Cutting Edge Services Pty Ltd v Raymond & Therese Penfold [2020] NSWSC 1012

Supreme Court New South Wales

Medium Neutral Citation: Cutting Edge Services Pty Ltd v Raymond & Therese Penfold [2020] NSWSC 1012 Hearing dates: 30 July and 3 August 2020 Date of orders: 6 August 2020 Decision date: 06 August 2020 Jurisdiction: Common Law Before: N Adams J Decision: (1) Leave be granted to the plaintiff to rely upon the following evidence at the hearing: (a) Affidavit of Dean Maxwell Brus sworn 2 July 2020; (b) Affidavit of Adam Perry sworn 26 June 2020; (c) Report of Chris Katehos dated 1 July 2020. (2) The hearing date on 17 August 2020 be vacated. (3) The plaintiff is to pay the costs of the motion and the costs thrown away from the vacation of the hearing date. (4) The plaintiff is to particularise its damages claim within 21 days, including the manner of its assessment and each way the claim is put. (5) The defendant is to amend its defence, if required, within 28 days of service of the plaintiff's further particulars as to damages. (6) The defendant and cross-defendant are to serve any evidence in reply to the evidence served by the plaintiff in July 2020 by 21 December 2020. (7) The parties are to agree upon a list of questions to be forwarded to the experts for the purposes of a joint report, with such list to be forwarded by 12 March 2021. (8) The experts in their respective areas of expertise are to confer and provide a joint report on matters agreed and disagreed setting out the reasons for their disagreement. Such conference is to take place by 26 March 2021. (9) The joint report from the experts is to be filed and served by 23 April 2021. (10) The parties are to file and serve a Final Joint Memorandum of Issues in Dispute and Agreed Facts by 21 May 2021. (11) The parties are to file and serve an affidavit as to readiness for hearing by 4 June 2021. (12) The matter be listed for directions on 11 June 2021. (13) The matter be listed for hearing on 2 August 2021. (14) Liberty to apply on 3 days' notice. The Court notes that the plaintiff has served the entirety of the evidence on which it intends to rely and it is not to serve any further evidence without leave of the Court. Catchwords: CIVIL PROCEDURE - vacation of hearing date - negligence - storage of railways sleepers on rural property - sleepers destroyed by fire - insurance policy - quantum of damages - further evidence required Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-61 Cases Cited: Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175; [2009] HCA 27 Electricity Trust of South Australia v O'Leary (1986) 42 SASR 2 Hans Pet Construction Pty Limited v Cassar [2009] NSWCA 230 Marks v GIO Australia Holdings Limited (1998) 196 CLR 494;[1998] HCA 69 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Category: Procedural and other rulings Parties: Cutting Edge Services (Aus) Pty Ltd (Plaintiff) Raymond Mark Penfold (First Defendant) Ruth Terese Penfold (Second Defendant) The Hollard Insurance Company Pty Ltd (Cross-Defendant) Representation: Counsel: Mr G Carolan SC (Plaintiff) Mr J Drummond with Mr P Boncardo (Defendants/Cross‑Claimants) Dr N Chen SC with Ms E Doyle‑Markwick (Cross-Defendant)