ASIC v Adler & 4 Ors [2002] NSWSC 401

ASIC v Adler & 4 Ors [2002] NSWSC 401

The Court, accepting that discretion exists to permit a late cross-claim for contribution or indemnity, declines to exercise that discretion at this stage because the application was made only after liability was determined, causing substantial and possibly irremediable prejudice to the First Defendant. Further, the timetable for argument on relief cannot accommodate the late introduction of these new issues, and no cost orders were proffered to alleviate prejudice. The proceeding remains open for possible future arguments after a judgment on relief is handed down, but not at the present interlocutory stage.

Jurisdiction
Australia
Judgment Date
06 May 2002
Procedural Posture
Equity Proceedings—application in Ongoing Corporate Litigation / Interlocutory (hearing Post Liability Judgment, Prior to Relief)
Outcome
Application by Second Defendant dismissed without prejudice to future applications after relief determination.
Legal Topics
['late Application for Contribution or Indemnity' "court's Discretionary Power After Determination of Liability"]
['procedure' 'equity' 'corporations'] ['late Application for Contribution or Indemnity' "court's Discretionary Power After Determination of Liability"]

Case Brief

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Procedural Posture

Equity Proceedings—application in Ongoing Corporate Litigation / Interlocutory (hearing Post Liability Judgment, Prior to Relief)

Legal Issues

  1. 1 ['Whether the Court should permit a late application for contribution or indemnity between defendants after liability has been determined but before relief is determined' 'Whether the Court has the power or should exercise discretion to allow a cross-claim at this stage']

Ratio Decidendi

The Court, accepting that discretion exists to permit a late cross-claim for contribution or indemnity, declines to exercise that discretion at this stage because the application was made only after liability was determined, causing substantial and possibly irremediable prejudice to the First Defendant. Further, the timetable for argument on relief cannot accommodate the late introduction of these new issues, and no cost orders were proffered to alleviate prejudice. The proceeding remains open for possible future arguments after a judgment on relief is handed down, but not at the present interlocutory stage.

Court Disposition

Application by Second Defendant dismissed without prejudice to future applications after relief determination.

Orders

  • ["The Second Defendant's Notice of Motion is permitted to be filed but is dismissed."]