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

File Number(s): 2021/00229181

Publication restriction: Nil

JUDGMENT

Introduction

1. These reasons deal with what is now, in effect, the third application in the trial that involves the defendants arguing that they would be prejudiced if they are not given an opportunity to investigate and, if necessary, adduce evidence about the manner in which the plaintiff stored the money he alleges he loaned to Mr El Khouri in September 2008: the first time this argument was deployed was in opposition to the plaintiff’s application for an extension of time for him to serve, and rely upon, his further affidavit sworn 15 June 2026; the second time this argument was deployed was in support of the defendants’ application to adjourn the trial.

2. The defendants, by notice of motion filed on 19 June 2026, apply, again, for an adjournment of the hearing. In common with the earlier application, the defendants advance the current one on the same ground – namely, they wish to retain two 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). The only difference – or possible difference – between the successive applications for an adjournment is the evidence directed to the nature and extent of the investigations that might be undertaken by those experts: on the earlier application, the evidence on that topic was non-existent; on the present application, it is, at least arguably, of a different character.

3. The defendants’ application also seeks two further orders. The first is an order that the plaintiff “produce the ‘metal box’”. The second is “leave to uplift the ‘metal box’ which is referred to in paragraph 47 of the Affidavit of Daniel Joel dated [sic] 19 December 2023, filed in the Proceedings, subject to appropriate undertakings”.

4. The utility of the defendants seeking these orders must be addressed. In relation to the application to adjourn the hearing, the somewhat turbulent progress of the matter makes it patently clear that it will not conclude in the time allocated, and further hearing days will need to be set. Therefore, in practical terms, the hearing will be “adjourned” to a further date – when it will complete. Additionally, the application for access to “the ‘metal box’” and the order sought that it be “[uplifted]” are of questionable utility, given the absence of any application for leave to file and serve any further evidence. When this matter was raised with Mr Green, who appears for the defendants, his response was simply that “[a]fter the box is uplifted and inspected, then there would be reports that would be produced” (Tcpt, 19 June 2026, p 156(25)-(26)).

5. Despite me pointing out, on several occasions, that the notice of motion did not seek orders permitting the service of further evidence, it was not amended and no orders for the service of any further evidence were sought. Notwithstanding this, I have approached the application on the footing that it has three interrelated parts: the argued need for expert evidence; an adjournment to enable the expert investigations to take place; and orders enabling the service of that evidence.

6. There is a threshold issue that should be addressed: the making of multiple applications for interlocutory relief (here, an adjournment based upon the argued need to secure expert evidence). Assuming for the moment – favourably to the defendants – that the evidence on the nature and extent of the “investigations” is an improvement on the evidence adduced in the earlier application (whether it can be so categorised is contested, and addressed later), there remains a live question about the permissibility of the defendants’ approach, given the way in which the first adjournment application was advanced. The significant shortcomings in the evidence on that application were clearly exposed during the course of submissions and, relevantly here, brought squarely to the attention of the defendants. They were invited to consider whether they wished to proceed with the application in those circumstances, or defer it and proceed at a later time with appropriate evidence. The defendants’ counsel, whilst acknowledging and accepting the limitations in the evidence, nevertheless determined to proceed with the application – which was refused.

7. There is no doubt that evidence of the kind now sought to be adduced (contained in affidavits which were served at 6:01pm on 18 June 2026) – relating to the nature and extent of the investigations that might be undertaken – could reasonably have been secured before that earlier application was advanced.

8. Nothing in these reasons should be taken as endorsing the permissibility of the approach adopted by the defendants in making multiple applications of this kind in the circumstances described.

9. Following argument, I made orders dismissing the defendants’ notice of motion and indicated I would give my reasons later. These are my reasons.

The substantive application: leave to serve and rely upon further evidence

10. I have taken the substantive application to be one for leave to adduce further evidence – being the expert evidence previously referred to – thereby requiring an extension of the time provided for the defendants to serve, and rely upon, that evidence. Thus, the application engages r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

11. 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.”

12. No submissions were directed to this rule or any of the organising principles that inform the power conferred by it.

13. The following three matters about the rule should be noted. First, it 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]. Secondly, 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]. Thirdly, 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.

14. In relation to the application for an adjournment, s 66 of the CPA is a source of the Court’s power to adjourn the hearing. The exercise of that power, like the above rule, is conditioned on the observance of the overriding purpose of the CPA and the dictates of justice.

The arguments: discussion and consideration

15. The defendants’ singular argument in support of all the orders sought rested on the contention that they would suffer disadvantage if they were not given an opportunity to investigate the “issues” relating to the box and serve expert evidence directed to those “issues”: on this argument, the dictates of justice favour the orders sought. The defendants submitted that the need to undertake these investigations and develop the evidence arises out of the service of the plaintiff’s further affidavit sworn 15 June 2026.

16. I do not accept that the defendants’ suggestion that they require an opportunity to investigate the “issues” relating to the box correctly characterises what has occurred. The defendants have always had an opportunity to investigate any such issue; they have simply failed to exercise it until now.

17. The defendants, it should be noted, at no time suggested that they did not appreciate that the issues relating to the box were live issues in the proceedings.

18. As I pointed out in my reasons for refusing the previous adjournment application, I also do not accept that the defendants’ suggestion that they were unaware of the box remaining in existence and in the plaintiff’s possession correctly characterises the true position: at no point prior to the trial commencing did the defendants ever make an enquiry about the existence of the box or the “secret hiding spot” where that box was, apparently, located up until 15 September 2008 (this being the date of the alleged loan). No explanation has been advanced for that state of affairs and inaction.

19. Nor do I accept the defendants’ suggestion that, until the box was produced in Court, they “never had access to [it]”. Whilst, literally, that may be so, it does not correctly characterise the true position: at no point until after the trial commenced did the defendants ever make a request to “access” the metal box.

20. 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, and other orders, sought (ss 56(1) and 57(1)(b) of the CPA). So do the following matters.

21. The application was premised upon experts being retained, those experts “conducting testing” and, thereafter, those experts giving “expert evidence in the proceedings”; that is, each of the experts sought to be engaged would actually investigate, and prepare a report addressing, the matters within their expertise. The argued disadvantage to the defendants rested on their need to serve this evidence in the trial because it had some materiality to a fact in issue.

22. For the metallurgist, the defendants argued that the expert would be placed to express an opinion on the age of the box. They relied upon an email that was sent to them, dated 18 June 2026, from the expert they propose to retain (affidavit of Phillipe El Khouri sworn 18 June 2026, Annexure B).

23. There are a number of difficulties with what is proposed and the nature of the evidence that is hoped might result. First, the author of the email “noted that metallurgical examination cannot typically determine the exact duration of exposure or storage”, and that they could only give an opinion “on a consistency basis rather than as a determination of age or exposure duration”. Secondly, even then, the basis for the metallurgist being placed to determine this in respect of the metal box in question is unknown, given they were asked to assume that the box had “corrosion”, “corrosion patterns” and had been placed for “approximately 20 years [in] storage in a damp subfloor environment”.

24. Mr Green accepted that there was no evidence to suggest that the metal box had been kept for 20 years in a “damp subfloor environment”; on the contrary, he accepted that the evidence only established that the box was kept for 5 years – possibly (at its highest) up to 8 years – in the secret hiding spot. Mr Green made no submissions about whether the subfloor area could be characterised as “damp” and, to be clear, did not identify any evidence that could support a finding that it was. He also accepted that there was no evidence about how the metal box was kept after 15 September 2008. As to corrosion, and the potential existence of that on or in the box, no submissions of any kind were made – nor was the metal box tendered.

25. For the metallurgist, the position reached is this: whilst the expert suggested that, following inspection and testing, some “consistency” type evidence may be able to be given, this conclusion was not based upon their inspection of the box (or even their assessment of a photograph of it), but upon instructions that Mr Green accepted bore no relationship whatsoever to the evidence (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [64]-[66]).

26. Given the above, I am unpersuaded, even in an appropriately preliminary way, that the metallurgist could provide some forensically useful evidence, based upon the evidence relating to the box which is likely to be given in the case. Rather, it is a matter of speculation as to whether they could.

27. For the occupational hygienist, the defendants argued that that expert would be placed to express an opinion on the presence of mould on (at least) or in the metal box. They relied upon emails that were sent to them, dated 18 June 2026, from the expert they propose to retain (affidavit of Phillipe El Khouri sworn 18 June 2026, Annexure A).

28. As with the metallurgist, there are a number of difficulties with what is proposed and the nature of the evidence that is hoped might result. First, in relation to the presence of mould “on… the [metal] box”, whilst it was suggested that sampling could be undertaken in order to obtain “insight into the conditions of the box”, the expert acknowledged that “the amount of time the box has been removed from the storage area would significantly affect any results”, and they specifically sought instructions about “[h]ow long [the box has] been outside of [the] storage environment?”. The response provided was that “the box has not been outside the storage area environment for any more than a couple of days”. Given Mr Green’s earlier concession that there was no evidence about how the metal box was kept after 15 September 2008, that instruction to the expert was patently wrong. Secondly, as with the metallurgist, the occupational hygienist was asked to assume (in addition to the above matters) that the metal box “was also stored for approximately 20 years in a sub floor with no lighting on a waterfront property”. Again, given Mr Green’s concession about how long the metal box was kept in the secret hiding spot, that instruction to the expert was also patently wrong.

29. For the occupational hygienist, the position reached is this: whilst the expert may be able to give, following inspection and testing, some evidence about the possible presence of “mould” on or in the box, given the expert’s statement about the limitations of such testing if the box had been removed from the “secret hiding spot”, the usefulness of that evidence is highly doubtful. Further, it is simply unknown whether they could do so, once properly instructed with the correct assumptions available on the evidence.

30. Given the above, I am unpersuaded, even in an appropriately preliminary way, that the occupational hygienist could give some forensically useful evidence, based upon the evidence likely to be given in the case. Alike with the metallurgist, I am left in a position where it is a matter of speculation as to whether they could. These matters significantly undercut and negate any suggestion that the inability to secure this evidence might be productive of some disadvantage to the defendants. The defendants have failed to persuade me there would be any such disadvantage (s 58(2)(b)(vi) of the CPA).

31. Inevitably, if an adjournment was granted to facilitate the defendants investigating this issue and, possibly, securing some useful evidence, there would, I find, be considerable delay (ss 56(1), 57(1)(d) and 59 of the CPA). Experts would be briefed with material, and reports would, possibly, be prepared and served. The plaintiff would then need to respond to this evidence, possibly with further lay evidence and his own expert evidence. Thereafter, the experts would need to engage in a conclave and prepare joint reports.

32. The plaintiff’s assessment was that this process would take around six months. The defendants contested this, suggesting that it would be appreciably more confined and, when pressed to identify the time period required, submitted that it would more likely be in the order of “around three to four months” (Tcpt, 19 June 2026, p 171(33)). In my view, the plaintiff’s assessment is realistic, and I accept it is the probable delay that would be occasioned by having the “issues” relating to the metal box be investigated by experts and thereafter be the subject of expert evidence, conclaves and the preparation of joint reports.

33. Thus, even assuming, favourably to the defendants, that some evidence is capable of being produced by the proposed experts that might, possibly, be of some assistance, the delay involved in securing evidence of that (admittedly, unknown) character tells against the orders that the defendants seek.

34. The cost to the defendants and the plaintiff, who I accept is a pensioner, is also an important consideration that looms large (ss 56(1), 57(1)(d) and 60 of the CPA). There was some debate about the likely cost of securing the expert evidence of the kind discussed. There was no particular evidence on this point, but I am satisfied that the cost is likely to be sizeable – in the tens of thousands of dollars to each party and possibly, even significantly, more.

35. The dictates of justice require the refusal of the relief sought by the defendants, and the dismissal of the notice of motion. To do otherwise, I am satisfied, would work considerable unfairness and prejudice upon the plaintiff, and be contrary to the overriding purpose of the CPA and the dictates of justice.

36. It was for those reasons that, on 19 June 2026, I made the following orders:

37. Dismiss the defendants’ notice of motion filed 18 June 2026.

38. Order the defendants to pay the plaintiff’s costs of, and incidental to, the notice of motion.

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