Nissan Financial Services Australia Pty Ltd v Motbey [2021] NSWSC 884

Supreme Court New South Wales

Medium Neutral Citation: Nissan Financial Services Australia Pty Ltd v Motbey [2021] NSWSC 884 Hearing dates: 21 July 2021 Date of orders: 21 July 2021 Decision date: 27 July 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave to the third defendant to file the proposed cross-claim annexed to the notice of motion of 9 July 2021 such amended cross-claim to be filed and served by 23 July 2021. 2. The third defendant to pay the costs of the notice of motion and costs thrown away by reason of the filing of the cross-claim. Catchwords: CIVIL PROCEDURE — cross-claims — against plaintiff — application for leave to file cross-claim out of time by third defendant — where consent not given by plaintiff to the filing — where Court satisfied that explanation for delay in preparing cross-claim provided — delay due to unavailability of documents and impecuniosity of third defendant — where proceedings did not stall completely during period of defendant's failure to comply with directions — prejudice to plaintiff was only for relatively short period — where sufficient nexus between issues on plaintiff's claim and issues raised by cross-claim — leave given to file cross-claim Legislation Cited: Civil Procedure Act 2005 (NSW) s 58 Contracts Review Act 1980 (NSW) s 7 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Texts Cited: Nil Category: Procedural rulings Parties: Nissan Financial Services Australia Pty Ltd (Plaintiff) Robert Reginald Motbey (First Defendant) Rebecca Jane Motbey (Second Defendant) Debbie Lorraine Motbey (Third Defendant) Jennifer Chappell (Fourth Defendant) Representation: Counsel: D Farrar (Plaintiff) Excused from appearing (First and Second Defendants) N Allan (Third and Fourth Defendants)