Supreme Court New South Wales Medium Neutral Citation: JKB Holdings Pty Ltd v Alejandro De La Vega & anor [2011] NSWSC 836 Hearing dates: 29/4/2011 Decision date: 29 April 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Leave to read affidavit refused. Catchwords: PRACTICE AND PROCEDURE - Plaintiff seeks to read affidavit filed out of time - affidavit totals 188 pages - defendants provided with two business days to deal with affidavit before hearing - courts should not operate on basis that lawyers should be expected to work on public holidays and weekends - leave refused. Category: Procedural and other rulings Parties: JKB Holdings Pty Ltd (plaintiff) Alejandro Jose de la Vega (first defendant) Lynette Margaret de la Vega (second defendant) Representation: Counsel: Mr RJ Burbidge QC w Mr BCA Bradley (plaintiff) Mr RS Reuben (defendants) Solicitors: Lawyers Qld (plaintiff) Charles G Roth (defendants) File Number(s): 2010/228124 Judgment (ex tempore) 1HIS HONOUR: The applications presently before the court are brought by the defendants for (1) leave to withdraw an admission previously made in their defence - on which the plaintiff concurrently relies in its application for judgment on admissions - and (2) for leave to amend the defence and to file a cross-claim. On those applications, the plaintiff seeks to read an affidavit of Jason Mark Schwede of 21 April 2011. 2On 25 March 2011, directions having previously been given in connection with service of evidence, the registrar made an order extending time for the plaintiff to serve all evidence in reply in respect of both motions, to 19 April 2011. The plaintiff did not comply. The affidavit, read on the voir dire, of Karen Schwede, establishes that on 19 April 2011, she wrote to the defendants' solicitor, advising that the plaintiff's evidence would not be served until Thursday 21 April 2011 and asking, "Please let us know if this causes you any difficulties." The defendants' solicitor replied, on 21 April 2011 at 12.44 p.m., asserting that the defendants' representatives would not be in a position properly to deal with the matter before the hearing - the proposed evidence having not yet been served - and that a determination would be made once it was received as to whether it would be objected to or an adjournment sought. 3The plaintiff's solicitor replied, asserting that no objection had been raised any earlier than 21 April. I must say, that in the context that less than 48 hours had elapsed and the evidence had still not been served, I see slight significance in the absence of any earlier objection. The insignificance of absence of such an objection is enhanced when it is seen that the affidavit was not served until after 5 p.m. on 21 April, that 22 April was Good Friday and that 25 and 26 April were public holidays. Accordingly, the first business day on which the matter might have been attended to after service of the affidavit was 27 April. As I have previously commented, notwithstanding the notorious work hours and practices of lawyers, I do not believe that courts should operate on the assumption that lawyers must work during weekends and holidays. It is of additional significance that, when eventually served, the affidavit comprised 118 paragraphs, covering over 32 pages, and appended 78 exhibits. Overall, it amounted to 188 pages. It seems to me utterly unrealistic to assume that the defendants' lawyers could deal with that on 27 and 28 April in preparation for a hearing today. In those circumstances, I accept that the late service of this affidavit must occasion prejudice to the defendants if it were permitted to be relied upon today. 4The substance of the affidavit is summarised in paragraphs 114-116. Essentially, the deponent asserts a belief that neither the Consumer Credit Code nor the National Credit Code applies to the loans the subject of the proceedings, for various reasons. He also asserts that the plaintiff is entitled to an equitable mortgage, so that the claim for damages for wrongful caveating must fail; and that, in any event, the caveat lapsed by the morning of 9 July 2011, so that that claim is misconceived. 5A quick perusal of the affidavit demonstrates, however, at least some other matters apparently irrelevant to the present issues. For example, paragraphs 110-113 relate to the defendants' solicitor and proffer some suggestions that he should cease to act. 6It is clearly relevant for the plaintiffs to show, on an application for leave to amend a defence or to file a cross-claim, if they can, that the defences or causes of action sought to be raised are hopeless. That is a proper basis upon which to oppose an application for leave to amend, and there is no doubt that evidence may be adduced to demonstrate such hopelessness. However, at first sight the matters asserted by the deponent of this affidavit may be capable of disputation, and in those circumstances the provision of an opportunity to respond to it, if it were to be relied on, would be critical. 7I therefore refuse leave to rely on the affidavit of Jason Mark Schwede sworn 21 April 2011. 8It is a matter for the plaintiffs as to whether they wish to seek an adjournment, in order that they might rely on the affidavit at some deferred hearing after an opportunity to respond to it has been afforded. That does not mean that such adjournment would necessarily be granted. 9The plaintiff sought an adjournment. That was opposed by the defendants. I order that the application be adjourned and make directions for the service of further evidence. I order that the plaintiff pay the defendants' costs of today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2011