GPG Fortitude Valley v Thakral Capital Australia (No 2) [2018] NSWSC 1388

GPG Fortitude Valley v Thakral Capital Australia (No 2) [2018] NSWSC 1388

Leave to file and serve the proposed cross-claim was refused because the real consequences of the declaration sought have not been spelled out and it would permit defendants to run their case differently than they elected at the hearing. No estoppel prevents defendants from commencing fresh proceedings when consequences become clear.

Parties
First Plaintiff: GPG Fortitude Valley Issuer Pty Ltd; Second Plaintiff: GPG Fortitude Valley Pty Ltd; Third Plaintiff: 237 Barry Parade Pty Ltd; First Defendant: Thakral Capital Australia Pty Ltd; Second Defendant: TCAP Investments Limited; Third Defendant: Diversity Capital Limited; Fourth Defendant: Thakral Capital Investments Limited
Jurisdiction
Australia
Judgment Date
31 August 2018
Procedural Posture
Application for Leave to File a Cross Claim After Judgment / Post Judgment, Notice of Motion to File Cross Claim
Outcome
Leave to file cross-claim refused; notice of motion dismissed
Legal Topics
Leave to File Cross Claim After Judgment, Estoppel, Declaratory Relief
Civil Procedure Leave to File Cross Claim After Judgment Estoppel Declaratory Relief

Case Brief

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Parties

GPG Fortitude Valley Issuer Pty Ltd

First Plaintiff

GPG Fortitude Valley Pty Ltd

Second Plaintiff

237 Barry Parade Pty Ltd

Third Plaintiff

Thakral Capital Australia Pty Ltd

First Defendant

TCAP Investments Limited

Second Defendant

Diversity Capital Limited

Third Defendant

Thakral Capital Investments Limited

Fourth Defendant

Procedural Posture

Application for Leave to File a Cross Claim After Judgment / Post Judgment, Notice of Motion to File Cross Claim

Legal Issues

  1. 1 Whether leave should be granted to file and pursue a cross-claim after judgment has been entered
  2. 2 Whether estoppels arising out of the prior judgment prevent the cross-claim
  3. 3 Utility of granting leave given uncertainty of practical consequences

Ratio Decidendi

Leave to file and serve the proposed cross-claim was refused because the real consequences of the declaration sought have not been spelled out and it would permit defendants to run their case differently than they elected at the hearing. No estoppel prevents defendants from commencing fresh proceedings when consequences become clear.

Court Disposition

Leave to file cross-claim refused; notice of motion dismissed

Orders

  • Notice of motion filed 17 August 2018 dismissed
  • No order as to costs of notice of motion