Mr Group Investments Pty Ltd v Back

[2018] NSWSC 1739

Supreme Court

New South Wales

Medium Neutral Citation:

MR Group Investments Pty Ltd v Back [2018] NSWSC 1739

Hearing dates:

13 November 2018

Decision date:

13 November 2018

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Grant leave to the plaintiffs pursuant to rule 10.2 of the Uniform Civil Procedure Rules 2005 (NSW) to rely upon the affidavits of Sam Fayad dated 31 August 2018 and Mario Anaxagora dated 17 September 2018 (the Affidavits).

 

(2) The defendants to file and serve any affidavits upon which they rely in response to the Affidavits on or before 31 January 2019.

 

(3) The plaintiffs are not entitled to rely on any evidence-in-chief other than the affidavits of Sam Fayad sworn 31 August 2018, Mario Anaxagora sworn 17 September 2018, Ronnie Khalil sworn 15 February 2018, Mustafa Elsadik sworn 15 February 2018 and Bassam Elsadik sworn 15 February 2018 and the Expert Statement of Edward Spring Boyce dated 31 August 2017, without further leave of the Court.

 

(4) Order the plaintiffs to pay the defendants’ costs of the notice of motion filed on 7 October 2018.

 (5) List the matter for directions before the Registrar on 12 February 2019

Catchwords:

CIVIL PROCEDURE – service – application for leave to use affidavits under Civil Procedure Act 2005 (NSW), r 10.2 – defendants neither consent to nor oppose orders – leave granted

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 10.2

Category:

Procedural and other rulings

Parties:

MR Group Investments Pty Ltd (First Plaintiff)
Bassam Elsadik (Second Plaintiff)
Ronnie Khalil (Third Plaintiff)
Mustafa Elsadik (Fourth Plaintiff)

  Francis Back (First Defendant)
Tony Schwartz (Second Defendant)

Representation:

Counsel:
G Laughton SC (Plaintiffs)
L Schumacher (Defendants)

  Solicitors:
Paramonte Legal (Plaintiffs)
Gilchrist Connell (Defendants)

File Number(s):

2016/384726

Judgment – EX TEMPORE

1. By notice of motion filed on 7 October 2018, the plaintiffs seek leave under r 10.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to use the affidavits of Sam Fayad sworn 31 August 2018 and Mario Anaxagora sworn 17 September 2018. The notice of motion is supported by two affidavits of Patrick Wiggins, a solicitor in the employ of the solicitor on the record for the plaintiffs. The need for the two affidavits has been brought about because the plaintiffs have made a forensic decision to provide evidence of a counter-factual alleged in paragraph 83 subparagraphs (b) and (e) of the second amended statement of claim filed on 8 October 2018.

2. The defendants, for whom Ms Schumacher appears, initially opposed leave being granted to the plaintiffs to rely on those additional affidavits by reason of the inevitable further delay that use of those affidavits would occasion. Ms Schumacher submitted that, but for those affidavits, the matter would be ready to take a hearing date.

3. By reason of the defendants’ opposition to the orders sought, the plaintiffs filed the notice of motion, which was then listed for hearing before me as the Duty Judge on 13 November 2018. However, since the filing of the notice of motion, the defendants’ position has changed. Following their initial opposition to the orders, on 31 October 2018 and they notified the plaintiffs that they neither consented to nor opposed the orders sought in the notice of motion.

4. In their written submissions, the defendants said that, if leave were granted to the plaintiffs to rely on those affidavits, it would be necessary for the defendants to conduct further investigation, which would inevitably delay the allocation of a hearing date. Ms Schumacher has notified me that the new evidence will require the defendants to be put to the expense of undertaking further investigations and potentially preparing, and serving, further lay evidence.

5. For the reasons given above, I am satisfied that leave should be granted to the plaintiffs to rely on the affidavits of Mr Fayad and Mr Anaxagora. It would appear from the pleading that there is a real issue as to the counter-factual and the plaintiffs ought be permitted to rely on the evidence to establish the counter-factual evidence is in a position to do so. Whilst this will inevitably delay the proceedings, obviously the quickness of the proceedings is only one of the matters to which the court must give priority. So much has effectively been conceded by Ms Schumacher. In light of the defendants’ attitude to the evidence, and the fact that it will not cause any particular prejudice to the defendants apart from some delay, I am satisfied that it is appropriate to make an order in terms of prayer 1 of the notice of motion.

6. I turn now to the question of costs. Mr Laughton submitted that had the defendants indicated their position to the plaintiffs earlier, it would not have been necessary for the plaintiffs to file a notice of motion and incur the costs of the motion and the hearing today. He submitted that, in these circumstances, the defendants should pay the plaintiffs’ costs of the notice of motion or some other order for costs should be made, which would make it clear that the defendants’ change in position had caused the notice of motion to have to be filed.

7. Ms Schumacher submitted that it was really a matter for the court whether the court would permit the affidavits to be relied upon in that the use of the further affidavits would delay the allocation of a hearing date. She referred to the Civil Procedure Act 2005 (NSW) and the need for the court to give priority to the just, quick and cheap determination of the real issues in dispute.

8. As to the question of costs, while there is some force in Mr Laughton’s submission that the defendants could simply have consented to the order, which would inevitably have delayed the proceedings, it was, in my view, not unreasonable for the defendants initially to signal their opposition to the order but then reconsider that opposition and take the position that they neither consented to, nor opposed, the order.

9. In circumstances where the further conduct of the proceedings is necessarily delayed, it would have been necessary for the court to make these orders, in any event, although I accept that the plaintiffs have incurred costs by reason of having to file the notice of motion.

10. In all the circumstances, I am satisfied that it is just that the plaintiffs bear the costs of the notice of motion, since they were the parties seeking an indulgence from the Court.

11. For the reasons given, I make the following orders:

1. Grant leave to the plaintiffs pursuant to rule 10.2 of the Uniform Civil Procedure Rules 2005 (NSW) to rely upon the affidavits of Sam Fayad dated 31 August 2018 and Mario Anaxagora dated 17 September 2018 (the Affidavits).

2. The defendants to file and serve any affidavits upon which they rely in response to the Affidavits on or before 31 January 2019.

3. The plaintiffs are not entitled to rely on any evidence-in-chief other than the affidavits of Sam Fayad sworn 31 August 2018, Mario Anaxagora sworn 17 September 2018, Ronnie Khalil sworn 15 February 2018, Mustafa Elsadik sworn 15 February 2018 and Bassam Elsadik sworn 15 February 2018 and the Expert Statement of Edward Spring Boyce dated 31 August 2017, without further leave of the Court.

4. Order the plaintiffs to pay the defendants’ costs of the notice of motion filed on 7 October 2018.

5. List the matter for directions before the Registrar on 12 February 2019.

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Decision last updated: 14 November 2018