Caird Seven Pty Ltd v Attia (No 4) [2016] NSWSC 1750

Caird Seven Pty Ltd v Attia (No 4) [2016] NSWSC 1750

The motion was dismissed because the proposed cross-claim was delayed without a valid excuse, the Defendants were in blatant default of existing orders for specific performance, and the evidence relied on did not show that the proposed claims had any real prospects of success. In those circumstances there was no utility in permitting the cross-claim and no basis to vary or interfere with Caird's entitlement to performance of the Retransfer Contract and payment of the purchase price.

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Equity Commercial List; Procedural and Other Ruling / Notice of Motion by the First and Second Defendants / Applicants Seeking Leave to File a Cross Claim Out of Time and Orders Affecting Completion of the Retransfer Contract and Retention of Funds Paid Into Court
Outcome
Notice of motion dismissed with costs on the indemnity basis.
Legal Topics
['leave to File Cross Claim Out of Time' 'specific Performance' 'equitable Set Off' 'retention of Purchase Price Paid Into Court' 'prospects of Success' 'default in Complying With Court Orders' 'opinion Evidence Under S 79 of the Evidence Act 1995 (nsw)']
['practice and Procedure' 'equity' 'contract' 'australian Consumer Law' 'evidence'] ['leave to File Cross Claim Out of Time' 'specific Performance' 'equitable Set Off' 'retention of Purchase Price Paid Into Court' 'prospects of Success' 'default in Complying With Court Orders' 'opinion Evidence Under S 79 of the Evidence Act 1995 (nsw)']

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Procedural Posture

Equity Commercial List; Procedural and Other Ruling / Notice of Motion by the First and Second Defendants / Applicants Seeking Leave to File a Cross Claim Out of Time and Orders Affecting Completion of the Retransfer Contract and Retention of Funds Paid Into Court

Legal Issues

  1. 1 ['Whether leave should be granted to Mr Attia and Shopsmart to file a cross-claim out of time.' 'Whether funds paid into Court should be retained to preserve a possible equitable set-off rather than being paid out to Caird.' 'Whether completion of the Retransfer Contract should be affected or deferred pending determination of the proposed cross-claim.' 'Whether the proposed cross-claim had any real or reasonable prospects of success.' 'Whether relief should be granted where the applicants were in default of existing orders for specific performance.']

Ratio Decidendi

The motion was dismissed because the proposed cross-claim was delayed without a valid excuse, the Defendants were in blatant default of existing orders for specific performance, and the evidence relied on did not show that the proposed claims had any real prospects of success. In those circumstances there was no utility in permitting the cross-claim and no basis to vary or interfere with Caird's entitlement to performance of the Retransfer Contract and payment of the purchase price.

Court Disposition

Notice of motion dismissed with costs on the indemnity basis.

Orders

  • ['Notice of motion dismissed.' 'The applicants on the motion are to pay costs on the indemnity basis.']