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Nissan Financial Services Australia Pty Ltd v Motbey [2021] NSWSC 884

On 27 July 2021 the Supreme Court allowed a defendant to serve a cross claim out of time.

For the uninitiated, the court process is managed by timetable orders based on legislation and procedural rules.  Parties to court proceedings are required to comply with the procedural rules and any timetable orders and failure to do so may, for instance, cause a particular party to miss an opportunity to bring a claim or to rely on evidence that would otherwise be available.

In this case, one of the defendants wanted to make a cross claim against the plaintiff but had missed the deadline within the timetable orders.  The plaintiff refused to consent to the late service of the cross claim and therefore the defendant applied to the Court for permission.

His Honour Justice Davis, in allowing the defendant to file the Cross Claim out of time, referred to section 58(1) of the Civil Procedure Act 2005 (NSW).  That section requires the Court to act in accordance with the “dictates of justice” when considering a procedural order.  His Honour noted that the delay was because documents that were necessary for an adequate and comprehensive pleading were not available and because the defendant was struggling to fund the litigation. 

An analysis of the proposed Cross Claim revealed that the same or related facts applied to both the proposed Cross Claim and to the main action.  His Honour therefore considered that the Court should deal with all of the issues, including those in the cross claim, within one set of proceedings.

There was however a sting in the tail for the defendant.  Despite succeeding in the application the defendant was ordered to pay costs thrown away by reason of the late filing because the Court’s indulgence was required to allow the late filing.


When considering timetable orders it is important to bear in mind what might be required to comply with those orders.  A failure to comply with particular orders may not be fatal to a case but, if the Court’s indulgence is required because of that failure, an avoidable adverse costs order may follow.

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