Dimitriou v Huybers (No 2) [2018] NSWCA 62

Dimitriou v Huybers (No 2) [2018] NSWCA 62

The Court refused the late tender of additional material and refused to vacate the hearing because the material was extensive, had not been before the single judge, no sufficient explanation for its late production was provided, and the respondents had no opportunity to address it. The review application was dismissed because the applicants did not establish error in Meagher JA's decision: the 5 June 2017 order required written submissions, and any further amended notice of appeal, by 3 July 2017; the applicants failed to show an adequate explanation for non-compliance; possible fresh evidence was not a basis to disturb the decision; Meagher JA had comprehensively addressed arguability;...

Jurisdiction
Australia
Judgment Date
26 March 2018
Procedural Posture
Civil Procedure Application to Vacate Hearing and Application to Review Dismissal of Appeal for Non Compliance With Directions / Court of Appeal Review of Decision of Single Judge on Amended Notice of Motion Filed 24 November 2017
Outcome
Application to tender additional affidavit and exhibit refused; application to vacate hearing dismissed; amended notice of motion filed 24 November 2017 dismissed; applicants ordered to pay respondents' costs on the ordinary basis.
Legal Topics
['application to Vacate Hearing Date' 'tender of Additional Affidavit and Exhibit' 'review of Order of Single Judge' 'dismissal of Appeal for Non Compliance With Directions' 'adequacy of Explanation for Non Compliance' 'prospects of Success on Appeal' 'indemnity Costs']
['civil Procedure' 'appellate Procedure' 'costs'] ['application to Vacate Hearing Date' 'tender of Additional Affidavit and Exhibit' 'review of Order of Single Judge' 'dismissal of Appeal for Non Compliance With Directions' 'adequacy of Explanation for Non Compliance' 'prospects of Success on Appeal' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil Procedure Application to Vacate Hearing and Application to Review Dismissal of Appeal for Non Compliance With Directions / Court of Appeal Review of Decision of Single Judge on Amended Notice of Motion Filed 24 November 2017

Legal Issues

  1. 1 ['Whether the applicants should be permitted to tender an additional affidavit and accompanying exhibit and have the hearing vacated.' 'Whether there had been non-compliance with the 5 June 2017 order requiring any further amended notice of appeal and/or written submissions to be filed and served by 3 July 2017.' 'Whether Meagher JA erred in finding there was no adequate explanation for non-compliance with directions.' 'Whether Meagher JA erred by considering prospects of success without regard to possible fresh evidence.' 'Whether the applicants showed error in relation to the refusal to set aside dismissal of the appeal, including the proposed challenge to the costs order involving Mr Russo.' 'Whether costs of the present application should be assessed on the indemnity basis or ordinary basis.']

Ratio Decidendi

The Court refused the late tender of additional material and refused to vacate the hearing because the material was extensive, had not been before the single judge, no sufficient explanation for its late production was provided, and the respondents had no opportunity to address it. The review application was dismissed because the applicants did not establish error in Meagher JA's decision: the 5 June 2017 order required written submissions, and any further amended notice of appeal, by 3 July 2017; the applicants failed to show an adequate explanation for non-compliance; possible fresh evidence was not a basis to disturb the decision; Meagher JA had comprehensively addressed arguability;...

Court Disposition

Application to tender additional affidavit and exhibit refused; application to vacate hearing dismissed; amended notice of motion filed 24 November 2017 dismissed; applicants ordered to pay respondents' costs on the ordinary basis.

Orders

  • ['The Court refuses the application to tender an additional affidavit and accompanying exhibit.' 'The Court dismisses the application to vacate the hearing.' 'The amended notice of motion filed 24 November 2017 is dismissed.' 'Applicants to pay the costs of the respondents to be assessed on the ordinary basis.']