Yakiti Pty Ltd v MacDonald [2018] NSWSC 1392

Yakiti Pty Ltd v MacDonald [2018] NSWSC 1392

Despite two failures to comply with guillotine orders for serving evidence, the interests of justice required granting the cross-claimant leave to rely on the late affidavit, subject to order for indemnity costs, as compliance is essential for case management but refusal would be too harsh.

Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Civil / Interlocutory Directions/orders
Outcome
Leave granted to rely on the late affidavit; costs ordered against cross-claimant on indemnity basis; directions made for service of further evidence and filings.
Legal Topics
['case Management' 'directions' 'guillotine Order' 'affidavit Evidence' 'failure to Comply']
['civil Procedure'] ['case Management' 'directions' 'guillotine Order' 'affidavit Evidence' 'failure to Comply']

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Procedural Posture

Civil / Interlocutory Directions/orders

Legal Issues

  1. 1 ['Whether the cross-claimant should be granted leave to rely on late affidavit evidence' 'Whether denial of leave or costs sanction is appropriate given repeated non-compliance with orders']

Ratio Decidendi

Despite two failures to comply with guillotine orders for serving evidence, the interests of justice required granting the cross-claimant leave to rely on the late affidavit, subject to order for indemnity costs, as compliance is essential for case management but refusal would be too harsh.

Court Disposition

Leave granted to rely on the late affidavit; costs ordered against cross-claimant on indemnity basis; directions made for service of further evidence and filings.

Orders

  • ["Defendant/Cross-Claimant's Notice of Motion dated 3 September 2018 to be filed in the Registry by 10 September 2018." 'Leave to Defendant/Cross-Claimant to rely on the affidavit of Kate Marie McDonald sworn 6 September 2018.' 'No further affidavit evidence in chief by Defendant/Cross-Claimant is to be relied upon...