Cutting Edge Services Pty Ltd v Raymond & Therese Penfold [2020] NSWSC 1012

Cutting Edge Services Pty Ltd v Raymond & Therese Penfold [2020] NSWSC 1012

The interests of justice and the statutory case management principles require leave to be granted for the plaintiff to rely on the additional evidence, despite late service, as failure to allow it would significantly prejudice the plaintiff's ability to prove damages, and the prejudice to defendants and cross-defendant in needing to respond is best remedied by vacating the hearing date and appropriate directions as to evidence and costs.

Jurisdiction
Australia
Judgment Date
06 August 2020
Procedural Posture
Civil / Interlocutory Application Concerning Leave to Rely on Additional Evidence, Vacation of Hearing Date, and Consequential Orders
Outcome
Leave granted to plaintiff to rely upon additional evidence; hearing date vacated; plaintiff to pay costs; directions for further case management given.
Legal Topics
['vacation of Hearing Date' 'grant of Leave to Rely on Evidence' 'case Management Principles' 'negligence' 'damages Assessment' 'bailment Vs Licence' 'prejudice and Procedural Fairness']
['civil Procedure' 'insurance Law' 'torts'] ['vacation of Hearing Date' 'grant of Leave to Rely on Evidence' 'case Management Principles' 'negligence' 'damages Assessment' 'bailment Vs Licence' 'prejudice and Procedural Fairness']

Case Brief

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Procedural Posture

Civil / Interlocutory Application Concerning Leave to Rely on Additional Evidence, Vacation of Hearing Date, and Consequential Orders

Legal Issues

  1. 1 ['Whether to grant leave to the plaintiff to rely on additional evidence served late' 'Whether hearing date should be vacated in consequence' 'Appropriate consequential case management and costs orders']

Ratio Decidendi

The interests of justice and the statutory case management principles require leave to be granted for the plaintiff to rely on the additional evidence, despite late service, as failure to allow it would significantly prejudice the plaintiff's ability to prove damages, and the prejudice to defendants and cross-defendant in needing to respond is best remedied by vacating the hearing date and appropriate directions as to evidence and costs.

Court Disposition

Leave granted to plaintiff to rely upon additional evidence; hearing date vacated; plaintiff to pay costs; directions for further case management given.

Orders

  • ['Leave be granted to the plaintiff to rely upon the affidavit of Dean Maxwell Brus sworn 2 July 2020, affidavit of Adam Perry sworn 26 June 2020, and report of Chris Katehos dated 1 July 2020.' 'The hearing date on 17 August 2020 be vacated.' 'The plaintiff is to pay the costs of the motion and the costs thrown...