[6] The primary judge would have been justified in simply refusing to deal with the late application. Although it does not appear that the primary judge was referred to the relevant authorities, it is clearly established by decisions of this Court that if several defendants are sued and the evidence that might be adduced in cross-examination of one defendant could inculpate another defendant, an application for summary dismissal brought by one or more of the defendants, but not all of them, cannot succeed and need not be entertained (Wickstead v Browne (1992) 30 NSWLR 1 at 11-12; Breheny v Cairncross [2002] NSWCA 69; Ford v Nagle [2004] NSWCA 33).

Ngo v Elysee [2019] NSWCA 123