International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (No 3) [2008] NSWIRComm 132

International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (No 3) [2008] NSWIRComm 132

Although the applicants' non-compliance with the consent self-executing order was serious, there was a history of delay, and the evidence as to incapacity from the motor vehicle accident was limited, the Court was satisfied on balance that the accident affected preparation to some extent, dismissal would severely prejudice Mr Constantinidis, no particular prejudice to the respondents was identified, and the applicants' agreement to a tightly limited further extension tipped the balance in favour of granting one final indulgence. The applicants were given a short further time to file affidavit evidence in reply, with default to result in dismissal with costs.

Jurisdiction
Australia
Judgment Date
15 July 2008
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Application to Extend Time for Filing of Applicants' Affidavits in Reply
Outcome
Application acceded to; further extension of time granted; costs reserved.
Legal Topics
['s 106 Unfair Contract Proceedings' 'self Executing Consent Order' 'extension of Time' 'failure to File Affidavit Evidence in Reply' 'dismissal With Costs' 'costs Reserved']
['industrial Relations' 'civil Procedure'] ['s 106 Unfair Contract Proceedings' 'self Executing Consent Order' 'extension of Time' 'failure to File Affidavit Evidence in Reply' 'dismissal With Costs' 'costs Reserved']

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Interlocutory Application to Extend Time for Filing of Applicants' Affidavits in Reply

Legal Issues

  1. 1 ['Whether the Court should vacate or vary the self-executing order made on 9 April 2008 after the applicants failed to file affidavit material in reply by 4 June 2008.' 'Whether the second applicant demonstrated sufficient reason for a further indulgence and extension of time in light of delay, non-compliance, the motor vehicle accident, prejudice, and the authority of the Court.']

Ratio Decidendi

Although the applicants' non-compliance with the consent self-executing order was serious, there was a history of delay, and the evidence as to incapacity from the motor vehicle accident was limited, the Court was satisfied on balance that the accident affected preparation to some extent, dismissal would severely prejudice Mr Constantinidis, no particular prejudice to the respondents was identified, and the applicants' agreement to a tightly limited further extension tipped the balance in favour of granting one final indulgence. The applicants were given a short further time to file affidavit evidence in reply, with default to result in dismissal with costs.

Court Disposition

Application acceded to; further extension of time granted; costs reserved.

Orders

  • ["The applicants' affidavit evidence in reply to the affidavit of Gary John McIntyre, sworn 12 July 2007, must be filed by 4pm 15 days from this date (the date of this judgment being counted for this purpose) in default of which the proceedings brought by the applicants under s 106 of the Industrial Relations Act...