Williams & Ors v Calivil Park Holsteins Pty Ltd & Ors [2009] NSWSC 31

New South Wales Supreme Court

CITATION : Williams & Ors v Calivil Park Holsteins Pty Ltd & Ors [2009] NSWSC 31

HEARING DATE(S) : 4 February 2009

JUDGMENT DATE : 12 February 2009

JUDGMENT OF : Schmidt AJ

(1) The appeal is upheld. DECISION : (2) The leave sought to file a cross claim, together with an amended defence, consistent with the terms of that cross claim is granted. That amended defence to be filed within seven days. (3) The plaintiffs are to pay the costs of the appeal and the hearing below. (4) The first defendant is to pay the plaintiffs' costs thrown away as a result of the granting of the leave.

CATCHWORDS : Appeal from decision of Associate Justice refusing leave to file cross claim - nature of appeal - error shown- operation of Civil Procedure Act 2005 - delay by first defendant not determinative - discretion to grant leave must be exercised in order to achieve the overriding purpose of Civil Procedure Act - balancing exercise required - default and delay must be considered, as well as parties' conduct otherwise in proceedings - refusing leave would not achieve the overriding purpose of Act because it would result in the real issues between parties not being put before the Court - appeal allowed - costs

LEGISLATION CITED : Civil Procedure Act 2005 Supreme Court Rules 1970

CATEGORY : Principal judgment

Ainsworth v Burden [2005] NSWCA 174 Clough and Rogers v Frog (1974) 48 ALJR 481; 4 ALR 615 Creasey's Grain Enterprises Pty Limited v Maltco Pty Limited [2006] NSWSC 531 Cropper v Smith (1884) 26 Ch 700 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 CASES CITED : Do Carmo v Ford Excavations Pty Ltd [1981]1 NSWLR 409 Kim v Lee & Ors (No 3) [2006] NSWSC 1213 Makucha v Brian Tucker & Associates Pty Ltd [2005] NSWCA 397 The State of Queensland and Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 Sali v SPC Ltd (1993) 67 ALJR 841; 116 ALR 625 State of New South Wales v Mulcahy [2006] NSWCA 303