MR Group Investments Pty Ltd v Back [2018] NSWSC 1739

MR Group Investments Pty Ltd v Back [2018] NSWSC 1739

Leave was granted because the pleading disclosed a real issue as to the counter-factual and the plaintiffs ought be permitted to rely on evidence to establish it if able to do so. Although reliance on the affidavits would inevitably delay the proceedings, the defendants did not identify particular prejudice beyond delay and neither consented to nor opposed the orders. The plaintiffs were ordered to pay the defendants' costs of the notice of motion because they were the parties seeking an indulgence from the Court.

Jurisdiction
Australia
Judgment Date
13 November 2018
Procedural Posture
Civil Procedure; Application for Leave to Use Affidavits Under R 10.2 of the Uniform Civil Procedure Rules 2005 (nsw) / Notice of Motion Filed on 7 October 2018 Heard by the Duty Judge
Outcome
Leave granted to the plaintiffs to rely on the affidavits; consequential timetable and evidence orders made; plaintiffs ordered to pay defendants' costs of the notice of motion.
Legal Topics
['service' 'leave to Use Affidavits' 'evidence in Chief' 'costs' 'delay']
['civil Procedure'] ['service' 'leave to Use Affidavits' 'evidence in Chief' 'costs' 'delay']

Case Brief

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Procedural Posture

Civil Procedure; Application for Leave to Use Affidavits Under R 10.2 of the Uniform Civil Procedure Rules 2005 (nsw) / Notice of Motion Filed on 7 October 2018 Heard by the Duty Judge

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave under r 10.2 of the Uniform Civil Procedure Rules 2005 (NSW) to use the affidavits of Sam Fayad sworn 31 August 2018 and Mario Anaxagora sworn 17 September 2018.' 'Whether the plaintiffs or defendants should bear the costs of the notice of motion.']

Ratio Decidendi

Leave was granted because the pleading disclosed a real issue as to the counter-factual and the plaintiffs ought be permitted to rely on evidence to establish it if able to do so. Although reliance on the affidavits would inevitably delay the proceedings, the defendants did not identify particular prejudice beyond delay and neither consented to nor opposed the orders. The plaintiffs were ordered to pay the defendants' costs of the notice of motion because they were the parties seeking an indulgence from the Court.

Court Disposition

Leave granted to the plaintiffs to rely on the affidavits; consequential timetable and evidence orders made; plaintiffs ordered to pay defendants' costs of the notice of motion.

Orders

  • ['Grant leave to the plaintiffs pursuant to rule 10.2 of the Uniform Civil Procedure Rules 2005 (NSW) to rely upon the affidavits of Sam Fayad dated 31 August 2018 and Mario Anaxagora dated 17 September 2018 (the Affidavits).' 'The defendants to file and serve any affidavits upon which they rely in response to the...