Clarke v Garling & Genev & Anor [2002] NSWSC 604

Clarke v Garling & Genev & Anor [2002] NSWSC 604

Both parties contributed to the delay and some prejudice from fading memories was mitigated by contemporaneous evidence; striking out the cross claim would cause greater injustice than maintaining it.

Jurisdiction
Australia
Judgment Date
08 July 2002
Procedural Posture
Civil / Interlocutory Strike Out Application for Want of Prosecution
Outcome
Strike out application dismissed. Costs in the cause. Matter listed for status conference.
Legal Topics
['strike Out Application' 'want of Prosecution' 'cross Claim' 'indemnity' 'contribution']
['civil Procedure'] ['strike Out Application' 'want of Prosecution' 'cross Claim' 'indemnity' 'contribution']

Case Brief

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Procedural Posture

Civil / Interlocutory Strike Out Application for Want of Prosecution

Legal Issues

  1. 1 ["Whether the first defendants' cross claim against the second defendant should be dismissed for want of prosecution" 'Whether justice requires the cross claim to remain on foot in light of delay and alleged prejudice']

Ratio Decidendi

Both parties contributed to the delay and some prejudice from fading memories was mitigated by contemporaneous evidence; striking out the cross claim would cause greater injustice than maintaining it.

Court Disposition

Strike out application dismissed. Costs in the cause. Matter listed for status conference.

Orders

  • ['The notice of motion filed 22 March 2002 is dismissed.' 'Costs are costs in the cause.' "Matter is to be listed for a status conference. The court is to notify the first and second defendants of the date and time of such conference. (Note: The plaintiff is not to be notified. The plaintiff's claim against the...