JA Pty Limited & 1 Ors v Jonco Holdings Pty Limited & 2 Ors [2000] NSWSC 10

JA Pty Limited & 1 Ors v Jonco Holdings Pty Limited & 2 Ors [2000] NSWSC 10

The affidavits were materially significant to central issues in the substantive proceedings, including the trustee's indemnity and the effectiveness of the purported replacement of the trustee. The First and Third Defendants were substantially responsible for the need for further evidence because they failed to produce the original trust deed until after evidence had closed, despite the plaintiffs seeking its production. There was no unfair prejudice to the First and Third Defendants in allowing the re-opening, and fairness could be preserved by permitting prompt cross-examination and responsive evidence. Justice therefore required leave to re-open without requiring the plaintiffs to pay...

Jurisdiction
Australia
Judgment Date
31 January 2000
Procedural Posture
Application to Re Open the Plaintiffs' Case in Proceedings Principally to Set Aside a Deed of Company Arrangement / After Evidence Had Closed; Determined on Written Submissions
Outcome
Re-opening allowed without costs to the plaintiffs; costs of re-opening to be paid by the First and Third Defendants.
Legal Topics
['re Opening a Case' 'extension of Time' 'case Management' 'costs' 'deed of Company Arrangement' 'trustee Indemnity' 'trust Deed Alteration']
['practice and Procedure' 'equity' 'corporations' 'trusts'] ['re Opening a Case' 'extension of Time' 'case Management' 'costs' 'deed of Company Arrangement' 'trustee Indemnity' 'trust Deed Alteration']

Case Brief

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Procedural Posture

Application to Re Open the Plaintiffs' Case in Proceedings Principally to Set Aside a Deed of Company Arrangement / After Evidence Had Closed; Determined on Written Submissions

Legal Issues

  1. 1 ['Whether the plaintiffs should be permitted to re-open their case to read two affidavits dated 26 November 1999 concerning the Trust Deed dated 1 March 1990 and the Deed of 19 January 1999.' "Whether leave to re-open should be conditioned on the plaintiffs paying the defendants' additional costs, or whether costs should be borne by the First and Third Defendants because of their belated production of the original trust deed." 'Whether fairness required the First and Third Defendants to have an opportunity to cross-examine the deponents or file further responsive affidavit evidence.']

Ratio Decidendi

The affidavits were materially significant to central issues in the substantive proceedings, including the trustee's indemnity and the effectiveness of the purported replacement of the trustee. The First and Third Defendants were substantially responsible for the need for further evidence because they failed to produce the original trust deed until after evidence had closed, despite the plaintiffs seeking its production. There was no unfair prejudice to the First and Third Defendants in allowing the re-opening, and fairness could be preserved by permitting prompt cross-examination and responsive evidence. Justice therefore required leave to re-open without requiring the plaintiffs to pay...

Court Disposition

Re-opening allowed without costs to the plaintiffs; costs of re-opening to be paid by the First and Third Defendants.

Orders

  • ['The Plaintiffs have leave to re-open the proceedings and their case for the purpose of reading affidavits dated 26 November 1999 by Harold Charles Houen and John Andrew Ireland.' 'The costs of such re-opening including as may arise from any further hearing shall be paid by the First and Third Defendants.' 'Subject...