The Owners-Strata Plan 88565 v ACN 103 211 141 Pty Ltd [2024] NSWSC 396

The Owners-Strata Plan 88565 v ACN 103 211 141 Pty Ltd [2024] NSWSC 396

The delay and irregularity in filing and serving the third cross-claim did not cause sufficient prejudice to the second cross-defendant to warrant setting aside the cross-claim, as any prejudice would also have arisen had separate proceedings been commenced and the cross-claim related to defects already in issue; thus, the failure is excused pursuant to s 63 of the Civil Procedure Act 2005 (NSW), nunc pro tunc, and the cross-claim and service are regularised.

Parties
Cross Claimant on Third Cross Claim | Applicant: Frasers Central Park Land No 1 Pty Ltd; First Cross Defendant to Third Cross Claim | First Respondent: Johnson Pilton Walker Pty Limited; Second Cross Defendant to Third Cross Claim | Second Respondent: Advanced Property Solutions (NSW & ACT) Pty Limited
Jurisdiction
Australia
Judgment Date
17 April 2024
Procedural Posture
Procedural Ruling (application Concerning Cross Claim) / Interlocutory Application to Regularise Cross Claim and Service, Costs Order
Outcome
Application granted in part; irregular filing and service of third cross-claim and cross list statement excused, nunc pro tunc; costs orders made as per ruling.
Legal Topics
Pleadings, Cross Claims, Limitation Periods, Irregularity and Cure, Prejudice From Delay
Civil Procedure Construction Law Pleadings Cross Claims Limitation Periods Irregularity and Cure Prejudice From Delay

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Parties

Frasers Central Park Land No 1 Pty Ltd

Cross Claimant on Third Cross Claim | Applicant

Johnson Pilton Walker Pty Limited

First Cross Defendant to Third Cross Claim | First Respondent

Advanced Property Solutions (NSW & ACT) Pty Limited

Second Cross Defendant to Third Cross Claim | Second Respondent

Procedural Posture

Procedural Ruling (application Concerning Cross Claim) / Interlocutory Application to Regularise Cross Claim and Service, Costs Order

Legal Issues

  1. 1 Whether the failure to obtain leave to file and serve third cross-claim should be excused under s 63 Civil Procedure Act 2005 (NSW)
  2. 2 Whether prejudice exists to the second cross-defendant from delay in service and irregularity
  3. 3 Whether the cross-claim should be struck out due to prejudice

Ratio Decidendi

The delay and irregularity in filing and serving the third cross-claim did not cause sufficient prejudice to the second cross-defendant to warrant setting aside the cross-claim, as any prejudice would also have arisen had separate proceedings been commenced and the cross-claim related to defects already in issue; thus, the failure is excused pursuant to s 63 of the Civil Procedure Act 2005 (NSW), nunc pro tunc, and the cross-claim and service are regularised.

Court Disposition

Application granted in part; irregular filing and service of third cross-claim and cross list statement excused, nunc pro tunc; costs orders made as per ruling.

Orders

  • Order pursuant to section 63 of the Civil Procedure Act 2005 (NSW) excusing the second defendant’s failure to obtain an order to serve the third cross-summons and cross list statement, with the effect that the third cross-summons and cross list statement are taken, nunc pro tunc, to have been: (a) validly filed on...
  • The second cross defendant’s costs of the amended notice of motion dated 28 March 2024 be the second cross defendant’s costs in the third cross claim.