If a party has commenced proceedings against you in court, you typically have 28 days to respond to their statement of claim. You must inform the court if you intend to defend the claim. In some circumstances, you may also have a separate claim against the plaintiff and ​should​ serve a cross-claim. Below we’ll discuss how a cross-claim fits into the litigation process.

When to Serve a Cross-Claim?

A defendant (i.e. you) can serve a cross-claim when you also​ have a claim against the plaintiff (either related or separate to their original claim). A defendant serving a cross-claim is ordinarily arguing that it has incurred some loss as a result of the plaintiff’s actions and it should be compensated.

If you intend to defend the plaintiff’s claim, you need to serve both a defence and cross-claim. You should serve both at the same time or within the timeframe set out in the statement of claim (usually 28 days). If you fail to file a defence and simply serve a cross-claim, the court can make a decision against you in relation to the plaintiff’s claim, and then treat the cross-claim as separate proceedings.

Who Can You Bring A Cross-Claim Against?

You can bring a cross-claim against the plaintiff or a third party. However, if you make a cross-claim against a third party, it must relate to the claim against the plaintiff. 

As a defendant, you could bring a cross-claim against the plaintiff where you have suffered a loss as a result of their actions. For instance, a builder makes a claim against you for not paying his fees for renovations he undertook on your house. However, the builder caused significant damage for which you had to engage another builder to fix. In this situation, it would be appropriate to bring a cross-claim against the plaintiff to recover the cost of the second builder.

Alternatively, you would usually bring a cross-claim against a third party where you believe that party (rather than you) is responsible for the plaintiff’s loss. For example, the plaintiff has made a claim against you for failing to provide services that you were contracted to provide. However, you subcontracted the provision of those services to a third party. In these circumstances, you would bring a cross-claim against the third party.  

What Do You Need to Include in a Cross-Claim?

A cross-claim is another form of pleadings (the document outlining your claim or defence). This means that you set out all the facts and the supporting information your claim relies on to establish the legal grounds.

Your statement of cross-claim must also include the compensation you are asking the court to award, as well the details of how you calculated that amount. For instance, in the above scenario where the plaintiff caused damage to your property during renovations, you should list the specific work the second builder undertook in fixing the damage.

What Happens After You Serve a Cross-Claim?

The plaintiff (now the cross-defendant) will need to respond to your claim within 28 days. If they don’t file a defence, the court can award a default judgment in your favour. A default judgment is when the other party fails to defend the claim that you have brought against them. 

If you brought the cross-claim against a third party, they would be added to the proceedings as a cross-defendant. The court then establishes a schedule to deal with all the claims in the proceedings and make a decision.

Key Takeaways

You can bring a cross-claim against either the plaintiff or a third party. There must be a close connection between what is in dispute in the original claim and your cross-claim. You should typically file your defence and cross-claim at the same time to avoid the court making a default judgment against you. If you have any questions or need assistance drafting your defence or cross claim, get in touch with our disputes lawyer on 1300 544 755.

Jonathan Muncey
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