Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440

Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440

The Uniform Civil Procedure Rules 2005 Pt 9 r 9.1(1) does not permit non-parties to be joined as cross-claimants; only a party to the proceedings may make a cross-claim. The court cannot make an order joining Reliance Financial Services Pty Limited as a cross-claimant, as supported by the definitions and scope of the Civil Procedure Act 2005 ss 3 and 22, and prior case law. Reliance is to be removed as cross-claimant, and defective parts of the cross-claim are to be struck out or amended.

Parties
Plaintiff/first Cross Defendant: Comin Enterprises Pty Limited; First Defendant/third Cross Claimant: Dayroll Pty Limited; Second Defendant/first Cross Claimant: Sam Peter Cassaniti; Third Defendant/second Cross Claimant: Reliance Financial Services Pty Limited
Jurisdiction
Australia
Judgment Date
12 December 2007
Procedural Posture
Civil / Interlocutory (motions to Strike Out Cross Claim and Joinder Issues)
Outcome
Reliance Financial Services Pty Limited removed as cross-claimant; name Patricia Cassaniti struck from relief sought; order to amend and refile cross-claim; defendants to pay plaintiff's costs in three proceedings.
Legal Topics
Cross Claim by Non Party, Joinder of Parties, Uniform Civil Procedure Rules, Civil Procedure Act
Civil Procedure Cross Claim by Non Party Joinder of Parties Uniform Civil Procedure Rules Civil Procedure Act

Case Brief

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Parties

Comin Enterprises Pty Limited

Plaintiff/first Cross Defendant

Dayroll Pty Limited

First Defendant/third Cross Claimant

Sam Peter Cassaniti

Second Defendant/first Cross Claimant

Reliance Financial Services Pty Limited

Third Defendant/second Cross Claimant

Procedural Posture

Civil / Interlocutory (motions to Strike Out Cross Claim and Joinder Issues)

Legal Issues

  1. 1 Whether a non-party can be joined as a cross-claimant under UCPR Pt 9 r 9.1(1)
  2. 2 Construction and interaction of UCPR Pt 6 r 6.19(1), Pt 9 r 9.1(1), Pt 6 r 24(1) and Civil Procedure Act sections 3, 22, and 56
  3. 3 Whether cross-claims by Reliance Financial Services Pty Limited and Dayroll Pty Limited were properly brought

Ratio Decidendi

The Uniform Civil Procedure Rules 2005 Pt 9 r 9.1(1) does not permit non-parties to be joined as cross-claimants; only a party to the proceedings may make a cross-claim. The court cannot make an order joining Reliance Financial Services Pty Limited as a cross-claimant, as supported by the definitions and scope of the Civil Procedure Act 2005 ss 3 and 22, and prior case law. Reliance is to be removed as cross-claimant, and defective parts of the cross-claim are to be struck out or amended.

Court Disposition

Reliance Financial Services Pty Limited removed as cross-claimant; name Patricia Cassaniti struck from relief sought; order to amend and refile cross-claim; defendants to pay plaintiff's costs in three proceedings.

Orders

  • That Reliance Financial Services Pty Limited be removed as the second cross-claimant.
  • That the name Patricia Cassaniti be struck out of paragraph 1 of the relief claimed in the cross-claim.