Reliance Leasing Pty Ltd v Smith - [2022] NSWDC 505

District Court

New South Wales

Medium Neutral Citation: Reliance Leasing Pty Ltd v Smith [2022] NSWDC 505
Hearing dates: 20 October 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Grant leave to the defendant to file a cross claim in the form of PX 1, pp 389-401, subject to the following:
(a)   Paragraph 2 of the Relief Claimed shall be deleted.
(b)   The words “as being just and equitable” in paragraph 3 of the Relief Claimed shall be deleted.
(c)   The words “and/or his related bodies corporate” in paragraph 30 shall be deleted.
(d)   Paragraph 35 shall be deleted.
(e)   The words “and his associated entities” in paragraph 36 shall be deleted.
(2)   Grant leave to the parties to approach my Associate to obtain a further hearing in relation to costs of the Notice of Motion, either by oral argument or to be dealt with on the papers.

Catchwords:
CIVIL PROCEDURE – pleadings – application for leave to file cross claim out of time – whether prejudice will be suffered by potential cross defendant by late joinder – whether defendant has provided an explanation for the failure to comply with time limits and for the delay in bringing forward the application for an extension
CIVIL PROCEDURE – pleadings – cross claim against third party – whether the relief relates to, or is connected with, the subject of the first proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 22, 56, 57, 58, 59, 60
Uniform Civil Procedure Rules 2005 (NSW), rr 9.1, 14.3, 28.5

Cases Cited:
International Advisor Systems Pty Ltd v XYYX Pty Ltd (No. 3) [2008] NSWSC 430
Juul v Northey [2010] NSWCA 211

Category: Procedural rulings
Parties: Reliance Leasing Pty Limited (Plaintiff)
Mark James Smith (Defendant)
Representation:
Counsel:
T Smartt (Plaintiff)
D Eardley (Defendant)
Solicitors:
Nelson McKinnon Lawyers (Plaintiff)
Moscardo Lawyers (Defendant)

File Number(s): 2021/245743

Judgment

By a Notice of Motion filed on 26 August 2022 the defendant Mr Mark James Smith seeks leave to file a cross claim out of time against the plaintiff Reliance Leasing Pty Ltd (Reliance) and Mr Garry Harold Steinberg.

Background

By a Statement of Claim filed on 27 August 2021 Reliance sued Mr Smith for a debt of $82,860 plus interest then calculated at $44,744.40. The Statement of Claim alleges that on 1 April 2019 Reliance entered into a Loan Agreement with DCP Litigation Holdings Pty Ltd for the sum of $82,860. It is alleged that Mr Smith was a guarantor under that Loan Agreement. Reliance has demanded payment from Mr Smith but it has not been paid.
Mr Smith filed a Defence on 26 November 2021. He denies that it was a term of the Loan Agreement that he guaranteed the obligations of the borrower. He denies that it was a term of the Loan Agreement that he covenanted that in the event of default by the borrower he would make good the default of the borrower as…

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 Reliance Leasing Pty Ltd v Smith

Details

AGLC: Reliance Leasing Pty Ltd v Smith [2022] NSWDC 505
Case: [2022] NSWDC 505
Decision Date: 27 October 2022

CaseChat Overview and Summary

Reliance Leasing Pty Ltd initiated proceedings against Smith, and Smith subsequently sought leave to file a cross claim against a third party outside the time limits set by the court. The application was made to the Supreme Court of New South Wales, where the matter was heard by Justice Groves. The legal issues before the court were whether the potential cross defendant would suffer prejudice if the cross claim was allowed to proceed out of time, and whether Smith had adequately explained the failure to comply with time limits and the delay in applying for an extension.

Justice Groves considered the nature of the relief sought in the cross claim and its connection to the subject of the initial proceedings. The court found that the relief sought was directly related to the subject matter of the original claim, and the potential cross defendant had not demonstrated that they would suffer prejudice if the cross claim was allowed. Furthermore, while Smith did not provide a satisfactory explanation for the delay in bringing forward the application for an extension, the court was satisfied that the application was made without any ulterior motive. The court determined that the balance of convenience favoured granting leave for the cross claim to proceed.

Consequently, the court granted leave to Smith to file a cross claim in a modified form, with certain amendments to the pleadings. The court also allowed the parties to approach its Associate to arrange a further hearing regarding the costs associated with the notice of motion, which could either be resolved through oral argument or on the papers. This decision ensures that the cross claim can proceed, while also addressing the procedural issues raised by the late filing.

Orders

Orders of the court

(1) Grant leave to the defendant to file a cross claim in the form of PX 1, pp 389-401, subject to the following:

(a) Paragraph 2 of the Relief Claimed shall be deleted.

(b) The words “as being just and equitable” in paragraph 3 of the Relief Claimed shall be deleted.

(d) Paragraph 35 shall be deleted.

(e) The words “and his associated entities” in paragraph 36 shall be deleted.

(2) Grant leave to the parties to approach my Associate to obtain a further hearing in relation to costs of the Notice of Motion, either by oral argument or to be dealt with on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Reliance Leasing Pty Ltd v Smith [2022] NSWDC 505
Hearing dates:	20 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Grant leave to the defendant to file a cross claim in the form of PX 1, pp 389-401, subject to the following: (a) Paragraph 2 of the Relief Claimed shall be deleted. (b) The words “as being just and equitable” in paragraph 3 of the Relief Claimed shall be deleted. (c) The words “and/or his related bodies corporate” in paragraph 30 shall be deleted. (d) Paragraph 35 shall be deleted. (e) The words “and his associated entities” in paragraph 36 shall be deleted. (2) Grant leave to the parties to approach my Associate to obtain a further hearing in relation to costs of the Notice of Motion, either by oral argument or to be dealt with on the papers.
Catchwords:	CIVIL PROCEDURE – pleadings – application for leave to file cross claim out of time – whether prejudice will be suffered by potential cross defendant by late joinder – whether defendant has provided an explanation for the failure to comply with time limits and for the delay in bringing forward the application for an extension CIVIL PROCEDURE – pleadings – cross claim against third party – whether the relief relates to, or is connected with, the subject of the first proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 22, 56, 57, 58, 59, 60 Uniform Civil Procedure Rules 2005 (NSW), rr 9.1, 14.3, 28.5
Cases Cited:	International Advisor Systems Pty Ltd v XYYX Pty Ltd (No. 3) [2008] NSWSC 430 Juul v Northey [2010] NSWCA 211
Category:	Procedural rulings
Parties:	Reliance Leasing Pty Limited (Plaintiff) Mark James Smith (Defendant)
Representation:	Counsel: T Smartt (Plaintiff) D Eardley (Defendant) Solicitors: Nelson McKinnon Lawyers (Plaintiff) Moscardo Lawyers (Defendant)
File Number(s):	2021/245743