Ingram v Y Twelve Pty Ltd [2013] NSWSC 1704

Ingram v Y Twelve Pty Ltd [2013] NSWSC 1704

Leave to rely on the affidavits of Messrs Salmon, Rufford and O'Shea was refused because the affidavits were served after the guillotine order, no adequate explanation was given for the failure to comply with the Court's directions, and allowing the evidence would have required vacation of the imminent hearing date and caused unjustified delay. Leave was granted for Mr Petrovski's affidavit, except paragraph 66, because it had been served on 1 November 2013 and the plaintiffs accepted they could deal with it except for one paragraph.

Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Interlocutory Application / Notice of Motion by the First Defendant Seeking Leave to Rely on Affidavits and Proposed Witness Testimony Served After a Guillotine Order Before the Final Hearing
Outcome
Grant leave for first defendant to rely on affidavit of Blagojce Petrovski sworn 31 October 2013 except for paragraph 66; Notice of Motion otherwise dismissed with costs.
Legal Topics
['late Service of Evidence' 'affidavits' 'guillotine Order' 'leave to Rely on Evidence' 'vacation of Hearing Date' 'conveyancing Act Alienation of Property With Intent to Avoid Creditors']
['practice and Procedure' 'civil Procedure' 'equity'] ['late Service of Evidence' 'affidavits' 'guillotine Order' 'leave to Rely on Evidence' 'vacation of Hearing Date' 'conveyancing Act Alienation of Property With Intent to Avoid Creditors']

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Procedural Posture

Interlocutory Application / Notice of Motion by the First Defendant Seeking Leave to Rely on Affidavits and Proposed Witness Testimony Served After a Guillotine Order Before the Final Hearing

Legal Issues

  1. 1 ['Whether the first defendant should be granted leave to rely on affidavits and proposed witness testimony served after the date fixed by a guillotine order.' "Whether there was an adequate explanation for the late service of the affidavits of Messrs Salmon, Rufford and O'Shea." 'Whether granting leave would cause vacation of the hearing date and unjustified delay.']

Ratio Decidendi

Leave to rely on the affidavits of Messrs Salmon, Rufford and O'Shea was refused because the affidavits were served after the guillotine order, no adequate explanation was given for the failure to comply with the Court's directions, and allowing the evidence would have required vacation of the imminent hearing date and caused unjustified delay. Leave was granted for Mr Petrovski's affidavit, except paragraph 66, because it had been served on 1 November 2013 and the plaintiffs accepted they could deal with it except for one paragraph.

Court Disposition

Grant leave for first defendant to rely on affidavit of Blagojce Petrovski sworn 31 October 2013 except for paragraph 66; Notice of Motion otherwise dismissed with costs.

Orders

  • ["Grant leave to the first defendant to rely on the affidavit of Blagojce Petrovski sworn 31 October 2013 except for paragraph 66. Leave is granted subject to all other objections which can properly be taken to Mr Petrovski's affidavit." 'The Notice of Motion filed today is otherwise dismissed with costs.']