Sharkey v Nissi (No 2) [2016] NSWSC 1147

Supreme Court New South Wales

Medium Neutral Citation: Sharkey v Nissi (No 2) [2016] NSWSC 1147 Hearing dates: 10 August 2016; further submissions on 23 and 24 August 2016 Date of orders: 08 November 2016 Decision date: 08 November 2016 Jurisdiction: Equity Before: Robb J Decision: (1) The notice of motion filed by the defendant/cross claimant on 16 June 2016 is dismissed. (2) The defendant/cross claimant is ordered to pay the costs of the plaintiff and the cross defendants of the notice of motion. Catchwords: APPLICATION – defendant/cross claimant seeks leave to amend cross claim after judgment – cross claim dismissed in judgment – ground that cross claimant had made an obvious error in framing cross claim as a claim for subrogation to a mortgage granted by the cross defendant when it should have been a claim for indemnification – cross claimant rather than cross defendant had in fact granted the mortgage – cross claimant submitted she was entitled to succeed on amended cross claim without additional evidence being required – reasons for finding in cross claimant's favour on claim by plaintiff inconsistent with cross claimant succeeding on amended cross claim - further evidence and hearing would be necessary if leave granted – leave refused – no error by court in dismissing cross claim Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Banque Commercial SA (En Liquidation) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Cavasinni v Cavasinni (No 2) [2007] NSWSC 957 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) [1998] NSWSC 578; (1998) 29 ACSR 290 Sharkey v Nissi [2015] NSWSC 1266 Vale v Sutherland (2009) 137 CLR 638; [2009] HCA 26 Category: Procedural and other rulings Parties: Christopher James Sharkey (plaintiff/first cross defendant) Donya Mayahi-Nissi (defendant/cross claimant) Sharkey Family Trust Pty Ltd (ACN 122 270 286) (second cross defendant) Representation: Counsel: A Fernon (plaintiff) D L Cook (defendant)