Zhu v Chen [2023] NSWSC 267

Zhu v Chen [2023] NSWSC 267

Leave to discontinue against the second defendant was granted because the disadvantages asserted by the first and third defendants did not outweigh the undesirability of forcing the plaintiffs to continue litigating against a settled party. The remaining defendants could still claim that the second defendant was a concurrent wrongdoer and rely on the proportionate liability regime, no actual evidentiary disadvantage was shown, there was no practical or legal impediment to seeking leave to cross-claim, the proceedings had not been allocated a hearing date, the settlement terms had been produced, and discontinuance accorded with case management principles and the overriding purpose.

Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Practice and Procedure; Application for Leave to Discontinue Proceedings Against the Second Defendant / Notice of Motion Filed 14 November 2022, Determined Ex Tempore on 16 March 2023
Outcome
Leave granted to discontinue the proceedings against the second defendant.
Legal Topics
['discontinuance Against a Defendant' 'leave Under R 12.1(1)(b) Ucpr' 'settlement With One Defendant' 'concurrent Wrongdoers' 'proportionate Liability' 'case Management']
['practice and Procedure' 'civil Procedure' 'equity'] ['discontinuance Against a Defendant' 'leave Under R 12.1(1)(b) Ucpr' 'settlement With One Defendant' 'concurrent Wrongdoers' 'proportionate Liability' 'case Management']

Case Brief

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Procedural Posture

Practice and Procedure; Application for Leave to Discontinue Proceedings Against the Second Defendant / Notice of Motion Filed 14 November 2022, Determined Ex Tempore on 16 March 2023

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave under r 12.1(1)(b) UCPR to discontinue the proceedings against the second defendant without the consent of the first and third defendants.' 'Whether discontinuance against the second defendant would impose significant injustice or disadvantage on the first and third defendants, including in relation to contribution, proportionate liability, evidence, costs, delay, or the need for a cross-claim.']

Ratio Decidendi

Leave to discontinue against the second defendant was granted because the disadvantages asserted by the first and third defendants did not outweigh the undesirability of forcing the plaintiffs to continue litigating against a settled party. The remaining defendants could still claim that the second defendant was a concurrent wrongdoer and rely on the proportionate liability regime, no actual evidentiary disadvantage was shown, there was no practical or legal impediment to seeking leave to cross-claim, the proceedings had not been allocated a hearing date, the settlement terms had been produced, and discontinuance accorded with case management principles and the overriding purpose.

Court Disposition

Leave granted to discontinue the proceedings against the second defendant.

Orders

  • ['The plaintiffs are granted leave under r 12.1(1)(b) UCPR to discontinue the proceedings against the second defendant, with the notice of discontinuance to be filed and served within seven days.' "The costs of the plaintiffs' notice of motion filed 14 November 2022 and the first and third defendants' notice to...