Consolidated Credit Network v Illawarra Retirement Trust [2005] NSWSC 1004

Consolidated Credit Network v Illawarra Retirement Trust [2005] NSWSC 1004

Because the proceeding had been expedited, pre-trial directions had required identification of affidavits and objections, and the plaintiff sought only on the second day to rely on general evidence requiring subpoenas and investigation for proper testing, the affidavit should not be read. For the same reasons, and because of uncertainty about prejudice from delaying completion of new contracts, an adjournment was inappropriate. The damages claim could be reinstated because the defendant identified no prejudice.

Jurisdiction
Australia
Judgment Date
29 September 2005
Procedural Posture
Action for Specific Performance With Cross Claim / Second Day of Expedited Hearing; Applications Concerning Late Affidavit, Adjournment and Reinstatement of Damages Claim
Outcome
Affidavit not permitted to be read; adjournment refused; leave granted to reinstate alternative claim for damages.
Legal Topics
['late Filing of Affidavit' 'case Management' 'adjournment' 'specific Performance' 'ready, Willing and Able to Perform' 'pleadings Under Uniform Civil Procedure Rules']
['civil Procedure' 'equity'] ['late Filing of Affidavit' 'case Management' 'adjournment' 'specific Performance' 'ready, Willing and Able to Perform' 'pleadings Under Uniform Civil Procedure Rules']

Case Brief

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Procedural Posture

Action for Specific Performance With Cross Claim / Second Day of Expedited Hearing; Applications Concerning Late Affidavit, Adjournment and Reinstatement of Damages Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted to read an affidavit filed on the morning of the second day of the expedited hearing concerning readiness, willingness and ability to perform the contract.' 'Whether the hearing should be adjourned to allow the defendant to investigate and test the late affidavit evidence.' 'Whether the plaintiff should be given leave to reinstate an alternative claim for damages that had been abandoned at the outset of the hearing.']

Ratio Decidendi

Because the proceeding had been expedited, pre-trial directions had required identification of affidavits and objections, and the plaintiff sought only on the second day to rely on general evidence requiring subpoenas and investigation for proper testing, the affidavit should not be read. For the same reasons, and because of uncertainty about prejudice from delaying completion of new contracts, an adjournment was inappropriate. The damages claim could be reinstated because the defendant identified no prejudice.

Court Disposition

Affidavit not permitted to be read; adjournment refused; leave granted to reinstate alternative claim for damages.

Orders

  • ['The affidavit filed in Court on the morning of 29 September 2005 was not permitted to be read.' 'The application for adjournment was rejected.' 'Leave was granted for the claim for damages to be reinstated.']