Order 10 - Counterclaim Flashcards
10.01 Application of Order (commenced/continued as writ)
Only applies to (a) proceeding commenced by writ; (b) continued as writ
10.02 When counterclaim allowed (D has claim ats. P - shall be filed as one doc - D&C)
(1) Defendant who has a claim against the Plaintiff can counterclaim (2) Rule 9.01 applies to the counterclaim as if P were D and D were P
(3) D who counterclaims shall plead the defendant’s defence and the counterclaim IN ONE DOCUMENT called a defence and counterclaim
10.03 counterclaim against plaintiff and another person (can join per 9.02)
A D may join with the P as D to the counterclaim any other person, whether a party to the proceeding or not, who, if the D were to bring a separate proceeding, could be properly joined with P as a party in accordance with r 9.02.
10.04 Procedure after counterclaim against another
person (D&C contain second title showing who’s plaintiff and who are Ds - if already joined, serve within defence time limit; if not jointed, serve personally and unless court otherwise orders within 30d period after serving defence - then becomes party as if sued in ordinary way)
(1) Where above happens, the defence and counterclaim shall contain a second title of the proceeding showing:
● (a) Who is plaintiff to the counterclaim; and
● (b) Who are defendants to the counterclaim
(2) Def shall serve on the person joined as a defendant to the counterclaim a copy of the defence and counterclaim as follows:
● (a) Where they’re already joined, per r 14.04 time limit for serving a defence (b) Where not already joined, served personally and unless court otherwise orders, served within 30 days after expiration of time fixed by 14.04 for serving defence
(3) Person joined then, if not already a party, becomes a party when served with the D and counterclaim. They’re in the same position as if had been sued in the ordinary way by the D making the counterclaim.
(4) Where a person joined is not already party to the proceeding, orders 8, 11, 14 and 21 shall apply as if (a) the counterclaim were a writ with a SoC; (b) the defendant making the counterclaim were a plaintiff; and (c) the person joined were a defendant.
(5) A CC served on a D to the CC who is not already a party shall
commence with a notice in Form 10A
(6) A notice of appearance by a defendant to a counterclaim who is not already a party shall be in Form 10B
10.05 trial of counterclaim (tried at P claim unless Court otherwise orders)
A counterclaim shall be tried at the trial of claim of plaintiff unless the Court otherwise orders.
10.06 Counterclaim inconvenient (separate trials, exclude claim, strike out CC, order D cease to be CC)
Despite rr 10.02 and 10.03, where counterclaim may embarrass or delay the trial or cause prejudice to any party or otherwise cannot be conveniently tried with the claim, the Court may:
● (a) Order separate trials of the counterclaim and claim of P
● (b) Order that any claim in the counterclaim be excluded
● (c) Strike out the counterclaim without prejudice to the right of the defendant to assert the claim in a separate proceeding
● (d) Order that any person joined as defendant to the counterclaim cease to be a party to the counterclaim
10.07 Stay of (original) claim (where D admits then CCs)
Where the D by their defence admits the claim of P and then CCs, the Court may stay the original proceeding until CC is disposed of.
10.08 CC on stay etc of original proceeding (even where J for P, or OP is stayed/discontinued/dismissed)
Counterclaim can be prosecuted even if
● (a) Judgment is given for P in the original proceeding; or
● (b) That original proceeding is stayed, discontinued or dismissed.
10.09 Judgment for balance
Where P succeeds on claim and D succeeds on CC and balance in favour of one of them results, Court may give judgment for balance.
