Hinkley v de Vries

[2006] NSWSC 1048

CITATION:	Hinkley v de Vries [2006] NSWSC 1048
HEARING DATE(S):	04/10/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	10/04/2006
DECISION:	Application refused.
CATCHWORDS:	PROCEDURE - Miscellaneous Procedural Matters - Re-opening Case - Application to re-open to cross examine defendant after submissions and decision reserved - Basis said to be confusion as to order of events in affidavit served that day - Order set out in previous affidavit - Plaintiff in cross examination agreed with order
PARTIES:	Neil John Hinkley - Plaintiff Willem Joost de Vries - Defendant
FILE NUMBER(S):	SC 4919/06
COUNSEL:	Mr C Wood - Plaintiff Mr M Tyson - Wood
SOLICITORS:	Pigott Stinson Ratner Thom Lawyers - Plaintiff Aubrey Brown Partners Solicitors - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

4 OCTOBER 2006

4919/06 NEIL JOHN HINKLEY v WILLEM JOOST DE VRIES

EX TEMPORE JUDGMENT

1 There is an application to reopen the plaintiff's case at this late juncture, after submissions and my reserving my decision. I agreed to take the matter and deal with it with respect to the application for final relief on the basis that it was confined and required me merely to consider an issue of law with respect to whether or not the postal acceptance rule applied to constitute a new contract between the parties.

2 The basis for the application is confusion relating to the affidavit of Mr de Vries which I allowed to be filed in court this morning. The confusion is said to be which version of an agreement was sent under cover of which letter. That issue, however, was clearly articulated, from the defendant's point of view, in an earlier affidavit of Mr de Vries served in September 2006.

3 Furthermore, the plaintiff in cross-examination agreed with the position that had been put in Mr de Vries' earlier affidavit: a document was sent under cover of a letter in June 2006 which is annexure “B” to the later affidavit of Mr de Vries. A different document was sent under cover of a letter of 11 July 2006 being annexure “D” to the later affidavit of Mr de Vries. It was the earlier of the two documents, that is annexure “B”, that was executed by the plaintiff and returned under cover of his letter of August 2006.

4 It does not seem to me that the statement in paragraph 18 of Mr de Vries' later affidavit that the subsequent agreement sent undercover of the letter dated 11 July 2006 also had a watermark "draft only" on it and headed "This agreement made on or about September" raises an issue of any significance that would justify my allowing the re-opening of the plaintiff’s case at this stage for the purpose of cross-examining Mr de Vries.

5 I therefore refuse the application.

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