Carydis v Merrag Pty Ltd [2007] NSWSC 1219

New South Wales Supreme Court

CITATION : Carydis v Merrag Pty Ltd [2007] NSWSC 1219

HEARING DATE(S) : 19 - 20 September 2007 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 20 September 2007

DECISION : Leave refused to read affidavit. Adjournment refused, on basis that issue to which late affidavit relates will be subject of separate deferred determination if necessary

CATCHWORDS : PROCEDURE – affidavit evidence – served late – no opportunity to test. - PROCEDURE – Adjournment – to permit opposing party to investigate late affidavit so that it might be read – where issue to which affidavit relates may not be relevant or decisive.

LEGISLATION CITED : (NSW) Civil Procedure Act 2005

CASES CITED : State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Spero Danis Carydis (first plaintiff) PARTIES : Helen Travassaros (second plaintiff) Merrag Pty Limited (defendant)

FILE NUMBER(S) : SC 3001/07

COUNSEL : Mr F Kunc v Mr C Bova (plaintiffs) Mr G Moore (defendant)

SOLICITORS : Gadens Lawyers (plaintiffs) DTA Lawyers (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Thursday, 20 September 2007

3001/07 Spero Danis Carydis v Merrag Pty Ltd JUDGMENT (ex tempore) (on application for leave to read affidavit of Spero Danis Carydis sworn 20 September 2007) 1 HIS HONOUR: The plaintiff seeks to read the affidavit of the plaintiff Spero Danis Carydis sworn 20 September 2007, the substance of which goes to the plaintiff's readiness, willingness and ability to complete the contracts between June 2006 and the end of January 2007, although it touches also on present readiness, willingness and ability to complete, which has also been addressed elsewhere in the evidence. 2 Since the first version of the Defence was filed on 2 August 2007, the Defence has pleaded that the plaintiffs were not ready, willing or able to settle any of the five contracts on 10 July 2006, or as soon as practically possible thereafter, or at all in 2006. I therefore do not think it can be said that the issue of readiness, willingness and ability has only just come to light; it was pleaded in paragraph 8(o) of the original Defence. 3 The defendants complain that if the plaintiff is permitted to adduce this material now they will not, without an adjournment, be in a position to test the allegations that Mr Carydis makes as to his financial position in the second part of 2006. That complaint is a legitimate one in the context of a case that is likely to be completed today: it would be impossible in the available time to issue subpoenas and notices to produce to test the allegations made in the affidavit as to Mr Carydis' then capacity to raise funds to complete the purchase.