Penrith City Council v Dincel Construction System Pty Limited (No 3) [2020] NSWLEC 117

Penrith City Council v Dincel Construction System Pty Limited (No 3) [2020] NSWLEC 117

Leave to reopen was granted because the further evidence primarily addressed proper criticisms made by Council of the respondents' earlier evidence, some material was properly characterised as fresh evidence, no substantial prejudice to Council was shown apart from delay, and it would not be in the interests of justice for the Court to proceed to judgment on information it knew to be inaccurate or out of date. Although the respondents succeeded on the motion, they were ordered to pay Council's costs of it.

Jurisdiction
Australia
Judgment Date
18 August 2020
Procedural Posture
Class 4 Proceedings / Notice of Motion Filed 11 August 2020 by the Respondents Seeking Leave to Reopen Their Case to Rely Upon an Affidavit of Andrew Colin Cowan Affirmed 31 July 2020
Outcome
Respondents granted leave to reopen their case; respondents ordered to pay Penrith City Council's costs of the notice of motion.
Legal Topics
['reopening a Case' 'further Updating Evidence' 'case Management' 'overriding Purpose' 'costs of Notice of Motion']
['evidence' 'civil Procedure' 'land and Environment Court Procedure'] ['reopening a Case' 'further Updating Evidence' 'case Management' 'overriding Purpose' 'costs of Notice of Motion']

Case Brief

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Procedural Posture

Class 4 Proceedings / Notice of Motion Filed 11 August 2020 by the Respondents Seeking Leave to Reopen Their Case to Rely Upon an Affidavit of Andrew Colin Cowan Affirmed 31 July 2020

Legal Issues

  1. 1 ['Whether the respondents should be granted leave to reopen their case for a third time to rely upon further updating evidence.' 'Whether allowing the further evidence was consistent with the interests of justice, finality of proceedings, and the just, quick and cheap resolution of the real issues.' 'Whether Council would suffer substantial prejudice if the further evidence were received.']

Ratio Decidendi

Leave to reopen was granted because the further evidence primarily addressed proper criticisms made by Council of the respondents' earlier evidence, some material was properly characterised as fresh evidence, no substantial prejudice to Council was shown apart from delay, and it would not be in the interests of justice for the Court to proceed to judgment on information it knew to be inaccurate or out of date. Although the respondents succeeded on the motion, they were ordered to pay Council's costs of it.

Court Disposition

Respondents granted leave to reopen their case; respondents ordered to pay Penrith City Council's costs of the notice of motion.

Orders

  • ['The respondents be granted leave to reopen their case to rely upon the affidavit of Andrew Colin Cowan affirmed 31 July 2020.' "The respondents are to pay Penrith City Council's costs of the notice of motion filed 11 August 2020."]