Schmuelly v Elrob Construction Group Pty Ltd (No 2) (vacate trial) [2025] NSWSC 26

Supreme Court New South Wales

Medium Neutral Citation: Schmuelly v Elrob Construction Group Pty Ltd (No 2) (vacate trial) [2025] NSWSC 26 Hearing dates: 3 February 2025 Date of orders: 3 February 2025 Decision date: 03 February 2025 Jurisdiction: Equity - Technology and Construction List Before: Rees J Decision: Dismiss application. Catchwords: VACATE TRIAL – defendant seeks to vacate 5-day trial – blames former solicitor for failing to file lay and expert evidence and not informing defendant that he had ceased to act – principles at [23]-[25] – in fact, defendant had terminated solicitor's retainer six-months earlier – inadequate explanation – application refused. LEAVE TO ADDUCE FURTHER EVIDENCE – defendant serves 3,000 pages of lay and expert the day before trial – plaintiff cannot meet evidence without vacating trial – principles at [22] – application refused. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 62(1), 66 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 Forster v Harvey [2006] NSWSC 1112 Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706 Hamod v New South Wales [2011] NSWCA 375 In the matter of Wise & Young Pty Ltd [2019] NSWSC 1092 Kerr v American Express Australia Ltd [2009] FCA 1219 Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25 Singh v Deputy Commissioner of Taxation [2011] FCA 889 Thornberry v The Queen (1995) 69 ALJR 777 Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Von Reisner v Chepurin [2012] NSWCA 418 Category: Procedural rulings Parties: Dror Schmuelly (Plaintiff) Elrob Construction Group Pty Ltd (First Defendant) Elia Boujaoude (Second Defendant) Representation: Counsel: M Pesman SC (Plaintiff)