Schmuelly v Elrob Construction Group Pty Ltd (No 2) (vacate trial) [2025] NSWSC 26

Schmuelly v Elrob Construction Group Pty Ltd (No 2) (vacate trial) [2025] NSWSC 26

The defendants failed to adequately explain repeated non-compliance with court directions and the late service of evidence. Given numerous extensions and inadequate reasons, and noting potential prejudice to the plaintiff, the interests of justice did not require a vacation of the trial or leave to rely on late evidence. The application to vacate the trial and adduce further evidence was refused.

Parties
Plaintiff: Dror Schmuelly; First Defendant: Elrob Construction Group Pty Ltd; Second Defendant: Elia Boujaoude
Jurisdiction
Australia
Judgment Date
03 February 2025
Procedural Posture
Procedural Motion (vacate Trial) / Application to Vacate Trial and Adduce Late Evidence Before Trial
Outcome
Application dismissed
Legal Topics
Adjournment, Vacation of Trial Date, Late Evidence, Case Management
Civil Procedure Adjournment Vacation of Trial Date Late Evidence Case Management

Case Brief

Summary, issues, holding and outcome

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Parties

Dror Schmuelly

Plaintiff

Elrob Construction Group Pty Ltd

First Defendant

Elia Boujaoude

Second Defendant

Procedural Posture

Procedural Motion (vacate Trial) / Application to Vacate Trial and Adduce Late Evidence Before Trial

Legal Issues

  1. 1 Whether the trial should be vacated due to the defendants' late service of lay and expert evidence
  2. 2 Whether leave should be granted to the defendants to rely on evidence served late
  3. 3 Whether there was an adequate explanation for non-compliance with prior court orders

Ratio Decidendi

The defendants failed to adequately explain repeated non-compliance with court directions and the late service of evidence. Given numerous extensions and inadequate reasons, and noting potential prejudice to the plaintiff, the interests of justice did not require a vacation of the trial or leave to rely on late evidence. The application to vacate the trial and adduce further evidence was refused.

Court Disposition

Application dismissed

Orders

  • The defendants' notice of motion filed on 30 January 2025 is dismissed.
  • The defendants are to pay the plaintiff's costs of the motion.