Tom Kerr (Subaru) Pty Ltd v Hanks - [2018] NSWSC 1871

Supreme Court

New South Wales

Medium Neutral Citation: Tom Kerr (Subaru) Pty Ltd v Hanks [2018] NSWSC 1871
Hearing dates: 2 November 2018
Date of orders: 07 December 2018
Decision date: 07 December 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Leave granted to the applicant to file the Cross Claim out-of-time. The 2018 proceedings stayed. Costs of all the motions are the parties’ costs in the cause.

Catchwords: CIVIL PROCEDURE – Cross Claim – applicant seeks to file a Cross Claim out-of-time against respondent – applicant and respondent are co-defendants in proceedings – respondent/defendant settles other proceedings with the plaintiffs – applicant/defendant not involved in settlement negotiations between respondent/defendant and plaintiffs – settlement performed – applicant subsequently commences new parallel proceedings – whether the Court should grant leave under UCPR, r 9.1 for the applicant to file the Cross Claim out-of-time – whether the new parallel proceedings should be stayed.
Legislation Cited: Civil Procedure Act 2005, ss 56-60
Uniform Civil Procedure Rules 2005, r 9.1
Cases Cited: ACCOM Finance Pty Ltd v Kowalczuk [2006] NSWSC 730
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Barnes v Addy (1874) LR 9 Ch App 244
Bridge v Coles Supermarkets Australia Pty Ltd [2017] NSWSC 848
Concrete Constructions NSW Pty Ltd v Nelson (1999) 169 CLR 594; [1990] HCA 17
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13
Fish Records Pty Ltd v Dylgolo Pty Ltd [2011] NSWSC 746
International Adviser Systems Pty Ltd v XYYX Pty Ltd & Anor (No. 3) [2008] NSWSC 430
Juul v Northey [2010] NSWCA 211
Papas v Co [2018] NSWSC 1404
Seltsam Pty Ltd v Energy Australia (1999) 17 NSWCCR 720; [1999] NSWCA 89
Category: Procedural and other rulings
Parties: Applicant: Tom Kerr (Subaru) Pty Ltd
Respondent: Matthew Gordon Hanks
Representation:
Counsel:

Applicant: C.O. Gleeson; J. Marel
Respondent: J. Knackstredt

Solicitors:
Applicant: Matthew Harding, HWL Ebsworth Lawyers
Respondent: Andrew Tiedt, Armstrong Legal

File Number(s): 2018/172216; 2016/225871
Publication restriction: No

Judgment

The point at issue in this judgment is whether the applicant can file an out-of-time Cross Claim against the respondent, who is its co-defendant in the proceedings, in circumstances where the respondent/co-defendant has settled the proceedings with the plaintiffs, and where the applicant was not involved in the settlement negotiations between the respondent/co-defendant and the plaintiffs. The Court concludes that leave to file the Cross Claim should be granted, provided certain new proceedings making identical allegations to the Cross Claim are stayed.
This interlocutory contest involves a substantial number of pleadings and other documents. But it is possible to simplify both the uncontroversial background facts and the matters in issue.

Surf Life Saving NSW, Matthew Hanks and Tom Kerr (Subaru) Pty Ltd

In 2016, Surf Life Saving NSW, a company limited by guarantee, and Surf Life Saving Services Pty Limited (collectively “Surf Life Saving”) commenced proceedings alleging fraud and other financial misconduct against the former Chief…

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: [2018] NSWSC 1871
Decision Date: 07 December 2018

CaseChat Overview and Summary

Tom Kerr (Subaru) Pty Ltd filed an application in the Supreme Court of New South Wales seeking leave to file a cross claim against Hanks out of time. The applicants and respondents were co-defendants in proceedings brought by third parties. The respondents settled the original proceedings with the plaintiffs, and the applicants were not involved in these negotiations. After the settlement, the applicants commenced new parallel proceedings. The applicants sought leave to file a cross claim against the respondents under rule 9.1 of the Uniform Civil Procedure Rules 1999 (NSW). The court had to decide whether the applicants should be granted leave to file the cross claim out of time and whether the new parallel proceedings should be stayed.

The court considered the factors relevant to determining whether leave should be granted to file a cross claim out of time. These included the length of the delay, the reason for the delay, the prejudice to the opposing party, and whether there was a sufficient explanation for the delay. The applicants argued that the delay was not significant, and there was no prejudice to the respondents. The respondents argued that the delay was substantial and that the applicants had failed to provide a sufficient explanation for the delay. The court found that the applicants had not provided a satisfactory explanation for the delay in filing the cross claim and that the delay had caused significant prejudice to the respondents. The court held that the applicants had not satisfied the requirements of rule 9.1 of the UCPR, and leave to file the cross claim out of time should not be granted.

The court also considered whether the new parallel proceedings should be stayed. The court noted that the applicants had commenced the new proceedings after the settlement of the original proceedings and that the respondents had not been involved in any way in the new proceedings. The court held that the new proceedings should be stayed to prevent an abuse of process and to avoid unnecessary duplication of proceedings. The court ordered that the new proceedings be stayed until the determination of the original proceedings. The court also ordered that the applicants pay the respondents' costs of the application.

Orders