Short & Anor. v. Crawley & Ors. [2001] NSWSC 228

Short & Anor. v. Crawley & Ors. [2001] NSWSC 228

Because the applicants had not notified the defendants that they intended to rely on very substantial affidavit and exhibit material, and the defendants reasonably understood from the directions, correspondence and served material that it would not be relied on, it would be unfair to hear and determine the s.237 application on that basis that day. The application was therefore adjourned and directions were made requiring notice of all material to be relied on. Although the applicants should bear any costs thrown away, no basis was shown for indemnity costs at that stage.

Jurisdiction
Australia
Judgment Date
27 March 2001
Procedural Posture
Application Under S.237 of the Corporations Law / Interlocutory Application Concerning Tender of Affidavit Material and Directions
Outcome
The s.237 application was adjourned, directions were made for notice and exchange of material, the matter was stood over for further mention, and indemnity costs were not ordered at that stage.
Legal Topics
['interlocutory Application' 'service of Affidavits' 'tender of Affidavit Material' 'notice of Material to Be Relied On' 'adjournment' 'costs']
['civil Procedure' 'corporations Law' 'evidence'] ['interlocutory Application' 'service of Affidavits' 'tender of Affidavit Material' 'notice of Material to Be Relied On' 'adjournment' 'costs']

Case Brief

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Procedural Posture

Application Under S.237 of the Corporations Law / Interlocutory Application Concerning Tender of Affidavit Material and Directions

Legal Issues

  1. 1 ['Whether the applicants should be permitted to rely on two substantial affidavits and exhibits tendered without prior notification or service in support of a s.237 application.' "Whether the s.237 application should be heard and determined on the day despite the defendants' objection that they had no notice of the material." 'Whether any costs thrown away should be paid on an indemnity basis.']

Ratio Decidendi

Because the applicants had not notified the defendants that they intended to rely on very substantial affidavit and exhibit material, and the defendants reasonably understood from the directions, correspondence and served material that it would not be relied on, it would be unfair to hear and determine the s.237 application on that basis that day. The application was therefore adjourned and directions were made requiring notice of all material to be relied on. Although the applicants should bear any costs thrown away, no basis was shown for indemnity costs at that stage.

Court Disposition

The s.237 application was adjourned, directions were made for notice and exchange of material, the matter was stood over for further mention, and indemnity costs were not ordered at that stage.

Orders

  • ['The s.237 application is adjourned.' 'The Court will proceed with hearing the other matters set down for the day.' 'On or before 10th April 2001 the plaintiffs are to provide the defendants with a full statement of all material to be relied on in support of the s.237 application, including all additional...