Sharkey v Nissi (No 2) - [2016] NSWSC 1147

Supreme Court

New South Wales

Medium Neutral Citation: Sharkey v Nissi (No 2) [2016] NSWSC 1147
Hearing dates: 10 August 2016; further submissions on 23 and 24 August 2016
Date of orders: 08 November 2016
Decision date: 08 November 2016
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The notice of motion filed by the defendant/cross claimant on 16 June 2016 is dismissed.
(2) The defendant/cross claimant is ordered to pay the costs of the plaintiff and the cross defendants of the notice of motion.

Catchwords: APPLICATION – defendant/cross claimant seeks leave to amend cross claim after judgment – cross claim dismissed in judgment – ground that cross claimant had made an obvious error in framing cross claim as a claim for subrogation to a mortgage granted by the cross defendant when it should have been a claim for indemnification – cross claimant rather than cross defendant had in fact granted the mortgage – cross claimant submitted she was entitled to succeed on amended cross claim without additional evidence being required – reasons for finding in cross claimant’s favour on claim by plaintiff inconsistent with cross claimant succeeding on amended cross claim - further evidence and hearing would be necessary if leave granted – leave refused – no error by court in dismissing cross claim
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Banque Commercial SA (En Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Cavasinni v Cavasinni (No 2) [2007] NSWSC 957
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) [1998] NSWSC 578; (1998) 29 ACSR 290
Sharkey v Nissi [2015] NSWSC 1266
Vale v Sutherland (2009) 137 CLR 638; [2009] HCA 26
Category: Procedural and other rulings
Parties: Christopher James Sharkey (plaintiff/first cross defendant)
Donya Mayahi-Nissi (defendant/cross claimant)
Sharkey Family Trust Pty Ltd (ACN 122 270 286) (second cross defendant)
Representation:
Counsel: A Fernon (plaintiff)
D L Cook (defendant)
Solicitors: Swaabs (plaintiff)
Eakin McCaffery Cox (defendant)

File Number(s): 2013/383023
Publication restriction: None

Judgment

The principal hearing in this matter took place on 16 to 20 February and 9 March 2015, and delivered judgment on 2 September 2015: Sharkey v Nissi [2015] NSWSC 1266.
By notice of motion filed on 16 June 2016, Ms Nissi seeks the leave of the court to amend the cross claim that she filed on 10 March 2014, to claim new relief against Sharkey Family Trust Pty Ltd, as trustee of the Sharkey Family Trust (the Trustee).
I heard the notice of motion on 10 August 2016. I appointed 19 August 2016 as the date upon which I would deliver judgment. When the matter was called for judgment, counsel for Ms Nissi informed the court that he had come to appreciate that there was material on the court’s file relevant to the application, which neither party had brought to the attention of the court on the…

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 Sharkey v Nissi (No 2)

Details

AGLC: Sharkey v Nissi (No 2) [2016] NSWSC 1147
Case: [2016] NSWSC 1147
Decision Date: 08 November 2016

CaseChat Overview and Summary

The case of Sharkey v Nissi (No 2) involved the defendant and cross claimant, Sharkey, seeking leave to amend her cross claim following a previous judgment. The matter was heard in the Supreme Court. The initial dispute between the parties was primarily between the plaintiff, Nissi, and the defendant, Sharkey. The defendant, seeking recourse, filed a cross claim, which was dismissed in the prior judgment. Sharkey sought to amend the cross claim, arguing that she had made an error in framing it as a subrogation claim instead of an indemnification claim. The error arose because Sharkey, the cross claimant, rather than the cross defendant, had granted the mortgage in question.

The legal issues before the court were whether Sharkey could amend her cross claim after the judgment had been entered and if doing so would require additional evidence. Sharkey argued that she was entitled to succeed on the amended cross claim without needing further evidence. However, the court had to consider whether the reasons for finding in favour of the plaintiff on her claim were inconsistent with Sharkey succeeding on the amended cross claim. The court also needed to determine whether, if the amendment was allowed, further evidence and a hearing would be necessary. The court had to balance the need for procedural fairness against the potential for undue delay and prejudice to the other party.

The court found that there was no error in dismissing the cross claim. The court reasoned that the reasons for finding in favour of the plaintiff on her claim were indeed inconsistent with Sharkey succeeding on the amended cross claim. Moreover, if the amendment were granted, additional evidence and a hearing would likely be necessary, which could cause undue delay and prejudice to the plaintiff. Therefore, the court refused the application for leave to amend the cross claim, finding that no error had been made in dismissing the initial cross claim.

Orders