Provident Capital Ltd v Naumovski - [2011] NSWSC 270

Supreme Court

New South Wales

Medium Neutral Citation: Provident Capital Ltd v Naumovski & Ors [2011] NSWSC 270
Hearing dates: 14-25 February 2011;8 March 2011 (written submissions)
Decision date: 12 April 2011
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Grant leave to Mr and Mrs Naumovski to file a reply in the form dated 25 February 2011 on or before 4pm, 15 April 2011.
(2) Order that costs be reserved.
(3) Liberty to apply on 24 hours' notice.

Catchwords: PROCEDURE - Supreme Court procedure - New South Wales - Application to extend time to file a reply to a cross-claim - Application brought during final hearing - Final hearing adjourned part heard - Proceedings involve multiple claims and cross-claims - Whether there is sufficient explanation for the facts and circumstances giving rise to the application - Whether the matters raised in the proposed reply catch the respondent by surprise - Whether the respondent suffers any prejudice
Legislation Cited: Civil Procedure Act 2005
Contracts Review Act 1980
Uniform Civil Procedure Rules 2005
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413
Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102
Category: Procedural and other rulings
Parties: Provident Capital Limited (P)
Dimitar Naumovski (D1)
Milica Naumovski (D2)
Kevin Anthony (D3)
James Edwin Smith (D4)
Mark Lewis Graham (D5)
Gary Jon Fox (D6)
Registrar General of NSW (XD to 3CC & 4CC; XC to 5CC)
Steven David Harvey (XD to 7CC)
Representation: Counsel:
P. Menzies QC with Ms B. Nolan (P)
G.A. Rich (D1& D2)
D. Lloyd (D3 to D6)
P. Walsh (XD to 3CC & 4CC; XC to 5CC)
G. Curtin SC (XD to 7CC)
Solicitors:
Tiernan Lawyers (P)
Queen Street Chambers Solicitors (D1 & D2)
Mullane & Lindsay Solicitors (D3 to D6)
Legal Services, Land & Property Management Authority (XD to 3CC & 4CC; XC to 5CC)
Gilchrist Connell (XD to 7CC)

File Number(s): 2007/263760

Judgment

(on application for leave to file a reply out of time)

Nature of Application

On 23 February 2011, which was the ninth day of the hearing of the proceedings, counsel for Mr and Mrs Naumovski sought leave to file a reply to the defence of Provident Capital Limited to their first cross-claim. That defence was filed on 2 July 2010.

Rule 14.4 of the Uniform Civil Procedure Rules 2005 provides that in proceedings in the Supreme Court a plaintiff may file a reply to a defence. The term plaintiff also includes a cross-claimant. The rule further provides that the time limited for the filing of a reply is 14 days after service of the defence.

It is clear that the time period for the filing of a reply had expired by the time the application was made.

Rule 1.12 of the UCPR gives the Court power to extend any time fixed by the rules either before or after the time expires.

The application was opposed by counsel…

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: [2011] NSWSC 270
Decision Date: 12 April 2011

CaseChat Overview and Summary

The case of Provident Capital Ltd v Naumovski involved an application by Provident Capital Ltd to extend the time to file a reply to a cross-claim by Naumovski. The application was made during the final hearing in the Supreme Court of New South Wales. The proceedings included multiple claims and cross-claims, with the final hearing being adjourned part heard. The central issue before the court was whether there was a sufficient explanation for the delay in filing the reply and whether the matters raised in the proposed reply would surprise or prejudice the respondent.

The court examined the facts and circumstances that led to the delay in filing the reply, assessing whether the explanation provided was satisfactory. It considered whether the matters contained in the proposed reply were matters that would catch the respondent by surprise or cause any prejudice. The court balanced the need for procedural fairness against the potential for undue delay and disruption of the proceedings. It concluded that while the delay was significant, the explanation provided was adequate, and the respondent would not be prejudiced by the late filing of the reply. The application was therefore allowed, and the reply was permitted to be filed out of time.

The court's decision was based on a careful analysis of the procedural fairness principles, the nature of the claims and cross-claims, and the impact of the delay on the respondent. The court noted that while the delay was not trivial, it was not so significant as to warrant outright dismissal of the reply. The final orders of the court allowed Provident Capital Ltd to file the reply out of time, with the condition that the respondent be given an opportunity to respond to the new material contained in the reply.

Orders