Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 426

New South Wales Supreme Court

CITATION : Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 426

HEARING DATE(S) : 28 April 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 April 2008

DECISION : Vacate hearing appointed to commence today and adjourn to 20 June 2008. Grant leave to plaintiff to file Further Amended Statement of Claim and to rely on late affidavits.

CATCHWORDS : PROCEDURE – Application by plaintiff to rely on affidavit evidence served out of time provided for by directions – where application made on first day set down for hearing – where defendant has chosen not to prepare to deal with new issues raised by late affidavit evidence – where justice of case requires some of the late affidavit evidence be adduced – considerations of prejudice to defendant – whether defendant should be allowed election to vacate hearing – effect of election on admissibility of affidavit evidence – where defendant elects to proceed with hearing and plaintiff then applies to vacate - PROCEDURE – Application to further amend Statement of Claim where the Court had previously noted that no party intended to amend its pleadings – where application made on first day set down for hearing – considerations of prejudice to opposing party – whether opposing party should be allowed election to vacate hearing – effect of election on amendment of Statement of Claim - where defendant elects to proceed with hearing and plaintiff then applies to vacate.

CATEGORY : Procedural and other rulings

PARTIES : Kayserian Nominees (No 1) Pty Ltd (plaintiff) J R Garner Pty Ltd (defendant)