DCM Solar Pty Ltd (in Liquidation) v Marjoribanks

DCM Solar Pty Ltd (in Liquidation) brought proceedings against Marjoribanks in the Supreme Court of New South Wales. The liquidators sought to amend their Commercial List Response to include additional evidence, specifically documents that had not been served with the initial response. Marjoribanks opposed the amendment, arguing that the documents were not disclosed in accordance with the Supreme Court Practice Note SC Eq 11, which governs the service of evidence in the Commercial List. The court needed to determine whether the liquidators could amend their response to include the additional evidence and whether there were exceptional circumstances that would allow for the disclosure of documents that had not been served with the initial response.

The court considered whether the Practice Note SC Eq 11 applied to the situation where not all evidence had been served. It noted that the note was intended to prevent parties from ambushing each other with new evidence late in the proceedings. However, the court found that the liquidators had acted promptly in seeking to include the additional evidence and that there were exceptional circumstances warranting disclosure. The liquidators had identified the need for the documents early in the proceedings, and Marjoribanks had not been prejudiced by the late disclosure. The court emphasised the importance of allowing parties to adduce all relevant evidence to ensure a fair trial.

The court granted the liquidators' application to amend their response to include the additional evidence. It held that the Practice Note SC Eq 11 did not preclude the disclosure of documents that had not been served with the initial response where exceptional circumstances existed. The court ordered that the liquidators' amended Commercial List Response be served on Marjoribanks, including the additional evidence. The court also noted that the liquidators should take steps to ensure that all relevant evidence was disclosed as early as possible to avoid similar issues in the future.