Hunter Valley Skydiving Centre Pty Limited v Central Coast Aero Club Limited & anor [2008] NSWSC 83

Hunter Valley Skydiving Centre Pty Limited v Central Coast Aero Club Limited & anor [2008] NSWSC 83

Despite the defendants’ unexplained and significant default, justice and procedural fairness slightly favour granting leave to rely on late affidavits, given the plaintiff can have a short adjournment to answer the evidence and no irremediable prejudice would result. However, the defendants must pay the plaintiff's costs in full (on an indemnity basis) of the application and of the adjournment.

Parties
Plaintiff: Hunter Valley Skydiving Centre Pty Limited; First Defendant: Central Coast Aero Club Limited; Second Defendant: Warnervale Air Pty Limited
Jurisdiction
Australia
Judgment Date
14 February 2008
Procedural Posture
Procedural Ruling in Civil Proceedings / Interlocutory Application Prior to Final Hearing
Outcome
Leave granted to rely on late affidavits; hearing vacated and adjourned to 10 March 2008 at plaintiff's request; defendants to pay plaintiff's indemnity costs.
Legal Topics
Affidavits, Case Management, Late Evidence, Adjournment, Costs
Civil Procedure Affidavits Case Management Late Evidence Adjournment Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Hunter Valley Skydiving Centre Pty Limited

Plaintiff

Central Coast Aero Club Limited

First Defendant

Warnervale Air Pty Limited

Second Defendant

Procedural Posture

Procedural Ruling in Civil Proceedings / Interlocutory Application Prior to Final Hearing

Legal Issues

  1. 1 Whether leave should be granted to the defendants to rely at the hearing on affidavits served outside of time limited by prior directions
  2. 2 Whether the hearing should be adjourned to allow the plaintiff to respond to late affidavit evidence
  3. 3 Appropriate costs orders consequent on delays and defaults

Ratio Decidendi

Despite the defendants’ unexplained and significant default, justice and procedural fairness slightly favour granting leave to rely on late affidavits, given the plaintiff can have a short adjournment to answer the evidence and no irremediable prejudice would result. However, the defendants must pay the plaintiff's costs in full (on an indemnity basis) of the application and of the adjournment.

Court Disposition

Leave granted to rely on late affidavits; hearing vacated and adjourned to 10 March 2008 at plaintiff's request; defendants to pay plaintiff's indemnity costs.

Orders

  • Leave granted to defendants to rely on late affidavits identified as Items 6 to 26 in exhibit DX02.
  • Defendants to pay the plaintiff's costs of and incidental to the application, including the affidavits of Mr Tallboys, on an indemnity basis.