Ali & ors v Shareef & ors [2009] NSWSC 1487

Ali & ors v Shareef & ors [2009] NSWSC 1487

Leave to rely on the late affidavits was refused at that stage because they were served shortly before an expedited four-day hearing, raised new issues not previously addressed in the affidavit evidence, and the court accepted senior counsel's assurance that the plaintiffs could not meet the material by the hearing date. The defendants would need to persuade the court at the hearing that the affidavits were served a reasonable time before their use.

Jurisdiction
Australia
Judgment Date
13 November 2009
Procedural Posture
Procedural and Other Rulings / Ex Tempore Judgment on Whether Defendants Should Have Leave to Read Late Affidavits Before an Expedited Hearing
Outcome
Defendants not granted leave at that stage to rely on the late affidavits, pending ascertainment at trial whether the plaintiffs could meet them.
Legal Topics
['case Management' 'late Affidavits' 'expedited Hearing' 'costs' 'cross Claim for Winding Up']
['civil Procedure' 'equity'] ['case Management' 'late Affidavits' 'expedited Hearing' 'costs' 'cross Claim for Winding Up']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Ex Tempore Judgment on Whether Defendants Should Have Leave to Read Late Affidavits Before an Expedited Hearing

Legal Issues

  1. 1 ['Whether the defendants should be granted leave at that stage to rely on affidavits served shortly before the expedited hearing.' 'Whether the late affidavits raised new issues which the plaintiffs could not meet by the commencement of the hearing.' 'What consequential directions and costs orders should be made.']

Ratio Decidendi

Leave to rely on the late affidavits was refused at that stage because they were served shortly before an expedited four-day hearing, raised new issues not previously addressed in the affidavit evidence, and the court accepted senior counsel's assurance that the plaintiffs could not meet the material by the hearing date. The defendants would need to persuade the court at the hearing that the affidavits were served a reasonable time before their use.

Court Disposition

Defendants not granted leave at that stage to rely on the late affidavits, pending ascertainment at trial whether the plaintiffs could meet them.

Orders

  • ['Proceedings adjourned to 23 November 2009 at 10 am.' "Defendants to pay the plaintiffs' costs of today." 'Time for the plaintiffs/cross-defendants to deliver their list of affidavits and of deponents required for cross-examination extended to 16 November 2009.' "Time for delivery of the...