Colmar Engineering Pty Ltd v Avopiling Pty Ltd (No. 1) [2010] NSWDC 85

Colmar Engineering Pty Ltd v Avopiling Pty Ltd (No. 1) [2010] NSWDC 85

The defendant's late service of substantial expert affidavit evidence on the eve of trial was not within a reasonable time, no satisfactory explanation or exceptional or special circumstances were shown for the change in forensic course or non-compliance with the timetable, and allowing the evidence or adjourning the trial would cause significant delay, disproportionate cost and irremediable prejudice to the plaintiff contrary to the just, quick and cheap disposal of the proceedings required by the Civil Procedure Act 2005. Costs would not adequately remedy that prejudice.

Jurisdiction
Australia
Judgment Date
18 May 2010
Procedural Posture
Civil Contractual Dispute; Interlocutory Practice and Procedure Application / At Commencement of Trial, Defendant Sought Leave to Rely on Additional Affidavit Evidence Served Outside the Case Management Timetable And, Alternatively, an Adjournment
Outcome
Defendant's application to rely on additional evidence and alternative application for adjournment refused; defendant ordered to pay the plaintiff's costs of the refused applications; trial to proceed.
Legal Topics
['late Service of Evidence' 'case Management Orders' 'adjournment' 'expert Evidence' 'overriding Purpose' 'costs']
['civil Procedure' 'contract Law'] ['late Service of Evidence' 'case Management Orders' 'adjournment' 'expert Evidence' 'overriding Purpose' 'costs']

Case Brief

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Procedural Posture

Civil Contractual Dispute; Interlocutory Practice and Procedure Application / At Commencement of Trial, Defendant Sought Leave to Rely on Additional Affidavit Evidence Served Outside the Case Management Timetable And, Alternatively, an Adjournment

Legal Issues

  1. 1 ['Whether the defendant should be permitted to rely on affidavit evidence from 5 additional expert witnesses served outside the case management timetable.' 'Whether the defendant should be granted an adjournment if leave to rely on the additional evidence were refused.' 'Whether the defendant had shown exceptional or special circumstances justifying departure from the timetable and the late reliance on expert evidence.' "Whether costs would adequately cure the prejudice, delay and wasted preparation caused to the plaintiff by the defendant's late change in forensic course."]

Ratio Decidendi

The defendant's late service of substantial expert affidavit evidence on the eve of trial was not within a reasonable time, no satisfactory explanation or exceptional or special circumstances were shown for the change in forensic course or non-compliance with the timetable, and allowing the evidence or adjourning the trial would cause significant delay, disproportionate cost and irremediable prejudice to the plaintiff contrary to the just, quick and cheap disposal of the proceedings required by the Civil Procedure Act 2005. Costs would not adequately remedy that prejudice.

Court Disposition

Defendant's application to rely on additional evidence and alternative application for adjournment refused; defendant ordered to pay the plaintiff's costs of the refused applications; trial to proceed.

Orders

  • ['The application by the defendant to rely upon additional evidence served outside the case management timetable fixed for the service of evidence is refused.' 'The application by the defendant for an adjournment is refused.' 'The defendant is to pay the costs of the plaintiff in connection with the refused...