Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 2) [2016] FCA 891

Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 2) [2016] FCA 891

The cross-claim concerning exclusion of liability for consequential loss can proceed to trial; the application for leave to amend is dismissed due to defects in the breach of contract plea requiring a new pleading and application.

Jurisdiction
Australia
Judgment Date
09 August 2016
Procedural Posture
Interlocutory Application / Application for Leave to Amend Notice of Cross Claim
Outcome
Application dismissed
Legal Topics
['consequential Loss Clauses' 'leave to Amend Pleadings' 'exclusion of Liability' 'indemnity Provisions']
['contract Law' 'practice and Procedure'] ['consequential Loss Clauses' 'leave to Amend Pleadings' 'exclusion of Liability' 'indemnity Provisions']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Leave to Amend Notice of Cross Claim

Legal Issues

  1. 1 ['Whether the cross-claim for indemnity based on clause 22.3 of the Agreement should go to trial' 'Whether leave to amend the notice of cross-claim should be granted where breach of contract plea is defective' "If 'consequential loss' clause excludes liability for repair costs or damages"]

Ratio Decidendi

The cross-claim concerning exclusion of liability for consequential loss can proceed to trial; the application for leave to amend is dismissed due to defects in the breach of contract plea requiring a new pleading and application.

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.' 'The cross-claimants pay the costs of the application of the first cross-respondent, to be taxed if not agreed.']