Skybridge Financial Pty Ltd atf the MTP Unit Trust v Buckpitt (No 2)
[2024] NSWSC 1535
•29 November 2024
Supreme Court
New South Wales
Medium Neutral Citation: Skybridge Financial Pty Ltd atf the MTP Unit Trust v Buckpitt (No 2) [2024] NSWSC 1535 Hearing dates: 29 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendants granted leave to bring cross-claim against plaintiffs
Catchwords: CIVIL PROCEDURE – pleadings – amendment – where defendants seek to bring cross-claim against plaintiffs – where there has been delay, but delay explained – where defendants could, in any event, bring separate proceedings which would inevitably be heard together with these proceedings
Cases Cited: Skybridge Financial Pty Ltd atf the MTP Unit Trust v Buckpitt [2024] NSWSC 1050
Category: Procedural rulings Parties: Skybridge Financial Pty Ltd as trustee for the MTP Unit Trust (First Plaintiff/Respondent)
Skybridge Management Pty Ltd (Second Plaintiff/Respondent)
Ronald Edward Buckpitt (First Defendant/Applicant)
Buckpitt Enterprises Pty Ltd (Second Defendant/Applicant)
Buckpitt Accounting & Tax Pty Ltd (Third Defendant/Applicant)
Jason Anthony Birch (Third Respondent)Representation: Counsel:
Solicitors:
S Lees (Plaintiffs/Respondents)
A Ogborne (Defendants/Applicants)
C G Gillis & Co Lawyers (Plaintiffs/Respondents)
Wordsworth Lawyers (Defendants/Applicants)
File Number(s): 2023/256077
EX TEMPORE JUDGMENT (REVISED)
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The background of this matter is set out in my judgment of 16 August 2024. [1] I shall use the same abbreviations here.
1. Skybridge Financial Pty Ltd atf the MTP Unit Trust v Buckpitt [2024] NSWSC 1050.
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Now, by Notice of Motion filed on 22 November 2024, Mr Buckpitt seeks to bring a cross-claim against the Skybridge parties arising out of the contract referred to in my earlier judgment, being a “Deed of Sale and Purchase” dated 1 July 2022, and also under a “Contractor Deed” made on or about the same day between many of the same parties.
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The Skybridge parties object to Mr Buckpitt and his interests bringing that cross-claim, primarily on the basis of the delay in the bringing of the application. Thus, on 27 November 2024, Skybridge’s solicitors wrote to Mr Buckpitt’s solicitors:
“[Y]our clients are now seeking leave to file the Cross Claim nearly 16 months after our clients filed and served their summons and commercial list statement on 11 August 2023 and some 10 months after your clients filed and served their Commercial List Response…”
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It is true that there has been a delay by Mr Buckpitt in bringing this application to bring a cross-claim.
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That delay is, however, explained to some extent by Mr Buckpitt’s solicitor, who has deposed that, at least as to some aspects of the proposed cross-claim, it was not until he received accounting evidence from the Skybridge parties that he felt able to conclude that there were reasonable grounds to bring the cross-claim.
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In any event, the fact is that Mr Buckpitt could bring what is proposed to be in the cross-claim as separate proceedings. Were that to happen, it is inevitable that Mr Buckpitt would, by notice of motion in the proceedings, seek an order that those new proceedings be heard together with these proceedings, and that evidence in one be evidence in the other. I think it would be antithetical to the just, quick and cheap resolution of all the issues between these parties to require Mr Buckpitt to take that step.
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Mr Lees, for the Skybridge interests, also offered a number of criticisms of the form of the proposed cross-claim. It is not necessary that I deal with them. I do not think any of them, either themselves or in combination, would justify the leave sought being refused.
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I make an order in accordance with par [1] of the second and third defendants’ Notice of Motion of 22 November 2024.
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As to costs, Mr Lees submitted that Mr Buckpitt and his interests should pay the costs of the motion, and that they should be assessed as a gross sum costs order and be payable forthwith. Mr Lees pointed to the fact that, in my judgment of 16 August 2024, I imposed those terms on his clients as a condition of them having leave to amend the Summons and List Statement.
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However, the circumstances here are quite different. The appropriate order of costs in relation to Mr Buckpitt’s Notice of Motion today is that there be no order as to costs.
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Endnote
Decision last updated: 03 December 2024
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