Kennett & Anor v Mayrana Pty Ltd and Ors (No 5) [2007] NSWIRComm 199

Kennett & Anor v Mayrana Pty Ltd and Ors (No 5) [2007] NSWIRComm 199

Leave to adduce further evidence for Mr Pak was refused due to lack of proper explanation, lateness, repeated failures to comply with directions, and prejudice to the respondents; leave to rely on three of Mr Prior's 2007 reports and affidavits (excluding the valuation report) was granted due to their basis in new information, Mr Prior having resiled from his previous opinions, and the High Court's direction not to shut out fairly arguable issues, with costs orders made to balance prejudice; leave for Mr Rogers, Mrs Brash, and Mr Brash was granted only in relation to assistance provided to Mr Prior, but not for revisiting or improving earlier evidence.

Parties
First Applicant: Keith Franklin Kennett; Second Applicant: KF Kennett Nominees Pty Limited (ACN 007 739 568); Applicant: Myong Ho Pak; First Respondent: Mayrana Pty Ltd (ACN 101 363 688); Second Respondent: Garratt's Limited (ACN 000 003 725); Third Respondent: Christopher Campbell; Fourth Respondent: Michael Traynor
Jurisdiction
Australia
Judgment Date
10 August 2007
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 / Interlocutory Decision on Notices of Motion During Ongoing Trial
Outcome
Motions refused except as to leave for Mr Prior's three 2007 affidavits (excluding valuation report) and parts of affidavits of Mr Rogers, Mrs Brash, and Mr Brash regarding assistance to Mr Prior; applicants to bear respondents' costs thrown away as a result of such leave; costs of motions otherwise reserved.
Legal Topics
Leave to Adduce Further Evidence, Expert Witness Evidence, Case Management, Costs Orders
Industrial Law Leave to Adduce Further Evidence Expert Witness Evidence Case Management Costs Orders

Case Brief

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Parties

Keith Franklin Kennett

First Applicant

KF Kennett Nominees Pty Limited (ACN 007 739 568)

Second Applicant

Myong Ho Pak

Applicant

Mayrana Pty Ltd (ACN 101 363 688)

First Respondent

Garratt's Limited (ACN 000 003 725)

Second Respondent

Christopher Campbell

Third Respondent

Michael Traynor

Fourth Respondent

Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 / Interlocutory Decision on Notices of Motion During Ongoing Trial

Legal Issues

  1. 1 Whether leave should be granted to applicants to adduce further evidence from applicant Myong Ho Pak, accounting expert Mr Prior, accountant Mr Rogers, and former employees Mrs Brash and Mr Brash
  2. 2 Effect of late application for further evidence on procedural fairness and case management
  3. 3 Appropriateness of costs orders to balance prejudice arising from late evidence

Ratio Decidendi

Leave to adduce further evidence for Mr Pak was refused due to lack of proper explanation, lateness, repeated failures to comply with directions, and prejudice to the respondents; leave to rely on three of Mr Prior's 2007 reports and affidavits (excluding the valuation report) was granted due to their basis in new information, Mr Prior having resiled from his previous opinions, and the High Court's direction not to shut out fairly arguable issues, with costs orders made to balance prejudice; leave for Mr Rogers, Mrs Brash, and Mr Brash was granted only in relation to assistance provided to Mr Prior, but not for revisiting or improving earlier evidence.

Court Disposition

Motions refused except as to leave for Mr Prior's three 2007 affidavits (excluding valuation report) and parts of affidavits of Mr Rogers, Mrs Brash, and Mr Brash regarding assistance to Mr Prior; applicants to bear respondents' costs thrown away as a result of such leave; costs of motions otherwise reserved.

Orders

  • Motions refused except as to Mr Prior's affidavits of 7 June, 4 July and 18 July 2007 (exhibit M7) and parts of affidavits of Mr Rogers, Mr Brash, and Mrs Brash regarding assistance to Mr Prior.
  • Applicants to bear respondents' costs thrown away as a result of the granting of such leave.