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JUDGMENT

Introduction

1. On 18 June 2026, the defendants sought an adjournment of the hearing (which commenced on 16 June 2026).

2. Following argument, I refused the application and indicated that I would provide my reasons later.

3. These are my reasons for refusing the defendants’ application.

The basis for the application

4. The defendants argue that the service of the plaintiff’s further affidavit, sworn on 15 June 2026, and my ruling that permitted him to rely upon that evidence necessitate the adjournment they seek. Their argument is that prejudice will result if they are not availed of the opportunity to investigate and, if necessary, adduce evidence about the manner in which the plaintiff stored the money which he alleges he loaned to Mr El Khouri. In particular, the defendants wish to retain experts to provide opinion evidence on the age of the box where the money was stored (a metallurgist) and on the possible presence of mould and/or mildew in or on that box (an occupational hygienist).

5. The defendants relied upon an affidavit from their solicitor, Simon Fletcher, affirmed 18 June 2026.

6. The essential argument advanced by the defendants rested on the contention that they would suffer disadvantage if they were not given an opportunity to investigate the “issues” relating to the box. This argument mischaracterises what has occurred. The defendants have always had an opportunity to investigate any such issue; they simply failed to exercise that opportunity.

7. The defendants did not suggest that they did not appreciate that the issues relating to the box were live issues in the proceedings. It would be strange if they did, given they are the ones raising them. Consistent with this, it is to be recalled that, in resisting the leave the plaintiff sought to rely upon his further affidavit sworn 15 June 2026, the defendants repeatedly argued that, given they had determined to “put the plaintiff to proof”, the plaintiff should have proceeded on the basis that everything was in issue because, according to the defendants, it was.

8. The defendants’ solicitor sought to suggest that the defendants were “not aware that the metal box was… in existence” and in the plaintiff’s possession: Fletcher affidavit, par 6. Strictly and literally, that may be correct; but it is an incomplete statement because, as I noted in the earlier ruling, at no point prior to Wednesday afternoon did the defendants ever make an enquiry about the existence of the box or the “secret hiding spot” where it was, apparently, kept until 15 September 2008.

9. No explanation – at least none that I accept – has been advanced for that state of affairs.

10. The solicitor for the defendants also sought to suggest that, until the box was produced in Court, the defendants “never had access to [it]”: Fletcher affidavit, par 7. Again, strictly and literally, that may be correct; but it is also an incomplete statement because, as I noted in the earlier ruling, at no point prior to Wednesday afternoon did the defendants ever request such access.

11. The lateness of the application and the failure to explain why these issues relating to the box are only now being raised tell against the adjournment sought. So do the following matters.

12. First, the application was premised upon experts being retained and those experts giving “expert evidence in the [p]roceedings”; that is, each of the experts sought to be engaged could actually investigate and prepare a report addressing the matters within their expertise. For example, it was said that the metallurgist would “conduct testing in respect of the metal box” and thereafter provide an “[expert report]”: Fletcher affidavit pars 8, 10. Precisely what testing that expert would undertake is unknown. The evidence on the application, such as that is, falls appreciably short of establishing, even in an appropriately preliminary way, the nature and extent of the testing that would be performed, and how that testing would enable the expert to provide some relevant evidence. In short, I am left to speculate how this expert could – possibly – provide some forensically useful material.

13. The position in respect of the occupational hygienist is no different, as I explained in the earlier ruling. It appears that this expert would be qualified to look at whether there are traces of mould and/or mildew in or on the box. As I observed in the earlier ruling, “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”: Daniel Joel v The Estate of the Late Said El Khouri [2026] NSWSC 701 at [30].

14. The fact that the evidence precludes any meaningful assessment of what might result from retaining additional experts stands against the adjournment sought and undercuts any suggestion that any material injustice would result.

15. Secondly, it is inevitable that, if an adjournment was granted, there would be considerable delay. Experts would be briefed with material and, thereafter, reports would, possibly, be prepared and served. The plaintiff would need to respond to this evidence – possibly with further lay evidence and/or his own expert evidence. Thereafter, the experts would need to engage in a conclave and prepare joint reports. The parties did not proffer any approximation of how long this process would take, but it is difficult to think that it could be done in less than 6 months, given the many imponderables that exist on the evidence at present. The elimination of delay is an important consideration. It is particularly important given the procedural history in these proceedings: proceedings were commenced in this Court in 2021; the subject matter of the dispute relates to a transaction that is alleged to have occurred in 2008; and the matter was fixed for hearing well over a year ago. These circumstances favour the refusal of the application.

16. Thirdly, the costs involved in an adjournment and issues of proportionality (given the amount of money that is claimed) are important matters to be considered. In relation to proportionality, given the meagre evidence directed to the expert evidence issue, I am unpersuaded that there is the necessary degree of proportionality between those proposed investigations and the real issues between the parties.

17. The dictates of justice require the application to be refused, which was what I ordered on 18 June 2026.

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