In the matter of Bishay Developments Pty Ltd [2019] NSWSC 29

In the matter of Bishay Developments Pty Ltd [2019] NSWSC 29

Leave to file the Amended Defence and limited further lay affidavits was appropriate, but the proposed Amended Cross-Claim and Mr Bishay's accounting affidavit and voluminous exhibit were refused because they were very late, inadequately pleaded or went beyond the existing case, would not give fair notice, and would likely prejudice the Plaintiffs and jeopardise the allocated hearing dates. The proceedings should not be joined with the Howard Avenue proceedings or the hearing vacated because there was minimal overlap, joinder would significantly delay resolution of these proceedings, and vacating the hearing would be contrary to the public interest in the proper administration of justice...

Jurisdiction
Australia
Judgment Date
14 January 2019
Procedural Posture
Equity Corporations List; Procedural and Other Ruling on Notice of Motion / Defendants' Pre Hearing Application for Leave to Amend, File Further Evidence, Rely on Business Records, Join Proceedings and Vacate the Listed Hearing
Outcome
Directions made as to conduct of proceedings; leave granted in part and refused in part.
Legal Topics
['amendment of Originating Process and Pleadings' 'leave to File Further Affidavit Evidence' 'case Management' 'vacation of Hearing Dates' 'joinder or Hearing Together of Proceedings' 'mediation']
['civil Procedure' 'corporations'] ['amendment of Originating Process and Pleadings' 'leave to File Further Affidavit Evidence' 'case Management' 'vacation of Hearing Dates' 'joinder or Hearing Together of Proceedings' 'mediation']

Case Brief

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Procedural Posture

Equity Corporations List; Procedural and Other Ruling on Notice of Motion / Defendants' Pre Hearing Application for Leave to Amend, File Further Evidence, Rely on Business Records, Join Proceedings and Vacate the Listed Hearing

Legal Issues

  1. 1 ['Whether the Defendants should have leave to file and serve an Amended Defence.' 'Whether the Cross-Claimants should have leave to file and serve an Amended First Statement of Cross-Claim shortly before the hearing.' 'Whether the Defendants should have leave to file and rely on further affidavits, including the affidavit of Mr Ashraf Bishay and lay affidavits.' 'Whether broad orders should be made permitting reliance on business records of the Company.' 'Whether these proceedings should be heard together with the Howard Avenue proceedings and whether the February 2019 hearing should be vacated.']

Ratio Decidendi

Leave to file the Amended Defence and limited further lay affidavits was appropriate, but the proposed Amended Cross-Claim and Mr Bishay's accounting affidavit and voluminous exhibit were refused because they were very late, inadequately pleaded or went beyond the existing case, would not give fair notice, and would likely prejudice the Plaintiffs and jeopardise the allocated hearing dates. The proceedings should not be joined with the Howard Avenue proceedings or the hearing vacated because there was minimal overlap, joinder would significantly delay resolution of these proceedings, and vacating the hearing would be contrary to the public interest in the proper administration of justice...

Court Disposition

Directions made as to conduct of proceedings; leave granted in part and refused in part.

Orders

  • ['Leave granted by consent to file the Amended Defence.' 'The parties are to attend mediation.' 'Defendants and Cross-Claimants granted leave to file and rely at any hearing on the affidavits of Sobhy Nicola sworn 3 December 2018, Kim Adams sworn 4 December 2018, Kiumars Hashemizadeh sworn 24 November 2018 and Peter...