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The events of 30 October 2025

2. On 30 October 2025 at 10:00am there was again no appearance on behalf of the defendants. In the intervening period the defendants made no further contact with the Court regarding any further application to be made on their behalf or in respect of any additional medical evidence relied upon. Ms Shearman had communicated with the plaintiff’s representatives in that period, demonstrating that her email account was being monitored, and I am therefore satisfied that the orders I made on 29 October 2025 were received by the defendants.

3. I allowed the plaintiff to proceed in the defendants’ absence with the tender of a series of documents on the proviso that the defendants would at an appropriate time be afforded an opportunity to object to their tender. Those documents were:

4. Variation certificate signed by Debra Shearman on 4 April 2022

5. Email from Robert Alford to Debra Shearman dated 19 December 2024

6. Email from Matt Davis to Debra Shearman dated 6 May 2024

7. Email from Douglas Farr to Nick Lhuede dated 1 September 2025

8. Email from Nick Lhuede to Jenna Huggett dated 13 June 2025

9. Email from Nick Lhuede to Debra Shearman dated 26 September 2024

10. Email from Adjith Buddhadasa to Robert Alford dated 21 October 2024

11. In anticipation of a failure by the defendants to appear on 30 October 2025, the plaintiff was asked on the previous day to give consideration to any orders it may seek for the continuation of the hearing. The plaintiff made preliminary submissions to the effect that they were willing to proceed to closing submissions and thus to forego the right to cross-examine the defendant’s witnesses. I referred the plaintiff to the decision of the High Court in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, 145 and to the decision of the NSW Supreme Court in Glanville v TCN Channel Nine Pty Ltd (No 3) [2013] NSWSC 1185, and I invited them to make any further written submissions concerning the future conduct of the hearing that they wished to make.

The plaintiff’s submissions

5. Having considered the authorities to which they were referred, the plaintiff submits that I should close the evidence in the case, set a timetable for further submissions with appropriate directions and list the matter for oral submissions at a future date. The plaintiff submits that any material prejudice suffered by the defendants as a consequence of losing the opportunity to put on further evidence in chief could be addressed through the following orders: (a) Admitting all of the documents on the defendants’ court book list dated 3 October 2025 (comprising some 51 pages of index), with the Court only considering those documents to which it is taken in submissions; (b) A direction to the defendants that they file and serve any application for leave to re-open the evidence at the same time as their written submissions, with the application and any further evidence admitted pursuant to that application to be addressed at the commencement of the resumed hearing; and (c) A direction that the defendants make submissions, as part of their written submissions, as to why the exhibits which were provisionally admitted on 30 October 2025 ought not be finally admitted in the proceedings.

6. That submission is made in circumstances where the previous direction of the Court was that evidence-in-chief would be received by the Court in affidavit form. The defendants have, since the making of that order on 23 May 2025, filed 26 affidavits in their case of which four have been included in the Court book, together with another 16 affidavits of the defendants filed prior to May 2025. The plaintiff submits that any prejudice from the loss of opportunity to cross-examine the defendants’ witnesses is one to which the plaintiff is exposed because the defendants’ affidavit evidence will be taken at its highest (the plaintiff seeks to reserve its right to apply for leave to cross-examine any witness called as part of any application for leave to reopen the defendants’ case).

7. As to costs, the plaintiff submits that the costs thrown away as a consequence of the defendants’ absence in the period 28-31 October 2025 should be paid by the defendants on an indemnity basis forthwith. The plaintiff acknowledges that the defendants may need to be afforded an opportunity to be heard in relation to the issue of costs and should be directed to deal with that matter as part of their written submissions.

8. The plaintiff proposes the following orders for the further conduct of the hearing. (a) All of the documents listed in the defendants’ court book index dated 3 October 2025 are admitted in the proceedings; (b) The defendant is directed, by 21 November 2025, to file and serve: (i) written submissions limited to [x] pages addressing at least the following topics: (A) the admissibility of Exhibits 56 to 63 which were provisionally admitted on 30 October 2025; (B) [Court to insert]; and (ii) Any application for leave to re-open the evidence in its case with specific reference to the substance of the evidence sought to be adduced. (c) The plaintiff is directed, by 5 December 2025, to file and serve written submissions limited to [x] pages responding to the defendant’s submissions of 21 November 2025 which address at least: (i) The same topics listed above; and (ii) The plaintiff’s position on any application for leave to re-open the defendants’ evidence. (d) The defendants are directed, by 12 December 2025, to file written submissions in reply limited to [x] pages. (e) The matter is listed for hearing on 16, 17 and 18 December 2025 commencing at 10am on 16 December 2025. (f) The defendants pay the plaintiff’s costs between 28 – 31 October 2025 on an indemnity basis, with such costs to be paid forthwith.

Further medical evidence received from defendants

9. The defendants provided two further pieces of medical evidence concerning Ms Shearman's condition, upon which reliance was placed. The first was provided on 31 October 2025 and the second on 7 November 2025. The evidence is in the form of reports from a psychiatrist, Dr Paul Stevenson who has evidently been treating Ms Shearman. Only the first of the Doctor’s reports has been disclosed to the plaintiff and Ms Shearman requests that the second remains confidential. The immediate difficulty with that approach is that reliance is clearly placed on the second report as justifying Ms Shearman's current inability to participate further in the hearing, but in the absence of its disclosure to the plaintiff, they are prevented from responding to the matters that are raised.

10. In the observations that are set out below I endeavour to afford fairness to both parties in the circumstances.

Is Ms Shearman currently fit to continue with the hearing

11. I accept that Ms Sherman has a medical history that includes diagnoses of a range of mental health conditions including PTSD and depression, and the course of the hearing to date has coincided with a significant deterioration in her mental health state. As a consequence, she is continuing under the care of her general practitioner and her treating psychiatrist. She is assessed by her psychiatrist as being presently unfit to participate in this legal dispute, with that incapacity extending beyond appearing in the hearing itself to incapacity for participation in the legal process more generally. That would include attending to tasks such as preparing submissions.

12. It is most unfortunate in light of the orders I made previously that the defendants did not see fit to provide further information to the Court regarding Ms Shearman's mental health status at an earlier time. A party should not assume that the proffering of a medical certificate that provides no insight whatsoever into the nature of an individual's incapacity to participate in a hearing absolves them of any further responsibility to attend court.

13. I am satisfied that Ms Shearman is presently unfit to either participate in the continuation of the hearing as a self-represented litigant or to attend to the task of preparing written submissions. In the circumstances I propose to make orders for the continuation of the matter that balance her need to obtain appropriate medical care for her condition with the need to afford procedural fairness to all parties in the ongoing conduct of these proceedings.

14. I note that an element of the plaintiff’s proposal for the continuation of the hearing is that the defendants should be required to provide written submissions first, so as to ensure that the plaintiff’s submissions are tailored to meet the issues raised by the defendant. Although initially attracted to that proposal I have determined that in light of Ms Shearman’s continuing ill health it will be a better management of the Court’s resources if the plaintiff proceeds first by way of written submissions. I will, in the circumstances, afford them the opportunity to put on submissions in reply once the defendants’ submissions have been received.

Orders

15. For those reasons, I make the following orders: (1) I admit into evidence all of the documents listed in the defendants’ Court book list dated 3 October 2025, noting that I will have regard only to the particular documents to which I have been directed in the course of oral evidence or to which I am directed in written submissions. (2) The defendants are to provide to my associate an updated opinion from Ms Shearman’s treating psychiatrist concerning her medical status by 4.00pm on Tuesday 25 November 2025. That opinion should address, with reasons, her present capacity to participate in a further oral hearing, and her capacity to attend to preparing submissions for her case. Where a continuing incapacity for either of those activities is identified the psychiatrist should express a view as to its likely duration. (3) The plaintiff is to provide by 4.00pm on Tuesday 2 December 2025 written submissions limited to 30 pages [12 font, 1.5 line spacing] directed to the following matters: (a) The terms of the agreement entered into by the parties and their meaning; (b) The implied terms, if any, that are relied upon; (c) The variations to the agreement and the evidence of acceptance of the agreed variations; (d) The performance of the agreement; (e) The effect of the following matters on the terms of the agreement: (i) The levels or storeys comprising the building; (ii) The pool, the pool deck and the retention around the pool space; (iii) The driveway retaining walls; (iv) The suspended slab issue; (v) The certificate of occupancy and use. (f) The admissibility of Exhibits 57 to 63 which were provisionally admitted on 30 October 2025; and (g) Any other matters.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 18 November 2025