Sharkey v Nissi (No 2)

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.