Prynew Pty Limited v Nemeth [2011] NSWCA 5

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Prynew Pty Limited v Nemeth [2011] NSWCA 5 Hearing dates: 31 January 2011 Decision date: 31 January 2011 Before: Allsop P Decision: (1) As to the motion brought by the first respondent: (a) the motion is dismissed, but the respondents to that motion, that is the appellants, pay the costs of the applicant to the motion being the first respondent and the fourth respondent to the proceedings. (b) The dates for hearing of this appeal of 21 and 22 February are vacated. The appellants pay the costs of the first and fourth respondents to the appeal thrown away by the vacation of the hearing on an indemnity basis, leave being granted to assess such costs forthwith. 2. As to the amended notice of motion brought by the appellants: (a) grant leave in accordance with prayers 1 and 2 of the motion to amend the existing notice of appeal and the submissions; (b) the further amended notice of appeal be filed within fourteen days. The orange, blue and black books be filed with the court on or before 28 February 2011. (c) Order 3 in the notice of motion to adduce fresh evidence is refused. (d) The appellants, the applicants on the notice of motion, pay the costs of the first and fourth respondents of the motion. (e) As to the costs of the issues abandoned, as a condition of the grant of leave to amend, order that the appellants pay the costs of the first and fourth respondents of the issues abandoned. (f) The amended notice of motion is otherwise dismissed and the appeal is to be relisted at the earliest opportunity after the 28 th February, assuming the orders are complied with, for the obtaining of a hearing date at the earliest opportunity. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - Civil - pleadings - application to amend - application to adduce fresh evidence - application under Civil Procedure Act 2005, s 61 for dismissal with costs - dilatory preparation of appeal