Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 7) [2020] NSWLEC 140

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 7) [2020] NSWLEC 140

The 2013 affidavits are not relevant to the identified issues in the 2019 proceedings and must be excluded. Even if relevant, their probative value is marginal and would be substantially outweighed by the danger of unfair prejudice or misleading/confusing evidence under s 135 of the Evidence Act. The Harman undertaking does not apply, but were it to apply, special circumstances exist justifying release. Leave is refused to tender the affidavits.

Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Class 4 / Interlocutory Motion
Outcome
Leave to tender the 2013 affidavits refused. Applicant's motion dismissed, respondent's motion upheld.
Legal Topics
['tender of Affidavits' 'relevance of Evidence' 'harman Undertaking' 'discretion to Exclude Evidence' 'abuse of Process' 'estoppel']
['civil Procedure' 'evidence'] ['tender of Affidavits' 'relevance of Evidence' 'harman Undertaking' 'discretion to Exclude Evidence' 'abuse of Process' 'estoppel']

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Procedural Posture

Class 4 / Interlocutory Motion

Legal Issues

  1. 1 ['Are the 2013 affidavits relevant to an issue in dispute in the 2019 proceedings?' "Should their tender nevertheless be excluded as an exercise of the Court's discretion under s 135 of the Evidence Act 1995?" 'Is their use precluded by reason of the application of the Harman undertaking, and if so, should the Verde Terra parties be released from that undertaking?']

Ratio Decidendi

The 2013 affidavits are not relevant to the identified issues in the 2019 proceedings and must be excluded. Even if relevant, their probative value is marginal and would be substantially outweighed by the danger of unfair prejudice or misleading/confusing evidence under s 135 of the Evidence Act. The Harman undertaking does not apply, but were it to apply, special circumstances exist justifying release. Leave is refused to tender the affidavits.

Court Disposition

Leave to tender the 2013 affidavits refused. Applicant's motion dismissed, respondent's motion upheld.

Orders

  • ['The tender of the 2013 affidavits is refused.' "The Verde Terra parties are to pay the Council's costs of the motion." 'The exhibits are to be returned.']