Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) formerly Franklins Management Services Pty Ltd [2005] FCA 1011

Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) formerly Franklins Management Services Pty Ltd [2005] FCA 1011

Leave was refused because Franklins had had years to bring cross-claims but failed to do so, offered a singularly unsatisfactory explanation for the delay, and sought to introduce complex cross-claims shortly before a lengthy scheduled trial. Granting leave would require vacating the trial date, likely cause substantial delay, complicate and lengthen the proceeding, and significantly prejudice Dresna, while Franklins remained able to pursue separate claims later if necessary.

Jurisdiction
Australia
Judgment Date
25 July 2005
Procedural Posture
Practice and Procedure Application for Leave to Join Proposed Cross Respondents and File Cross Claims Out of Time / Interlocutory Notice of Motion Heard Before Scheduled Trial
Outcome
Application refused with costs orders against the first and second respondents.
Legal Topics
['joinder' 'cross Claims' 'leave to File Out of Time' 'delay' 'prejudice' 'adjournment of Trial' 'costs']
['civil Procedure' 'practice and Procedure'] ['joinder' 'cross Claims' 'leave to File Out of Time' 'delay' 'prejudice' 'adjournment of Trial' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure Application for Leave to Join Proposed Cross Respondents and File Cross Claims Out of Time / Interlocutory Notice of Motion Heard Before Scheduled Trial

Legal Issues

  1. 1 ['Whether the first and second respondents should be granted leave under O 6, r 2 of the Federal Court Rules to re-join Misu Nominees Pty Ltd, Kandara Pty Ltd and Coles Myer Limited and file cross-claims out of time.' 'Whether the respondents had provided an adequate explanation for not bringing contribution notices or cross-claims until shortly before the scheduled trial.' 'Whether granting leave would prejudice Dresna by requiring the trial date to be vacated and the proceeding to be delayed.' 'Whether refusal of leave would unfairly prejudice the respondents by causing any later claims against the proposed cross-respondents to be tried separately, with extra cost and risk of inconsistent findings.']

Ratio Decidendi

Leave was refused because Franklins had had years to bring cross-claims but failed to do so, offered a singularly unsatisfactory explanation for the delay, and sought to introduce complex cross-claims shortly before a lengthy scheduled trial. Granting leave would require vacating the trial date, likely cause substantial delay, complicate and lengthen the proceeding, and significantly prejudice Dresna, while Franklins remained able to pursue separate claims later if necessary.

Court Disposition

Application refused with costs orders against the first and second respondents.

Orders

  • ['The application for leave to join Misu Nominees Pty Ltd, Kandara Pty Ltd and Coles Myer Limited as respondents in this proceeding, and to file cross-claims out of time, be refused.' "The first and second respondents pay the applicant's costs of and incidental to the notice of motion filed on 27 June 2005 (as...