1 This is an application by the plaintiff, which is the appellant, for special leave to file a further affidavit under r.77.05(7)(b) of the Rules of the Supreme Court. In order to expedite this matter I will not recite the background facts.

[4]

2 It is acknowledged by the parties that, in order to be granted leave, the plaintiff must show that its application falls out of the ordinary run of cases. The authorities to which I have been taken by Mr Hyde, for the defendant/respondent, correctly point out that special leave is not granted where the plaintiff has simply had what might be described as a "dry run" before the Master, has failed and then sought to bolster its case or to go off in a new direction before the judge. I need do no more than refer to the decision in Missay Pty Ltd v Seventh Cameo Nominees Pty Ltd[1] and the decision of Hansen J in Brownport Management Ltd v Aquatec 21 Pty Ltd.[2] On the other hand, there are a number of authorities in which special leave has been granted in order to enable a plaintiff to cure what might be described as a technical defect in its proofs on appeal. Those cases are referred to at Williams p.6428 in the note to para. 77.0520.

[5]

3 In this case I have come to the conclusion that I ought to give special leave. Firstly, the matter to which the proof is directed is a short point and it is remediable, if it needs to be remedied, by short proof; secondly, the defence filed by the defendant was singularly uninformative. It put a number of matters in issue, including, at least to some extent, proof of its incorporation by the plaintiff. Thirdly, I accept that the issue when raised in front of the Master was one which fairly might have taken the plaintiff somewhat by surprise. The plaintiff did not choose to ask for an adjournment, but I do not think it ought to be penalised for not having done so. Fourthly, the evidence does show a course of conduct in which the defendant repeatedly paid moneys to the first plaintiff which would at least, if I could put the matter in a neutral way at this stage, have led the plaintiffs to consider that the defendant accepted that a nomination had been made of the first plaintiff. In those circumstances, it is relevant that the plaintiff's application for judgment in front of the Master only failed on the issue of nomination.

[6]

4 I would grant special leave, for the reasons I have set out, and also to enable the matter to be fought on matters of greater substance than simply whether there has been adequate proof of that point.

[7]

5 For those reasons, I grant special leave to the plaintiff to file the affidavit which has been shown to me in argument, that of Tassos Iounnidis, sworn 16 February 2005, together with the two exhibits to it.

[8]

[1] [2000] VSC 397
[2] [2002] VSC 396 at [39]

Parties

Applicant/Plaintiff:

# Artek Productions Pty Ltd

Respondent/Defendant:

World of Adams Platform Pty Ltd \[2005\] VSC 127

Plaintiffs v Defendant - [2005] VSC 127 - VSC 2005 case summary — Zoe