Skalkos v Smiles & 5 Ors [2004] NSWSC 34

Skalkos v Smiles & 5 Ors [2004] NSWSC 34

Leave was refused because the new implied term and Fair Trading Act pleadings arose from conversations and a document about 10 years old, the evidence of a relevant witness was uncertain, no satisfactory explanation was provided for the delay in filing essentially the same cross claim as before, and the additional grounds pleaded had little chance of success. In the exercise of discretion, the sixth defendant was not permitted to file the proposed cross claim.

Jurisdiction
Australia
Judgment Date
18 February 2004
Procedural Posture
Application for Leave to File a Cross Claim Between Defendants / Notice of Motion Filed 15 October 2002 Determined by Master
Outcome
The sixth defendant's notice of motion was dismissed, and the sixth defendant was ordered to pay the first defendant's costs.
Legal Topics
['leave to File Cross Claim' 'indemnity' 'implied Contractual Term' 'misleading and Deceptive Conduct' 'part X Composition' 'delay and Prejudice' 'costs']
['civil Procedure' 'contract' 'bankruptcy' 'fair Trading'] ['leave to File Cross Claim' 'indemnity' 'implied Contractual Term' 'misleading and Deceptive Conduct' 'part X Composition' 'delay and Prejudice' 'costs']

Case Brief

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Procedural Posture

Application for Leave to File a Cross Claim Between Defendants / Notice of Motion Filed 15 October 2002 Determined by Master

Legal Issues

  1. 1 ['Whether the sixth defendant should be granted leave to file a cross claim against the first defendant for any liability to the plaintiff under loan agreements.' 'Whether proposed pleadings alleging an implied indemnity term and misleading or deceptive representations under the Fair Trading Act 1987 should be allowed despite delay, possible prejudice and alleged futility.' 'Whether the sixth defendant provided a satisfactory explanation for the delay in seeking to file essentially the same cross claim as before.']

Ratio Decidendi

Leave was refused because the new implied term and Fair Trading Act pleadings arose from conversations and a document about 10 years old, the evidence of a relevant witness was uncertain, no satisfactory explanation was provided for the delay in filing essentially the same cross claim as before, and the additional grounds pleaded had little chance of success. In the exercise of discretion, the sixth defendant was not permitted to file the proposed cross claim.

Court Disposition

The sixth defendant's notice of motion was dismissed, and the sixth defendant was ordered to pay the first defendant's costs.

Orders

  • ["The sixth defendant's notice of motion filed 15 October 2002 is dismissed." "The sixth defendant is to pay the first defendant's costs."]