Prynew Pty Limited v Nemeth

In the proceedings before Allsop P, Prynew Pty Limited (the appellants) sought to amend their notice of appeal and adduce fresh evidence, while the first respondent (Nemeth) brought a motion seeking dismissal of the appeal with costs due to dilatory preparation. The dispute concerned the appellants' attempts to alter the grounds of their appeal and introduce new evidence late in the process, which the respondents argued prejudiced their case and caused unnecessary delay.

The court was required to determine whether to grant the appellants leave to amend their notice of appeal and submissions, whether to permit the adducing of fresh evidence, and whether to dismiss the appeal or grant the respondents their costs, including indemnity costs, due to the appellants' conduct. Specifically, the court had to consider the principles governing amendments to pleadings and the admission of fresh evidence in an appellate context, as well as the consequences of dilatory conduct and the vacation of hearing dates.

Allsop P granted the appellants leave to amend their notice of appeal and submissions, ordering that the further amended notice of appeal be filed within fourteen days and that the relevant court books be filed by a specified date. However, the application to adduce fresh evidence was refused. The court found that the appellants' conduct warranted significant cost orders against them. The appellants were ordered to pay the costs of the first and fourth respondents in relation to the motion to amend and the issues abandoned as a condition of the grant of leave. Furthermore, the hearing dates for the appeal were vacated, and the appellants were ordered to pay the costs thrown away by this vacation on an indemnity basis. The appeal was to be relisted for a hearing date to be obtained at the earliest opportunity, provided the appellants complied with the orders.