Schmuelly v Elrob Construction Group Pty Ltd (No 2) (vacate trial)

The case involved Schmuelly as the plaintiff and Elrob Construction Group Pty Ltd as the defendant, who contested a dispute in the Supreme Court of Victoria. The defendant sought to vacate the scheduled five-day trial, attributing blame to their former solicitor for not filing lay and expert evidence and for failing to inform them that the solicitor had ceased to act. Additionally, the defendant attempted to serve 3,000 pages of lay and expert evidence the day before the trial was set to commence.

The legal issues before the court involved the principles governing the vacating of a trial and the admissibility of new evidence. The court had to determine whether the defendant's application to vacate the trial was justified under the circumstances, considering the defendant's explanation for the late filing of evidence. Furthermore, the court needed to assess whether the leave to adduce further evidence should be granted, given the plaintiff's inability to respond to the voluminous evidence served at such a late stage.

The court found that the defendant's explanation for the delay in filing evidence was inadequate. It was established that the defendant had terminated the solicitor's retainer six months prior to the trial, contradicting the defendant's claim that they were unaware of the solicitor's cessation. The court also noted that the plaintiff would be unable to meet the newly served evidence without vacating the trial, but the application to adduce further evidence was refused based on the principles outlined in the referenced paragraphs. Consequently, the application to vacate the trial was refused.