May v Cutler Hughes & Harris; May v Brahmbhatt [2012] NSWCA 119

May v Cutler Hughes & Harris; May v Brahmbhatt [2012] NSWCA 119

The application for leave to appeal was dismissed because the cross-claim, in its existing form, failed to plead material facts establishing any retainer or other duty owed by Cutler Hughes & Harris to the applicant, disclosed no reasonable cause of action, and tended to cause embarrassment or delay. Since the strike-out did not prevent the applicant from filing a fresh properly pleaded cross-claim, refusal of leave caused no injustice.

Jurisdiction
Australia
Judgment Date
20 April 2012
Procedural Posture
Application for Leave to Appeal Against Interlocutory Decision / Court of Appeal Application for Leave to Appeal From District Court Order Striking Out Cross Claim
Outcome
Application for leave to appeal dismissed with costs to the First Respondents.
Legal Topics
['leave to Appeal' 'strike Out of Cross Claim' 'pleading Requirements' 'solicitor Retainer' 'duty of Care' 'fiduciary Duty' 'guarantee']
['practice and Procedure' 'professional Negligence'] ['leave to Appeal' 'strike Out of Cross Claim' 'pleading Requirements' 'solicitor Retainer' 'duty of Care' 'fiduciary Duty' 'guarantee']

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Procedural Posture

Application for Leave to Appeal Against Interlocutory Decision / Court of Appeal Application for Leave to Appeal From District Court Order Striking Out Cross Claim

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from the District Court order striking out the applicant's cross-claim." 'Whether the cross-claim pleaded material facts establishing that Cutler Hughes & Harris or its predecessor accepted a retainer to act for the applicant personally, or otherwise owed him a duty to act on his behalf or protect his interests in connection with execution of the guarantee.' 'Whether the cross-claim disclosed a reasonable cause of action or had a tendency to cause embarrassment or delay in the proceedings.']

Ratio Decidendi

The application for leave to appeal was dismissed because the cross-claim, in its existing form, failed to plead material facts establishing any retainer or other duty owed by Cutler Hughes & Harris to the applicant, disclosed no reasonable cause of action, and tended to cause embarrassment or delay. Since the strike-out did not prevent the applicant from filing a fresh properly pleaded cross-claim, refusal of leave caused no injustice.

Court Disposition

Application for leave to appeal dismissed with costs to the First Respondents.

Orders

  • ['Dismiss the application for leave to appeal.' "The applicant pay the First Respondents' costs of the application for leave to appeal."]