Jewelsnloo Pty Ltd v Sengos - [2015] NSWSC 80

Supreme Court

New South Wales

Medium Neutral Citation: Jewelsnloo Pty Ltd v Sengos [2015] NSWSC 80
Hearing dates: 28 August 2014
Date of orders: 20 February 2015
Decision date: 20 February 2015
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1) Order that the plaintiff’s notice of motion be dismissed
(2) Order the plaintiff to pay the defendants' costs of the proceedings on the plaintiff's notice of motion

Catchwords: PROCEDURE – civil – interlocutory issues – application by plaintiff for leave to reopen its case to admit additional evidence – prejudice to defendants opposing application in circumstances where new evidence will make fundamental changes to basis of plaintiff’s case – evidence that plaintiff unable to compensate defendant for costs of responding to new evidence if plaintiff ordered to do so – no explanation for failure to tender evidence at earlier stage
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, Div 1, s 56
Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 20, 243(a),
Fair Trading Act 1987 (NSW), s 42
Cases Cited: Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Samsung Electronics Co Ltd v Apple Inc [2013] FCA 1142
Category: Consequential orders (other than Costs)
Parties: Jewelsnloo Pty Ltd (plaintiff)
Paul Sengos (first defendant)
Stanley Kotsiopoulos (second defendant)
Kalyopy Kotsiopoulos (third defendant)
Wholesale National Pty Limited (fourth defendant)
Associated Products (fifth defendant
Representation:
Counsel: E Chrysostomou (plaintiff)
D M Jay (second and third defendant)
Solicitors: McGrath Dicembre & Company (plaintiff)
Jonathan Hassett (first, fourth & fifth defendants)
Adams & Partners (second & third defendants)

File Number(s): 2012/395520
Publication restriction: None

Judgment

The matter before the Court for determination is an application by the plaintiff, Jewelsnloo Pty Ltd, made by notice of motion filed on 15 August 2014, for leave to reopen its case to rely upon an affidavit of Mr Julian Facer sworn on 15 August 2014 together with the documents exhibited to that affidavit. Mr Facer is a director and the secretary of the plaintiff.
These proceedings are part heard. On 11 March 2014, the matter was listed by the Chief Judge in Equity to be heard over four days commencing on 4 August 2014. The hearing commenced on that date and was adjourned part heard on the fifth day of the hearing on Friday, 8 August 2014. By that stage of the hearing, Mr Facer's affidavits in chief had been read, and Mr Facer had been cross-examined by the legal representatives of the defendants. The case for the first defendant, Mr Paul Sengos, was in the course of presentation but had not been completed.
The Court was able to give the parties part of the fifth day to continue the hearing, but it was not in a position at that time to devote further time to the hearing of this case. In any event, it became clear from the plaintiff's foreshadowed application for leave to reopen its case and rely upon additional evidence that had not yet…

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.

Keep reading for free

Create a free CaseChat account to read Jewelsnloo Pty Ltd v Sengos and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 80
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the case of Jewelsnloo Pty Ltd v Sengos, the plaintiff, Jewelsnloo, sought leave to reopen its case in order to admit additional evidence. The dispute centred around interlocutory issues in a civil matter, specifically whether the plaintiff should be granted permission to present new evidence that would fundamentally alter the basis of their case. The defendants, Sengos, opposed the application on the grounds that it would cause them significant prejudice. The Federal Circuit and Family Court of Australia was tasked with determining whether the plaintiff should be allowed to introduce this new evidence.

The primary legal issue before the court was whether the plaintiff's application for leave to reopen its case should be granted. The defendants argued that allowing the plaintiff to introduce new evidence at this stage would prejudice their ability to adequately respond and defend against the fundamentally altered basis of the plaintiff's case. The court had to balance the potential prejudice to the defendants against the plaintiff's need to present new evidence that could be crucial to their case. Additionally, the court considered whether the plaintiff had a valid reason for not presenting this evidence earlier and whether they could compensate the defendants for the costs of responding to the new evidence.

The court found that the prejudice to the defendants in allowing the plaintiff to reopen their case and introduce new evidence outweighed the potential benefit to the plaintiff. The new evidence would have made fundamental changes to the basis of the plaintiff’s case, and the defendants had not been given sufficient opportunity to respond to it. Furthermore, the plaintiff had not provided a satisfactory explanation for their failure to tender the evidence earlier. The court also noted that the plaintiff was unable to compensate the defendants for the costs of responding to the new evidence if the application was granted. Consequently, the court denied the plaintiff's application for leave to reopen its case.

No specific final orders were detailed in the text, but the denial of leave to reopen the case implies that the plaintiff's application was unsuccessful, and the case would proceed without the introduction of the new evidence.

Orders