Plaintiff v Defendant

1 By order made on 21 October 2024 this proceeding was fixed for trial commencing at 10:30am on 5 August 2025 (Trial Date) before me. By the defendant's (defendant or Mr Wu) application by summons filed late yesterday, 24 July 2025 (Summons), the defendant sought orders that the Trial Date be vacated and that the proceeding be re‑fixed for trial on a date in September or October 2025 (Application). The Application was supported by an affidavit of the defendant's solicitor, Mr Maxwell Joy, affirmed 24 July 2025 (Joy Affidavit).

2 The plaintiff opposed the Application and relied upon an affidavit of its solicitor, Ms Jacqueline Chan, sworn 24 July 2025 (Chan Affidavit).

3 I have read and considered the affidavit material and reviewed the history of the proceeding by reference to previous court orders, transcripts, pleadings and other documents on the court file. For the reasons that follow, I have determined that the Trial Date should not be vacated. I also determined that liberty to apply should be reserved to the defendant to apply for orders that his evidence be given by alternative means, or orders that the trial be adjourned part heard to enable the giving of evidence by the defendant to be deferred for a short time.

4 The plaintiff's claim is narrow and conceptually quite straightforward. Briefly, the plaintiff seeks to recover a debt plus interest from the defendant. It is alleged that, pursuant to a credit facility agreement dated 30 August 2019 (Credit Agreement), the plaintiff agreed to issue credit to Mr Wu for the purposes of gaming at the plaintiff's casinos in Macau and advanced a total of HKD100 million to the defendant between 30 August and 9 September 2019 in the form of casino chips. The defendant says, among other things, that he did not sign the Credit Agreement or the other documents relied upon by the plaintiff, and says that he returned to Beijing from Macau on 31 August 2019 and was not in Macau on 9 September 2019, which is alleged to be the date that the last credit marker was signed by Mr Wu and HKD30,000,000 worth of casino chips were provided to him.

5 The procedural history of the proceeding is as reflected on the court file, which I have reviewed, and relevantly includes the following:

1. The proceeding was commenced by writ in February 2023.

2. Orders for expert evidence were first made on 19 February 2024, including requiring the defendant to file his expert evidence by 16 August 2024.

3. Orders were made on 28 August 2024 providing for an experts' conference and joint report.

4. On 28 August 2024 the matter was set down for trial on a date to be fixed after 29 November 2024.

5. Orders for the filing of written opening submissions were first made on 28 August 2024, requiring the plaintiff's and the defendant's opening submissions to be filed and served by 15 and 29 November 2024, respectively.

6. On 21 October 2024 the matter was fixed for trial on 5 August 2025 before me.

7. Numerous extension orders have been made throughout the proceeding, including by consent, in relation to various steps, including the filing of the defendant's expert evidence.

8. The plaintiff's expert report (regarding handwriting) was filed on 19 July 2024.

9. The defendant's expert report (regarding handwriting) was filed on 19 November 2024.

10. Following an experts' conference in December 2024, a joint expert report was prepared by the two experts and completed on 11 December 2024.

11. The plaintiff filed its outline of opening submissions on 28 February 2025.

12. Various extensions were given to the defendant for the filing and service of his outline of opening submissions, the last of which was by order made 11 April 2025, and required the defendant to file and serve his outline of opening submissions by 30 June 2025, together with his list of authorities. This did not occur and, to date, these documents have not been filed or served.

13. On 9 April 2025 the defendant applied by summons to seek to have the plaintiff's claim dismissed or struck out as an abuse of process by reason of the existence of some parallel proceeding in Hong Kong (Hong Kong Proceeding). This was ultimately resolved by agreement between the parties after the Hong Kong Proceeding was discontinued. Orders were made on 2 June 2025 dismissing the defendant's summons by consent and ordering that the plaintiff pay the defendant's costs fixed in the sum of $49,000.

14. On 18 June 2025 a directions hearing/case conference (Case Conference) was held at the Court's instigation to address numerous matters in connection with the trial, as referred to in the transcript of that hearing, to which I refer but will not set out. At that hearing each of the parties was represented by counsel, with Mr Brown of senior counsel appearing for the defendant.

15. On 18 June 2025 orders were sought by consent directing that the date for the hearing of closing submissions be deferred for a short period after the end of the evidence in the trial so as to provide counsel with some additional time to prepare. Orders were made directing that written closing submissions be provided by the plaintiff and defendant by 14 and 18 August 2025 respectively, and listing oral closing submissions for hearing on 25 August 2025 before me.

16. Subsequent to the Case Conference the parties were to obtain instructions regarding a mediation taking place in the lead‑up to the trial and inform the Court of their respective positions. As a result of communications from my chambers to the defendant's solicitors regarding this and other matters, it became apparent that the defendant's solicitors had been seeking to contact the defendant for some time without success, and that the defendant was not responding to his solicitors, even though they had conferred with the defendant shortly after the Case Conference to address mediation and other trial related matters.

17. Upon further enquiry by my chambers regarding the defendant's non‑compliance with timetabling directions, the Court was informed that the defendant's solicitors proposed to apply for leave to cease acting for the defendant. This was confirmed at an urgent mention of the proceeding held on 18 July 2025, with Mr Joy informing the Court that the leave application would be filed and served the following Monday, 21 July 2025, with notice also to be given to the defendant. The Court had not heard further from the defendant's solicitor by 23 July 2025, and no application had been filed. Upon further enquiry from my chambers, the Court was informed that the leave application was not proceeding but that an application would be made to adjourn the trial. That application was made by the Summons and was heard by me on 25 July 2025, following which I delivered my ruling ex tempore.[1]

6 The Application was made and brought on for hearing urgently given that the Trial Date is 5 August 2025. No written submissions were filed, but oral submissions were made by Mr Joy on behalf of the defendant and Mr Freire on behalf of the plaintiff. Those submissions are recorded in the transcript, to which I refer, although I will not recite all of their detail. They included the following.

7 The defendant's solicitor relied upon the matters raised in the Joy Affidavit and the Court was informed that it was not until the evening of 23 July 2025 that the defendant contacted them and it was decided that the application for leave to cease acting for the defendant would not proceed. Mr Joy fairly explained how, as the defendant's solicitors, they had been put in a challenging position as a result of the defendant not responding to them for some weeks, but that they had worked as swiftly as they could with respect to this Application.

8 Relying upon the matters raised in the Joy Affidavit, the matters to which attention was drawn included the following: the reference to the defendant having been '... rather ill from depression caused by this ongoing saga concerning the plaintiff'; the inability to get instructions for an extended period despite numerous efforts having been made; contact having been made by the defendant after he received notice of the solicitor's proposed application for leave to cease acting; counsel seeking instructions and funds for the trial to be paid into trust; senior counsel and junior counsel recently returning the trial brief; senior counsel's unavailability; the defendant's expert not having the opportunity to inspect the relevant original documents; the defendant having informed Mr Joy that he was the subject of a 'no fly' order in China and his belief that the plaintiff may have had something to do with the order being put in place; additional time being required to finalise the written opening submissions, proof witnesses and experts, and address issues posed by the application of the governing law and how the Casino Control Act 1991 (Vic) (Casino Control Act) might apply; the plaintiff not paying to the defendant an amount the subject of a costs order in his favour in the Hong Kong Proceeding but asserting a right of set off in respect of the alleged debt owed to the plaintiff; and the defendant seeking an order adjourning the trial for a short period, being to the earliest dates available in September or October 2025, or any time thereafter as the availability of the Court allows.

9 Mr Joy also made some helpful brief submissions in reply regarding steps the defendant's solicitors had taken and may take, as well as about timing pressures. Mr Joy also provided availability details of previously retained senior counsel for the September-December 2025 period.

10 The defendant submitted that, given the evidence, in all the circumstances it was just and fair that the Trial Date be vacated and that the trial be re‑fixed for hearing.

11 The plaintiff relied upon the matters raised in the Chan Affidavit, including Ms Chan's evidence regarding: the plaintiff not having knowledge of the alleged 'no fly' order and having had no involvement with it; the defendant not having raised the Casino Control Act previously; the trial related matters addressed by me with the parties at the Case Conference, including the expert evidence and the applicable law question; invitations given to the defendant's solicitors in August and November 2024 to inspect the originals of the relevant documents and the defendant's failure to do so; and the plaintiff not having heard about any adjournment issue until 24 July 2025.

12 The plaintiff submitted that the proceeding was ready for trial, was conceptually straightforward, and that it would not be at all difficult for new senior counsel to step in at this point. The plaintiff submitted that the evidence did not demonstrate any sound reason for adjourning the trial, emphasising that the plaintiff had first heard of the adjournment issue yesterday afternoon. Reference was also made to the logistical difficulties of getting available dates for witnesses, clients and counsel if the Trial Date was to be vacated, and the listing challenges within the Court so far as any alternative dates are concerned.

13 When submitting that the defendant had shown no good reason on the evidence why the Trial Date should be vacated, emphasis was placed upon four matters. First, that the discontinued Hong Kong Proceeding now had nothing more to do with this proceeding. Attention was also drawn to what was said to be the unsatisfactory assertion regarding the defendant being 'rather ill' and the absence of any supporting evidence.

14 Second, with respect to the 'no fly' order, it was submitted that this evidence was unsatisfactory given that there was no detail about it or any documentary evidence. Some emphasis was also placed on Ms Chan's evidence about the plaintiff having had nothing to do with the 'no fly' order and not being aware of it. It was further submitted that the existence of any order would not see the Trial Date vacated in any event, and that if it was a real impediment, then an application should be made to allow evidence to be taken by some other appropriate means.

15 Third, attention was drawn to the matters raised at the Case Conference on 18 June 2025 between counsel and the Court, including senior counsel for the defendant indicating that there were no issues at all about availability or the trial proceeding, and noting that there was no mention of any additional evidence, or any reference to the Casino Control Act.

16 Fourth, that counsel availability should not now impact on the Trial Date given the history of the proceeding, the ability to obtain alternative senior counsel, and the issue having arisen by reason of the defendant not responding to his solicitor's many attempts to contact him.

17 I recently addressed principles and other relevant observations regarding applications to adjourn a trial date in Hao Yang Investment Pty Ltd v Resources Australasia Pty Ltd (Hao Yang)[2] and it is convenient and efficient to repeat in almost identical terms that which I said on the topic in that case.

18 There is no doubt that this Court has express and inherent authority to vacate or adjourn a trial date, and it was not contended otherwise. The sources of express power include ss 47, 48, 49 of the Civil Procedure Act 2010 (Vic) (CP Act), and rr 48.06 and 49.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules).[3]

19 The nature of the Court's discretion when considering whether or not to vacate a trial date or allow an application for an adjournment of a trial date has been addressed in numerous authorities.[4] A review of many authorities unsurprisingly reveals that the outcome of cases in which the principles relevant to trial adjournment or vacation applications have been considered are very much fact‑specific, and dependent upon the facts in question. That said, with respect to general observations regarding the nature of the Court's discretion, it is convenient and helpful for present purposes to refer to the following.

20 In Eaton v ISS Catering Services Pty Ltd,[5] their Honours observed as follows regarding hearing adjournment applications, after making reference to and setting out the terms of ss 7 to 9 of the CP Act:

1. His Honour took account of the matters in s 9, to the extent that they were relevant to the adjournment applications. In particular he referred to the proportionality requirement in s 9(1)(g) of the Act and remarked that the appellant's claim was for pain and suffering alone and that pre‑trial argument had already extended over three days.
2. In the past, appellate courts more readily accepted that an adjournment should be granted if its refusal would prevent a party making out his or her case.[6] That predisposition must now be qualified in light of the importance which is now accorded to case management principles, following the High Court's decision in AON,[7] the subsequent enactment of the Civil Procedure Act 2010, and the further authorities mentioned below. Although the 'overarching purpose' of the Act and the rules includes the fair and just resolution of disputes, it also includes the efficient and timely resolution of disputes. So parties cannot casually ignore case management orders or directions. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in AON:

Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re‑pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all.[8] Such a view may largely explain the decision of this Court in Shannon v Lee Chun,[9] which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment.[10] In the present case it is difficult to see that such an order could be sufficient compensation, given that AON would be required to again defend litigation which was, effectively, to be commenced afresh.

The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd,[11] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted.[12] In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd,[13] French J said of Bowen LJ's statements in Cropper v Smith:

... That may well have been so at one time, but it is no longer true today ... Non‑compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.[14]

1. The importance of case management principles in guiding the Court's discretions in exercising case management powers has been reinforced by recent pronouncements of the High Court and this Court. In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategies Management and Marketing Pty Ltd & Ors,[15] the High Court explained the importance of the 'overriding purpose' under the Civil Procedure Act 2005 (NSW) in the exercise of its powers under that Act or Court rules. The High Court referred with approval to the doubts expressed by Lord Woolf MR in Biguzzi v Rank Leisure PLC,[16] that 'authorities decided under the old procedure could continue to be binding or even persuasive'.[17] Later, the High Court summarised the purpose of the Civil Procedure Act 2010 in the following terms:

The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. ...[18]

1. In Yara Australia Pty Ltd v Oswal,[19] this Court gave similar emphasis to the importance of the overarching purpose, and to the overarching obligations on parties and their lawyers under the Civil Procedure Act 2010. The Court re‑stated that such obligations on parties and their lawyers to this general effect have always existed.[20]
2. The application for an adjournment of the trial in this case needed to be considered in the above context. The overarching purpose applies to the Court 'in the exercise of any of its powers', however they may arise - including all powers arising under 'any procedural rules or practices of the Court'.[21] The Court's power to adjourn proceedings or to refuse an application for an adjournment is therefore subject to the Court's obligation to give effect to the overarching purpose.[22]

1. His Honour considered whether any prejudice to the respondents could be compensated by making an appropriate order as to costs. Moreover the passage from AON cited above indicates that this is not determinative. As French CJ observed in AON:

In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to AON could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.[23]

1. In exercising his discretion, his Honour properly had regard to the absence of any affidavit from the appellant's solicitors explaining the failure to comply with Judge Davis's order or the reasons why the appellant, having already filed the report of Dr Short after the agreed deadline for serving expert reports, then sought an adjournment to obtain a supplementary report from him. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in AON:

Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.[24]

21 In the context of an appeal adjournment application, in Dawn v Carlisle Homes Pty Ltd,[25] the Court of Appeal recently addressed observations regarding the exercise of a discretion to vacate or adjourn a hearing date, which are also relevant in the current context. In that case their Honours relevantly observed as follows:

1. On behalf of Mr Dawn, Mr Epstein applied for an adjournment of the hearing to allow his client an opportunity to reassess the grounds of appeal and consider whether they needed to be amended. Mr Epstein submitted that Mr Dawn could not adequately represent himself. He submitted that Mr Dawn would be impaired by mental difficulties he was suffering. He submitted that Mr Dawn should pay Carlisle's reasonable costs thrown away and this would adequately address any prejudice to Carlisle. The application was opposed by Carlisle.
2. An application of this kind in a civil proceeding must be determined in light of the overarching purpose of the Civil Procedure Act 2010, 'to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute'.[26] This includes consideration of any explanation for the need for the adjournment, the balancing of potential prejudice and harm, and the interests of justice.[27]
3. Adjournment applications are not to be considered solely by reference to whether any prejudice to the opposing party can be compensated by costs. The time of the court is a publicly funded resource, and inefficiencies in the use of that resource are to be taken into account, as well as the need to maintain public confidence in the judicial system.[28] The effect of adjournments on other litigants using the court has long been regarded as relevant.[29] What 'might be perceived as an injustice to a party' when viewed in isolation 'may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources'.[30] The 'need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard' are 'pressing concerns to which a court may have regard'.[31]
4. Where the lateness of an adjournment application would make it inevitable that an adjournment would involve waste of court resources and inefficiency in the legal system overall, '[m]odern case management principles, as articulated in Aon, and as reflected in the Civil Procedure Act, support the refusal of leave to adjourn'.[32]
5. This was not an appropriate case for an adjournment.

1. On the evidence as a whole, we were satisfied that Mr Dawn's lack of legal representation until virtually the last moment was essentially a choice made by Mr Dawn. We were also satisfied that the delay in changing his mind about legal representation and acting on that decision was not properly explained.
2. Further, in light of Mr Dawn's evidence of his adequate financial capacity, the absence of any offer of an undertaking by him to pay the outstanding judgment debt arising from VCAT's order weighed against granting an adjournment.
3. For all these reasons, we decided to refuse the adjournment, but we did so on the basis that Mr Dawn would be permitted to make further submissions in writing after the hearing in support of his proposed amended application, and for Carlisle to respond. That course balanced the need to avoid wasting the hearing date whilst giving Mr Dawn the opportunity to provide further submissions, with legal assistance if he so chose, and ensuring that the opportunity was not used to expand the case beyond his existing grounds. It should not be thought that such an opportunity will always be required or appropriate. In the usual case, the listed hearing date remains the occasion when argument is to be fully and finally developed.

22 Having regard to the evidence, the submissions, the principles and observations earlier referred to, and the Court's obligations under the CP Act, I have determined that, in the present circumstances:

1. The defendant's application to vacate the Trial Date and have the proceeding re‑fixed for trial in September or October 2025 should be dismissed.

2. The defendant should have liberty to apply to seek to have the defendant's evidence given by alternative means, or to seek to adjourn the trial part heard to enable the giving of evidence by the defendant to be deferred for a short period.

23 I elaborate below as to why I have reached these conclusions, noting at the outset that, in considering the Application, I am mindful of the principles earlier referred to, the discretionary nature of the application, and the obligation of the Court to take into account the objects in s 9 of the CP Act, and seek to give effect to the overarching purpose in s 7 of the CP Act as required by s 8 of that Act, which I have done.

24 On the evidence before me, and balancing the position of the parties and the potential prejudice, it would not be in the interests of justice, just or efficient, and would not well serve the overarching purpose, to allow the defendant's application. I elaborate briefly below regarding many of the matters raised.

25 First, I refer to, without repeating, the procedural history of this matter, including that referred to above. The proceeding was commenced in February 2023 and has been set down for trial for nearly a year, with it recently being confirmed by senior counsel for the defendant at the Case Conference that there were no issues of which he was aware that would prevent the trial proceeding as scheduled. The matters addressed at that Case Conference are referred to in the transcript (to which I refer), and included a number of the matters now belatedly raised by the defendant. The matters addressed included: lay evidence; interpreters; expert evidence; trial length; foreign law; and the question of whether there were any other matters known to the parties that might impact upon the trial proceeding on the Trial Date.

26 Second, the defendant has known of the Trial Date for a long time and the current difficulties have belatedly arisen largely as a consequence of the defendant not responding to the numerous attempts by his own solicitors to contact him in connection with the trial's commencement on the known Trial Date. These matters were within the control of the defendant, but beyond the control of the plaintiff and, it appears, the defendant's solicitors. Indeed, Mr Joy confirmed at the hearing that it was only upon the defendant's receipt of notice that the defendant's solicitors were going to apply for leave to cease acting for him, that the defendant made contact with his solicitors.

27 Third, Mr Joy's evidence that the defendant said that he had been rather ill from depression about the 'ongoing saga' concerning the plaintiff is too limited, general, vague, and non‑specific to provide any reasonable explanation for the defendant's failure to contact his solicitors in circumstances where the Trial Date was known and had been known for some time. As counsel for the plaintiff pointed out, the evidence is also not supported by any medical or other material regarding the illness referred to, including its impact, duration, effect, or treatment. I also note from the file review, procedural history, and the defendant's submissions, that the defendant has been in contact with his solicitors frequently in the past.

28 As for the other circumstances in the evidentiary material, including those referred to below, as it stands the evidence regarding the asserted illness, whether considered alone or in any combination with one or more of the other circumstances, does not provide a sound or satisfactory explanation for the defendant's failure to contact his solicitors or prepare for trial.

29 Fourth, although the defendant informed Mr Joy that he is the subject of a 'no fly' order that the defendant suspects was in some way put in place as a result of actions of the plaintiff, this evidence is less than satisfactory in the circumstances.[33] For example, it effectively lacks all relevant details about the 'no fly' order, and there is no documentary evidence supporting it, or the suspicion that the plaintiff was somehow involved. Indeed, Mr Joy expressly, but appropriately, acknowledged the absence of such evidence and his inability to say whether the plaintiff was involved. There is also evidence from Ms Chan that the plaintiff was not aware of any such restriction and that the plaintiff had not been involved with any restriction being imposed.

30 In the circumstances it would be unsound for the Court to give material weight to such belated, vague, and inadequate evidence, noting also that there is no evidence about when the order was made, what it restricts, why it was made, how long it may last, and whether exemptions can be sought.

31 That said, and although the evidence currently before me is less than satisfactory, in weighing up and balancing the possible prejudice to the defendant, it is appropriate and just to reserve to the defendant liberty to apply to seek to have the defendant's evidence given by appropriate alternative means, or to seek to defer the giving of his evidence for a short time. If any such application is made it should be supported by sufficiently comprehensive material, including in relation to the 'no fly' order referred to, and evidence of any legal or other impediments to evidence being taken remotely from China. I will also take steps to have the trial live‑streamed so that the defendant can otherwise participate in it by observing and giving instructions remotely if he is in fact prevented from participating in person in Australia.

32 Fifth, the evidence that some additional time is needed in relation to the expert evidence is not persuasive, whether considered alone or in combination with any other circumstances, and it does not provide a sound basis for seeking an adjournment of the Trial Date at this late stage. As can be seen from aspects of the procedural history above: orders for expert evidence were made a long time ago; the dates for expert evidence were extended on many occasions; expert reports have been filed by each of the plaintiff and the defendant; a joint expert conference was held after the filing of expert reports; a joint expert report was completed in December 2024; and, the question of expert evidence and how that was to be dealt with at the trial was specifically addressed with the defendant's senior counsel at the Case Conference.

33 Sixth, insofar as the defendant submitted that the adjournment was needed to enable the original documents to be examined by the defendant's expert, this submission is of little force. Nearly a year ago, on 20 August 2024, the plaintiff's solicitors informed the defendant's solicitors that the original documents would be made available for inspection at their offices as required. It was also expressly stated that the plaintiff's solicitors could accommodate the expert in terms of dates, times and locations, and that the original documents could be made available in any Ashurst office in Australia or overseas. A similar invitation was proactively made again on 26 November 2024, after the plaintiff's solicitors saw that the letter of instruction provided to the defendant's expert referred to the defendant not being able to access the original documents.

34 The evidence before me shows that the defendant did not respond to, or otherwise accept, either of the invitations to inspect the original documents, whether within Australia or overseas. Further, notwithstanding these flexible opportunities to inspect the original documents, the defendant filed his expert report without doing so, and proceeded with the joint conference of experts and preparation of the joint expert report in December 2024.

35 I add that, in a handwriting case such as the present, it was in my view at least reasonable for the plaintiff's solicitors to allow appropriate inspection of the original documents, but not to agree to hand them over to the defendant's solicitors (or the expert for the defendant) without appropriate controls in place.

36 Seventh, the submission and evidence that additional time is now required in order to proof witnesses and experts is also unsatisfactory in the circumstances. It is sufficient to note that lay witness outlines and expert reports were all filed quite some time ago, as referred to above, and to note the observations made above regarding the Case Conference. Further, there are no applications before the Court in relation to any party seeking to adduce additional lay or expert evidence.

37 Eighth, the issues in the case are narrow and conceptually straightforward and there remains a reasonable period of time for new senior counsel to get across them, as new senior counsel for the plaintiff did for the purpose of the Application in a number of hours. It is also apparent that the oral evidence is limited, with each party now calling only one lay witness and one expert witness, and in circumstances where the revised court book comprises only two volumes, including court documents and expert reports.

38 I also note in this context that the defendant's solicitors have been trying to contact the defendant for several weeks to prepare for the known trial on the Trial Date. If the defendant is now time pressed, it is apparent from the evidence that this has resulted from the defendant's own inaction, and that its cause does not rest at the feet of the defendant's solicitors, his counsel, or at the feet of the plaintiff.

39 Ninth, the unavailability of senior counsel is another matter of limited force in this case given the circumstances. It was only very recently that senior counsel returned his brief, which from what the Court was informed, was unsurprising given his instructor's inability to contact the defendant and the absence of funds being advanced. Again, these are matters that rest at the feet of the defendant, but noting also that there is more than sufficient time for alternative senior counsel to be engaged, with the assistance of junior counsel who, it was confirmed, remains available on the scheduled Trial Date. Indeed, even if new junior counsel needed to be engaged as well, in the circumstances of this case, the unavailability of counsel would not weigh materially in favour of the defendant's position given the other circumstances.

40 Tenth, the contention that the Trial Date vacation application is supported by the need for additional time to finalise the defendant's outline of opening submissions does not weigh materially, if at all, in the defendant's favour on this application. The defendant is in breach of the order requiring his outline of opening submissions to be filed and served by 30 June 2025. That breach is ongoing. This is so notwithstanding that there have previously been numerous extensions of that date. I also note that at the urgent mention I held on 18 July 2025, Mr Joy informed me that the outline of opening submissions was essentially done. It should be filed and served immediately.

41 Eleventh, the defendant's recent reference to the possible impact of the Casino Control Act does not assist him on the Application in the circumstances. As Mr Joy explained, it appears that this is a new matter being considered by the defendant as a possible additional defence, although it is a matter notified to the plaintiff and the Court for the first time the day before the hearing of the Application. It is not currently a live issue on the pleadings, as Mr Joy confirmed, and no issue regarding the Casino Control Act is referred to in the agreed list of issues settled by counsel for the parties. In any event, on the evidence before me, neither the defendant nor the plaintiff have sought, or are seeking, leave to extend the time for filing an expert report in relation to the law of Macau. Indeed, I addressed this issue expressly with counsel for each of the parties at the Case Conference and the Court was informed that each party was proceeding on the basis of the evidentiary presumption about Australian law applying, with senior counsel for the defendant indicating that he was instructed that there was little difference in the relevant law in any event.

42 Twelfth, having reviewed the trial listings, as things stand it is not currently possible for a new trial date to be provided to the parties during the period requested. Further, the trial listings for the first half of next year are currently heavily fixed, and at this point a date in that period cannot readily be found. It is also the case, as was submitted by the plaintiff, that additional logistical difficulties will necessarily arise in seeking to find an alternative date suitable to witnesses, the parties, and counsel - although this challenge should not be overstated given the limited number of witnesses and the four-to-five day trial estimate. The inevitable delay and uncertainty if the Trial Date is vacated, when considered with the other circumstances, weighs against the Application - as does the fact that the public resource of the court time fixed for the trial will almost inevitably be lost to other litigants given the impending Trial Date.

43 Thirteenth, on the evidence before me, the matters raised by the defendant regarding asserting a right of set off in respect of the relatively modest costs order amount[34] (HK Costs Amount) in favour of the defendant in the Hong Kong Proceeding, also does not weigh materially in the defendant's favour on this application. That proceeding was discontinued by consent. If the defendant has rights in relation to the HK Costs Amount in Hong Kong then it is presumably open to him to take such steps in Hong Kong as he may be advised to take by the lawyers acting for him in that proceeding. This Court cannot, on this Application and on the evidence before it, make any informed observation about the respective rights of the parties in relation to this issue, and it would not be appropriate for me to attempt to do so.

44 Finally, and as I have said, in considering the circumstances in this application, I have taken into account the objects referred to in s 9 of the CP Act and sought to give effect to the overarching purpose in s 7 of the CP Act as required by s 8 of that Act. Having regard to the evidence and the submissions currently before me, and weighing the competing considerations and possible prejudice or impacts in the context, in the circumstances of this case, the just, efficient, timely and cost‑effective resolution of the real issues in dispute is at present best served and achieved by the dismissal of the Application, but reserving liberty to apply to the defendant in the manner addressed earlier.

45 As noted when delivering my reasons ex tempore, my reasons are not intended to convey any express or implicit criticism of the action or inaction of the defendant's solicitors, or his counsel, that has flowed from the defendant being unresponsive to communications from the defendant's solicitors. The defendant's solicitors and counsel have found themselves in a challenging position, and it is apparent from the evidence and the submissions that they have been working hard to address these challenges.

46 The defendant's application to vacate the Trial Date and have the Trial Date re‑fixed in the period September-December 2025 will be dismissed, with liberty to apply reserved.

1. The defendant's application by summons filed 24 July 2025 (Summons) is dismissed.

2. The defendant pay the plaintiff's costs of and incidental to the application by the Summons, to be taxed on a standard basis if not agreed.

3. Liberty to apply is reserved, including to the defendant to seek to have the defendant's evidence given by an appropriate alternative means, or to seek to adjourn the trial part heard to enable any evidence to be given by the defendant to be deferred for a short period.

48 After delivering my ruling ex tempore, senior counsel for the plaintiff sought an order that the plaintiff's costs of the application be paid by the defendant. This was opposed and, for the reasons recorded on the transcript (to which I refer), I determined that the defendant should pay the plaintiff's costs of and incidental to the defendant's application by summons filed 24 July 2025, to be taxed on a standard basis if not agreed.

[1] Having had the opportunity to review the court file and read the material in advance of the hearing and also after standing the matter down for a period after the conclusion of submissions to further consider the issues.

[2] [2025] VSC 226, [68]-[71].

[3] Rule 48.06 provides that at any time after a date has been fixed for the trial of a proceeding, the Court may vacate the date so fixed and give further directions for the conduct of the proceeding. Rule 49.03 provides that the Court may adjourn a trial on such terms as it thinks fit. As to the Court's inherent authority see, for example, R v Callaghan [1966] VicRp 4; [1966] VR 17, 18-19 (Winneke CJ, Sholl and Pape JJ concurring).

[4] See, for example, Neil J Williams, LexisNexis Butterworths, Civil Procedure Victoria (online at 30 April 2025) [49.03.0]-[49.03.40], and the cases there cited.

[5] [2013] VSCA 361; (2013) 42 VR 635, [45]-[53] (Neave JA and Hargrave and Dixon AJJA).

[6] See, for example, Queensland v JL Holdings (1997) 189 CLR 146; Opeka Pty Ltd v Mackie Group Pty Ltd [2003] VSC 183 [32]-[35].

[7] AON Risk Services Australia Pty Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175.

[8] Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch D 700, 711.

[9] [1912] HCA 52; (1912) 15 CLR 257. See the reasons of Barton J at 262-263, O'Connor J at 264 and Isaacs J at 266.

[10] The Commonwealth v Verwayen (1990) 170 CLR 394, 464.

[11] [1987] 1 AC 189, 220, referred to in The Commonwealth v Verwayen (1990) 170 CLR 394, 464.

[12] Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 376-377 [37], Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, 715, Samuels JA; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.

[13] [1991] FCA 536; (1991) 32 FCR 379, 392.

[15] [2013] HCA 46.

[17] Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategies Management and Marketing Pty Ltd & Ors [2013] HCA 46, [39].

[18] Ibid [56]-[57] (emphasis added).

[19] [2013] VSCA 337.

[20] Ibid [19], citing A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd & Ors [2009] VSCA 208; (2009) 25 VR 189, [15].

[21] Civil Procedure Act 2010, s 8(1); see also s 7(1) ('the overarching purpose of this Act and the rules of Court in relation to civil proceedings ...').

[25] [2025] VSCA 58.

[26] Civil Procedure Act 2010 s 7.

[27] See, eg, Sali v SPC Ltd (1993) 67 ALJR 841; (1993) 116 ALR 625; [1993] HCA 47; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ('Aon'); Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361; (2013) 42 VR 635, especially 647-648 [48]-[50] (Neave JA and Hargrave, Dixon AJJA); [2013] VSCA 361; Mackenzie v Head, Transport for Victoria [2021] VSCA 24, especially [44] (Tate and Kennedy JJA).

[28] Aon [2009] HCA 27; (2009) 239 CLR 175, 182 [5] (French CJ); [2009] HCA 27.

[29] Ibid [26], citing Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 843-844 (Brennan, Deane and McHugh JJ); 116 ALR 625; [1993] HCA 47.

[30] Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 844 (Brennan, Deane and McHugh JJ); 116 ALR 625; [1993] HCA 47.

[32] Mackenzie v Head, Transport for Victoria [2021] VSCA 24, [44] (Tate and Kennedy JJA).

[33] Even taking into account the urgency with which it was prepared.

[34] Totalling approximately HKD284,000.