FX Group Holdings Pty Ltd v Perpetual Trustee Co Ltd as trustee of the CPEC 8 Trust A (formerly the CHAMP IV Trust A) (No 2) (late evidence)

FX Group Holdings Pty Ltd, the plaintiff, brought an action against Perpetual Trustee Co Ltd as trustee of the CPEC 8 Trust A, the defendant, in the Supreme Court of Victoria. The dispute involved the plaintiff seeking to challenge the defendant's decision in relation to certain financial investments. A critical issue that arose during the proceedings was the admissibility of supplementary expert evidence tendered by the plaintiff at the commencement of an expert conclave. The plaintiff had failed to produce this evidence earlier during the discovery process.

The court had to determine whether the plaintiff was entitled to tender supplementary expert evidence at such a late stage and whether the defendant would be prejudiced by the late disclosure. The court considered the principles outlined in previous cases, which required the plaintiff to seek leave to tender the evidence, provide an explanation for the delay, and demonstrate that the defendant would not be prejudiced. The plaintiff had failed to provide any explanation for the delay and had earlier failed to produce the material in discovery. The court found that the plaintiff's actions amounted to a disregard for the rules of court and the need for timely disclosure of evidence.

The Supreme Court of Victoria held that the plaintiff was not entitled to tender the supplementary expert evidence without leave. The court refused to grant leave as the plaintiff had failed to provide any explanation for the delay and had earlier failed to produce the material in discovery. The court found that the defendant would be prejudiced if the evidence was admitted, as it would not have had sufficient time to review and respond to the new material. Consequently, the court ruled that the plaintiff's application to tender the supplementary expert evidence was unsuccessful.