UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128

UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128

Although UTSG's defaults caused the late state of the expert accounting evidence and Ms Singh's asserted ill health did not justify vacating the hearing, Mr Mullins' withdrawal of his expert opinion left UTSG without expert accounting evidence central to its compensation claim. That prejudice could not be remedied before the hearing, whereas Sydney Metro would suffer no prejudice incapable of compensation by costs. The dictates of justice therefore required the hearing to be vacated, with UTSG to pay Sydney Metro's costs thrown away and costs of the motion because the vacation was caused by UTSG's default.

Jurisdiction
Australia
Judgment Date
22 August 2018
Procedural Posture
Class 3 Compensation for Compulsory Acquisition Proceedings / Notice of Motion by the Applicant to Vacate Hearing Dates and to Vacate an Order for Cross Examination
Outcome
The application to vacate the hearing dates was granted; the application concerning cross-examination of Ms Singh was adjourned; costs were ordered in favour of Sydney Metro.
Legal Topics
['application to Vacate Hearing Dates' 'adjournment' 'late Expert Evidence' 'forensic Accounting Evidence' 'non Compliance With Court Orders and Notices to Produce' 'costs Thrown Away' 'mediation']
['civil Procedure' 'costs' 'compulsory Acquisition Compensation'] ['application to Vacate Hearing Dates' 'adjournment' 'late Expert Evidence' 'forensic Accounting Evidence' 'non Compliance With Court Orders and Notices to Produce' 'costs Thrown Away' 'mediation']

Case Brief

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Procedural Posture

Class 3 Compensation for Compulsory Acquisition Proceedings / Notice of Motion by the Applicant to Vacate Hearing Dates and to Vacate an Order for Cross Examination

Legal Issues

  1. 1 ['Whether the hearing dates fixed to commence on 28 August 2018 should be vacated.' 'Whether the asserted ill health of Ms Simran Singh justified vacating the hearing dates or adjourning her cross-examination.' "Whether alleged late service of Sydney Metro's expert accounting evidence justified vacating the hearing dates." "Whether the withdrawal of UTSG's expert accounting opinion left UTSG with irremedial prejudice requiring the hearing to be vacated." "Whether UTSG should pay Sydney Metro's costs thrown away by the vacation and costs of the motion."]

Ratio Decidendi

Although UTSG's defaults caused the late state of the expert accounting evidence and Ms Singh's asserted ill health did not justify vacating the hearing, Mr Mullins' withdrawal of his expert opinion left UTSG without expert accounting evidence central to its compensation claim. That prejudice could not be remedied before the hearing, whereas Sydney Metro would suffer no prejudice incapable of compensation by costs. The dictates of justice therefore required the hearing to be vacated, with UTSG to pay Sydney Metro's costs thrown away and costs of the motion because the vacation was caused by UTSG's default.

Court Disposition

The application to vacate the hearing dates was granted; the application concerning cross-examination of Ms Singh was adjourned; costs were ordered in favour of Sydney Metro.

Orders

  • ['The hearing of the matter commencing on 28 August 2018 was vacated.' 'Order 2 of the notice of motion, concerning the cross-examination of Ms Singh, was adjourned until 10am on 28 August 2018 before Pepper J.' "UTSG is to pay Sydney Metro's costs thrown away occasioned by the vacation of the hearing." "UTSG is to...