Winau Aust Pty Ltd v LCC Property Development Pty Ltd (No 2) [2023] NSWSC 1501

Winau Aust Pty Ltd v LCC Property Development Pty Ltd (No 2) [2023] NSWSC 1501

Because the active parties had reached an executed settlement conditional on the orders, the remaining active plaintiff consented to dismissal of its claims, the cross-claim would never be heard on its merits, there was no identified issue about the reasonableness of the parties' conduct in commencing or defending the proceedings, and pursuit of the cross-claim against the third plaintiff/first cross-defendant would be fruitless given its lack of assets, it was appropriate to dismiss the third plaintiff's claims, grant leave to discontinue the cross-claim, and make no order as to costs.

Jurisdiction
Australia
Judgment Date
04 December 2023
Procedural Posture
Practice and Procedure; Application for Dismissal of Claims and Leave to Discontinue Cross Claim / Notice of Motion Filed 27 November 2023 Heard on 4 December 2023 After Prior Dismissal for Want of Due Despatch
Outcome
Motion granted; third plaintiff's claims dismissed, leave granted to discontinue the cross-claim, and proceedings otherwise dismissed except for the outstanding costs application by the first defendant against the first, second and fourth plaintiffs.
Legal Topics
['dismissal of Proceedings' 'discontinuance of Cross Claim' 'costs on Discontinuance' 'settlement']
['civil Procedure' 'equity'] ['dismissal of Proceedings' 'discontinuance of Cross Claim' 'costs on Discontinuance' 'settlement']

Case Brief

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Procedural Posture

Practice and Procedure; Application for Dismissal of Claims and Leave to Discontinue Cross Claim / Notice of Motion Filed 27 November 2023 Heard on 4 December 2023 After Prior Dismissal for Want of Due Despatch

Legal Issues

  1. 1 ['Whether the claims brought by the third plaintiff should be dismissed with no order as to costs.' 'Whether the cross-claimants should be granted leave under r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) to discontinue the cross-claim filed 4 May 2021 with no order as to costs.' 'Whether the proceedings should otherwise be dismissed, except for the outstanding costs application by the first defendant against the first, second and fourth plaintiffs.']

Ratio Decidendi

Because the active parties had reached an executed settlement conditional on the orders, the remaining active plaintiff consented to dismissal of its claims, the cross-claim would never be heard on its merits, there was no identified issue about the reasonableness of the parties' conduct in commencing or defending the proceedings, and pursuit of the cross-claim against the third plaintiff/first cross-defendant would be fruitless given its lack of assets, it was appropriate to dismiss the third plaintiff's claims, grant leave to discontinue the cross-claim, and make no order as to costs.

Court Disposition

Motion granted; third plaintiff's claims dismissed, leave granted to discontinue the cross-claim, and proceedings otherwise dismissed except for the outstanding costs application by the first defendant against the first, second and fourth plaintiffs.

Orders

  • ['The claims brought by the third plaintiff be dismissed, with no order as to costs.' 'Pursuant to r 12.1 of the UCPR, the cross-claimants be granted leave to discontinue the cross-claim filed 4 May 2021, with no order as to costs.' 'Except in relation to the outstanding application concerning costs by the first...