Endeavour Coal Pty Limited v Winten (No. 9) Pty Limited [2008] NSWSC 121

Endeavour Coal Pty Limited v Winten (No. 9) Pty Limited [2008] NSWSC 121

Leave was granted in part because most of the proposed further statement concerned matters already raised by the Trade Practices Act pleadings and discovery, so Endeavour had not shown irremediable prejudice requiring the hearing to be vacated. However, paragraph 4 and the first and last sentences of paragraph 5...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 February 2008
Procedural Posture
Practice and Procedure; Leave to File Statement Out of Time / Interlocutory Application at Commencement of Hearing
Outcome
Leave granted in part to rely on the further statement of Mr Chapman.
Legal Topics
['leave to Adduce Evidence Out of Time' 'case Management' 'misleading or Deceptive Conduct' 'prejudice' 'costs']
['civil Procedure' 'commercial Litigation' 'trade Practices'] ['leave to Adduce Evidence Out of Time' 'case Management' 'misleading or Deceptive Conduct' 'prejudice' 'costs']

Source-derived case record

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Procedural Posture

Practice and Procedure; Leave to File Statement Out of Time / Interlocutory Application at Commencement of Hearing

Legal Issues

  1. 1 ['Whether leave should be granted to adduce a further statement from Mr Chapman out of time.' 'Whether allowing all or part of the further statement would cause prejudice to Endeavour requiring refusal of leave or vacation of the hearing date.' 'Whether the late evidence concerned matters already raised by the pleadings and discovery.']

Ratio Decidendi

Leave was granted in part because most of the proposed further statement concerned matters already raised by the Trade Practices Act pleadings and discovery, so Endeavour had not shown irremediable prejudice requiring the hearing to be vacated. However, paragraph 4 and the first and last sentences of paragraph 5 would unfairly prejudice Endeavour because they introduced communications with identified persons, companies and Winten management that Endeavour could not properly investigate in the time available.

Court Disposition

Leave granted in part to rely on the further statement of Mr Chapman.

Orders

  • ['Paragraph 4 and the first and last sentences of paragraph 5 of the proposed further statement of Mr Chapman are not allowed.' 'The balance of the proposed further evidence of Mr Chapman is allowed.' "Endeavour may add to its evidentiary case on particular issues raised by Mr Chapman's statement after further...