Abrook, Robert & Ors v Paterson, Gregory & Ors [1995] FCA 914

Abrook, Robert & Ors v Paterson, Gregory & Ors [1995] FCA 914

It cannot be said at this stage that the cross-claim for declaratory relief against the insurer (represented by Alec Sharpe) is not reasonably arguable. The existence of jurisdiction is clear, and on the facts and in the light of authority (particularly J N Taylor Holdings Limited (In liquidation) v Allan Bond), it is reasonably arguable that the declaration would not be hypothetical or lack utility. Similarly, the cross-claim against the interstate partners of Horwath & Horwath is not shown to be so unfair or inappropriate as to warrant summary dismissal. Therefore, both cross-claims should not be struck out at this point.

Jurisdiction
Australia
Judgment Date
15 November 1995
Procedural Posture
Application to Strike Out Cross Claim / Interlocutory Determination on Notices of Motion Seeking Dismissal or Separate Hearing of Cross Claims
Outcome
Notices of motion to dismiss cross-claims dismissed to the extent that they sought dismissal; otherwise referred to the trial judge for further case management.
Legal Topics
['pleadings' 'cross Claims' 'jurisdiction for Declarations' 'utility of Declaratory Relief' 'discretion to Strike Out']
['practice and Procedure' 'insurance Law'] ['pleadings' 'cross Claims' 'jurisdiction for Declarations' 'utility of Declaratory Relief' 'discretion to Strike Out']

Case Brief

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Procedural Posture

Application to Strike Out Cross Claim / Interlocutory Determination on Notices of Motion Seeking Dismissal or Separate Hearing of Cross Claims

Legal Issues

  1. 1 ['Whether the cross-claim by Chase Manhattan Bank for declaratory relief against the insurer (represented by Alec Sharpe) should be struck out' 'Whether it is reasonably arguable that the Court would exercise its discretion to make a declaration regarding indemnity by the insurer' 'Whether the cross-claim against the interstate partners of Horwath & Horwath should be struck out or heard separately']

Ratio Decidendi

It cannot be said at this stage that the cross-claim for declaratory relief against the insurer (represented by Alec Sharpe) is not reasonably arguable. The existence of jurisdiction is clear, and on the facts and in the light of authority (particularly J N Taylor Holdings Limited (In liquidation) v Allan Bond), it is reasonably arguable that the declaration would not be hypothetical or lack utility. Similarly, the cross-claim against the interstate partners of Horwath & Horwath is not shown to be so unfair or inappropriate as to warrant summary dismissal. Therefore, both cross-claims should not be struck out at this point.

Court Disposition

Notices of motion to dismiss cross-claims dismissed to the extent that they sought dismissal; otherwise referred to the trial judge for further case management.

Orders

  • ['The notices of motion before Branson J seeking dismissal of the cross-claims are dismissed to the extent that they seek such dismissal.' "All other aspects of the notices of motion, including issues regarding separate hearings or directions, referred to O'Loughlin J for further consideration." 'Costs issues...