Paul Herbert Kennedy v Mark Alexander-Erber

District Court

New South Wales

Medium Neutral Citation:

Paul Herbert Kennedy v Mark Alexander-Erber [2019] NSWDC 388

Hearing dates:

2 August 2019

Date of orders:

02 August 2019

Decision date:

02 August 2019

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

(1) I grant leave to the plaintiff to re‑open its case in chief limited to admission of the evidence of Melanie Jayne Holt by affidavit made by her dated 24 May 2019;
(2) I grant leave pursuant to UCPR 31.28(4) for the plaintiff to serve and rely upon the affidavit of Melanie Jayne Holt sworn 24 May 2019. Such service to occur within four days of today's date;
(3) I direct the defendant to serve any lay evidence in reply to the expert opinion of Ms Holt on or before 26 August 2019;
(4) I direct the defendant to serve any expert opinion evidence in reply to the evidence of Ms Holt upon which he seeks to rely on or before Monday, 2 September; and
(5) I return the matter before me part‑heard on Thursday, 10 October 2019, estimate one day‑plus.

Catchwords:

Leave to re-open before reserve for judgment -
“exceptional circumstances” under UCPR r 31.28(4)

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aon Risk Services Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Youssef Taouk and Najibi Taouk v Najib Louis (No 1) [2014] NSWSC 656
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36.

Category:

Procedural and other rulings

Parties:

Paul Herbert Kennedy (plaintiff)

  Mark Alexander-Erber (defendant)

Representation:

Counsel:

 

Mr D Eardley (plaintiff)

 

Mr B Hemsworth (defendant)

 

Solicitors:

 

ER Solicitors (plaintiff)

  Somerville Legal (defendant)

File Number(s):

2017/185571

Publication restriction:

N/A

EX TEMPORE JUDGMENT

1. By notice of motion filed 9 July 2019, the plaintiff seeks certain orders in the nature of re-opening his case in chief. Paragraph 1 of the notice of motion seeks that leave be granted to the plaintiff to re-open his case in chief and paragraph 2, that leave be granted to the plaintiff to further amend the Amended Statement of Claim. Late in the contest, the plaintiff informed the court that paragraph 2 is not pressed.

2. In consequence of that, paragraph 4 of the notice of motion which purported to invite time for the defendant to file a defence to the amended statement of claim is not required to be considered. The substance of the plaintiff's application arises from prayer 3. In that paragraph of the notice of motion, the plaintiff seeks leave be granted to serve and rely on the affidavit of Melanie Jayne Holt sworn on 24 May 2019 within two days of the making of the order.

3. The affidavit of Ms Holt contains her expert opinion on the subject of whether or not signatures attached to what I will refer to as “loans 1 and 2” being documents which by his affidavit and in the running of the case, the defendant identifies as…