The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 2) [2018] NSWSC 298

The Berry Rural Co Operative Society Ltd v Sepak Industries Pty Ltd (No 2) [2018] NSWSC 298

Although the plaintiff had repeatedly failed to comply with directions and sought leave for a second time to rely on evidence served in the face of a guillotine order, the defaults were caused by its legal representatives and not by any fault of the plaintiff. The prejudice to the blameless plaintiff of refusing leave, which would cause its case to fail, did not warrant shutting it out from pursuing its rights. Leave was therefore granted, but only on stringent terms including indemnity costs, gross-sum costs payable forthwith, a dismissal consequence for future default, and show cause directions to the solicitor.

Jurisdiction
Australia
Judgment Date
09 March 2018
Procedural Posture
Equity Commercial List Proceedings; Notice of Motion Seeking Leave to Rely on Evidence Served Out of Time / Procedural Ruling on Notice of Motion Filed on 2 January 2018
Outcome
Plaintiff granted leave to rely on evidence served out of time on terms including as to costs.
Legal Topics
['default of Directions' 'leave to Rely on Evidence Served Out of Time' 'guillotine Order' 'indemnity Costs' 'costs Payable by Solicitor' "disallowance of Solicitor's Costs"]
['practice and Procedure' 'legal Practitioners'] ['default of Directions' 'leave to Rely on Evidence Served Out of Time' 'guillotine Order' 'indemnity Costs' 'costs Payable by Solicitor' "disallowance of Solicitor's Costs"]

Case Brief

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Procedural Posture

Equity Commercial List Proceedings; Notice of Motion Seeking Leave to Rely on Evidence Served Out of Time / Procedural Ruling on Notice of Motion Filed on 2 January 2018

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on evidence served after an order that it not be able to rely on any evidence served after 21 July 2017.' "Whether leave should be granted where the plaintiff's default was caused by its legal advisers and not by any fault of the plaintiff." "Whether the plaintiff should pay an appropriate portion of the defendants' costs on an indemnity basis, specified as a gross sum and payable forthwith." "Whether the plaintiff's solicitor should show cause why she should not pay the costs the plaintiff must pay the defendants and why costs thrown away should not be disallowed as between solicitor and client."]

Ratio Decidendi

Although the plaintiff had repeatedly failed to comply with directions and sought leave for a second time to rely on evidence served in the face of a guillotine order, the defaults were caused by its legal representatives and not by any fault of the plaintiff. The prejudice to the blameless plaintiff of refusing leave, which would cause its case to fail, did not warrant shutting it out from pursuing its rights. Leave was therefore granted, but only on stringent terms including indemnity costs, gross-sum costs payable forthwith, a dismissal consequence for future default, and show cause directions to the solicitor.

Court Disposition

Plaintiff granted leave to rely on evidence served out of time on terms including as to costs.

Orders

  • ['The Co Operative is granted leave to rely upon the evidence served out of time.' "The Co Operative must pay an appropriate portion of Sepak's costs of the proceedings to date on an indemnity basis, with submissions invited as to the proportion." 'Those costs are to be specified as a gross sum under s 98(4) of the...