Cole v Quest Software Pty Ltd

This matter concerned an application by the Respondent, Quest Software Pty Ltd, to adduce further evidence in proceedings before His Honour Judge Lloyd-Jones. The Applicant, Mr Cole, had previously been precluded from adducing further evidence by an order made on 12 February 2014. Despite this, on 30 April 2014, the Respondent's solicitor forwarded a copy of the alleged Constitution and a Special Resolution of Quest Australia Pty Ltd to the Applicant's solicitor, indicating an intention to tender these documents at the hearing scheduled for 5 May 2014.

The central legal issue was whether the Respondent should be permitted to tender the alleged Constitution and Special Resolution of Quest Australia Pty Ltd at the hearing, given that these documents had been in the Respondent's possession since 2007 and had not been disclosed or relied upon in the Respondent's pleadings, affidavit evidence, or prior correspondence. The Applicant argued that it was taken by surprise by this late tender, particularly as the documents related to the validity of Mr Cole's appointment as "managing director" for the purposes of the *Corporations Act 2001* (Cth) and the validity of a Deed of Release executed by Mr Cole.

His Honour Judge Lloyd-Jones dismissed the Respondent's oral application to adduce the further evidence. The court noted that the Respondent had not sought to amend its pleadings or make a formal application to the court to rely on these documents at any time since the commencement of proceedings. The attempt to tender the documents, along with an affidavit sworn by the Respondent's solicitor on the day of the hearing, was considered an attempt to introduce new issues and evidence at a very late stage, causing surprise to the Applicant. The court applied principles relating to the timely disclosure of evidence and the need for parties to provide adequate notice of their case.