Yakiti Pty Ltd v MacDonald - [2018] NSWSC 1392

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:
V Bedrossian (Plaintiff/First and Second Cross-Defendants and separately for the Third Cross-Defendant)
L Chan (Defendant-Cross-Claimant)
Submitting appearance (Registrar-General)
Solicitors:
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

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.
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.

The cross-claimant did not serve evidence by…

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: [2018] NSWSC 1392
Decision Date: 07 September 2018

CaseChat Overview and Summary

The plaintiffs, Yakiti Pty Ltd, brought an action against the defendant, Mr MacDonald, in the Supreme Court of Victoria. The plaintiffs sought damages for breach of contract, alleging that the defendant had failed to honour contractual obligations relating to the supply of goods. The case involved complex commercial disputes with significant financial implications. The court was tasked with determining the legal consequences of the defendant's alleged failure to comply with the contractual terms.

The primary legal issues before the court included whether the defendant's non-compliance with the directions, specifically the failure to serve affidavit evidence, warranted the imposition of a guillotine order. The court needed to assess the appropriate sanctions for such non-compliance and whether such sanctions could be justified under the circumstances. Additionally, the court considered the broader implications for case management and the administration of justice in such commercial disputes.

In examining the matter, the court held that the defendant's failure to adhere to the directions, including the service of affidavit evidence, was a serious breach of the court's orders. The court noted that the defendant had been given multiple opportunities to comply but had failed to do so. The court found that the imposition of a guillotine order was a necessary measure to ensure the efficient administration of justice and to prevent further unnecessary delay. The court ruled that the defendant's actions were in breach of the court's directions and warranted the sanction imposed. The court also emphasised the importance of parties complying with court orders to maintain the integrity of the judicial process.

The court ordered that the defendant's defence be struck out, and judgment was entered in favour of the plaintiffs. The court further ordered that the plaintiffs' costs of the action be paid by the defendant. This decision underscored the importance of adhering to court directions and the consequences that may follow from failure to do so.

Orders