Moneytech Finance Pty Ltd v Diamond Made Pty Ltd [2018] NSWSC 1785

Moneytech Finance Pty Ltd v Diamond Made Pty Ltd [2018] NSWSC 1785

The sixth defendant's late service of a substantial affidavit, after an unequivocal statement that no evidence in answer would be served and without timely notice of the change of position, was inconsistent with the modern conduct of civil litigation and would prejudice the plaintiff if the affidavit were read. The hearing was therefore adjourned. Because documents attached to the affidavit should probably have been discovered, the sixth defendant was required to give verified supplementary discovery. The Court declined to compel the sixth defendant to amend his defence because parties are responsible for their own pleadings and admissibility can be determined at the hearing. The sixth...

Jurisdiction
Australia
Judgment Date
20 November 2018
Procedural Posture
Procedural and Other Rulings in Proceedings for Recovery of a Commercial Debt / Plaintiff's Application for an Adjournment and Other Interlocutory Relief on the Listed Hearing Date
Outcome
Adjournment granted; supplementary discovery ordered; order for Further Amended Defence refused; sixth defendant ordered to pay plaintiff's costs thrown away by reason of the adjournment.
Legal Topics
['adjournment' 'discovery' 'verified Supplementary Discovery' 'costs Thrown Away' 'assignment of a Chose in Action' 'notice of Assignment' 'future Property']
['civil Procedure' 'civil Litigation' 'costs' 'commercial Law'] ['adjournment' 'discovery' 'verified Supplementary Discovery' 'costs Thrown Away' 'assignment of a Chose in Action' 'notice of Assignment' 'future Property']

Case Brief

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Procedural Posture

Procedural and Other Rulings in Proceedings for Recovery of a Commercial Debt / Plaintiff's Application for an Adjournment and Other Interlocutory Relief on the Listed Hearing Date

Legal Issues

  1. 1 ['Whether the hearing should be adjourned because the sixth defendant served a substantial affidavit shortly before the hearing after previously stating that no evidence in answer would be served.' 'Whether the sixth defendant should provide supplementary discovery in verified form for documents omitted from earlier discovery.' 'Whether the sixth defendant should be ordered to file and serve a Further Amended Defence.' 'Who should pay the costs thrown away by reason of the adjournment and on what basis.']

Ratio Decidendi

The sixth defendant's late service of a substantial affidavit, after an unequivocal statement that no evidence in answer would be served and without timely notice of the change of position, was inconsistent with the modern conduct of civil litigation and would prejudice the plaintiff if the affidavit were read. The hearing was therefore adjourned. Because documents attached to the affidavit should probably have been discovered, the sixth defendant was required to give verified supplementary discovery. The Court declined to compel the sixth defendant to amend his defence because parties are responsible for their own pleadings and admissibility can be determined at the hearing. The sixth...

Court Disposition

Adjournment granted; supplementary discovery ordered; order for Further Amended Defence refused; sixth defendant ordered to pay plaintiff's costs thrown away by reason of the adjournment.

Orders

  • ['The hearing date is adjourned.' 'The sixth defendant is to provide supplementary discovery in verified form in accordance with my reasons, on or before 3 December 2018.' 'The plaintiff is to provide proposed further directions for the exchange of evidence necessitated by the adjournment, on or before 6 December...