Counter-claim And Third-Party Procedure Flashcards
Application
Proceedings commenced by writ or proceedings commenced by originating motion, and continued by writ
Availability of counterclaim procedure
A defendant with a claim against the plaintiff can make a counter claim against the plaintiff in the proceedings.
Rule 9.01 (joinder of claims) applies.
Counterclaim and defence should be played in one document, called a defence and counterclaim
bringing a counterclaim against a plaintiff, plus another person
A defendant can join with the plaintiff as defendant to the counter claim any other person, whether that person is a party to the proceeding or not.
The person must be able to be properly, joined with the plaintiff has a party in a quarters with rule 9.02 (permissive joinder)-i.e. where:
- If separate proceedings were brought by or against each of them, some common question of law fact would arise in all the proceedings; or
-Where all rights to relief, claimed in the proceeding, whether they are joint, several or alternative are in respect of all arise out of the same transactions or series of transactions; or
-where the court gives leave to do so
procedure after counterclaim against another person
The defence and counterclaim must contain a second title of the proceedings showing, who is the plaintiff and two other defendants.
Where the person joined is already a party to the proceedings copy, the defendant must serve a copy of the defence and counterclaim within the time, fixed for serving a defence
Where the person joined is not already a party to the proceedings, the defendant must serve a copy of the defence and counter claim personally inform 10 A within 30 days after the expiration of the time fixed for serving a defence
The person joined, if not already a party, becomes a party when served . Notice of appearance is in form 10 B.
trial of the counter claim
Counterclaim is tried at the trial of the claim of the plaintiff, unless otherwise ordered
counterclaim inconvenient
The antidote
Where the counter claim may embarrass or delay the trial of the claim of the plaintive or cause prejudice to any party or otherwise cannot be conveniently tried with the plaintiffs claim, the court, my order, separate trials, ordered any claim in the counter claim be excluded, strike out the cloud to claim without prejudice, to assert the claim in a separate proceeding, or older than any person joined as defendant to the counter claim seems to be a party to the counter claim
Stay of the original proceeding
where a defendant admits the claim of the plaintiff in its defence, and then counter claims, the court may stay the original proceeding of the plaintiff until the defendants counter claim is disposed of
Where the original proceedings is determined, stayed, discontinued, dismissed
The counter claim may still be prosecuted
judgement for balance
Where the plaintive succeeds on its claim under the defendant succeeds on its counter claim, and a balance in favour of one of them results, the court may give judgement for the balance
How may a defendant join a party or claim to the proceeding?
where the defendant has a case against the plaintiff and another person, the defendant may counter claim against the plaintiff and that other person in the same counterclaim.
Where the defendant claims that another person has concurrent liability in respect of the plaintiff’s claim against the defendant, the defendant may issue third-party proceedings against that other person.
Where the defendant otherwise claims that a person already a party to the proceedings has a concurrent liability, the defendant may claim contribution by issuing a notice for contribution.
The claim by third-party notice
Is governed by Rule 11.
where the defendant is claiming against a person, not already a party to the proceeding. May join the third-party as a party to the proceeding and make the claim against that third-party by filing and serving a third-party notice in form, 11 A and endorsed with a statement of claim.
The third-party notice must state a time within which the third-party may file an appearance, and the time must be not less than 10 days after service where the notice is served within Victoria, and where the notice is served out of Victoria 21 days after service. The defendant must not serve a third-party notice until they have served their own defence in the proceedings, and the third-party notice may be served within 30 days after the time limited for the service of the defence or at any time with the leave of the court, or with the consent of the plaintiff, and any other party in writing. If seeking leave, an application for leave should be made on notice to the plaintiff, but the court may direct notice to be given to any other party who is appeared the third-party notice must be served on the third-party within 60 days after it is filed, but the court may fix another period for service, at the same time, the third-party should also be served a copy of the written/other originating process, and the pleadings are affidavits, filed, and served in the proceedings, and any orders related to the consent to the issuing of the third-party notice/extension of time. A copy of the third-party notice must also be served on the plaintiff and any other party who is appeared within a period for service on the third party.
Where the defendant claims against that other person:
- Any contribution or indemnity; or
-any release or remedy relating to or connected with the original subject matter of the proceedings, and substantially the same as some relief or remedy claimed by the plaintiff; or
-that any question relating to or connected with the original subject matter of the proceedings should be determined, not only as between the plaintiff and the defendant, but also between either, or both the plaintive/defendant and that other person
Where copy of the third-party notice is not served in accordance with the rules
on application by the plaintive all the third party, the Courtney order that the questions between the plaintiff and the defendant be tried before and separately from the questions between the defendant and a third party
defence of the third-party to the statement of claim endorsed on the third party notice
Within 30 days after filing the third parties appearance.
Third parties defence to the statement of claim of the plaintiff
Third-party may server defence to the statement of claim of the plaintiff, by which the third-party disputes the liability to the plaintiff of the defendant by whom the third-party was joined on any ground, not raised by that defendant in the defendants own defence
counter claim by third-party
A third-party who has a claim against the defendant may assert the claim in the proceeding by way of counterclaim, and the third-party may also join the plaintiff as defendant to the counterclaim if both of plaintiff and defendant could be joined properly as defendants in accordance with rule 9.02 in a separate proceeding (permissive joinder)
