Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3) [2020] NSWLEC 40

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3) [2020] NSWLEC 40

Except for paragraphs 1 and 37 to 39 of Mr Cox's affidavit and the resolved forensic accounting evidence of Mr Gaudion, the Council's further affidavits were not within order 6 because they were not responsive to the Verde Terra parties' specified further evidence but were evidence-in-chief that should have been filed before the hearing. Leave was refused because the Council gave no explanation for the lateness, the evidence would introduce new issues, would likely require further evidence from the Verde Terra parties, would cause forensic disadvantage, increase cost and hearing time, and would be inconsistent with the overriding purpose of just, quick and cheap resolution.

Jurisdiction
Australia
Judgment Date
27 April 2020
Procedural Posture
Class 4 Proceedings; Procedural and Evidence Ruling / Part Heard Proceedings; Verde Terra Parties' Objection to Further Affidavits Filed by Central Coast Council and Council's Alternative Request for Leave to Rely on Those Affidavits
Outcome
The Verde Terra parties' objection was upheld in substance; leave was refused to the Council to rely on the specified further affidavits, with limited exception for parts of Mr Cox's affidavit, and the Council was ordered to pay costs.
Legal Topics
['late Affidavits' 'expert Evidence' 'leave to Rely on Further Evidence' 'responsive Evidence' 'forensic Disadvantage' 'overriding Purpose' 'costs']
['evidence' 'civil Procedure' 'environmental and Planning Law'] ['late Affidavits' 'expert Evidence' 'leave to Rely on Further Evidence' 'responsive Evidence' 'forensic Disadvantage' 'overriding Purpose' 'costs']

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Procedural Posture

Class 4 Proceedings; Procedural and Evidence Ruling / Part Heard Proceedings; Verde Terra Parties' Objection to Further Affidavits Filed by Central Coast Council and Council's Alternative Request for Leave to Rely on Those Affidavits

Legal Issues

  1. 1 ["Whether the Council's further affidavits fell within order 6 of the December 2019 orders as affidavits responsive to evidence filed by the Verde Terra parties under orders 3, 4 and 5." 'Whether, if the further affidavits did not fall within order 6, leave should nevertheless be granted to the Council to rely on them.' 'Whether allowing the further affidavits would cause forensic disadvantage, further expense, additional hearing time and further interlocutory disputes.' "Whether the Council should pay the Verde Terra parties' costs of the application."]

Ratio Decidendi

Except for paragraphs 1 and 37 to 39 of Mr Cox's affidavit and the resolved forensic accounting evidence of Mr Gaudion, the Council's further affidavits were not within order 6 because they were not responsive to the Verde Terra parties' specified further evidence but were evidence-in-chief that should have been filed before the hearing. Leave was refused because the Council gave no explanation for the lateness, the evidence would introduce new issues, would likely require further evidence from the Verde Terra parties, would cause forensic disadvantage, increase cost and hearing time, and would be inconsistent with the overriding purpose of just, quick and cheap resolution.

Court Disposition

The Verde Terra parties' objection was upheld in substance; leave was refused to the Council to rely on the specified further affidavits, with limited exception for parts of Mr Cox's affidavit, and the Council was ordered to pay costs.

Orders

  • ['Leave is refused to the Council to rely upon the affidavit of Mr Timothy Wilkinson, affirmed 19 March 2020 and his report dated 28 May 2019.' 'Leave is refused to the Council to rely upon the affidavit of Mr Algis Sutas, sworn 23 March 2020.' 'Leave is refused to the Council to rely upon the affidavit of Mr John...