Canturi Corporation Pty Limited v Gagner Pty Limited

Canturi Corporation Pty Limited sued Gagner Pty Limited in a commercial dispute. The plaintiff sought leave during the hearing to present additional affidavit evidence. The defendants objected, arguing that this would amount to a trial by ambush. The proceedings had previously been managed in the Commercial List. The court had to decide whether the plaintiff's late affidavit evidence constituted a trial by ambush and whether the prejudice to the defendant could be remedied by costs. Additionally, the court needed to determine if the rest of the case could be completed after a short adjournment without causing irreparable harm to the defendant.

The court found that the plaintiff's application to adduce additional affidavit evidence did not amount to a trial by ambush. The court reasoned that the plaintiff had acted reasonably in seeking leave to present the additional evidence, and the defendants' concerns could be addressed through an appropriate costs order. The court also noted that the remaining case could be completed after a short adjournment without causing irreparable harm to the defendant. Consequently, the court granted leave to the plaintiff to rely on the additional affidavit evidence.

The court ordered that the plaintiff pay the defendant's costs of and incidental to the application, including the affidavit of Mr Toogood read on the application and the costs of these proceedings for 21, 22, 25, and 27 August 2008. The court further ordered that the parties bring in Short Minutes of Order for the service of further affidavits, return of subpoenas, and an agreed hearing date. Finally, the court granted liberty to apply in relation to costs.