Dimitriou v Huybers (No 2)

The applicants, Dimitriou and others, sought to tender a volume of documents not previously before the primary judge and to vacate the scheduled hearing date. The respondents, Huybers and others, opposed these applications. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Macfarlan and Leeming JJA.

The primary legal issues before the Court were whether to permit the late tender of additional evidence and whether to grant an adjournment of the hearing. These applications were made in circumstances where the applicants had previously failed to comply with court directions, leading to the dismissal of their appeal by a single judge. The Court was required to consider the adequacy of the explanation for the applicants' non-compliance and the prospects of success of the appeal itself.

The Court refused the application to tender the additional affidavit and exhibit, noting the absence of any evidence explaining the late production of this material and the lack of opportunity for the respondents to address it. Consequently, the application to vacate the hearing was also dismissed. The Court found that the explanation for the applicants' non-compliance with previous directions was inadequate and that the single judge had been satisfied that the appeal had no realistic prospects of success. The amended notice of motion was therefore dismissed, with the applicants ordered to pay the respondents' costs.