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Representation: Counsel:
Dr S A Baron Levi (plaintiff)
Mr J Green (first, second, third and fourth defendants)
Solicitors:
Woods & Day Solicitors (plaintiff)
Fletch Law (first, second, third and fourth defendants)

File Number(s): 2021/00229181

Publication restriction: Nil

JUDGMENT – EX TEMPORE

1. These reasons deal with an application by the plaintiff to rely upon a further affidavit sworn on 15 June 2026.

2. Despite that affidavit being served on that date, the defendants only foreshadowed an objection to it shortly prior to the plaintiff seeking to tender it.

3. I will briefly outline the facts before dealing with the competing arguments.

Background

4. These proceedings relate to a claim for the recovery of $550,000 plus interest: the plaintiff alleges that he loaned that sum to the late Said El Khouri in September 2008 and, contrary to what was agreed between them, it has not been repaid.

5. Put simply, the plaintiff’s case is that he loaned that amount of money to Mr El Khouri in cash on 14 and 15 September 2008, and that the agreement between them was documented in a deed executed on 15 September 2008. There is an issue about whether that document has been validly executed as a deed. The defendants will argue that the deed fails to conform to the requirements in s 38 of the Conveyancing Act 1919 (NSW), but that issue can presently be put to one side.

6. The defendants argue that the “transaction” between the plaintiff and Mr El Khouri did not occur at all. They are not alleging fraud, but are endeavouring, as I understand it from the defendants’ opening, to “put the plaintiff to proof”. As part of that, the defendants wish to contend that the way in which the plaintiff claims the money was saved (in cash, over many years) and thereafter stored (in a box that was hidden away in a secret location described as the “secret safe spot”) should not be accepted; in substance, the defendants will invite a finding that this evidence is simply untrue or, at the very least, highly implausible or, further still, invite a finding on any of these matters that is to the opposite effect sought by the plaintiff: defendant’s opening submissions at [19]; Tcpt, 16 June 2026, pp 41(50)-42(3).

7. That short explication of the case, and what the defendants wish to argue, gives context to the issue that has arisen and requires determination.

8. The plaintiff seeks an order under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) extending the time for him to serve, and thus rely upon, the evidence contained in his further affidavit sworn 15 June 2026 which contains photographs of the box and the “secret safe spot”.

9. Some further context is necessary, and it is useful to state it upfront. The plaintiff’s affidavit sworn 19 December 2023 covers each of these matters – that is, his evidence, specifically and explicitly, addressed his use of a box to hold the money that he saved, and its placement in, and the location of, the “secret safe spot”: pars 42-48.

The application for leave

Rule 1.12 of the UCPR

10. Rule 1.12 of the UCPR provides:

“1.12 Extension and abridgment of time

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.”

11. The rule confers “a broad power to relieve against injustice*”*: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283; [1988] HCA 13; Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 at [22].

12. Two further matters should also be noted about the power conferred by that rule: first, it is recognised that, at least ordinarily, a party seeking an extension of time “must establish a proper or adequate reason for this being granted”: Pell v Hodges [2007] NSWCA 234 at [30]; secondly, the exercise of the power is conditioned on the observance of the overriding purpose of the Civil Procedure Act 2005 (NSW) (‘CPA’) and the dictates of justice: ss 56-58 of the CPA.

The competing positions: an overview of the arguments

13. In support of the extension of time sought, the plaintiff argued that the evidence contained in his recent affidavit was material and directly relevant to a fact – be it intermediate or subsidiary – that the defendants apparently wish to contest. As to the materiality of this evidence, I accept this submission.

14. The plaintiff further submitted that, prior to the service of the defendants’ opening submissions on 15 June 2026, it was unbeknown to him and his legal representatives that there was any particular issue about his method of storing his savings or its location.

15. That explanation was supported by an affidavit from the plaintiff’s solicitor, Peter Woods, sworn on 17 June 2026. That affidavit was read without objection, and Mr Woods was not required for cross-examination upon it. His evidence, which I accept, is that it was not apparent to him that there was any dispute about the storage of the money in the “secret safe spot” and, I infer, as part of that, the plaintiff’s use of the box, and that they were believed to be “matters of background only”: pars 5-6. His evidence, which I also accept, was that the evidence in the further affidavit from the plaintiff was only prepared to better convey, by photographic evidence, the explanation contained in his earlier affidavit: par 7. The fact that the further affidavit was served was, thus, something of a coincidence.

16. Counsel for the plaintiff, Mr Baron Levi, further submitted that, given the pleadings and the statement of facts and issues in dispute did not provide any useful or practical identification of the factual issues sought to be raised by the defendants, the plaintiff was unaware that there was any controversy about the method he adopted to store the money until the defendants provided a copy of their opening submissions on the day prior to the hearing commencing. I also accept this explanation.

17. The defendants opposed the leave sought. Their essential argument was that the lateness of the material causes them prejudice, and that, given they wish to put the plaintiff to proof, the plaintiff should have apprehended, well before now, that there would be a broad contest on this topic and addressed that by evidence accordingly. The defendants, whilst acknowledging that they failed to file and serve their opening submissions and statement of facts and issues in dispute in accordance with the order made, dismissed the materiality of these omissions given, so the argument went, the plaintiff should have served the evidence before those documents were ordered to be served.

18. The basic position adopted by the defendants should be stated for what it is: a submission that, given they wish to put the plaintiff “to proof”, it is open – and legitimate – for them to sit back and stay silent about any matter or fact over which they may wish to take issue, even if that might take the plaintiff by surprise.

19. Building upon their argument that they are under no obligation of any kind to identify what issues of fact they wish to contest, the defendants argued that, having adopted that course in this case, they were taken by surprise that the plaintiff supplemented his evidence on a fact that they have put in issue, despite not conveying it to the plaintiff or the Court. This argument, which has more than a hint of circularity about it, impresses as somewhat counter-intuitive. It requires close scrutiny.

20. Contrary to what the defendants submitted, the requirement to prepare a statement of issues is not confined to the requirement contained within the usual order for hearing in Practice Note SC CL 1 (‘the Practice Note’). Par 40 provides that a document of that kind must be served – in this case – some years ago:

“Each defendant is to serve on the plaintiff within 28 days of receipt of the evidentiary statement a statement of issues in dispute. The statement of issues in dispute is to set out concisely those facts which the defendant intends to establish in respect of each issue in dispute by the evidence that is to be led.”

21. Given what the defendants wish to argue across this topic, the statement of issues in dispute mandated by cl 40 of the Practice Note required them to identify “concisely those facts which the defendant intends to establish in respect of each issue in dispute by the evidence that is to be led”.

22. The defendants accepted that no statement of issues required by this clause was prepared by them. No explanation for their failure to do so was provided. The defendants also accepted that the statement of issues required by cl 40 of the Practice Note would have identified this issue.

23. The requirement for all litigants to comply with procedural orders, including those contained within the Court’s practice notes, was recently restated by Bell CJ in Lam v Liu [2025] NSWCA 254 at [1]. Given the defendants’ submissions, those remarks should be set out:

“… Procedural directions, whether made, as in the present case, as part of case management, or made in applicable Practice Notes or rules of court, such as, for example, prescribing page limits for written submissions on appeal or the preparation of a chronology, are not optional and must be strictly adhered to. If a party seeks to depart from such directions, leave may be sought timeously and will be considered on the merits of the application. Otherwise, the Court expects compliance with its directions, procedural rules and the requirements of its Practice Notes. So much is necessary for the efficient and expeditious disposition of litigation in this Court. Compliance with procedural directions, court rules and Practice Notes is not only part of a practitioner’s professional obligations but also his or her statutory duty…”

24. There is a further matter about the suggestion of “surprise” by the defendants that must be addressed. Adopting the approach that they did in not disclosing that they wish to contest this issue of fact did not preclude the defendants, if they saw fit, from investigating these matters further. They could have requested confirmation that the box existed and – as it does – sought to inspect it; they could have requested access to the premises where the plaintiff resided in 2008, and where he still resides, to inspect the location of the “secret safe spot”. Counsel for the defendants, Mr Green, conceded that any of those steps could have been taken, but were not. In fact, any of those steps could still be taken; indeed, the box is to be made available to them. No explanation for this inaction was advanced.

25. Given the arguments raised by the defendants and the common practice they advocate remains in the conduct of litigation in this Court, the remarks of Allsop J in White v Overland [2001] FCA 1333 at [4] about the proper and accepted approach to litigation bear repeating:

“… However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game…”

26. This statement of the proper approach to civil litigation is entirely consistent with the requirements under ss 56-58 of the CPA and the modern way in which litigation is required to be conducted in this Court, as explained over 25 years ago in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [23]-[31]; see also OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1; [2013] NSWCA 27 at [50]. This approach applies equally to litigation of this kind, and more generally to civil litigation conducted in the Common Law Division.

27. Once the defendants determined to contest or dispute issues of the kind in question, then basic principles of fairness and the proper and accepted approach to litigation informed by the various statutory requirements necessitated the defendants giving the plaintiff reasonable notice of that contest or dispute. They did not do so: ss 56(3) and 58(2)(b)(iv) of the CPA.

28. The defendants submit that “investigations” are required by this further evidence. It was suggested that they would need to qualify two experts to investigate and potentially address this issue by evidence. The first expert was suggested to be a “metallurgist” – an expert qualified to assess the age of the box. The second expert was an occupational hygienist – an expert qualified to assess whether there is, or might be, traces of mould or mildew on or in the box.

29. There are self-evident difficulties in assessing the materiality of these investigations and what might eventuate if they were to occur. I will illustrate this by way of one example (acknowledging that there are multiple others) – the occupational hygienist.

30. Although the defendants did not develop this aspect of their argument other than in a cursory way, it appears that this expert would be qualified to look at whether there are traces of mould or mildew on or in the box. Given the money was stored in the box some 18 years ago, and how and where it has been stored since is simply unknown, precisely what that is to achieve is, to put it mildly, a difficult predictive exercise. In this respect, it is to be noted that the defendants have had the further evidence for a number of days, and presumably knew that they wished to take objection during that time, but did not convey that to the plaintiff. Steps could have been taken to develop this aspect of the alleged prejudice, but none were taken. No additional time was sought for them to take such steps prior to arguing this application.

31. It is difficult to accept that there is, given the state of the evidence and what was submitted, anything more than a highly theoretical prospect of some possible disadvantage (s 58(2)(b)(vi) of the CPA). It is simply not possible to be any more precise, given the limited evidence and submissions. In any event, it was well open to the defendants, as I have earlier noted, to take any number of steps to further investigate this topic well before now – including, if necessary, by seeking orders from the Court (s 58(2)(b)(v) of the CPA).

32. There is a further matter which, independently of the above, favours the extension of time sought. It is, at least by now, clear that the defendants will cross-examine the plaintiff, possibly extensively, across this particular topic. Mr Baron Levi submitted, and I accept, that in those circumstances, the distinct likelihood is that the plaintiff could adduce this evidence in re-examination.

33. In my view, the dictates of justice strongly favour the leave sought, and I propose to grant it.

34. For the above reasons, I make the following orders:

35. Order, pursuant to rule 1.12 of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the further affidavit of Daniel Joel sworn 15 June 2026 be extended to 16 June 2026.

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