Strahinja Pandurevic v Southern Cross Constructions (NSW) Pty Limited & Ors (No 1) [2011] NSWSC 1695

Strahinja Pandurevic v Southern Cross Constructions (NSW) Pty Limited & Ors (No 1) [2011] NSWSC 1695

The proposed cross-claim was arguable because the contract, site diary entries, evidence of Southern Cross's awareness and involvement, the use of a crane by another subcontractor, and the need to coordinate site activities could support a case that Southern Cross owed and breached a duty relevant to contribution. Although there had been substantial delay and prejudice, the interests of justice required that Allmen be granted leave to pursue the cross-claim. To preserve Allmen's potential contribution claim, judgment in favour of Southern Cross under its settlement with the plaintiff should not be entered until the cross-claim is determined.

Jurisdiction
Australia
Judgment Date
29 July 2011
Procedural Posture
Proceedings for Damages for Personal Injury; Interlocutory Application for Leave to File Cross Claim / Interlocutory Application by 2nd Defendant for Leave to File Fourth Cross Claim and for Deferral of Judgment Between Plaintiff and 1st Defendant
Outcome
Leave granted to the 2nd defendant to file the fourth cross-claim; judgment in proceedings between the plaintiff and 1st defendant deferred until that cross-claim is determined.
Legal Topics
['leave to File Cross Claim' 'contribution or Indemnity Under S 5 of the Law Reform (miscellaneous Provisions) Act 1946' 'effect of Settlement and Entry of Judgment on Contribution Claim' "principal Contractor Duty of Care to Subcontractor's Worker" 'safe System of Work on Construction Site']
['personal Injury' 'negligence' 'civil Procedure' 'contribution Between Tortfeasors'] ['leave to File Cross Claim' 'contribution or Indemnity Under S 5 of the Law Reform (miscellaneous Provisions) Act 1946' 'effect of Settlement and Entry of Judgment on Contribution Claim' "principal Contractor Duty of Care to Subcontractor's Worker" 'safe System of Work on Construction Site']

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Procedural Posture

Proceedings for Damages for Personal Injury; Interlocutory Application for Leave to File Cross Claim / Interlocutory Application by 2nd Defendant for Leave to File Fourth Cross Claim and for Deferral of Judgment Between Plaintiff and 1st Defendant

Legal Issues

  1. 1 ['Whether Allmen Steel Pty Ltd should be granted leave to file a fourth cross-claim against Southern Cross Constructions (NSW) Pty Limited seeking contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 despite the time limitation in UCPR r 9.1(1).' 'Whether the proposed cross-claim against Southern Cross was arguable.' "Whether judgment in favour of Southern Cross under its settlement with the plaintiff should be deferred until determination of Allmen's contribution claim." 'Whether delay and prejudice to Southern Cross should prevent leave being granted.']

Ratio Decidendi

The proposed cross-claim was arguable because the contract, site diary entries, evidence of Southern Cross's awareness and involvement, the use of a crane by another subcontractor, and the need to coordinate site activities could support a case that Southern Cross owed and breached a duty relevant to contribution. Although there had been substantial delay and prejudice, the interests of justice required that Allmen be granted leave to pursue the cross-claim. To preserve Allmen's potential contribution claim, judgment in favour of Southern Cross under its settlement with the plaintiff should not be entered until the cross-claim is determined.

Court Disposition

Leave granted to the 2nd defendant to file the fourth cross-claim; judgment in proceedings between the plaintiff and 1st defendant deferred until that cross-claim is determined.

Orders

  • ['Leave granted to Allmen Steel Pty Ltd to file the fourth cross-claim against Southern Cross Constructions (NSW) Pty Limited.' 'Order that no judgment be given in the proceedings between the plaintiff and Southern Cross Constructions (NSW) Pty Limited until the fourth cross-claim is determined.']