Australian Insolvency Group Pty Limited v LCM Litigation Investment Fund No 1 Pty Limited [2018] NSWSC 671

Australian Insolvency Group Pty Limited v LCM Litigation Investment Fund No 1 Pty Limited [2018] NSWSC 671

Although the second defendant had not provided a satisfactory explanation for all aspects of its delay, there was a very significant factual overlap between the plaintiff's breach of trust allegations and the proposed cross claim concerning alleged trigger events under the administration agreement. The interests of justice and the efficient administration of litigation favoured having the factual issues determined once by one judge in one proceeding, and the only real identified prejudice from vacating the hearing date was costs, which could be compensated by indemnity costs orders.

Jurisdiction
Australia
Judgment Date
07 May 2018
Procedural Posture
Equity Commercial List; Civil Procedure Application to Vacate Hearing Date / Procedural Ruling on Second Defendant's Application to Vacate the Hearing Date
Outcome
Application granted; hearing date vacated, with costs orders against the second defendant.
Legal Topics
['application to Vacate Hearing Date' 'proposed Cross Claim' 'factual Overlap' 'costs Thrown Away' 'indemnity Costs' 'breach of Trust Allegations']
['civil Procedure' 'equity' 'trusts' 'litigation Funding'] ['application to Vacate Hearing Date' 'proposed Cross Claim' 'factual Overlap' 'costs Thrown Away' 'indemnity Costs' 'breach of Trust Allegations']

Case Brief

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Procedural Posture

Equity Commercial List; Civil Procedure Application to Vacate Hearing Date / Procedural Ruling on Second Defendant's Application to Vacate the Hearing Date

Legal Issues

  1. 1 ['Whether the hearing date should be vacated to allow the second defendant to bring a cross claim.' "Whether there was a significant factual overlap between the plaintiff's existing claim and the proposed cross claim such that the same factual issues should not be double handled." "Whether the second defendant's delay in seeking to vacate the hearing date was adequately explained." 'Whether any prejudice from vacating the hearing date could be addressed by costs orders.']

Ratio Decidendi

Although the second defendant had not provided a satisfactory explanation for all aspects of its delay, there was a very significant factual overlap between the plaintiff's breach of trust allegations and the proposed cross claim concerning alleged trigger events under the administration agreement. The interests of justice and the efficient administration of litigation favoured having the factual issues determined once by one judge in one proceeding, and the only real identified prejudice from vacating the hearing date was costs, which could be compensated by indemnity costs orders.

Court Disposition

Application granted; hearing date vacated, with costs orders against the second defendant.

Orders

  • ['The hearing date be vacated.' "The second defendant pay the plaintiff's and the first defendant's costs of and incidental to and thrown away by reason of the vacation of the date." 'Those costs be assessed on the indemnity basis.' 'Leave granted to proceed forthwith to assessment notwithstanding that the...