Burge v Lake Macquarie City Council [2023] NSWDC 191

District Court New South Wales

Medium Neutral Citation: Burge v Lake Macquarie City Council [2023] NSWDC 191 Hearing dates: 07 June 2023 Date of orders: 09 June 2023 Decision date: 09 June 2023 Jurisdiction: Civil Before: Gibson DCJ at Newcastle Decision: (1) Second defendant's Notice of Motion dismissed; hearing date of 31 July 2023 confirmed. (2) Second defendant pay the costs of the plaintiff of this Notice of Motion and the hearings before Gibson DCJ and the Registrar on 7 June, 30 May and 23 May 2023. Catchwords: Application for extension of time to file expert report made 7 weeks before trial by defendant in breach of two prior expert evidence orders – conflict of authority as to whether application to amend governed by UCPR r 1.12 or r 31.28 – whether exceptional circumstances required – whether exceptional circumstances made out – whether leave would be granted if UCPR r 1.12 applied – applicant fails under both UCPR regimes – notice of motion dismissed with costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 31.28 Cases Cited: Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27 Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440 Dolores Correa and the Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 266 Gershowitz v Kaye [2021] NSWDC 128 In the matter of Graziers Pastoral Pty Limited; In the matter of Windsor Livestock Holdings Pty Limited; In the matter of Windsor Livestock Pty Limited [2021] NSWSC 1680 Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265 San v Rumble (No 2) [2007] NSWCA 259 Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290 Texts Cited: Nil Category: Procedural rulings Parties: Cheryl Burge (Plaintiff) Lake Macquarie City Council (1st Defendant) Rennej Pty Limited (2nd Defendant) Matt Ferry Carpentry Pty Ltd (3rd Defendant) Representation: Counsel: Mr T Hickey (Plaintiff) Mr B Smith (2nd Defendant)