9 Aug 2023
The Assistant Commissioner correctly refused to admit the late evidence because it was not relevant to the issues assessed at the filing date (bad faith and likelihood of confusion) and, even if marginally relevant, it had little significance and parts should have been filed earlier; therefore refusal was a proper exercise of discretion and is upheld on appeal.
20 Sept 2021
On the facts the appellant personally owed a fiduciary duty to the respondent because of his conduct, position and the respondent's vulnerability; the appellant breached that duty by failing to apply the respondent's funds to the agreed development and failing to repay them; the appropriate remedy was restitution of $239,320 plus interest; the High Court's factual findings on credibility and likely forged documents were open to it and are upheld; the appeal is dismissed.
19 May 2016
The plaintiff was justified in issuing proceedings because litigation produced settlements materially better than the defendants' initial positions; EQC's active participation effectively ended when it acknowledged over-cap liability in May 2015 so EQC's liability for costs is limited accordingly; Southern Response remained actively engaged and should meet the larger share of costs and disbursements subject to reductions for late provision of expert evidence and certain unreasonable disbursements. The court exercised discretion under the High Court Rules to award Scale 2B costs with specified…
30 Jul 2015
The Court of Appeal held that the High Court judge erred in refusing to read the defence affidavits; on the facts the interests of justice required admission of the affidavits (and admission of fresh affidavit explaining counsel's conduct) because exclusion would irretrievably deny the appellant a merits hearing and the prejudice from adjournment could be addressed by costs or conditional (unless) orders; accordingly the interlocutory exclusion was set aside.
30 Aug 2011
The judge exercised discretion to exclude further evidence because the reasons for the caveat's lapse had been in issue since the notice of opposition, allowing late evidence would unbalance the parties' rights, risk prejudice through further delay, and undermine finality of pleadings and completed evidence, so the application to adduce the late evidence was refused and the hearing was to proceed as scheduled.
10 Jul 2008
Although the parties had indicated 2B as the appropriate scale, the Court would not depart to the maximum uplift sought; given urgency and distraction from trial preparation the Court awarded an uplift in time band to 2C and assessed appearance time at 0.25 of a day; parties were left to calculate the quantum accordingly.