Yakiti Pty Ltd v MacDonald
[2018] NSWSC 1392
•07 September 2018
Supreme Court
New South Wales
Medium Neutral Citation: Yakiti Pty Ltd v MacDonald [2018] NSWSC 1392 Hearing dates: 7 September 2018 Date of orders: 07 September 2018 Decision date: 07 September 2018 Jurisdiction: Common Law Before: Davies J Decision: 1. Defendant/Cross-Claimant’s Notice of Motion dated 3 September 2018 to be filed in the Registry by 10 September 2018.
2. Leave to the Defendant/Cross-Claimant to rely on the affidavit of Kate Marie McDonald sworn 6 September 2018.
3. No further affidavit evidence in chief by Defendant/Cross-Claimant’s is to be relied upon or served without leave from the Court.
4. Defendant/Cross-Claimant’s 3rd further amended cross-claim to be filed in the Registry by 10 September 2018.
5. Defendant/Cross-Claimant to pay Cross-Defendant’s costs of today and for the directions hearing on 23 August 2018. Costs payable to be paid on an indemnity basis including preparation of the affidavit of Mr Prin.
6. Cross-Defendants to serve all evidence on cross-claim and in reply by 19 October 2018.
7. Defendant/Cross-Claimant to serve evidence in reply on the cross-claim by 16 November 2018.
8. Listed for Directions before Davies J at 2pm on 30 November 2018.
9. Any application for summary dismissal by the third cross-defendant to be filed and served by 14 September 2018 and made returnable before the Registrar.
10. Liberty to apply on 2 days’ notice.Catchwords: CIVIL PROCEDURE – court administration – case management – directions – guillotine order attached to directions to serve affidavit evidence – failure to comply Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Yakiti Pty Ltd (Plaintiff/Cross-Defendant)
Katie Marie McDonald (Defendant/Cross-Claimant)
Babak Moini (Second Cross-Defendant)
Kon Prin (Third Cross-Defendant)
Registrar General (Fourth Cross-Defendant)Representation: Counsel:
Solicitors:
V Bedrossian (Plaintiff/First and Second Cross-Defendants and separately for the Third Cross-Defendant)
L Chan (Defendant-Cross-Claimant)
Submitting appearance (Registrar-General)
Moisson Lawyers (Plaintiff/ First and Second Cross-Defendants)
Self-represented (Defendant/Cross-Claimant)
Mills Oakley (Third Cross-Defendant)
Solicitor for the Registrar-General of NSW (Fourth Cross-Defendant)
File Number(s): 2017/163521 Publication restriction: Nil
Judgment
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By a notice of motion dated 3 September 2018 and yet to be filed in the registry, the defendant/cross-claimant seeks leave to adduce further evidence and to file a reply in the proceedings. The need for the notice of motion arises from a failure of the cross-claimant to serve evidence by 25 July 2018.
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The proceedings were listed for directions before me on 18 June 2018. Short minutes of order, which had been prepared by the cross-claimant and agreed by the other parties, were proffered to the Court. Order 6 provided that the cross-claimant was to serve any further affidavit evidence upon which she intended to rely in support of paragraphs 43 and 44 of her amended defence to the amended statement of claim, or in support of her second further amended cross claim, by 25 July 2018. The order further provided:
The cross-claimant may not rely upon any affidavit evidence not served by that date without the leave of the Court.
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The cross-claimant did not serve evidence by 25 July 2018.
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At the request of the cross-defendants, the proceedings were relisted before me on 8 August 2018. An affidavit was put forward at that time by the cross-claimant saying, in substance, that she had underestimated the time it would take her to prepare her evidence. I enquired what further period of time she needed to serve that evidence and ultimately an order was made on that day extending the time for her to serve her affidavit evidence, together with an outline of evidence expected to be given by a Mr Jake Henley, by 17 August 2018. The order further provided:
Affidavit evidence served after 17 August 2018 is not permitted to be relied upon without the leave of the Court.
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The cross-claimant did not serve her evidence by 17 August.
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The matter was again relisted before me on 23 August and I indicated that it would be necessary for the cross-claimant to file and serve a notice of motion with any supporting material explaining her two failures to comply with court orders, if she was seeking leave to rely on any further evidence. I directed that such notice of motion was to be filed and served by 31 August. In fact no notice of motion has been filed, but a notice of motion dated 3 September was emailed to my associate and, as I understand it, to the solicitors acting for the cross-defendants. The notice of motion was to be heard by me today.
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This morning my associate received an email annexing a copy of an affidavit sworn by the cross-claimant, together with a lengthy exhibit to that affidavit. That affidavit is said to constitute the further evidence that the cross-claimant seeks to rely upon. Counsel for the cross-claimant said that the cross-claimant will not be relying on evidence from Jake Henley. However, in the meantime, the third cross-defendant, Mr Prin, had served an affidavit in relation to Mr Henley.
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Whilst the first and second cross-defendants did not consent to leave being given to the cross-claimant, they did not raise any strong arguments against that leave being given in circumstances where the evidence has now been served, albeit late. The third cross-defendant, however, opposed leave being given for the affidavit to be used against him, on the basis that there was nothing in that affidavit which provided any evidence against him. It was suggested that the third cross-defendant may well be intending to file a notice of motion for summary dismissal of the cross-claim against him, now that the cross-claimant’s evidence has all been served.
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The proceedings have been fixed for hearing on 6 February 2019 for three days. Although no satisfactory explanation has been provided by the cross-claimant for failing to comply on two occasions with orders made for the service of her evidence, I consider that the interests of justice require that she now be permitted to rely on the affidavit that has been provided to the Court this morning. However, no further affidavit evidence is to be relied upon or served by the cross-claimant without further leave of the Court. I note from her affidavit that the cross-claimant says that she has subpoenaed three organisations for documents and that, if and when those documents are produced, she will seek to rely on that material.
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I said before that no satisfactory explanation had been provided for the failure to comply with the orders. The cross-claimant has sworn an affidavit which sets out in general terms a history of the serious health issues that she has experienced since the end of 2017. The evidence in that affidavit was strikingly similar to an earlier affidavit that she had filed to justify other delays in the proceedings. The affidavit did not in terms deal with why, when she had proffered short minutes with a guillotine order, that there was non-compliance on two occasions.
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In those circumstances I consider that the cross-claimant should pay the cross-defendants' costs of the present application and of the directions hearing on 23 August 2018. In the ordinary course, if there had been compliance with the orders, the matter would have returned to me on 14 September for further directions to be made to enable a hearing date to be obtained. Although the hearing date has in the meantime been obtained, it will be necessary to make further directions now for the cross-defendants to file and serve evidence in response to this lately served evidence of the cross-claimant. I consider that the failure on the part of the cross-claimant was egregious and, in those circumstances, that the costs payable should be paid on an indemnity basis.
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I make the following orders and directions:
1. Defendant/Cross-Claimant’s Notice of Motion dated 3 September 2018 to be filed in the Registry by 10 September 2018.
2. Leave to the Defendant/Cross-Claimant to rely on the affidavit of Kate Marie McDonald sworn 6 September 2018.
3. No further affidavit evidence in chief by Defendant/Cross-Claimant’s is to be relied upon or served without leave from the Court.
4. Defendant/Cross-Claimant’s 3rd further amended cross-claim to be filed in the Registry by 10 September 2018.
5. Defendant/Cross-Claimant to pay Cross-Defendant’s costs of today and for the directions hearing on 23 August 2018. Costs payable to be paid on an indemnity basis including preparation of the affidavit of Mr Prin.
6. Cross-Defendants to serve all evidence on cross-claim and in reply by 19 October 2018.
7. Defendant/Cross-Claimant to serve evidence in reply on the cross-claim by 16 November 2018.
8. Listed for Directions before Davies J at 2pm on 30 November 2018.
9. Any application for summary dismissal by the third cross-defendant to be filed and served by 14 September 2018 and made returnable before the Registrar.
10. Liberty to apply on 2 days’ notice.
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Decision last updated: 10 September 2018
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