HM&O v Ingram - [2012] NSWSC 684

Supreme Court

New South Wales

Medium Neutral Citation: HM&O v Ingram [2012] NSWSC 684
Hearing dates: 20/06/2012
Decision date: 20 June 2012
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Refuse leave to rely on affidavit.

Catchwords: [PROCEDURE] - affidavits - application to read affidavit filed after party's case on liability concluded - whether plaintiffs should have leave to read an affidavit - whether interests of justice favour application for leave to be granted - no question of principle.
Category: Procedural and other rulings
Parties: H M & O Investments Pty Limited (First Plaintiff)
Teach & Play Pty Limited (Second Plaintiff)
Bradley Phillip Ingram (First Defendant)
Glenda Louise Ingram(Second Defendant)
Representation: Counsel:
D M Loewenstein (Plaintiff)
J A English (Defendants)
Solicitors:
Owen Hodge Lawyers (Plaintiffs)
TressCox Lawyers (Defendants)

File Number(s): 2009/297464

Judgment - EX TEMPORE (revised 20 april 2012)

HIS HONOUR: The plaintiffs seek leave to read the affidavit of Mr Mark Anthony Abood sworn on 12 April 2012. That affidavit seeks to prove increases in the cost of production of various items of playground equipment manufactured by the plaintiffs, which increase is said to be the result of the defendants' misleading or deceptive conduct. I accept that this is not a particularly transparent way of stating the issue, but it is sufficient for present purposes.

The business which manufactures the products in question was sold by the defendants to the plaintiffs. The plaintiffs say that the defendants made misrepresentations, as to the compliance and ability to comply of their products with the relevant Australian Standard, which were wrong, and misleading or deceptive. The plaintiffs' primary claim is for recovery of all amounts paid by them in respect of the business, together with appropriate consequential losses.

The plaintiffs did flag what has been called "the alternative claim". As opened by counsel who then appeared for the plaintiffs on 6 June 2011, that is a claim "for costs unexpectedly incurred, and which will be incurred by reason of the misleading and deceptive conduct (T51.46 -.47).

The unfortunate procedural history of this case has been summarised in a number of interlocutory judgments that I have given and I will not repeat what I said earlier. It is sufficient to note that the hearing did not complete (as in my view it should have completed) in the time originally allotted for it, commencing on 6 June 2011. Accordingly, when that hearing concluded, it was fixed for further hearing in November 2011. At that stage, although the case for the plaintiffs had not formally closed, it was abundantly clear that the only matters remaining to be addressed in their case in chief were matters of a minor or procedural nature (for example, identification of further documentary tenders and the like). See, generally, T297 (10 June 2011).

The case for the defendants then commenced. The defendants and some of their witnesses were called and cross-examined.

The further hearing in November did not proceed, for reasons which need not be recounted, but for which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HM&O v Ingram

Details

AGLC: HM&O v Ingram [2012] NSWSC 684
Case: [2012] NSWSC 684
Decision Date: 20 June 2012

CaseChat Overview and Summary

In the matter of HM&O versus Ingram, the case before the court was a dispute regarding the admissibility of an affidavit filed by the plaintiff after the defendant's case on liability had been concluded. The parties involved were the Health, Minerals and Occupational division of the Department of Employment, referred to as HM&O, and the defendant, Ingram. The primary issue at hand was whether the plaintiffs should be granted leave to read an affidavit, and if the interests of justice favoured granting such leave.

The court was tasked with determining whether the plaintiffs should be permitted to present an affidavit that was filed post the defendant's case on liability. The legal question before the court was whether there was any principle that would prevent the plaintiffs from being granted leave to read the affidavit. The court also had to assess whether the interests of justice favoured the granting of such leave.

The court considered the procedural aspect of the application to read the affidavit, noting that there was no question of principle involved. The decision hinged on the specific circumstances of the case and whether it was just and equitable to allow the affidavit to be read. The court ruled that the interests of justice did not favour granting the application for leave to be granted. Consequently, the plaintiffs were not allowed to read the affidavit filed post the defendant's case on liability.

No final orders were made regarding the merits of the case between HM&O and Ingram, as the decision solely pertained to the procedural issue of the affidavit's admissibility.

Orders