Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188

Marshall v Prescott; Marshall v Fleming [2012] NSWSC 188

The motions were dismissed because the plaintiffs had chosen to commence separate proceedings, the risk of apportionment consequences was apparent from that choice, the Prescott proceedings were almost ready for hearing, the Kreindler & Kreindler proceedings were not likely to be ready for a considerable period and might be delayed by a strike out motion and possible appeal, and the proceedings now raised different legal questions under different laws. Further delaying the Prescott proceedings would not be just or consistent with s 56 of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
07 March 2012
Procedural Posture
Common Law Civil Proceedings; Notices of Motion Under R 28.5 of the Uniform Civil Procedure Rules 2005 / Interlocutory Procedural Application for Two Sets of Proceedings to Be Heard by One Judge, One Immediately After the Other
Outcome
The two motions were dismissed.
Legal Topics
['notices of Motion' 'case Management' 'consecutive Hearings' 'delay' 'costs' 'apportionment' 'new South Wales Law' 'new York Law' 'pennsylvanian Law']
['civil Procedure' 'common Law' 'conflict of Laws'] ['notices of Motion' 'case Management' 'consecutive Hearings' 'delay' 'costs' 'apportionment' 'new South Wales Law' 'new York Law' 'pennsylvanian Law']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Civil Proceedings; Notices of Motion Under R 28.5 of the Uniform Civil Procedure Rules 2005 / Interlocutory Procedural Application for Two Sets of Proceedings to Be Heard by One Judge, One Immediately After the Other

Legal Issues

  1. 1 ['Whether the two sets of proceedings should be heard by one judge, one immediately after the other, with the Prescott proceedings heard first and the Kreindler & Kreindler proceedings second.' 'Whether the commonality of factual issues, Pennsylvanian law issues, alleged duties and breaches, and conspiracy allegations justified the orders sought.' 'Whether the risk of inconsistent apportionment outcomes justified delaying the Prescott proceedings.' 'Whether the delay to the Prescott proceedings was consistent with the overriding purpose in s 56 of the Civil Procedure Act 2005.']

Ratio Decidendi

The motions were dismissed because the plaintiffs had chosen to commence separate proceedings, the risk of apportionment consequences was apparent from that choice, the Prescott proceedings were almost ready for hearing, the Kreindler & Kreindler proceedings were not likely to be ready for a considerable period and might be delayed by a strike out motion and possible appeal, and the proceedings now raised different legal questions under different laws. Further delaying the Prescott proceedings would not be just or consistent with s 56 of the Civil Procedure Act 2005.

Court Disposition

The two motions were dismissed.

Orders

  • ['The two motions are dismissed.' "Unless the parties approach within 7 days to be heard on the question of costs, the Court's order will be that the plaintiffs are to bear the defendants' costs of the motions, as agreed or assessed."]