HM&O v Ingram [2012] NSWSC 684

HM&O v Ingram [2012] NSWSC 684

Leave was refused because Mr Abood's affidavit did not merely address the consequences of the adopted referee's report but sought to fill gaps in the plaintiffs' alternative damages case after their case in chief had substantially concluded. Given the plaintiffs' procedural history, their earlier failure to lead the evidence, the breadth and deficiencies of the new evidence, and the prejudice and possible further adjournment for the defendants, the interests of justice did not require granting leave.

Jurisdiction
Australia
Judgment Date
20 June 2012
Procedural Posture
Procedural Ruling on Application for Leave to Read Affidavit / During Part Heard Proceedings Before Further Hearing Fixed for August 2012, After the Plaintiffs' Case on Liability Had Substantially Concluded
Outcome
Leave to rely on the affidavit was refused.
Legal Topics
['affidavits' 'leave to Adduce Further Evidence' 'misleading or Deceptive Conduct' 'damages Evidence' 'interests of Justice' 'costs']
['civil Procedure' 'evidence' 'commercial Litigation'] ['affidavits' 'leave to Adduce Further Evidence' 'misleading or Deceptive Conduct' 'damages Evidence' 'interests of Justice' 'costs']

Case Brief

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Procedural Posture

Procedural Ruling on Application for Leave to Read Affidavit / During Part Heard Proceedings Before Further Hearing Fixed for August 2012, After the Plaintiffs' Case on Liability Had Substantially Concluded

Legal Issues

  1. 1 ['Whether the plaintiffs should have leave to rely on the affidavit of Mr Mark Anthony Abood sworn on 12 April 2012 after their case in chief had substantially concluded.' "Whether the interests of justice justified permitting further evidence that would plug gaps in the plaintiffs' alternative damages case." 'Whether admitting the affidavit would prejudice the defendants by requiring further expert evidence or risking adjournment.']

Ratio Decidendi

Leave was refused because Mr Abood's affidavit did not merely address the consequences of the adopted referee's report but sought to fill gaps in the plaintiffs' alternative damages case after their case in chief had substantially concluded. Given the plaintiffs' procedural history, their earlier failure to lead the evidence, the breadth and deficiencies of the new evidence, and the prejudice and possible further adjournment for the defendants, the interests of justice did not require granting leave.

Court Disposition

Leave to rely on the affidavit was refused.

Orders

  • ['The plaintiffs are refused leave to rely on the affidavit of Mr Abood sworn on 12 April 2012.' "The plaintiffs are to pay the defendants' costs of today."]