Huntley-Travers v Wilkinson [2018] NSWSC 1173

Huntley-Travers v Wilkinson [2018] NSWSC 1173

The notice of motion was dismissed because, although the defendant's substantive affidavit had not been responded to and the plaintiffs would suffer some prejudice if unable to respond, the plaintiffs' belated position was not without fault and their evidence failed to identify with sufficient precision the nature and extent of any serious or irremediable prejudice. Applying ss 56 and 57 of the Civil Procedure Act 2005 (NSW), vacating the hearing would undermine the quick and cheap resolution of the proceedings, waste two judge-days, and likely delay the matter substantially, while the hearing could commence without prejudice to renewed applications once more was known about the...

Jurisdiction
Australia
Judgment Date
30 July 2018
Procedural Posture
Application Under the Succession Act 2001 (nsw) / Plaintiffs' Notice of Motion Dated 30 July 2018 to Vacate the Final Hearing Listed for 31 July and 1 August 2018
Outcome
Notice of motion dismissed, without prejudice to renewal of an application to vacate or adjourn the hearing when more is known about the plaintiffs' case in reply.
Legal Topics
['late Application to Vacate Final Hearing' 'adjournment or Vacation of Hearing' 'overriding Purpose' 'affidavit Evidence' 'prejudice' 'costs']
['civil Procedure' 'succession'] ['late Application to Vacate Final Hearing' 'adjournment or Vacation of Hearing' 'overriding Purpose' 'affidavit Evidence' 'prejudice' 'costs']

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Procedural Posture

Application Under the Succession Act 2001 (nsw) / Plaintiffs' Notice of Motion Dated 30 July 2018 to Vacate the Final Hearing Listed for 31 July and 1 August 2018

Legal Issues

  1. 1 ["Whether the final hearing should be vacated because the plaintiffs did not receive or were unaware of the defendant's substantive affidavit affirmed on 23 January 2018." "Whether the plaintiffs' belated need to respond to the defendant's substantive affidavit was without fault on their part." "Whether the plaintiffs' evidence identified with sufficient precision any prejudice that could not be remedied by consequential orders or by the conduct of the hearing." 'How the overriding purpose and case management obligations in ss 56 and 57 of the Civil Procedure Act 2005 (NSW) applied to the late application.']

Ratio Decidendi

The notice of motion was dismissed because, although the defendant's substantive affidavit had not been responded to and the plaintiffs would suffer some prejudice if unable to respond, the plaintiffs' belated position was not without fault and their evidence failed to identify with sufficient precision the nature and extent of any serious or irremediable prejudice. Applying ss 56 and 57 of the Civil Procedure Act 2005 (NSW), vacating the hearing would undermine the quick and cheap resolution of the proceedings, waste two judge-days, and likely delay the matter substantially, while the hearing could commence without prejudice to renewed applications once more was known about the...

Court Disposition

Notice of motion dismissed, without prejudice to renewal of an application to vacate or adjourn the hearing when more is known about the plaintiffs' case in reply.

Orders

  • ['Dismiss the notice of motion dated 30 July 2018.' "Order 1 is without prejudice to the parties' rights to renew an application to vacate or adjourn the hearing when more is known as to the nature of the plaintiffs' case in reply." "Order the plaintiffs to pay the defendant's costs of the notice of motion."]