The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 3) [2018] NSWSC 1751

Supreme Court New South Wales

Medium Neutral Citation: The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 3) [2018] NSWSC 1751 Hearing dates: 9 November 2018 Decision date: 15 November 2018 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff granted leave to rely on further evidence on terms including as to costs Catchwords: CIVIL PROCEDURE – pleadings and evidence – amendment – plaintiff seeks leave to amend its pleadings and rely upon further evidence – where plaintiff previously granted leave to rely on evidence served in the face of a guillotine order – where earlier order that if plaintiff in default of any direction or order the proceedings be dismissed – where plaintiff's legal advisors aware that defendants preparing evidence in response – where plaintiff's legal advisors concluded that existing evidence insufficient and required augmentation – where plaintiff's legal advisors did not inform the defendants or the Court that further evidence be marshalled – where significant body of further evidence served without notice on the day after defendants served its evidence – where likely that defendants will have to revisit all evidence adduced so far to ascertain whether it answers evidence freshly served by plaintiff – whether plaintiff should have leave to rely upon the further evidence – whether plaintiff should have leave to amend its pleadings

PROFESSIONS AND TRADES – Lawyers – whether solicitor for plaintiff should pay the costs that the plaintiff must pay the defendants by reason of leave being granted Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 National Mutual Life Association of Australasia Ltd v Tolfield Pty Ltd [2011] FCA 1309 The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd [2018] NSWSC 298 (No 2) Texts Cited: Practice Note SC Gen 5 Category: Procedural and other rulings Parties: The Berry Rural Co Operative Society Ltd (Plaintiff/Applicant) Sepak Industries Pty Ltd (First Defendant/Respondent) Henry Kong (Second Defendant/Respondent) Representation: Counsel: J P Knackstredt (Plaintiff/Applicant) J C Giles SC (Defendants/Respondents)