Mulligan v Westpac

Mulligan and others (the applicants) brought proceedings against Westpac Banking Corporation (the respondents). The dispute concerned the respondents' filing of evidence that referred to an incorrect agreement. The respondents discovered this error before trial and sought to tender the correct agreement late. The applicants argued that this late tender and the primary judge's decision to permit it, along with the refusal to grant an adjournment, caused them prejudice. The applicants also challenged the primary judge's decision to reserve the question of costs.

The Court of Appeal was required to determine whether the primary judge erred in permitting the respondents to tender the correct agreement after the deadline for filing evidence in chief. This involved considering whether the applicants suffered prejudice as a result of the late filing and the primary judge's decision. Furthermore, the court had to assess whether the primary judge erred in refusing to grant an adjournment of the proceedings and in reserving the question of costs.

The Court of Appeal found no error in the primary judge's decision. The court reasoned that the primary judge had properly exercised their discretion in allowing the late tender of the correct agreement, having considered the potential prejudice to the applicants and finding it to be manageable. The refusal to grant an adjournment was also upheld, as the primary judge had adequately addressed the applicants' concerns regarding the late evidence. The decision to reserve costs was also deemed appropriate in the circumstances.

Leave to appeal was refused, and the applicants were ordered to pay the respondents’ costs as agreed or assessed.