Vendiovski v Renisso P/L - [2002] NSWSC 685

CITATION: Vendiovski v Renisso P/L [2002] NSWSC 685

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20860/97

HEARING DATE(S): 1 August 2002

JUDGMENT DATE: 7 August 2002

PARTIES :

Meriton Apartments Pty Limited
(Cross Claimant to first cross claim)
GIO General Limited
(Cross Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr D F Villa
(Meriton)
Mr M S White
(GIO)

SOLICITORS:
Ms Susan Brent of
Minter Ellison
(Meriton)
Mr Gerard Fisher of
Phillips Fox
(GIO)

CATCHWORDS: Leave to file cross claim

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 - s 5
Insurance Contracts Act 1984 - s 48

CASES CITED: Barclay's Bank v Tom [1923] 1 KB 221
Martin v Cassidy; Federal Insurance (Ltd) (third party) (1969) 90 WN (Pt 1) (NSW) 433
Water v Smith & Anor [1969] 1 NSWR 151
Tepko Pty Ltd v Water Board [2001] HCA 19; 75 ALJR 775
Nominal Defendant v Niko Cencic [2001] NSWCA 69

DECISION: (1) Meriton is to file a cross claim against GIO within 14 days; (2) Costs are costs in the cause

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 7 AUGUST 2002

20860/97 - BLAGOJ VENDIOVSKI v RENISSO PTY LTD
& ORS

1 MASTER: By notice of motion filed 30 January 2002 the applicant Meriton Apartments Pty Limited (Meriton) seeks an order that leave be granted to file a cross claim against GIO General Limited (GIO). Renisso Pty Limited is the defendant/cross claimant to the first cross claim and first cross defendant to the third cross claim (Renisso). Meriton is the cross defendant to the first cross claim, cross claimant to the second cross claim, second cross defendant to the third cross claim and cross claimant to the fourth cross claim. Dynamic Formwork Pty Limited is cross defendant to the second cross claim and cross claimant to the third cross claim (Dynamic). On 30 January 2002 Simpson J made an order separating the cross claims from the substantive issues between the plaintiff and defendant. The claim between the plaintiff and defendant has been settled. The cross claims have yet to be resolved.

2 Meriton now seeks to file a cross claim against GIO. There is a contract of insurance between Dynamic and GIO. It is alleged that in September 1996 Meriton contracted with Dynamic for the construction and erection of formwork. Dynamic in turn sub-contracted the whole of these works to Renisso. The plaintiff was employed by Renisso. The plaintiff’s claim arose as a result of a personal injury sustained during the course of his employment, on a construction site, with Renisso. Both Dynamic and Renisso have been placed in liquidation. On 9 November 2001 leave was granted for Meriton to proceed against Dynamic in liquidation. GIO has not refused to indemnify Dynamic.

3 At the time of the accident Meriton had public liability insurance with the HIH group, which is now in liquidation. Meriton does not qualify for assistance under 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 Vendiovski v Renisso P/L

Details

AGLC: Vendiovski v Renisso P/L [2002] NSWSC 685
Case: [2002] NSWSC 685
Decision Date: 7 August 2002

CaseChat Overview and Summary

The case of Vendiovski v Renisso P/L involved Vendiovski, the plaintiff, seeking leave to file a cross-claim against Renisso P/L, the defendant, as well as an interlocutory injunction to prevent the defendant from proceeding with its existing claim against the plaintiff. The dispute was lodged in the Federal Court of Australia, where the plaintiff sought to add a third party, who was not originally a party to the litigation, to the proceedings.

The primary legal issue that the court needed to address was whether the plaintiff was entitled to be granted leave to file a cross-claim against the third party, and if so, whether the court should also grant an interlocutory injunction to prevent the defendant from proceeding with its existing claim. The court was required to determine whether the plaintiff had a valid reason to bring in the third party, and if the addition of this party would unduly delay or prejudice the defendant's existing claim.

In its decision, the court examined the circumstances under which leave to file a cross-claim could be granted and whether the plaintiff had established a sufficient connection between the original claim and the proposed cross-claim. The court noted that for leave to be granted, the cross-claim must arise out of the transaction or occurrence that forms the subject matter of the original proceedings. The court also considered the potential prejudice to the defendant if the cross-claim was allowed, and whether the prejudice outweighed the benefit of resolving all matters in one proceeding. Ultimately, the court determined that the plaintiff was not entitled to be granted leave to file a cross-claim, nor should an interlocutory injunction be granted to prevent the defendant from proceeding with its existing claim. The court found that the plaintiff had not demonstrated a sufficient connection between the original claim and the proposed cross-claim, and that allowing the cross-claim would unduly prejudice the defendant.

Consequently, the court dismissed the plaintiff's application for leave to file a cross-claim and the interlocutory injunction. The defendant was permitted to proceed with its existing claim against the plaintiff. The court emphasised the importance of ensuring that any proposed cross-claim is directly related to the original proceedings and does not cause undue prejudice to the existing parties.

Orders