Century Insurance Ltd (in provisional liq) & Ors v The New Zealand Guardian Trust Ltd & Ors The New Zealand Guardian Trust Ltd & Anor v Gunson, David [1997] FCA 1020

Century Insurance Ltd (in provisional liq) & Ors v The New Zealand Guardian Trust Ltd & Ors The New Zealand Guardian Trust Ltd & Anor v Gunson, David [1997] FCA 1020

The court held that amendment of the cross claim should be allowed to reflect the settlement, as policy considerations favour a tortfeasor settling out of court and seeking contribution. The motion to dismiss was refused, and the appropriateness of the forum had already been determined and need not be revisited.

Parties
First Applicant: Century Insurance Limited (in provisional liquidation); Second Applicant: Edward John Bebbington; Second Applicant: Delores Edna Bebbington; First Respondent: New Zealand Guardian Trust Limited; Second Respondent: NZI International Trustee Company Limited; Third Respondent: Donald Andrews Davies; First Cross Claimant: New Zealand Guardian Trust Limited; Second Cross Claimant: NZI International Trustee Company Limited; Cross Respondent: David Gunson
Jurisdiction
Australia
Judgment Date
02 October 1997
Procedural Posture
Motion to Dismiss Cross Claim / Post Settlement, Directions for Amendment and Hearing
Outcome
Motion to dismiss cross claim dismissed
Legal Topics
Cross Claims, Contribution and Indemnity, Settlement, Forum Appropriateness
Practice and Procedure Equity Trusts Cross Claims Contribution and Indemnity Settlement Forum Appropriateness

Case Brief

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Parties

Century Insurance Limited (in provisional liquidation)

First Applicant

Edward John Bebbington

Second Applicant

Delores Edna Bebbington

Second Applicant

New Zealand Guardian Trust Limited

First Respondent

NZI International Trustee Company Limited

Second Respondent

Donald Andrews Davies

Third Respondent

New Zealand Guardian Trust Limited

First Cross Claimant

NZI International Trustee Company Limited

Second Cross Claimant

David Gunson

Cross Respondent

Procedural Posture

Motion to Dismiss Cross Claim / Post Settlement, Directions for Amendment and Hearing

Legal Issues

  1. 1 Whether the cross claim should be dismissed following settlement of principal proceedings
  2. 2 Whether the cross claim can be amended to reflect the settlement
  3. 3 Whether the Federal Court is an appropriate forum for the resolution of the cross claim

Ratio Decidendi

The court held that amendment of the cross claim should be allowed to reflect the settlement, as policy considerations favour a tortfeasor settling out of court and seeking contribution. The motion to dismiss was refused, and the appropriateness of the forum had already been determined and need not be revisited.

Court Disposition

Motion to dismiss cross claim dismissed

Orders

  • The cross respondent's motion dated 14 August 1997 is dismissed
  • The cross respondent pay the cross claimant's costs of the motion to be taxed