Reece Pty Ltd v Jones & Jones Master Plumbers Pty Ltd - [2012] NSWDC 98

District Court

New South Wales

Medium Neutral Citation: Reece Pty Ltd v Jones & Jones Master Plumbers Pty Ltd [2012] NSWDC 98
Hearing dates: 21 June 2012
Decision date: 25 June 2012
Before: Gibson DCJ
Decision:
(1) Third cross-defendant's application to sever the cross-claimant's claim against it from these proceedings and heard separately is dismissed.
(2) Third cross-defendant pay the first defendant/cross-claimant's costs of this Notice of Motion.
(3) Third cross-defendant's Notice of Motion for summary judgment is stood over for further directions on 6 September 2012 in the Case Managed List.

Catchwords: PRACTICE AND PROCEDURE - motion for separate trial of proceedings by one cross-defendant against the cross-claimant - application dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57 and 58
District Court Act 1973 (NSW), s 46
Insurance Contracts Act 1984 (Cth), ss 13, 14 and 54
Sale of Goods Act 1923 (NSW)
Trade Practices Act 1974 (Cth), ss 51A, 52 and 74G(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 6.22 and 6.29
Cases Cited: AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
ASIC v Axis International Management Pty Ltd [2009] FCA 250
Beneficial Finance Corporation v Price Waterhouse (1996) 68 SASR 19
Bi v Mourad [2010] NSWCA 17
Bishop v Bridgelands Securities (1990) 25 FCR 311
Carter v Commissioner of Taxation (2001) 109 FCR 215
D G Madin Ltd v Gordon [1964] SASR 64
Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64
Fitzgerald v Parramatta Leagues Club Ltd [2010] NSWSC 1126
GPI Leisure Corp Ltd v Yuill (Supreme Court of New South Wales, Young J, 6 August 1997)
Hyder Consulting (Victoria) Pty Ltd v CGU Insurance Ltd [2001] VSC 449
Idoport Pty Ltd v National Australia Bank Ltd (No 15) [2000] NSWSC 1215
Mann v Board of Health (ACT) (1996) 67 FCR 383
Martin v Cassidy (1969) 90 WN (Pt 1) (NSW) 433
McCarthy v St Paul International Insurance Co Ltd (2007) 157 FCR 402
Owners SP 75903 v Dix [2011] NSWSC 245
Ramsay v Schiller [2012] NSWSC 596
Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438; [2011] FCAFC 69
Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66
Waters v Smith [1969] 1 NSWR 151
Wood v Cross Television Centre Pty Ltd [1962] NSWR 528
Texts Cited: Ritchies Uniform Civil Procedure NSW
Category: Procedural and other rulings
Parties: Cross-Claimant: Jones & Jones Master Plumbers Pty Ltd (ACN 096 654 581)Third Cross-Defendant: Wesfarmers General Insurance Ltd (ABN 24 000 036 279)
Representation: Cross-Claimant: Mr C P Carter / Mr S LippThird Cross-Defendant: Mr M Sealey
Cross-Claimant: Doyles Construction LawyersThird Cross-Defendant: Sparke Helmore Lawyers

File Number(s): 2011/247763
Publication restriction: None

Judgment

The third cross-defendant (Wesfarmers General Insurance Ltd, hereafter "Wesfarmers") by notice of motion filed 4 May 2012 sought orders as follows:

(a) The cross-claim brought by the first defendant/cross-claimant (Jones & Jones Master Plumbers…

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: [2012] NSWDC 98
Decision Date: 25 June 2012

CaseChat Overview and Summary

Reece Pty Ltd brought an action against Jones & Jones Master Plumbers Pty Ltd, with multiple parties involved as cross-defendants and cross-claimants. The third cross-defendant sought to sever the cross-claimant's claim against it from the proceedings and have it heard separately. This application was dismissed by the court, which also ordered the third cross-defendant to pay the costs of the motion to the first defendant, who was also the cross-claimant.

The legal issues before the court included the appropriate exercise of discretion to sever the claim, the potential for prejudice to the parties, and the efficiency of the overall proceedings. The court had to determine whether the third cross-defendant's application was in the interests of justice and whether there were any grounds to warrant a separate trial.

The court found that the application was not in the interests of justice, as the cross-claimant's claim against the third cross-defendant was inextricably linked to the main proceedings. The court held that severing the claim would cause significant inconvenience and prejudice to the cross-claimant and potentially disrupt the efficient administration of justice. The court further determined that the third cross-defendant's application for summary judgment would be stood over for further directions, indicating that the substantive issues would still need to be addressed in the context of the overall proceedings.

Orders

Orders of the court

(1) Third cross-defendant's application to sever the cross-claimant's claim against it from these proceedings and heard separately is dismissed.

(2) Third cross-defendant pay the first defendant/cross-claimant's costs of this Notice of Motion.

(3) Third cross-defendant's Notice of Motion for summary judgment is stood over for further directions on 6 September 2012 in the Case Managed List.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Reece Pty Ltd v Jones & Jones Master Plumbers Pty Ltd [2012] NSWDC 98
Hearing dates:	21 June 2012
Decision date:	25 June 2012
Before:	Gibson DCJ
Decision:	(1) Third cross-defendant's application to sever the cross-claimant's claim against it from these proceedings and heard separately is dismissed. (2) Third cross-defendant pay the first defendant/cross-claimant's costs of this Notice of Motion. (3) Third cross-defendant's Notice of Motion for summary judgment is stood over for further directions on 6 September 2012 in the Case Managed List.
Catchwords:	PRACTICE AND PROCEDURE - motion for separate trial of proceedings by one cross-defendant against the cross-claimant - application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57 and 58 District Court Act 1973 (NSW), s 46 Insurance Contracts Act 1984 (Cth), ss 13, 14 and 54 Sale of Goods Act 1923 (NSW) Trade Practices Act 1974 (Cth), ss 51A, 52 and 74G(1) Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 6.22 and 6.29
Cases Cited:	AMP Fire & General Insurance Co Ltd v Dixon [1982] VR 833 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ASIC v Axis International Management Pty Ltd [2009] FCA 250 Beneficial Finance Corporation v Price Waterhouse (1996) 68 SASR 19 Bi v Mourad [2010] NSWCA 17 Bishop v Bridgelands Securities (1990) 25 FCR 311 Carter v Commissioner of Taxation (2001) 109 FCR 215 D G Madin Ltd v Gordon [1964] SASR 64 Dean-Willcocks v Air Transit International Pty Ltd (2002) 55 NSWLR 64 Fitzgerald v Parramatta Leagues Club Ltd [2010] NSWSC 1126 GPI Leisure Corp Ltd v Yuill (Supreme Court of New South Wales, Young J, 6 August 1997) Hyder Consulting (Victoria) Pty Ltd v CGU Insurance Ltd [2001] VSC 449 Idoport Pty Ltd v National Australia Bank Ltd (No 15) [2000] NSWSC 1215 Mann v Board of Health (ACT) (1996) 67 FCR 383 Martin v Cassidy (1969) 90 WN (Pt 1) (NSW) 433 McCarthy v St Paul International Insurance Co Ltd (2007) 157 FCR 402 Owners SP 75903 v Dix [2011] NSWSC 245 Ramsay v Schiller [2012] NSWSC 596 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438; [2011] FCAFC 69 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66 Waters v Smith [1969] 1 NSWR 151 Wood v Cross Television Centre Pty Ltd [1962] NSWR 528
Texts Cited:	Ritchies Uniform Civil Procedure NSW
Category:	Procedural and other rulings
Parties:	Cross-Claimant: Jones & Jones Master Plumbers Pty Ltd (ACN 096 654 581)Third Cross-Defendant: Wesfarmers General Insurance Ltd (ABN 24 000 036 279)
Representation:	Cross-Claimant: Mr C P Carter / Mr S LippThird Cross-Defendant: Mr M Sealey Cross-Claimant: Doyles Construction LawyersThird Cross-Defendant: Sparke Helmore Lawyers
File Number(s):	2011/247763
Publication restriction:	None