Hardy Bros (Earthmoving) Pty Ltd (in liq) & anor v Hardy Bros Civil Constructions Pty Ltd & ors [2008] NSWSC 1313

Hardy Bros (Earthmoving) Pty Ltd (in liq) & anor v Hardy Bros Civil Constructions Pty Ltd & ors [2008] NSWSC 1313

Leave was granted to the cross claimants to rely on specified affidavits sworn by various witnesses, despite late service, as exceptional circumstances existed or the affidavits were updates or were otherwise justified under UCPR r 31.28; sufficient opportunity to meet the evidence was afforded and any prejudice to the opposing party could be addressed if necessary.

Jurisdiction
Australia
Judgment Date
24 November 2008
Procedural Posture
Application / Interlocutory Determination of Leave to Rely on Affidavits
Outcome
Leave granted to rely on affidavits.
Legal Topics
['affidavits' 'expert Evidence' 'leave to Rely on Out of Time Evidence' 'uniform Civil Procedure Rules R 31.28']
['civil Procedure'] ['affidavits' 'expert Evidence' 'leave to Rely on Out of Time Evidence' 'uniform Civil Procedure Rules R 31.28']

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Procedural Posture

Application / Interlocutory Determination of Leave to Rely on Affidavits

Legal Issues

  1. 1 ['Whether leave should be granted to various parties to rely on affidavits served outside the time limited by earlier court directions.' 'Whether the requirements under UCPR r 31.28 for relying on expert evidence served out of time are satisfied.']

Ratio Decidendi

Leave was granted to the cross claimants to rely on specified affidavits sworn by various witnesses, despite late service, as exceptional circumstances existed or the affidavits were updates or were otherwise justified under UCPR r 31.28; sufficient opportunity to meet the evidence was afforded and any prejudice to the opposing party could be addressed if necessary.

Court Disposition

Leave granted to rely on affidavits.

Orders

  • ['Leave granted to Hardys to rely on affidavits of Dr Ferrier sworn 19 July 2007, 4 September 2008, and 19 November 2008.' 'Leave granted to cross claimants to rely on affidavits of Mr Weeks sworn 7 April 2006, 23 July 2007, and 24 October 2008.' 'Leave granted to cross claimant to rely on affidavit of George Nowak...