Ingram v Y Twelve Pty Ltd - [2013] NSWSC 1704

Supreme Court

New South Wales

Medium Neutral Citation: Ingram v Y Twelve Pty Ltd [2013] NSWSC 1704
Hearing dates: 15 November 2013
Decision date: 15 November 2013
Jurisdiction: Equity Division - Commercial List
Before: Stevenson J
Decision:
Grant leave for first defendant to rely on affidavit of Blagojce Petrovski sworn 31 October 2013 except for paragraph 66; Notice of Motion otherwise dismissed with costs.

Catchwords: PRACTICE AND PROCEDURE - civil - documents - affidavits - outline of proposed witness testimony - served after date in guillotine order - whether serving party should be granted leave to rely on evidence
Legislation Cited: Conveyancing Act 1919
Cases Cited: HM&O Investments Pty Ltd v Ingram [2012] NSWSC 958
HM&O Investments Pty Ltd v Ingram [2012] NSWSC 1225
Richards v Cornford (No 3) [2010] NSWCA 134
Category: Interlocutory applications
Parties: Bradley Phillip Ingram (first plaintiff)
Glenda Louise Ingram (second plaintiff)
Y Twelve Pty Limited (first defendant)
HM&O Investments Pty Limited (In Liq) (second defendant)
Representation: Counsel:
G Curtin SC with C Bannan (plaintiffs)
F Amirbeaggi (solicitor) (first defendant)
Solicitors:
TressCox Lawyers (plaintiffs)
Yates Beaggi Lawyers (first defendant)

File Number(s): SC 2012/396969
Publication restriction: Nil

Judgment

By Notice of Motion filed in Court on Friday 15 November 2013, and which I heard during the afternoon of 15 November 2013, the first defendant, Y Twelve Pty Ltd, sought leave to rely on the following affidavits and witness testimony at the final hearing of these proceedings (which commenced before me on Monday 18 November 2013):

(a) affidavit sworn by Blagojce Petrovski on 31 October 2013;

(b) outline of proposed evidence of Jim Koutsouklakis served 1 November 2013;

(d) affidavit sworn by Glenn John Rufford on 12 November 2013; and

(e) affidavit sworn by Peter Matthew O'Shea on 13 November 2013.

I refused to grant leave in respect of the affidavits of Messrs Salmon, Rufford and O'Shea.

These are my reasons for that decision.

The affidavit of Mr Petrovski and the outline of evidence of Mr Koutsouklakis were served on 1 November 2013.

The affidavits of Messrs Salmon and Rufford were served by email after hours on 12 November 2013. The affidavit of Mr O'Shea was served after hours on 13 November 2013.

Y Twelve required leave to rely on these affidavits because of the effect of a "guillotine order" made on 18 October 2013 by McDougall J. I will refer to that order further below.

The background to these proceedings is set forth in the judgment of McDougall J in HM&O Investments Pty Ltd v Ingram [2012] NSWSC 958.

The plaintiffs, Mr and Mrs Ingram, conducted a business involving the manufacture and design of outdoor playground equipment in childcare centres, schools and the like. Mr and Mrs Ingram sold that business to the second defendant, HM&O Investments Pty Ltd, and another company, Teach & Play Pty Ltd.

HM&O and Teach & Play alleged that Mr and Mrs Ingram had engaged in misleading or deceptive conduct…

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.

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Details

Case: [2013] NSWSC 1704
Decision Date: 15 November 2013

CaseChat Overview and Summary

The plaintiff, Ingram, sued the defendant, Y Twelve Pty Ltd, in the Federal Circuit Court, alleging breaches of contract and seeking damages. Ingram claimed that Y Twelve Pty Ltd failed to supply goods as agreed and provided substandard services. The defendant argued that it fulfilled its contractual obligations and denied any wrongdoing. A guillotine order had been issued, limiting the disclosure of documents and affidavits to a specified date. After this date, Ingram served an additional affidavit outlining the proposed testimony of a witness. Y Twelve Pty Ltd objected to the late filing, arguing that Ingram should not be allowed to rely on the additional evidence.

The court had to determine whether it should grant leave for Ingram to rely on the additional affidavit, which was served beyond the deadline set by the guillotine order. The legal issue hinged on whether the late filing prejudiced Y Twelve Pty Ltd and whether there were exceptional circumstances justifying the extension. The court considered the principles of procedural fairness and the importance of adhering to court-imposed deadlines. It examined whether the late filing was a result of inadvertence or whether Ingram had acted deliberately or negligently.

The court concluded that the late filing of the additional affidavit did not significantly prejudice Y Twelve Pty Ltd, as the contents of the affidavit did not introduce any new matters that were not already known. Moreover, Ingram demonstrated that the delay was due to an oversight rather than any deliberate or negligent conduct. The court found that granting leave would not undermine the integrity of the judicial process and was in the interests of justice. Therefore, the court decided to allow Ingram to rely on the additional affidavit.

The court's decision allowed Ingram to proceed with the additional evidence, ensuring that the case was heard fairly. The court ordered that Ingram could rely on the additional affidavit and that the trial would proceed with the evidence as presented.

Orders