Melenewycz v Whitfield [2015] NSWSC 386

Melenewycz v Whitfield [2015] NSWSC 386

An adequate and satisfactory explanation existed for the late application to vacate the hearing, the new expert evidence may be material, and the defendant should have a fair opportunity to respond. Therefore, the proper exercise of discretion was to vacate the hearing and order the plaintiff to pay the defendant's costs of today and those thrown away by adjournment.

Parties
Plaintiff: Anthony Melenewycz; Defendant: David Patrick Whifield
Jurisdiction
Australia
Judgment Date
02 April 2015
Procedural Posture
Civil / Interlocutory Application to Vacate Hearing Date
Outcome
Interlocutory application granted; hearing vacated; costs to defendant; relisting for directions.
Legal Topics
Interlocutory Applications, Costs, Blameless Motor Accidents, Adjournments
Common Law Civil Procedure Interlocutory Applications Costs Blameless Motor Accidents Adjournments

Case Brief

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Parties

Anthony Melenewycz

Plaintiff

David Patrick Whifield

Defendant

Procedural Posture

Civil / Interlocutory Application to Vacate Hearing Date

Legal Issues

  1. 1 Whether the scheduled hearing of the separate question of liability should be vacated to allow the defendant to respond to new expert evidence
  2. 2 Whether there is adequate explanation for the late application to vacate
  3. 3 Whether the plaintiff should pay costs thrown away due to adjournment

Ratio Decidendi

An adequate and satisfactory explanation existed for the late application to vacate the hearing, the new expert evidence may be material, and the defendant should have a fair opportunity to respond. Therefore, the proper exercise of discretion was to vacate the hearing and order the plaintiff to pay the defendant's costs of today and those thrown away by adjournment.

Court Disposition

Interlocutory application granted; hearing vacated; costs to defendant; relisting for directions.

Orders

  • The hearing of the separate question of liability fixed for 10 April 2015 is vacated.
  • The plaintiff is to pay the defendant's costs of today and the costs thrown away by reason of the adjournment.