Al Khaled v Jacaranda Property Developments Pty Ltd & Ors [2012] NSWSC 755

Al Khaled v Jacaranda Property Developments Pty Ltd & Ors [2012] NSWSC 755

The Court exercised discretion to grant leave under s 500(2) Corporations Act 2001 for the first to third defendants to continue their cross-claims against Neatrule Cement Rendering Pty Ltd (in liquidation), reasoning that although there is uncertainty concerning which insurer may ultimately be liable, it would be unjust to impose upon defendants the additional burden of commencing direct insurer proceedings; the relevant insurers are aware of proceedings and may participate if they wish. Orders for costs against Calliden Insurance Limited as non-party contradictor were appropriate given its active opposition to the relief sought and its role in the proceedings.

Jurisdiction
Australia
Judgment Date
04 July 2012
Procedural Posture
Civil Personal Injury/negligence / Interlocutory Application; Application for Leave to Proceed Against Company in Liquidation; Costs Orders
Outcome
Leave granted to first to third defendants to proceed with cross-claims against Neatrule (in liq); costs orders made as detailed below.
Legal Topics
['leave to Proceed Against Company in Liquidation' 'cross Claims' 'insurance Indemnity Disputes' 'costs Against Non Parties']
['civil Procedure' 'insurance Law' 'corporate Insolvency' 'personal Injury'] ['leave to Proceed Against Company in Liquidation' 'cross Claims' 'insurance Indemnity Disputes' 'costs Against Non Parties']

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Procedural Posture

Civil Personal Injury/negligence / Interlocutory Application; Application for Leave to Proceed Against Company in Liquidation; Costs Orders

Legal Issues

  1. 1 ['Whether leave should be granted under s 500(2) Corporations Act 2001 to continue cross-claims against company in liquidation' 'Whether orders should be made under s 6(4) Law Reform (Miscellaneous Provisions) Act 1946' 'Whether an order for costs should be made against a non-party (insurer) who appeared and opposed relief']

Ratio Decidendi

The Court exercised discretion to grant leave under s 500(2) Corporations Act 2001 for the first to third defendants to continue their cross-claims against Neatrule Cement Rendering Pty Ltd (in liquidation), reasoning that although there is uncertainty concerning which insurer may ultimately be liable, it would be unjust to impose upon defendants the additional burden of commencing direct insurer proceedings; the relevant insurers are aware of proceedings and may participate if they wish. Orders for costs against Calliden Insurance Limited as non-party contradictor were appropriate given its active opposition to the relief sought and its role in the proceedings.

Court Disposition

Leave granted to first to third defendants to proceed with cross-claims against Neatrule (in liq); costs orders made as detailed below.

Orders

  • ['Each of the first to third defendants granted leave under s 500(2) Corporations Act 2001 to continue its cross-claim already filed and served against Neatrule Cement Rendering Pty Ltd ACN 125 742 761 (In Liq).' 'Liberty reserved to the liquidator of the company to apply to revoke the grant of leave.' 'Neither of...