Permanent Mortgages Pty Ltd v Sibylle MacFadyen [2010] NSWSC 1053

Permanent Mortgages Pty Ltd v Sibylle MacFadyen [2010] NSWSC 1053

The cross claims were not properly pleaded and did not disclose viable causes of action; they improperly sought relief for losses sustained by Amadeus, which is not a party, and Ms MacFadyen could not seek such relief in these proceedings under the relevant procedural statutes and rules. Leave to file the cross...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 September 2010
Procedural Posture
Civil / Procedural Ruling on Notice of Motion and Cross Claims
Outcome
Cross claims struck out; notice of motion dismissed; costs ordered against cross claimant.
Legal Topics
['cross Claims' 'loans and Mortgages' 'contracts Review']
['civil Procedure'] ['cross Claims' 'loans and Mortgages' 'contracts Review']

Source-derived case record

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Procedural Posture

Civil / Procedural Ruling on Notice of Motion and Cross Claims

Legal Issues

  1. 1 ['Whether leave should be granted to file cross claims against cross defendants' 'Whether cross claims disclose a viable cause of action' 'Whether cross claims seek relief properly available to the defendant']

Ratio Decidendi

The cross claims were not properly pleaded and did not disclose viable causes of action; they improperly sought relief for losses sustained by Amadeus, which is not a party, and Ms MacFadyen could not seek such relief in these proceedings under the relevant procedural statutes and rules. Leave to file the cross claims was not warranted and the notice of motion was dismissed.

Court Disposition

Cross claims struck out; notice of motion dismissed; costs ordered against cross claimant.

Orders

  • ["The defendant's notice of motion filed 2 December 2009 is dismissed." 'The first and second cross claims filed 2 December 2009 are struck out.' "The cross claimant is to pay the cross defendants' costs as agreed or assessed."]