Paul Herbert Kennedy v Mark Alexander-Erber [2019] NSWDC 388

Paul Herbert Kennedy v Mark Alexander-Erber [2019] NSWDC 388

Exceptional circumstances justified granting leave for the plaintiff to re-open its case in chief, limited to the admission of Ms Holt's expert affidavit, as the evidence related to the central issue of authenticity of signatures, any prejudice to the defendant could be managed by allowing a response, and the interests of justice and case management weighed in favour of admission.

Jurisdiction
Australia
Judgment Date
02 August 2019
Procedural Posture
Civil / Interlocutory Application to Re Open Case Before Judgment
Outcome
Leave granted to re-open case; procedural directions made for further evidence; matter listed for continued hearing.
Legal Topics
['leave to Re Open Case' 'admission of Fresh Evidence' 'procedural Fairness' 'case Management' 'application of the Civil Procedure Act 2005 (nsw)' 'uniform Civil Procedure Rules 2005 (nsw)']
['civil Procedure'] ['leave to Re Open Case' 'admission of Fresh Evidence' 'procedural Fairness' 'case Management' 'application of the Civil Procedure Act 2005 (nsw)' 'uniform Civil Procedure Rules 2005 (nsw)']

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Procedural Posture

Civil / Interlocutory Application to Re Open Case Before Judgment

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiff to re-open his case in chief to admit evidence by way of expert affidavit' 'Whether exceptional circumstances exist to admit out-of-time expert evidence under UCPR 31.28(4)' 'What prejudice, if any, is caused to the defendant by the admission of the proposed evidence']

Ratio Decidendi

Exceptional circumstances justified granting leave for the plaintiff to re-open its case in chief, limited to the admission of Ms Holt's expert affidavit, as the evidence related to the central issue of authenticity of signatures, any prejudice to the defendant could be managed by allowing a response, and the interests of justice and case management weighed in favour of admission.

Court Disposition

Leave granted to re-open case; procedural directions made for further evidence; matter listed for continued hearing.

Orders

  • ['Leave granted to plaintiff to re-open case in chief limited to admission of evidence of Melanie Jayne Holt by affidavit dated 24 May 2019.' 'Leave granted under UCPR 31.28(4) for plaintiff to serve and rely on the affidavit of Melanie Jayne Holt sworn 24 May 2019; service to occur within four days.' "Defendant...