Hunter Valley Skydiving Centre Pty Limited v Central Coast Aero Club Limited & anor [2008] NSWSC 83

New South Wales Supreme Court

CITATION : Hunter Valley Skydiving Centre Pty Limited v Central Coast Aero Club Limited & anor [2008] NSWSC 83

HEARING DATE(S) : 5 February 2008

JUDGMENT DATE : 14 February 2008

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

DECISION : Grant leave to defendants to rely at hearing on affidavits, notwithstanding that they were served outside time limited by directions previously made. Order defendants to pay plaintiff's costs of and incidental to application, on an indemnity basis. Indicate that if plaintiff wished, hearing appointed to commence on 11 February would be vacated and refixed to commence on 31 March or, if available, on 10 March, with defendants to pay on an indemnity basis the costs of and thrown away by the adjournment.

CATCHWORDS : PROCEDURE – where defendant serves large number of affidavits outside time limited by pre-trial directions – where plaintiff unable to meet same in time for hearing – where hearing has been expedited due to hardship to plaintiff – where default unsatisfactorily explained – where refusing leave would deny defendant opportunity to adduce evidence on central issue in case – where case could be heard with a deferral of seven weeks without disrupting list and without incompensible prejudice to plaintiff – whether leave to rely on late affidavits should be granted.

LEGISLATION CITED : (NSW) Civil Procedure Act 2005, ss 56, 57, 58

CATEGORY : Procedural and other rulings

Cohen v McWilliam (1995) 38 NSWLR 476 CASES CITED : State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156