Yanagisawa v Shamrock Civil Engineering Pty Ltd [2021] NSWSC 761

Yanagisawa v Shamrock Civil Engineering Pty Ltd [2021] NSWSC 761

Leave was granted because the explanation for the first defendant's delay was accepted, the conflict of interest concerns raised by the second defendant were overstated in the circumstances, the contractual indemnity issue was one of construction and did not require additional evidence, and the just, quick and cheap resolution of the real issues favoured allowing all issues to be resolved together if possible. The first defendant was nevertheless ordered to pay the costs of the motion because its delay caused the application to be heard shortly before the listed hearing.

Jurisdiction
Australia
Judgment Date
22 June 2021
Procedural Posture
Personal Injury Proceedings; Motion for Leave to Rely on a Second Cross Claim / Procedural Ruling Before Trial
Outcome
Leave granted to the first defendant to rely on the cross-claim filed 16 April 2021; first defendant to pay the costs of the motion.
Legal Topics
['cross Claims' 'contractual Indemnity' 'joint Tortfeasors' 'conflict of Interest' "employer's Policy of Insurance" 'case Management' 'insurer Duty of Good Faith']
['civil Procedure' 'contract' 'insurance' 'torts' 'workers Compensation'] ['cross Claims' 'contractual Indemnity' 'joint Tortfeasors' 'conflict of Interest' "employer's Policy of Insurance" 'case Management' 'insurer Duty of Good Faith']

Case Brief

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Procedural Posture

Personal Injury Proceedings; Motion for Leave to Rely on a Second Cross Claim / Procedural Ruling Before Trial

Legal Issues

  1. 1 ['Whether the first defendant should be granted leave to rely on the second cross-claim filed 16 April 2021 including a claim for contractual indemnity under the labour hire agreement.' "Whether the proposed contractual indemnity claim should be refused or delayed because the second defendant's employer's insurer would not indemnify contractual liability and a potential conflict of interest was said to arise." 'Whether granting leave would jeopardise the listed hearing date.' 'Which party should pay the costs of the motion.']

Ratio Decidendi

Leave was granted because the explanation for the first defendant's delay was accepted, the conflict of interest concerns raised by the second defendant were overstated in the circumstances, the contractual indemnity issue was one of construction and did not require additional evidence, and the just, quick and cheap resolution of the real issues favoured allowing all issues to be resolved together if possible. The first defendant was nevertheless ordered to pay the costs of the motion because its delay caused the application to be heard shortly before the listed hearing.

Court Disposition

Leave granted to the first defendant to rely on the cross-claim filed 16 April 2021; first defendant to pay the costs of the motion.

Orders

  • ['Leave granted to the first defendant to rely on the cross-claim filed 16 April 2021, including the claim in contract.' 'Leave granted to the parties to apply to sever the contractual count from the hearing commencing on 2 August if representation and involvement of other parties cannot be worked out before the...