COCKBURN v GIO FINANCE LIMITED [1997] NSWCA 66

COCKBURN v GIO FINANCE LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, BEAZLEY JA and GILES AJA 18 March, 19 June 1997 [1997] NSWCA 66

AMENDMENT — APPEAL PREVIOUSLY ALLOWED IN PART, DISMISSED IN PART — EFFECT OF RESULTING ORDERS — WHETHER AMENDMENT TO PURSUE NEW CROSS-CLAIM OR LEFT TO FRESH PROCEEDINGS — PROCEDURALLY SIMPLER IF THE LATTER.

Priestley JA, Beazley JA and Giles AJA. Judgment in this appeal was delivered on 2 February 1996. Orders that were then made left it open to GIO to try to persuade the court, if after reading the reasons for judgment GIO wished to make the attempt, to consider whether GIO had some basis for relief against Colemans, other than the basis which had been litigated, which should be allowed to be litigated in the present proceedings. GIO subsequently applied to the court for directions as to how such claim (against Colemans for indemnity or contribution) should be litigated.

GIO's request was dealt with in a number of directions hearings before Priestley JA, the result of which is summarised in directions made, for which reasons were given, on 20 December 1996.

Pursuant to those directions the court sat as presently constituted by agreement of the parties.

The first question before the court was whether the court would permit GIO to litigate its indemnity/contribution claim in the present proceedings. If the court were in GIO's favour on that point, other questions would arise.

In the course of the directions hearings before Priestley JA the position had been reached where it seemed that GIO could only proceed with its claim if the court permitted GIO to file a further pleading additional to what had been contained in the pleadings as they were before Cohen J and the Court of Appeal during the hearing of the appeal, in which the claim which GIO was contending was previously unlitigated, was clearly stated.