Yu v Wei (No 2) [2019] NSWDC 948

District Court New South Wales

Medium Neutral Citation: Yu v Wei (No 2) [2019] NSWDC 948 Hearing dates: 29 August 2019 Date of orders: 29 August 2019 Decision date: 29 August 2019 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: Leave for the defendants to read and rely upon the affidavit of Park Zuliang Wei dated 28 August 2019 is refused Catchwords: EVIDENCE — witness evidence — affidavits – late service - prejudice Category: Procedural and other rulings Parties: Guo Jun Yu (plaintiff) Park Zuliang Wei (first defendant) Top Pacific Group Pty Ltd (second defendant) Representation: Counsel: Mr A J Macauley (plaintiff) Mr F Santisi (defendants)

Solicitors: Zhang Shijing Lawyers (plaintiff) GOH Lawyers (defendants) File Number(s): 2018/179714 Publication restriction: None

Judgment 1. Although the Court is always keen to have all relevant evidence before it in deciding disputes, I reject the application to have the further affidavit of Park Zuliang Wei read, for the following reasons. 2. First, there is no evidence giving an explanation for the late service of the affidavit. It was served yesterday evening, after the plaintiff's witnesses' oral evidence had concluded. The application to rely on the affidavit was made after the plaintiff's case had closed. Nor was any explanation given as to why the evidence in the affidavit was not contained in two earlier affidavits of Mr Wei. 3. Secondly, the contents of the affidavit were not put in terms to the two witnesses of the plaintiff. The affidavit contains lengthy details of a conversation at a meeting. Although in general terms the plaintiff's witnesses have been challenged as to whether certain things were said, they were not asked about the asserted conversation in the affidavit. It follows that those witnesses had no opportunity to deny the conversation and give reasons for that denial. 4. Thirdly, and related to the first matter, the evidence is served contrary to the Court's directions that affidavits were to be served months ago. 5. Fourthly and finally, the prejudice to the plaintiff is obvious, not just because the plaintiff's witnesses have not had the opportunity to deal with this account in oral evidence, but the plaintiff has had no opportunity to gather evidence to show the account to be unbelievable or unpersuasive. 6. For those reasons, notwithstanding the Court's desire to receive evidence relevant to determining the dispute, the evidence and the application is rejected. Leave for the defendants to read and rely upon the affidavit of Park Zuliang Wei dated 28 August 2019 is refused.