Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 3) [2017] FCA 181

Sherrin Hire Pty Ltd v Tidd Ross Todd Ltd (No 3) [2017] FCA 181

Leave to amend the Cross-Claim was refused except as regards the claim based on clause 22.3 because the remainder of the proposed amendments raised a new case at a very late stage, after unacceptable and unexplained delay, and had little or no prospects of success. The application would also prejudice the opposing party and disrupt the imminent trial. Leave was granted to discontinue the Cross-Claim against Mr Sherrin with costs reserved, and the cross-claimants were ordered to pay the costs of the application otherwise.

Parties
Applicant: Sherrin Hire Pty Ltd; First Respondent / First Cross Claimant: Tidd Ross Todd Ltd; Second Respondent / Second Cross Claimant: TRT (Aust) Pty Ltd; Third Respondent / Third Cross Respondent: Panalam Technologies Limited; Fourth Respondent: Arotahi Trading Limited; First Cross Respondent: Sherrin Rentals Pty Ltd (formerly Sherrin Equipment Pty Ltd); Second Cross Respondent: Michael Patrick Sherrin
Jurisdiction
Australia
Judgment Date
28 February 2017
Procedural Posture
Interlocutory Application in Civil Proceedings / Application for Leave to Amend Cross Claim Before Joint Trial
Outcome
Leave to amend refused except for clause 22.3 indemnity claim; application otherwise dismissed; leave to discontinue as to certain parties granted; costs orders made.
Legal Topics
Leave to Amend Pleadings, Discontinuance of Cross Claim, Costs, Prospects of Success for Amended Claim
Practice and Procedure Contract Law Leave to Amend Pleadings Discontinuance of Cross Claim Costs Prospects of Success for Amended Claim

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 3 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Sherrin Hire Pty Ltd

Applicant

Tidd Ross Todd Ltd

First Respondent / First Cross Claimant

TRT (Aust) Pty Ltd

Second Respondent / Second Cross Claimant

Panalam Technologies Limited

Third Respondent / Third Cross Respondent

Arotahi Trading Limited

Fourth Respondent

Sherrin Rentals Pty Ltd (formerly Sherrin Equipment Pty Ltd)

First Cross Respondent

Michael Patrick Sherrin

Second Cross Respondent

Procedural Posture

Interlocutory Application in Civil Proceedings / Application for Leave to Amend Cross Claim Before Joint Trial

Legal Issues

  1. 1 Whether leave to amend the Cross-Claim should be granted despite delay, introduction of a new case, and questionable prospects of success
  2. 2 Whether leave should be granted to discontinue the Cross-Claim against an individual party
  3. 3 Who should bear the costs of the application and discontinuance

Ratio Decidendi

Leave to amend the Cross-Claim was refused except as regards the claim based on clause 22.3 because the remainder of the proposed amendments raised a new case at a very late stage, after unacceptable and unexplained delay, and had little or no prospects of success. The application would also prejudice the opposing party and disrupt the imminent trial. Leave was granted to discontinue the Cross-Claim against Mr Sherrin with costs reserved, and the cross-claimants were ordered to pay the costs of the application otherwise.

Court Disposition

Leave to amend refused except for clause 22.3 indemnity claim; application otherwise dismissed; leave to discontinue as to certain parties granted; costs orders made.

Orders

  • Leave granted to the cross-claimants to amend their Cross-Claim to include a claim against the first cross-respondent based on clause 22.3 of the 2005 Agreement.
  • Interlocutory Application otherwise dismissed.