Moran v Ossman [2012] NSWDC 251

Moran v Ossman [2012] NSWDC 251

Leave to file and serve the third amended cross-claim was granted because no hearing date had been set and there was no real prejudice to the cross-defendant, but only on conditions requiring further particulars and deletion of paragraph 63. Summary relief for delivery up or collection of the Turpentine logs was refused because there was no evidence satisfying Uniform Civil Procedure Rules 2005 r 13.1(b), the proposed pleading asserted that the cross-defendant had purchased the logs, and the claimed lien raised factual issues unsuitable for determination before final hearing. The cross-claimants were ordered to pay costs thrown away by the amendments and the costs of the motion because...

Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Civil / Interlocutory Applications on Notice of Motion for Leave to File and Serve a Third Amended Cross Claim and for Summary Judgment or Delivery Up of Turpentine Logs
Outcome
Leave to file and serve the third amended cross-claim granted subject to conditions; summary relief refused; directions and costs orders made.
Legal Topics
['application to File and Serve Amended Cross Claim' 'summary Judgment' 'prejudice From Amendments' 'particular Lien' 'interlocutory Costs']
['civil Procedure' 'pleadings' 'costs'] ['application to File and Serve Amended Cross Claim' 'summary Judgment' 'prejudice From Amendments' 'particular Lien' 'interlocutory Costs']

Case Brief

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Procedural Posture

Civil / Interlocutory Applications on Notice of Motion for Leave to File and Serve a Third Amended Cross Claim and for Summary Judgment or Delivery Up of Turpentine Logs

Legal Issues

  1. 1 ['Whether the cross-claimants should be granted leave to file and serve a third amended statement of cross-claim.' 'Whether the cross-claimants should be granted summary relief requiring Turpentine logs to be delivered up or made available for collection.' 'Whether there were factual issues about a particular lien over the Turpentine logs or all the logs that should be determined at final hearing.' 'What directions and costs orders should be made following the interlocutory applications.']

Ratio Decidendi

Leave to file and serve the third amended cross-claim was granted because no hearing date had been set and there was no real prejudice to the cross-defendant, but only on conditions requiring further particulars and deletion of paragraph 63. Summary relief for delivery up or collection of the Turpentine logs was refused because there was no evidence satisfying Uniform Civil Procedure Rules 2005 r 13.1(b), the proposed pleading asserted that the cross-defendant had purchased the logs, and the claimed lien raised factual issues unsuitable for determination before final hearing. The cross-claimants were ordered to pay costs thrown away by the amendments and the costs of the motion because...

Court Disposition

Leave to file and serve the third amended cross-claim granted subject to conditions; summary relief refused; directions and costs orders made.

Orders

  • ['Grant leave to the cross-claimants to file and serve the third amended cross-claim by 21 December 2012 on condition that further particulars to paragraphs 26, 28(a) and 29 of the third amended cross-claim be provided by 21 December 2012, either in the pleading or separately.' 'Decline to make orders in accordance...