Prime Capital Securities Pty Ltd v Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd [2017] NSWSC 51

Prime Capital Securities Pty Ltd v Sydney Commercial and Governmental Floor and Wall Tiling Services Pty Ltd [2017] NSWSC 51

Leave to file the proposed fourth cross-claim and vacating of the hearing were justified because Mr Boutros' role in the relevant events made joinder an inevitable prospect that should be clarified before final hearing, otherwise inconsistent results might arise. The motion costs and costs thrown away or occasioned by the adjournment should be costs in the proceedings because the final outcome would more fairly determine where that burden should fall. The alleged prejudice to the Saras from further interest did not justify a different order, because it depended on whether Prime Capital's loan agreement and mortgage were ultimately enforceable and no extraneous prejudice was identified.

Jurisdiction
Australia
Judgment Date
13 February 2017
Procedural Posture
Common Law Proceedings / Notice of Motion for Leave to File a Cross Claim and to Vacate the Scheduled Hearing
Outcome
Plaintiff's motion granted; hearing vacated; costs of the motion and costs thrown away or occasioned by the adjournment ordered to be costs in the proceedings.
Legal Topics
['leave to File Cross Claim' 'vacating Hearing' 'adjournment' 'costs in the Proceedings' 'prejudice Caused by Delay']
['civil Procedure'] ['leave to File Cross Claim' 'vacating Hearing' 'adjournment' 'costs in the Proceedings' 'prejudice Caused by Delay']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Common Law Proceedings / Notice of Motion for Leave to File a Cross Claim and to Vacate the Scheduled Hearing

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file a fourth cross-claim against Charbel Boutros and BluePrint Financial Planners Pty Ltd.' 'Whether the hearing scheduled to commence on 13 February 2017 should be vacated.' "Whether the plaintiff's motion costs and costs thrown away or occasioned by the adjournment should be paid by one party or be costs in the proceedings." 'Whether delay before final hearing would cause prejudice to Joseph Sara and Assaf Sara.']

Ratio Decidendi

Leave to file the proposed fourth cross-claim and vacating of the hearing were justified because Mr Boutros' role in the relevant events made joinder an inevitable prospect that should be clarified before final hearing, otherwise inconsistent results might arise. The motion costs and costs thrown away or occasioned by the adjournment should be costs in the proceedings because the final outcome would more fairly determine where that burden should fall. The alleged prejudice to the Saras from further interest did not justify a different order, because it depended on whether Prime Capital's loan agreement and mortgage were ultimately enforceable and no extraneous prejudice was identified.

Court Disposition

Plaintiff's motion granted; hearing vacated; costs of the motion and costs thrown away or occasioned by the adjournment ordered to be costs in the proceedings.

Orders

  • ['Vacate the hearing scheduled to commence on 13 February 2017.' 'Grant leave to the plaintiff to file a fourth cross-claim against Charbel Boutros and BluePrint Financial Planners Pty Ltd in the form attached to the email from Kemp Strang Lawyers to Swaab Attorneys dated 6 February 2017 by no later than 14 February...