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

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

Leave to amend Ms Nissi’s cross claim to seek an indemnity was refused because the case was not fought on an indemnity basis, the claim as originally pleaded was misconceived, amendment would necessitate further evidence and hearing, and granting leave would be inconsistent with the basis for findings against Ms Nissi. Further, the potential benefit of amendment was too small compared to the prejudice, delay and expense that would be caused to the other parties.

Parties
Plaintiff/first Cross Defendant: Christopher James Sharkey; Defendant/cross Claimant: Donya Mayahi-Nissi; Second Cross Defendant: Sharkey Family Trust Pty Ltd (ACN 122 270 286)
Jurisdiction
Australia
Judgment Date
08 November 2016
Procedural Posture
Application (notice of Motion) / Post Judgment Application to Amend Cross Claim
Outcome
Application by defendant/cross claimant to amend cross claim after judgment dismissed; costs ordered against applicant.
Legal Topics
Amendment of Pleadings, Leave to Amend Cross Claim After Judgment, Indemnity, Subrogation, Costs
Equity Civil Procedure Amendment of Pleadings Leave to Amend Cross Claim After Judgment Indemnity Subrogation Costs

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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

Procedural Posture

Application (notice of Motion) / Post Judgment Application to Amend Cross Claim

Legal Issues

  1. 1 Whether defendant/cross claimant Donya Mayahi-Nissi should be granted leave to amend her cross claim against the Trustee to plead a claim for indemnity instead of subrogation after judgment has been delivered

Ratio Decidendi

Leave to amend Ms Nissi’s cross claim to seek an indemnity was refused because the case was not fought on an indemnity basis, the claim as originally pleaded was misconceived, amendment would necessitate further evidence and hearing, and granting leave would be inconsistent with the basis for findings against Ms Nissi. Further, the potential benefit of amendment was too small compared to the prejudice, delay and expense that would be caused to the other parties.

Court Disposition

Application by defendant/cross claimant to amend cross claim after judgment dismissed; costs ordered against applicant.

Orders

  • The notice of motion filed by the defendant/cross claimant on 16 June 2016 is dismissed.
  • The defendant/cross claimant is ordered to pay the costs of the plaintiff and the cross defendants of the notice of motion.