JKB Holdings Pty Ltd v Alejandro De La Vega & anor [2011] NSWSC 836

JKB Holdings Pty Ltd v Alejandro De La Vega & anor [2011] NSWSC 836

Leave to rely on the affidavit was refused because it was served out of time and only after 5 p.m. on 21 April 2011, leaving the defendants effectively only two business days before the hearing to deal with an affidavit of 118 paragraphs, over 32 pages, with 78 exhibits and 188 pages overall; permitting reliance on it would occasion prejudice to the defendants, particularly where some asserted matters appeared disputable and required an opportunity to respond.

Jurisdiction
Australia
Judgment Date
29 April 2011
Procedural Posture
Equity Division Duty List; Procedural Ruling on Interlocutory Applications / Hearing of Defendants' Applications for Leave to Withdraw an Admission, Amend the Defence and File a Cross Claim, and Plaintiff's Attempt to Read an Affidavit Filed Out of Time
Outcome
Leave to rely on the affidavit of Jason Mark Schwede sworn 21 April 2011 refused; application adjourned; plaintiff to pay defendants' costs of today.
Legal Topics
['late Service of Evidence' 'leave to Read Affidavit' 'adjournment' 'costs' 'amendment of Defence' 'withdrawal of Admission' 'cross Claim']
['practice and Procedure' 'civil Procedure'] ['late Service of Evidence' 'leave to Read Affidavit' 'adjournment' 'costs' 'amendment of Defence' 'withdrawal of Admission' 'cross Claim']

Case Brief

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Procedural Posture

Equity Division Duty List; Procedural Ruling on Interlocutory Applications / Hearing of Defendants' Applications for Leave to Withdraw an Admission, Amend the Defence and File a Cross Claim, and Plaintiff's Attempt to Read an Affidavit Filed Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on the affidavit of Jason Mark Schwede sworn 21 April 2011 despite late service.' 'Whether late service of the affidavit would prejudice the defendants in preparing for the hearing.' 'Whether the plaintiff should be granted an adjournment if leave to rely on the affidavit was refused.']

Ratio Decidendi

Leave to rely on the affidavit was refused because it was served out of time and only after 5 p.m. on 21 April 2011, leaving the defendants effectively only two business days before the hearing to deal with an affidavit of 118 paragraphs, over 32 pages, with 78 exhibits and 188 pages overall; permitting reliance on it would occasion prejudice to the defendants, particularly where some asserted matters appeared disputable and required an opportunity to respond.

Court Disposition

Leave to rely on the affidavit of Jason Mark Schwede sworn 21 April 2011 refused; application adjourned; plaintiff to pay defendants' costs of today.

Orders

  • ['Leave to rely on the affidavit of Jason Mark Schwede sworn 21 April 2011 is refused.' 'The application is adjourned and directions are made for the service of further evidence.' "The plaintiff is to pay the defendants' costs of today."]