Zhong v Shield Resources Pty Ltd & Ors [2022] NSWSC 553

Zhong v Shield Resources Pty Ltd & Ors [2022] NSWSC 553

Although the defendants bore significant blame for delay and lack of preparation, their funding difficulties partly explained the delay, their defence and cross-claim were not shown to be hopeless, and refusal of the adjournment would substantially prejudice them by shutting them out from mounting viable components of their defence. The plaintiff would suffer only moderate prejudice because the defendants made concessions as to costs thrown away, pre-judgment interest, security for costs not delaying the matter, a fixed timetable for all evidence and a guillotine order. The interests of justice therefore favoured vacating the hearing dates on strict conditions.

Jurisdiction
Australia
Judgment Date
09 May 2022
Procedural Posture
Procedural Ruling on Adjournment Application in Civil Proceedings / Notice of Motion by the Defendants to Vacate Hearing Dates Listed for 3 May 2022 to 5 May 2022
Outcome
The defendants' application to vacate the hearing dates was granted on conditions, and the proceedings were adjourned to dates to be fixed by the Registrar.
Legal Topics
['adjournment Application' 'vacation of Hearing Dates' 'interests of Justice' 'guillotine Orders' 'security for Costs' 'costs Thrown Away' 'contracts Review Act Defences']
['civil Procedure' 'case Management' 'contracts'] ['adjournment Application' 'vacation of Hearing Dates' 'interests of Justice' 'guillotine Orders' 'security for Costs' 'costs Thrown Away' 'contracts Review Act Defences']

Case Brief

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Procedural Posture

Procedural Ruling on Adjournment Application in Civil Proceedings / Notice of Motion by the Defendants to Vacate Hearing Dates Listed for 3 May 2022 to 5 May 2022

Legal Issues

  1. 1 ['Whether the hearing dates of 3 May 2022 to 5 May 2022 should be vacated and the proceedings adjourned.' "Whether the defendants' lack of readiness, recent closing of pleadings, funding constraints and need for further evidence justified an adjournment despite delay and prejudice to the plaintiff." 'What case management conditions should be imposed if the adjournment were granted.']

Ratio Decidendi

Although the defendants bore significant blame for delay and lack of preparation, their funding difficulties partly explained the delay, their defence and cross-claim were not shown to be hopeless, and refusal of the adjournment would substantially prejudice them by shutting them out from mounting viable components of their defence. The plaintiff would suffer only moderate prejudice because the defendants made concessions as to costs thrown away, pre-judgment interest, security for costs not delaying the matter, a fixed timetable for all evidence and a guillotine order. The interests of justice therefore favoured vacating the hearing dates on strict conditions.

Court Disposition

The defendants' application to vacate the hearing dates was granted on conditions, and the proceedings were adjourned to dates to be fixed by the Registrar.

Orders

  • ['The hearing dates of 3 May 2022 to 5 May 2022 (inclusive) are vacated.' 'The Defendants/Cross-claimants are to file and serve all evidence, including lay and expert evidence, in defence of the Statement of Claim and in support of the Cross-Claim by 5:00pm on 26 May 2022.' 'The Defendants/Cross-claimants are not...