen”). Ms MacFadyen is the sole director of Amadeus Building & Design Pty Ltd (“Amadeus”). The cross defendant to the first cross claim is La Trobe Financial Services Pty Limited. The cross defendant to the second cross claim is Harry Foteades Legal Pty Ltd. Amadeus is not a party to the proceedings. A controller has been appointed to Amadeus (Ex R2/1).

3 Ms MacFadyen relied on her affidavit sworn 11 March 2010. The proposed cross defendant to the first cross claim relied on the affidavit of Richard Lewin sworn 16 December 2009. The proposed cross defendant to the second cross claim relied on two affidavits of Harry Foteades sworn 13 May 2010 and 30 June 2010. Mr Foteades is a solicitor who practices as Harry Foteades Legal Pty Ltd. Ms MacFadyen appeared without the benefit of legal representation.

Background

4 La Trobe had at all times acted as mortgage manager for loans made by nominated credit providers with the La Trobe Group of companies. One of the nominated credit providers is Permanent Mortgages.

5 Ms MacFadyen says that she applied to Permanent Mortgages through its intermediary La Trobe Financial, for loan finance for the purpose of enabling Amadeus to undertake the development and sale of four strata title units at Fassifern, NSW (“Fassifern units”).…

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: [2010] NSWSC 1053
Decision Date: 16 September 2010

CaseChat Overview and Summary

The parties involved in this case were Permanent Mortgages Pty Ltd and Sibylle MacFadyen. The dispute revolved around the filing of cross claims in an ongoing legal matter. The case was heard in the Supreme Court of New South Wales. The court was tasked with deciding whether Sibylle MacFadyen should be granted leave to file cross claims against additional parties, who were not initially named in the proceedings, to address specific legal issues that had arisen during the course of the litigation.

The central legal issue was whether Sibylle MacFadyen's application for leave to file cross claims was justified under the circumstances. The court needed to assess whether the additional parties had a significant interest in the matter and whether the claims were necessary to achieve a complete and just resolution of the issues at hand. The court also had to consider the potential prejudice to other parties if the cross claims were to be allowed.

The court found that Sibylle MacFadyen's application for leave to file cross claims was justified. The additional parties had a substantial interest in the matter, and their inclusion was necessary to ensure a fair and complete resolution of the issues. The court concluded that the potential prejudice to other parties was not insurmountable and could be managed through appropriate procedural measures. Consequently, the court granted Sibylle MacFadyen leave to file the cross claims against the additional parties.

Orders