Bruce Clyde Bailey v Arnold Neil Bailey [2009] NSWSC 598

Bruce Clyde Bailey v Arnold Neil Bailey [2009] NSWSC 598

Leave to file the cross claim was refused because it was advanced very late, the issues it raised would not be determined at the November liability hearing, the cross claimants had agreed not to advance claims in relation to the consent orders and at least one rectification claim fell within that description, and their delay had prevented all matters concerning the mediation agreement and the 2007 consent orders being heard at one time.

Jurisdiction
Australia
Judgment Date
23 June 2009
Procedural Posture
Application for Leave to File a Cross Claim Out of Time / Procedural Ruling Before Allocated Hearing on Liability
Outcome
Leave to file the cross claim refused.
Legal Topics
['leave to File Cross Claim Out of Time' 'delay' 'laches' 'rectification' 'mediation Agreement' 'consent Orders' 'costs']
['civil Procedure' 'equity'] ['leave to File Cross Claim Out of Time' 'delay' 'laches' 'rectification' 'mediation Agreement' 'consent Orders' 'costs']

Case Brief

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Procedural Posture

Application for Leave to File a Cross Claim Out of Time / Procedural Ruling Before Allocated Hearing on Liability

Legal Issues

  1. 1 ['Whether the second and third defendants should be granted leave to file a cross claim out of time.' 'Whether delay and the fact that the cross claim would not be determined at the allocated liability hearing justified refusing leave.' 'Whether the proposed cross claim was precluded or weakened by limitation, laches, res judicata, or an agreement not to bring claims in relation to the consent orders.' "Whether the proposed rectification claims were claims in relation to the consent orders contrary to the parties' agreement."]

Ratio Decidendi

Leave to file the cross claim was refused because it was advanced very late, the issues it raised would not be determined at the November liability hearing, the cross claimants had agreed not to advance claims in relation to the consent orders and at least one rectification claim fell within that description, and their delay had prevented all matters concerning the mediation agreement and the 2007 consent orders being heard at one time.

Court Disposition

Leave to file the cross claim refused.

Orders

  • ['Leave for the filing of the cross claim is refused.' "The second and third defendants are to pay the plaintiffs' costs."]