R E Nixon Pty Ltd v Nowytarger [2025] QSC 300

[1] The plaintiff company's director is Mrs Robyn Nixon. The defendant, Leon Nowytarger, is Mrs Nixon's son-in-law. In 2010, the defendant and a colleague asked Mrs Nixon for a loan to fund a business venture known as Schoolbiz. Mrs Nixon arranged for the plaintiff to lend money to them.

[2] In March 2023, the plaintiff brought a claim against the defendant seeking the repayment of the money lent plus interest. The defence to the claim contained deemed admissions, which were pointed out to the defendant in the plaintiff's Reply on 17 May 2023. However, it was not until more than two years later, on 17 April 2025, that the plaintiff was indirectly made aware that the defendant did not intend to proceed on the basis of the deemed admissions. On 24 June 2025, the defendant filed an application which attempted to overcome the deemed admissions, but which would have failed to do so. On the day of the hearing, 29 July 2025, he filed, with leave, an amended application.

[3] The remarkable features of the application were the delay in bringing it, which was not satisfactorily explained; the lack of evidence in support of it; and the fact that the second proposed amended defence still did not overcome the problem of deemed admissions in all instances.

[4] Nevertheless, bearing in mind rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), for the reasons which follow, I will grant the defendant leave to withdraw some, but not all, of the deemed admissions. The parties are to prepare a draft order in accordance with these reasons within 14 days, which is to include the date by which an amended defence (which complies with the UCPR) must be filed and an order that the defendant is to pay the plaintiff's costs, including costs thrown away, to be assessed if not agreed.

[5] On 17 March 2023, the plaintiff company filed a Claim and Statement of Claim against the defendant, seeking (amongst other orders) the payment of money ($446,700) owed under a Deed of Loan - alternatively, as moneys had and received; or damages; or restitution in that amount for unjust enrichment - plus interest (then, of more than $2 million, and accruing).

[6] In broad terms, the Statement of Claim asserted the following:

(a) Mrs Nixon is a director and the sole shareholder of the plaintiff company. The defendant is married to her daughter, Robyn Nowytarger (Robyn). Robyn owned property in New South Wales (Property).

(b) In 2010, the defendant told Mrs Nixon that he and his associate, David McGinley, needed money for a business venture called Schoolbiz. He asked her to lend them money.

(c) Mrs Nixon agreed to lend money to the defendant and McGinley through the plaintiff company. She said the loan was to be "formalised in writing" and that security was to be provided by way of the Property. Robyn agreed.

(d) Mrs Nixon agreed that the plaintiff would provide $500,000 before any formal loan agreement was prepared and executed, on the condition that "any such advances made prior to the formal loan agreement or other arrangement being entered into would form part of the principal loan sum provided for under the formal loan agreement or other arrangement" which was to be prepared by her solicitor.

(e) The defendant said that he would have "an initial informal document" prepared on that basis. On 8 March 2010, the document was provided to Mrs Nixon (the Schoolbiz Letter).

(f) On 10 March 2010, the plaintiff paid $100,000 into Schoolbiz's bank account.

(g) On 17 March 2010, the plaintiff paid $150,000, into Schoolbiz's bank account.

(h) On 22 March 2010, the defendant and McGinley executed a written document, entitled "Deed of Loan", and provided it to Mrs Nixon, who executed it on behalf of the plaintiff on 23 March 2010.

(i) By way of handwritten notations, the Deed of Loan identified the plaintiff as the Mortgagee; the defendant and McGinley as Mortgagors; and a repayment date of 22 March 2011.

(j) The Deed of Loan defined "Moneys Owing" as "all moneys which are or which hereafter may become owing or payable by the Mortgagor to the Mortgagee under or pursuant to this Deed". It recited the plaintiff's agreement to lend to the defendant and McGinley "the Principal Sum" - which was, as per Schedule 1 of the Deed of Loan, $250,000.

(k) Under it, the defendant and McGinley covenanted to pay interest on the Principal Sum and to repay so much of the Principal Sum which was then unpaid by the due date (22 March 2011).

[7] The Statement of Claim also dealt with a claim for rectification of the Deed of Loan so that it would cover advances made prior to the execution of the formal loan agreement.

[8] It may be noted that the asserted obligation to repay was said to arise under the Deed of Loan document - not under conversations made prior to its execution.

[9] The defendant is and always has been represented by Angelos Mitchell Mathas of MathasLaw. He filed his Notice of Intention to Defend and his Defence on 18 April 2023.

[10] In this Defence (the filed Defence), the defendant asserted (among other things) that -

(a) Mrs Nixon procured the Consent from Robyn without the defendant's knowledge.

(b) The Deed of Loan form which he and McGinley signed was not dated; the definitions of "Mortgagor" "Mortgagee" had not been completed; the due date had not been completed; and it did not contain the page headed "Consent" signed by Robyn.

(c) The Deed of Loan was not valid and binding as a deed - at least not in its materially altered form.

(d) The consent was unenforceable as it was obtained under duress and without consideration provided by Robyn.

(e) The caveat did not provide a security interest and its lapsing did not provide the plaintiff with an entitlement to make any demand for, or seek the repayment of, the Moneys Owing.

(f) The obligation to pay under the executed document only extended to the Principal Sum and not the other amounts.

(g) In the alternative, the claims made - for repayment of a loan, rectification, or unjust enrichment - could not be maintained because of section 10 of the Limitation of Actions Act 1974 (Qld).

(h) In the alternative, at the time the executed document was signed, sealed, and delivered, it did not specify a time for repayment. Therefore, each of the amounts said to be payable were payable on demand. The limitation period for making the demands expired 12 years after the dates on which each payment was made - the last of which expirations was 23 April 2022, before the proceedings were commenced on 17 March 2023.

[11] The plaintiff's Reply, filed 17 May 2023 and served 18 May 2023, identified and adopted deemed admissions made by the defendant because the filed Defence did not comply with rule 166 of the UCPR.

[12] Additionally, the plaintiff asserted in the reply (among other things) that none of the causes of action were statute barred because the claims made were actions upon a "specialty" for the purposes of section 10(3) of the Limitation of Actions Act 1974 (Qld).

[13] It is necessary to consider the procedural history thereafter because it is relevant to the issue of delay and because it illustrates the extent to which the plaintiff's solicitors indulged the defendant's solicitor by instructing him about the correct way to withdraw admissions under the UCPR and the defendant's causal attitude towards time limits.

[14] On 23 September 2024, about a year and four months after the Reply, the parties received a Caseflow Intervention Notice because of the matter's slow progress. The matter was placed on the Caseflow list for case management.

[15] On 17 October 2024, the parties told the Caseflow Manager and the Resolution Manager that the matter was "well advanced" and that the parties had been "negotiating regarding a mediation". On 21 October 2024, the Court made a consent order for a mediation on 29 November 2024. The mediation was held but the matter did not resolve. The mediator's certificate was filed on 9 December 2024. On 11 December 2024, the Court made consent orders which included orders intended to facilitate the trial of the matter, with a view to the parties signing a request for trial date by 4 pm on 6 June 2025 - later extended by consent to 4 July 2025.

[16] On 26 March 2025, in accordance with the orders made on 11 December 2024, the plaintiff's solicitors sent to the defendant's solicitor a draft list of 59 paragraphs of agreed facts and issues to be determined at trial (the List), as well as a draft trial plan and index to trial book. The List was based on the defendant's deemed admissions.

[17] On 17 April 2025, the defendant's solicitor returned to the plaintiff's solicitors marked up versions of those documents. The marked up version of the List reflected matters that the defendant intended to place in issue, contrary to the deemed admissions.

[18] On 16 May 2025, the plaintiff's solicitors wrote to the defendant's solicitor and pointed out that the plaintiff had relied upon the defendant's deemed admissions in preparation of the List. The plaintiff's solicitors' letter spelt out the defendant's non-compliance with rule 166 and its effect. It noted that the deemed admissions had been adopted in the plaintiff's Reply and said that the plaintiff would rely upon them at trial, as it was entitled to do: any application to withdraw the deemed admissions would be "vigorously opposed".

[19] The plaintiff's revised position in terms of the agreed facts and matters in dispute was set out in a second version of the List, reduced to 50 paragraphs. The second version of the List adopted some of the defendant's solicitor's mark-ups. The plaintiff sought a response by 4 pm Friday 23 May 2025. In reply by email on 16 May 2025, the defendant's solicitor said that he would take instructions but expected that those instructions would be to "press [for] the requested changes". No reply was received by the plaintiff's solicitors by 23 May 2025.

[20] On 28 May 2025, the plaintiff's solicitors sent an email to the defendant's solicitor, noting that they'd heard nothing on 23 May 2025 or since. They stated that they assumed that the defendant did not wish to press for changes to the List. The defendant's solicitor replied that same day, stating that he was instructed to press for the changes to the List and to bring an application seeking "orders for an amended defence" if necessary.

[21] On 30 May 2025, the plaintiff's solicitors wrote to the defendant's solicitor explaining the steps the defendant would need to take to withdraw the deemed admissions - noting that it was not enough to simply seek to amend the defence. This letter drew the defendant's solicitor's attention to the relevant rules, including rule 188. It outlined the delay which the relevant application would occasion and asked for the application to be filed "as soon as possible without further delay".

[22] On 3 June 2025, by consent, the Court ordered that the requirement that the parties sign a request for trial date by 4 July 2025 be vacated and that the defendant file and serve any application for leave of the Court, including supporting affidavits, by 11 June 2025. The defendant did not file an application by that date.

[23] On 24 June 2025, the plaintiff's solicitors wrote to the defendant's solicitor, noting that no application had been filed by 11 June 2025; stating that they could only assume that the defendant no longer intended to bring such an application; and indicating the steps to be taken to progress the proceedings. The defendant's solicitor's response on 25 June 2025 was that he had forwarded the application and supporting affidavit to the Court on 20 June 2025. He apologised for the "lateness" but did not explain the delay.

[24] The application was filed on 24 June 2025. (The application was signed, and the solicitor's supporting affidavit was sworn on 19 June 2025.) The application sought leave under "UCPR 187 (sic) and 375 to file and serve an amended defence in the form attached to this application"; and an order that the defendant pay the plaintiff's costs thrown away by the amendment. A draft amended defence was attached. The application was listed for hearing on 29 July 2025.

[25] There were issues with the application. It referred to the wrong rule (rule 188 is the correct one) and it did not seek leave to withdraw the deemed admissions. Nor did the proposed amendments to the defence achieve compliance with rule 166 - at least not in all cases.

[26] Once counsel was briefed by the defendant, issues with the proposed amended defence attached to the 24 June 2025 application, and with the application itself, were recognised. After business hours the day before the application was to be heard, and after the plaintiff sent to the court and to the defendant its outline of argument, that is at 5.54.55 pm on 28 July 2025, the defendant's solicitor emailed the plaintiff's solicitors as follows:

I apologise for the lateness of this communication.

The Defendant has identified a need to further amend the draft defence (copy attached). I also attach a version of the proposed amended application.

Can you please advise whether your client would prefer to proceed tomorrow or whether it would prefer to have the matter adjourned to a date suitable to counsel."

[27] The amended application, which the defendant sought leave to file, correctly applied for leave to withdraw deemed admissions and to file an amended defence. However, the second proposed amended defence still required amendment to ensure compliance with the rules.

[28] The plaintiff objected to my granting the defendant leave to file his amended application. Because there had obviously been a mistaken reference to rule 187 rather than rule 188 in the application filed on 24 June 2025, and because there seemed to be no utility at all in considering the first proposed amended defence attached to the 24 June 2025 application, I granted the defendant leave to file his amended application - recognising that there would be cost consequences for the defendant.

[29] The rules to consider in this application include rules 165, 166, 168 and 188.

(1) A party may, in response to a pleading, plead a denial, a non-admission, an admission or another matter.

(2) A party who pleads a non-admission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party's pleading."

(1) An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless -

(a) the allegation is denied or stated to be not admitted by the opposite party in the pleading; or

(a) the party has made inquiries to find out whether the allegation is true or untrue; and

(b) the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; and

(c) the party remains uncertain as to the truth or falsity of the allegation.

(4) A party's denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party's belief that the allegation is untrue or can not be admitted.

(5) If a party's denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.

(6) A party making a non-admission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.

(7) A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded."

(1) Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a non-admission and rule 165(2) then applies.

(2) However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading."

A party may withdraw an admission made in a pleading or under rule 187 only with the court's leave."

[34] The application filed on 24 June 2025 was accompanied by an affidavit of the defendant's solicitor, Mr Mathas. He swore that he was admitted as a solicitor of the Supreme Court of NSW and that since 1 July 1996 he'd held an unconditional NSW practicing certificate. He said that he mostly litigated in New South Wales and the Federal Court: he had not litigated in Queensland since the introduction of the UCPR in 1999. He said that whilst seeking instructions and preparing, finalising, and filing the defence, he did not "focus sufficiently on the specific requirements of pleading under UCPR 166(1) and (4)".

[35] He acknowledged that the plaintiff's Reply identified deemed admissions which he said were "contrary to [his] instructions and the intent of the defence". He said the draft amended defence sought to address the inadequate pleadings which he had drafted. As to the delay, he said:

"I appreciate that I should have made this application for leave to amend at an earlier time. I did not do so with the deliberate intent to delay the conduct of the proceedings. Rather, I had hoped that the mediation that took place at the end of last year would have greater success. I have also been hamstrung by a lack of funds on the part of the defendant to defend these proceedings."

[36] He went on to say that he did not believe that the plaintiff had or would suffer material prejudice because of the delay, given that the proceedings concerned a 2010 loan document, and the principal issue was whether it constituted a specialty. If not, the proceedings were statute barred. Also, the original defence identified the substance of the defendant's position.

[38] The following authorities, espousing well-known principles, have guided my approach to this application. I focused on what was said about the significance of relevant sworn evidence to an application of this kind and the nature of the evidence required before a Court was likely to grant leave to a party to withdraw a deemed admission. I was particularly keen to understand what the authorities had to say about the evidence required when a party wished to withdraw a deemed admission and plead instead a non-admission, as was the case in relation to some of the deemed admissions here.

Bernard Cairns, Australian Civil Procedure, Thomson Reuters, 12th ed, 2020,

[39] At [8120], the learned author summarised the position in relation to the withdrawal of admissions as follows (some citations omitted; my emphasis):

"Where a fact is admitted in a defence there is no issue in the proceedings as to that fact. But the plaintiff may be prejudiced if the defendant withdraws an admission after the plaintiff has relied on it. Whether an admission can be withdrawn is subject to control. Once a party acts on an admission the party attempting to withdraw the admission must provide a "good reason" for being permitted to withdraw what was previously conceded. Ordinarily, a party who makes an admission after consideration and advice, with "deliberateness and formality" should not be permitted to withdraw it. An application for tactical reasons to withdraw an admission is not allowed. Conversely, an admission may be withdrawn if the admission is contrary to the actual facts. Similarly, an admission may be withdrawn if it was made inadvertently or without proper consideration. Whether the opposite party relied on the admission is a material consideration: Maile v RafiqI [2005] NSWCA 410 at [56] per Tobias JA."

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455; [2000] QCA 292

[40] The plaintiff/respondent brought an action against the defendant/appellant in negligence/breach of statutory duty, in relation to injuries he suffered at work. The appellant failed to respond to a notice to admit facts which was served upon his solicitors by the plaintiff's solicitors, with the consequence that he was taken to have admitted those facts. The primary judge refused the appellant's application for leave to withdraw the admissions. The catalyst for the attempt to withdraw the admissions was a change in the appellant's solicitors. The appellant's new solicitors contended by letter that their predecessors had not taken instructions to respond to the notice. The appellant's counsel submitted in his written outline that the admissions deemed to have been made were made inadvertently or without consideration of material matters. But the defendant put on no sworn evidence about his former solicitor's failure to respond to the notice.

[41] The Court of Appeal dismissed an appeal against the primary judge's decision not to grant leave to the defendant to withdraw the deemed admissions. The judgments of the Court included statements about the role of the procedural requirements of the UCPR and the material required to support a successful application for leave, which are set out below.

[42] de Jersey CJ observed at [14] that the former solicitors were to be taken as being aware of the consequences of failing to respond to the notice to admit; and allowed the respondent's solicitors to prepare for trial on the basis of the deemed admissions and made no move to set them aside. His Honour found it "difficult to see why a change in approach on the part of a party's legal advisors should in those circumstances warrant departing from the course previously set and on which the other party was reasonably relying".

[43] At [17], his Honour observed that it was overstating things to suggest that, unless leave were granted, the matter would proceed to trial without an examination of the incidents in which the respondent was allegedly injured. His Honour continued (my emphasis):

"[18] But that aside, the submission ignores the potentially important role of procedure as reflected in r.5(1) especially:

"The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense."

It also overlooks injustice to the respondent were the appellant allowed to withdraw admissions on which for months the respondent - to the knowledge of the appellant - relied in preparing his case.

[19] Asked to exercise the discretion under r. 189(3), a court would ordinarily expect sworn verification of the circumstances justifying a grant of leave. Those circumstances may include why no response to the notice was made as required, the response the party would belatedly seek to make, and confirmation that the response would accord with evidence available to be led at a trial. Here none of those matters was so verified. Issues of prejudice may also fall for consideration upon the hearing of such an application.

[20] There is no principle that admissions made, or deemed to have been made, may always be withdrawn "for the asking", subject to payment of costs. The discretion is broad and unfettered ...

[21] The charter of procedure contained in the Uniform Civil Procedure Rules cannot be approached on the basis that if important provisions are ignored, even if inadvertently (and that is not established here), the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just. Allowing the appellant to withdraw these deemed admissions would substantially erode the beneficial worth of a very important procedural mechanism directed, through expediting cases and reducing costs, to promoting the interests of justice.

[22] Parties do not have an inalienable right to a hearing of all issues on the merits. Rule 5(3), for example, confirms each party's obligation to proceed expeditiously, or risk sanctions (r.5(4)) which may include dismissal.

[23] It would have been unduly yielding for the court to have accommodate this appellant's complaint about the consequences of its not responding to the notice ..."

[44] McPherson JA explained that admissions are required for the purpose of ensuring that the court is called upon to determine only questions bona fide or genuinely in dispute. His Honour continued:

"[27] Before permitting the admission to be withdrawn, the first step to be determined here was whether there was a genuine dispute about the defendant's liability in this action ... [I]t is not enough for that purpose simply to assert that a dispute exists: see Re Brighton Club & Norfolk Hotel Co Ltd [1865] EngR 454; (1865) 35 Beav. 204, 205; [1865] EngR 454; (1865) 55 E.R. 873, 874. Some proper basis must be laid for that assertion, which would ordinarily include an explanation of how the earlier admission came to be made and why it should now be permitted to be withdrawn. That is not shown by saying simply saying that there has been a change of solicitors, or that it is possible to see that, before the admission was made, the issue of liability was an open question. Here the defendant has not condescended to swear to the circumstances in which the admission came to be made, or to show that it occurred by inadvertence, mistake or in some other way that might now justify its withdrawal."

[45] Williams J (as his Honour then was) said, of the evidence required on such an application:

"[32] ... In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn ... That ought not be taken to be an exhaustive statement of what is required. Each case should be considered in the light of its own facts and the circumstances may well require even more extensive material in order to obtain leave to withdraw the admission."

Piatek v Piatek and Another; Piatek v Piatek [2010] QSC 122

[46] These proceedings involved an estranged husband and wife. The plaintiff wife delivered a notice to admit facts to the defendant husband in July 2009. Although the fact that the defendant made no response to the notice (thereby rendering the facts in it deemed to be admitted) was mentioned at supervised case reviews on several occasions, it was not until 8 March 2010 - after the defendant had consented to the matter being listed for trial and trial dates being allocated - that the defendant's solicitor intimated that he wished to apply to withdraw the deemed admissions. The application was heard in April 2010. The only material filed in support of the application to withdraw was an affidavit from the defendant's solicitor. In it, he asserted that there were issues with the payment of his legal fees by the defendant. He had been instructed by his superior to suspend work until payment was made. He told the defendant that he could not respond to the notice to admit facts until he was paid. The defendant told him he had no money and that he wanted the supervising judge to know. The defendant also told him that his son was very sick. The solicitor told the defendant that he should terminate the solicitor's retainer. He alternatively proposed a payment plan. The defendant neither terminated the retainer nor made payment in accordance with the plan. There were further discussions between the solicitor and the defendant throughout 2009, during which the defendant raised his son's illness. In about November 2009, the defendant told his solicitor that he would write to the trial judge - and he did so - prompting the review on 8 March 2010.

[47] On 16 December 2009, the solicitor received a medical report about the grave state of the defendant's son's health. He said he did not appreciate how serious things were until he received this information. He said if he had known how sick the boy was in July 2009, he would have then responded to the notice to admit facts. Also in December 2009, the defendant agreed to a payment plan, and the solicitor resumed work on his matter. On 5 March 2010, the solicitor received further information from the defendant about his son's precarious health. In early March 2010, the defendant instructed his solicitor to seek to set aside the notices to admit facts/alternatively apply to withdraw the admissions. The solicitor tried to get further instructions from the defendant but was unable to contact him, probably because he was involved in a trial in the divorce courts in Poland.

[48] The defendant argued that the matters mentioned above and others amounted to "exceptional circumstances" which justified the granting of leave to withdraw the deemed admissions.

[49] Daubney J observed that there was no explanation about how the matter came to be set down for trial when it was known that the notices had not been answered. Nor was there any deposition as to steps taken by the defendant to have the admissions withdrawn. The matter was raised for the first time at the court initiated review on 8 March 2010.

[50] His Honour applied Ridolfi and dismissed the application to withdraw the admissions (and an associated application to strike out the notices to admit). His Honour said at 28 - 29 (my emphasis):

"Notwithstanding the absence of any, let alone any sensible explanation for these applications being brought well after the defendant had consented to the matter being set down for trial, even if I were to accept that the defendant has explained why no responses were given to the notices, and has explained the delay in bringing the application, the material relied on by the defendant neither deposes to the responses which the defendant would seek to make, nor confirms that those responses would accord with the evidence to be led at trial (as per de Jersey CJ at [19]), nor are there detailed particulars of the issue of issues which the defendant would raise at trial if the admissions were withdrawn (as per Williams J at [32]).

In view of my conclusions on this aspect, it is unnecessary for me to canvas matters of prejudice, save to observe that it is clear that at this late stage the plaintiff would undoubtedly be prejudiced by the withdrawal of admissions, particularly in the absence of the defendant nominating the issues he will seek to agitate at trial.

Since the observations of the Court of Appeal in Rigato Farms about the need to apply Rule 189 in light of the operation of UCPR Rule 5, the High Court in Aon Risk Services Australia Ltd. v. Australian National University (2009) 239 CLR 175 said at paragraph 112:

"A party has a right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to the parties having a sufficient opportunity to identify the issues they seek to agitate."

The defendant in the present case has had choices about the way in which he would defend the claims, and still potentially had those choices available to him when he consented to have the matter set down for trial.

To make the applications, as he has done, only a month out from that trial, and to fail even to indicate what issues he would seek to ventilate at trial if the deemed admissions were withdrawn, is simply too little too late."

Hanson Construction Materials P/L v Norlis & Ors [2010] QSC 34

[51] The plaintiff commenced proceedings against the defendant and its guarantors for the defendant's default under a credit contract. The defendants' defence did not comply with rule 166 and deemed admissions arose. The defendants were thereby taken to have admitted critical facts asserted in the statement of claim. The plaintiff relied upon the deemed admissions to seek summary judgment. That application, and an application to withdraw the admissions, were heard together by Wilson J. With respect to the application to withdraw the deemed admissions, Wilson J said (footnotes omitted):

"[16] A party may withdraw an admission made in a pleading only with the Court's leave. The following matters are generally relevant to the exercise of the discretion whether to grant leave:

• how and why the admission came to be made;
• the evidence surrounding the issues the subject of the admission;
• whether there is likely to be a real dispute about the evidence;
• any delay in making the application for leave to withdraw the admissions;
• prejudice to the other party.

Leave to withdraw admissions is not obtained for the asking. It will rarely be granted in the absence of evidence that there is a genuine dispute about the matters deemed to have been admitted."

[52] Because the applicant had not produced material which showed that there was a genuine dispute about the delivery and invoicing of the goods (the subject matter of the deemed admissions), her Honour refused the application for leave to withdraw. Her Honour gave judgment on the summary judgment application for the plaintiff and made the declarations sought by the plaintiff. Her Honour's decision was unsuccessfully appealed in the following matter.

Hanson Construction Materials Pty Ltd v Norlis Pty Ltd and Others (2010) 79 ACSR 668; [2010] QCA 246

[53] Chesterman JA, with whom Muir JA and Applegarth J agreed, emphasised the need for evidence to establish a genuine dispute as critical to the success of an application to withdraw deemed admissions:

"[15] It is no doubt true that the UCPR are meant to expedite litigation and to limit disputes to issues that are genuinely in contest, but it must, in my respectful opinion, remain the case that the rules do not operate so as to prevent the trial of issues that are genuinely in dispute.

[16] The first consideration, therefore, in an application to withdraw admissions must be whether the subject matter of the admission is truly contested. Often, if not always, that determination will be informed by the circumstances in which the admission was made. It is usually a good indication that a fact is not in dispute that the party against whom it is made admits it to be true. This, I apprehend, is why the cases emphasis the need for an explanation as to the making of the admission. If an applicant cannot demonstrate that there is a real dispute about the subject matter of the admission no other consideration need be examined.

[17] As her Honour's reasons reveal the primary judge approached the application on this basis and dismissed it because the appellants had not demonstrated a sufficient evidentiary basis for their assertion that Norlis did not owe the sum claimed by the respondent. ..."

[54] In general terms, Norlis claimed that it did not owe money because the concrete the plaintiff was to supply to it was not supplied. His Honour considered the nature of the evidence tendered before the primary judge about this issue and stated at [18] that it amounted to no more than a simple assertion that a dispute exited. At [19] - [21], his Honour identified the sort of evidence which could be obtained to establish the dispute. At [22], his Honour stated that the appellant's evidence did not establish a basis for disputing the delivery of the goods, payment for which was claimed. That was the conclusion reached by the primary judge and it was correct.

Hartmann v Pilkington & Ors [2012] QSC 254

[55] In this matter, Wilson J granted the plaintiffs leave to withdraw some of the deemed admissions contained in their Reply.

[56] Of the need for evidence establishing a genuine dispute, her Honour referred to Chesterman JA's reasons in Hanson and said (my emphasis):

"[12] It follows from the necessity of demonstrating that there is a real dispute about the subject matter of the admission that an applicant for leave needs to show the response he or she would belatedly make to the allegation and to confirm that that response would accord with evidence available to be led at trial."

[57] Her Honour observed that there was no warrant for restricting the circumstances in which leave to withdraw an admission may be granted to those in which the applicant wishes to plead a denial and can provide a "direct explanation" for his or her belief that the allegation is untrue ([17]). Her Honour considered the sorts of inquiries a party would be expected to make before pleading a non-admission at [18]. At [20] her Honour emphasised the importance of relevant sworn evidence (my emphasis):

"[20] I consider that where a party wishes to withdraw an admission and instead to plead a nonadmission, he or she should not usually be given leave to do so in the absence of sworn evidence of inquiries made to find out whether the allegation is true or untrue, and the Court's being satisfied those inquiries were reasonable in all the circumstances."

[58] Where the evidential standard mentioned above was not met in relation to a certain deemed admission, her Honour refused leave to withdraw it. Where it was met, for example, where there was evidence before her Honour of inquiries made, which her Honour considered reasonable, leave was granted.

Green & Ors v Pearson [2014] QCA 110

[59] This was an unsuccessful appeal from the primary judge's decision to grant leave to the fifth defendant to withdraw deemed admissions and to amend his defence accordingly. The fifth defendant swore an affidavit verifying the content of the proposed amended defence, which demonstrated to the primary judge's satisfaction that there was likely to be a real dispute about the evidence.

[60] One of the grounds of appeal concerned inadequacies in the proposed amended defence - which the primary judge recognised but which did not get in the way of leave. Another of the grounds of appeal concerned the asserted lack of evidence to support the denial of the admissions made.

[61] As to the inadequacies of the proposed defence, Jackson J, with whom Fraser and Morrison JJA agreed, said:

"[40] ... First, the prima facie effect of a failure to withdraw an admission of one fact is not a preclusion against the grant of leave to withdraw an admission of another fact. Where a party applies for leave to withdraw admissions, it may be relevant to consider that other admissions, which will not be withdrawn by the proposed amendments and therefore will remain, reflect on whether it is appropriate to give leave to withdraw the particular admissions to be withdrawn by the leave to amend which is sought. But there is no simple rule that the failure of proposed amendments to deal with all the deemed admissions or to plead adequately to each and every allegation in the Statement of Claim will have a debarring effect on an application to amend in a way that withdraws some admissions."

[62] As to the evidential threshold, his Honour said (my emphasis):

"[45] The appellants rely on cases which support the contention that in many cases a party will need to prove the existence or reasonable likelihood of the existence of evidence to support the denial of the admission which it is seeking leave to withdraw.

[46] In exercising the discretion to give leave to withdraw an admission, there is no a priori rule as to what evidence is required in every case. Nor is there an a priori rule that an affidavit generally verifying a proposed defence will not be enough. Like the primary Judge, in my view it was relevant in the present case that the respondent who swore the affidavit was the principal witness who might be expected to know the relevant facts. It was therefore open to the primary Judge to act upon an affidavit generally verifying the contents of the draft defence dealing with facts within his knowledge. His Honour did so specifically because of the "level of detail with which the proposed amended pleading deals with the plaintiffs' allegations".

[47] That view was adopted in the context that after so much time "it would not be expected that the detail would still be retained in his mind" and that it would "be unlikely that he would have much in the way of documents from the time of the alleged events".

[48] In my view, there was no error of principle or failure to take a material consideration into account by his Honour in taking that approach in the circumstances of this case."[3]

TLL Investment Pty Ltd v Body Corporate for the Grange Community Titles Scheme 30993 & Ors [2022] QSC 87

[63] In this application to withdraw deemed admissions made by the defendant, the grounds for their withdrawal were set out in the second defendant's affidavit. He was, at the relevant time, the Chair of the Body Corporate. In dismissing the application, Jackson J considered the following matters: (a) whether there was a genuine dispute about the issue (here, publication of defamatory material); (b) how the admission came to be made; (c) delay; and (d) prejudice.

[64] Of relevance to me, his Honour said, as to each (footnotes omitted):

[17] The second defendant submitted that the first question on this application is whether the subject matter of the admission is truly contested. The question is informed by how and why the admission came to be made, evidence surrounding the issue as to whether there is likely to be a real genuine dispute about it, delay in making the application and prejudice to the respondent."

[65] His Honour observed that the evidence presented reflected a false factual and legal assumption about what it meant to publish defamatory matter. Given the state of the evidence, it was not clear to his Honour whether there was a real genuine dispute about publication in the proceeding.

[24] It is relevant to inquire how it came to be that the admissions of the second defendant sending the relevant documents came to be made in the first, second and third defences."

[66] There was no evidence from a relevant solicitor as to how the admissions came to be made. And his Honour was cautious about accepting the contention that the second defendant had not previously given instructions from which the relevant admissions were rightly made.

[27] ... Delay is significant conceptually because of the "effect of delay on the quality of justice" that is statutorily recognised in the duty of the parties to a proceeding in this court to "proceed in an expeditious way" that is in turn is informed by the purpose of the rules of court "to facilitate the just and expeditious [resolution] of the real issues ... at a minimum of expense"."

[68] His Honour referred to the long period of delay through three prior iterations of the defence, in circumstances where the lawyers acting for the second defendant at the time had not given evidence about the instructions they took for those defences on the subject matter of the admissions.

[69] As to prejudice, his Honour rejected the argument that it was minor. If leave were granted, there could be the need for another round of pleadings and significant delay in a case which was already three years old (in April 2022), which concerned publications from 2017. Also, the second defendant was not fit to attend court and there was evidence of his significant cognitive decline.

Medina v Electro Industry Group Queensland Limited [2019] QSC 63

[70] The plaintiff claimed damages for personal injuries arising out of workplace accidents. The defendant sought leave to withdraw a number of admissions - some express and others deemed by operation of rule 166. The injuries were sustained in 2003 and 2004. The claim and Statement of Claim were filed on 8 May 2009. After delays and a convoluted procedural history, an application to withdraw admissions was filed on 31 January 2018 and heard on 12 March 2018. If leave were granted, the defendant would plead a case which reflected a dramatic change from its original position.

[71] At [46], Burns J noted that the discretion to grant leave to withdraw was unfettered but had to be exercised judicially. His Honour observed that the decided cases revealed a range of factors to be decided by the court, including -

(a) how and why the admission came to be made;

(b) the evidence surrounding the issue the subject of the admission;

(c) whether there is likely to be a real dispute about the evidence;

(d) whether there is delay in making the application for leave;

(e) whether any such delay is satisfactorily explained; and

(f) whether the other party will be prejudiced if leave is granted.

[72] At [47] his Honour observed that the court would ordinarily require sworn verification of the circumstances in which the admissions came to be made - although deemed admissions were potentially in a different category from express admissions.

[73] His Honour accepted that the admissions came to be made because of errors made by the defendant's legal representatives (which they swore to). But his Honour considered that only part of the story - noting that if leave were granted, irremediable prejudice would be visited on the plaintiff. If leave were granted, the plaintiff would be faced with the impossible task of investigating a workplace accident from 15 year ago.

[74] Because of the significant prejudice to the plaintiff, his Honour determined to keep the defendant to its original case, with certain exceptions. His Honour said:

"[84] Given such significant prejudice to the plaintiff if relief is granted, the defendant must be kept to the case it pleaded prior to such a dramatic change in its position, including most of the consequences that flow to it by operation of r 166 UCPR. The exception to the strict operation of that rule will arise where it is necessary to make clear that, while the defendant admits that the plaintiff was injured in both incidents, it denies that he suffered loss and damage to the extent alleged, and, further, to make clear that the defendant denies that it was negligent but alleges, if it still wishes to do so, that any injury, loss or damage was caused by the negligence of the third party."

[75] The applicant referred me to the decision of Hindman J in D.J. & M.A. Hose Pty Ltd ATF The Hose Family Trust v Wide Bay Insurance Broking Pty Ltd The Wide Bay Business Trust [2022] QSC 191 in which her Honour -

(a) set out the applicable principles from Ridolfi, Medina, Hanson and [8.120] of Australian Civil Procedure at [44] - [48];

(b) observed that the discretion to withdraw an admission is to be guided by rule 5 of the UCPR; and

(c) quoted the following from the decision of Bradley J (as his Honour then was) in Davies v Davies (No 1) [2019] QSC 293 (my emphasis):

"[45] The court has a broad power to make 'any order or direction about the conduct of a proceeding it considers appropriate' that may be engaged to grant leave to withdraw an admission. The interests of justice are paramount in determining whether an order or direction should be made. The broad power is to be applied with the objective of 'avoiding undue delay, expense and technicality' and facilitating 'the just and expeditious resolution of the real issues ... at the minimum of expense'. The court's inherent power to control and supervise proceedings extends to granting such leave where that is an 'appropriate action to prevent injustice'.

[46] A party seeking leave to withdraw an admission should identify the reason for the withdrawal, explain how the admission came to be made, and identify any prejudice that may be caused if the application is refused. The stage of proceedings, the prospects of the party succeeding on the issue if the admission is withdrawn, any prejudice to other parties if the admission is withdrawn, and any other matter affecting the administration of justice should be considered to determine how the interests of justice may be served, consistently with the express objective of the rules. All of these matters may inform the exercise of the discretion under s r 367 or the court's inherent power."

[76] In addition to an expectation that an applicant would produce sworn evidence verifying the circumstances justifying the grant of leave, I noted the emphasis in those authorities upon the genuineness of any dispute/contest about a matter, and the obvious importance of always bearing in mind the interests of justice.

Whether the subject matter is truly contested

[77] The defendant's written outline of submissions attached a document entitled "Annexure A", which, he said, outlined the material facts intended to be admitted, denied or not admitted as a result of the proposed withdrawals of the defendant's admissions. He asserted that this was enough to raise a genuine dispute. He said, "These withdrawals ... demonstrate that the effect of the changes is due to the subject matter being genuinely contested". With respect to the defendant, it is difficult to see that he has done anything other than assert without evidence that a matter is in dispute, which the Court of Appeal authority to which he referred, Hanson, said was not enough.

[78] As will emerge, rather than deal with this issue globally, I considered the subject matter of each deemed admission separately to answer this question.

[79] The application was made when the parties were almost at the point of filing a request for a trial date. Mr Mathas' explanation for the delay was that he'd hoped the matter would resolve by way of mediation, and that he had issues with funding. In my view, Mr Mathas did not explain in satisfactory detail why he/the defendant ignored for so long the information about deemed admissions contained in the respondent's Reply. Nor did he explain the failure to take any action in relation to the deemed admissions between the date of the Reply and the Court's intervention notice or the mediation. Nor did he explain the delay between the failed mediation and the bringing of the application.

[80] Further, even though the defendant foreshadowed in May 2025 his intention to file an amended defence (under the mistaken belief that that would be sufficient to overcome the deemed admissions); and even though on 3 June 2025 he, in effect, undertook to file a relevant application by 11 June 2025 (that date having been set by consent), he did not do so. Nor did he seek to vary the date for compliance with the consent order. Nor did he tell the plaintiff on 11 June, or before that date, that he would not be filing an application on time. Nor did he explain on this application the reason for his delay beyond 11 June 2025.

[81] Even then, the application filed on 24 June 2025 would not have achieved its intended purpose. An amended application and a second proposed amended defence were produced at the eleventh hour. And even then, the second proposed amended defence did not comply with the UCPR.

[82] The delay operates to the detriment of the defendant in this application.

Insufficiency of evidence filed in support of the application

[83] The defendant himself produced no evidence in support of the application - not even an affidavit verifying the content of the proposed second amended defence. He relied upon the very generally expressed affidavit of his solicitor Mr Mathas.

[84] Mr Mathas swore that he had instructions from the defendant not to admit, or to deny, the matters the subject of the deemed admissions (see paragraph 6) but said that he was unfamiliar with the UCPR, and his defective pleading led to the defendant admitting certain matters.

[85] With respect to the relevance of Mr Mathas' unfamiliarity with Queensland's pleading rules, the defendant referred me to two cases in which judges of this court have granted leave to withdraw admissions on the strength of evidence of genuine error on the part of legal practitioners unaware of the UCPR, namely the decisions of DJ & MA Hose Pty Ltd v Wide Bay Insurance Broking Pty Ltd [2022] QSC 191 and Churchill v Clearview Life Assurance Ltd [2023] QSC 225.

[86] Recognising the discretionary nature of those decisions, I note that the application in DJ & MA Hose was made at an early stage of the proceedings; the delay in bringing the application itself was not excessive and did not "loom large"; the subject matter of the proceeding was not too distant in time; and the issue of prejudice to the plaintiff could be adequately compensated for by way of an appropriate costs order - see [49] - [52].

[87] As to Churchill v Clearview, I note that -

(a) the affidavit of the defendant/applicant's solicitor was considerably more extensive than the affidavit of Mr Mathas in this case (see [30] - [38]),

(b) the plaintiff/respondent did not oppose the applicant being granted leave to withdraw 41 of the 52 deemed admissions;

(c) issues of delay and prejudice did not loom large (see [52]); and.

(d) for most of the deemed admissions, the issue was with the way in which matters were pleaded, not the substance of the response to the Statement of Claim.

[88] My own research led me to the decision of the Court of Appeal in Yao v Fang [2025] QCA 86, which concerned express, not deemed, admissions. The defendants in that case relied upon extensive affidavit evidence of their solicitors but tendered no evidence of their own. One of the factors relied upon by the primary judge in refusing leave to withdraw was the absence of evidence from the defendants themselves about how the admissions came to be made in the first place, which caused her Honour to conclude that there was no real issue in dispute that the interests of justice required to be addressed (see [47]). The Court of Appeal held that that conclusion was in error. The defendants brought their application for leave to withdraw admissions after their successful application before the same judge to vacate the trial date to allow them to investigate and pursue alternative defences, contrary to their pleaded admissions ("the first application"). The absence of evidence from the defendants themselves was not seen as an overwhelming obstacle to the success of the first application, and the Court of Appeal could not see how it would be such an obstacle on the application to withdraw. The Court of Appeal said (my emphasis):

"[52] Once bad faith tactical considerations are discounted from consideration, we conclude that the correct conclusion open on the evidence was that the issue of Ms Fang's ownership of the funds was a real issue in dispute that the interests of justice required to be addressed."

[89] The Court of Appeal found that the primary judge's discretion had miscarried and granted leave for the withdrawal of the relevant admissions.

[90] Returning to the present application: as well as there being no evidence from the defendant himself, there was no evidence tendered of reasonable inquires having been made in relation to matters the defendant wished to properly plead as non-admissions. The defendant submitted that the authorities recognised that there were matters in which no reasonable inquiry can be made - because, for example, only the plaintiff and the defendant were present for a conversation. I accept that, in some situations, there are no reasonable inquiries which can be made. But that was not the case for all of the matters the defendant wished to remain the subject of non-admissions. Nor was there any sworn evidence from the defendant (or his solicitor) which suggested that he had turned his mind to the issue of reasonable inquiries in any event. Indeed, as will emerge, the defendant wished to plead that he had made reasonable inquiries when he had not.

[91] Also, the defendant sought leave to withdraw an express admission without evidence as to how it came to be made; or to establish that it concerned a matter genuinely in dispute.

[92] The lack of any evidence from the defendant, or satisfactory evidence from his solicitor, operates to the disadvantage of the defendant in this application.

[93] The defendant submitted that, if leave were granted, the plaintiff's prejudice amounted only to a "minor extension of time": there was no jeopardy to a trial date. Further -

(a) granting leave would not require any revision of the respondent's evidence;

(b) the defendant was not asserting that new information had come to light; and

(c) he had not changed his position from that which he had originally pleaded. Rather, he sought "only... to rectify technical discrepancies to ensure compliance with the pleading requirements under the Rules".

[94] With respect, those submissions understate some of the changes the defendant wished to effect by his amended Defence. It is true that in relation to some deemed admissions, the amendments seek only to properly plead a non-admission. But that is not the case with all.

[95] The plaintiff drew the defendant's attention to the deemed admissions in its Reply years ago. On the strength of the deemed admissions, it had gone to mediation and was preparing for trial. I accept that the plaintiff will be prejudiced to some extent if I were to grant leave. However, the prejudice in terms of delay and costs may not be as significant as the plaintiff anticipates, bearing in mind the nature of at least some of the changes the defendant wishes to make. Similarly, having regard to the nature of several of the issues in respect of which deemed admissions have arisen, the defendant has, in my view, over-estimated the prejudice he would suffer were leave not granted.

[96] Overall, in my assessment, prejudice to the plaintiff operates to the disadvantage of the defendant on this application, but it is not a factor which looms large.

[97] To ensure I understood the application correctly, I asked the defendant to confirm the paragraphs which gave rise to the deemed admissions the subject of the application to withdraw. He confirmed that he sought leave to withdraw the deemed admissions arising in the following paragraphs of the defence filed on 18 April 2023:[4]

21(c) (sic) - I have assumed that the defendant intended to refer to 21(b)

22(b) (sic) - I have assumed that the defendant intended to refer to 22(c)

[98] In reaching a decision about leave in relation to each of the deemed admissions, I considered whether the interests of justice called for the granting of leave to allow a real issue in dispute to be addressed, bearing in mind the delay; the absence of relevant evidence; and the prejudice to the plaintiff which might be occasioned by any grant of leave. I considered each of those matters in all cases, even if I did not expressly mention them in my reasons in relation to a particular paragraph.

[99] Paragraphs 2 - 5 of the filed Defence respond to the allegations under the heading "Initial request for loan funds" in the Statement of Claim at paragraphs 6 - 10.

[100] The initial request was said to have been made in or around February or March 2010, during a conversation (or perhaps more than one conversation) between Mrs Nixon and the defendant at which Robyn was also present.

[101] Paragraph 2 of the filed Defence responds to paragraph 6 of the Statement of Claim which sets out what the defendant was alleged to have said to Mrs Nixon in Robyn's presence.

[102] Paragraphs 2(a), 2(b) and 2(c) expressly admit or deny certain facts - including a denial that Robyn was present. But paragraph 2(d) pleads that the defendant "says that at the time" the facts set out in (i) - (vi); and continues at (vii) that the defendant "otherwise does not recall making statements to the effect attributed to him in that paragraph".

[103] As I interpret the filed Defence, the statements that the defendant said he does not recall making were that he told Mrs Nixon that he and McGinley needed funds for a business venture (Schoolbiz), which would allow him to break away from difficulties he was experiencing at a company called "Orso". (I acknowledge the plaintiff claims that the admissions went beyond those matters.)

[104] The phrase "does not recall" in paragraph 2(d) of the filed Defence is ambiguous (as it is in all other paragraphs in which it is used). It does not say whether the defendant denies or does not admit those statements.

[105] The plaintiff pleaded in its Reply that the defendant was (for his non-compliance with rule 166) taken to admit the statements. The defendant did not seek to argue otherwise.

[106] The defendant sought to have the deemed admissions withdrawn and to plead instead at 2(d)(vii) that he:

"otherwise, does not admit the allegations made in the paragraph because he cannot recall making the statements to the effect attributed to him in that paragraph and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries."

[107] The difficulty with that pleading (and others like it) is not only that the defendant produced no evidence of his "reasonable enquiries" but also that his barrister submitted that, because the defendant's position was that only he and Mrs Nixon were present for the conversation, there were no reasonable inquiries he could have made. Thus, I am, in effect, being asked to grant leave to the defendant to withdraw his deemed admissions so as to permit him to plead instead something which includes a falsehood - namely that he made an enquiry of someone.

[108] I will not grant the defendant leave to withdraw the paragraph 2(d)(vii) deemed admissions not only because of the falsehood embedded into the proposed amendment, but also because there is no real relevant issue which needs to be addressed in the interests of justice:

(a) The proposition that the loan was advanced to the defendant and McGinley is supported by the Deed of Loan document (tendered by the plaintiff on this application) and in any event, there is no claim against McGinley.

(b) The reason why the defendant wanted to invest in Schoolbiz (to break away from Orso or otherwise) is not something of relevance to the real issues in dispute.

(c) There is no dispute that the money was lent by the plaintiff.

(d) There is no dispute that the money was provided for the purposes of Schoolbiz.

[109] Paragraph 3(b) of the filed Defence responds to the assertion in paragraph 7 of the Statement of Claim that Mrs Nixon agreed that the plaintiff would provide the loan on the basis that it would be formalised in writing. Paragraph 3(b) says:

"... the defendant ... (b) does not recall any suggestion by Mrs Nixon that the loan was to be formalised."

[110] The plaintiff's position was that it could take as admitted the assertion that Mrs Nixon said that she wanted the loan formalised because of non-compliance with rule 166 in that 3(b) did not say whether the assertion in paragraph 7 of the Statement of Claim was not admitted or denied. The defendant did not contend otherwise, but sought to have the deemed admission withdrawn and to plead:

"... does not admit the allegation that recall any suggestion by Mrs Nixon asked that the loan was to be formalised because he does not recall any such statement being made and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries."

[111] The defendant produced no evidence of reasonable inquiries having been made and, indeed, submitted that there were no reasonable inquiries to make. The proposed amended paragraph therefore contains a falsehood.

[112] It is clear that the loan was formalised. The Deed of Loan document was executed by the parties. Bearing in mind the delay and the paucity of evidence produced by the defendant on this application, the interests of justice do not require the issue of whether Mrs Nixon said she wanted the loan formalised to be addressed by way of the amendment to the paragraph proposed. I will not grant the defendant leave to withdraw the paragraph 3(b) deemed admission.

[113] Paragraph 4 of the filed Defence responds to paragraphs 8 and 9 of the Statement of Claim which assert that (my paraphrasing) -

(a) During a meeting (that is not identified with any further precision) Robyn orally agreed to provide security over her Property for the loan;

(b) Mrs Nixon told the defendant and Robyn that she would engage a solicitor to prepare a formal loan or other agreement "with security over Robyn's home";

(c) Mrs Nixon told the defendant and Robyn that the legal costs of the preparation of the loan or other agreement were to be paid by the defendant.

"In answer to paragraphs 8 and 9 of the Claim (sic), the defendant denies that Robyn was involved in any of the discussions."

[115] The plaintiff complained, and the defendant accepted, that the pleading did not respond to the allegations in paragraphs 8 and 9; nor did it comply with rule 166 - and thus, the defendant was deemed to have admitted: Robyn's presence; Robyn's oral agreement to provide the Property as security for the loan; and that Mrs Nixon said she would engage a solicitor to prepare a formal loan agreement, with security over the Property, with the costs of its preparation to be borne by the defendant.

[116] The applicant seeks to amend his defence to read:

"In answer to paragraphs 8 and 9 of the Claim (sic), the defendant:

(a) denies that Robyn was involved in any of the discussions or made any statement, as those allegations are untrue;

(b) denies that the statements alleged in those paragraphs were made as those allegations are untrue."

[117] The plaintiff submitted that the proposed amendment does not achieve compliance with rule 166 in any event: to state that the allegations are untrue is insufficient.

[118] I appreciate that the defendant has always denied that Robyn was present for the meeting/conversation asserted in paragraphs 8 and 9 of the Statement of Claim, and it follows that, if she was not there, then she could not have agreed to anything at that meeting/during that conversation. But the defendant produced no evidence from Robyn on this application which would allow me to conclude that there was a genuine issue about whether Robyn told her mother that she would provide security for the plaintiff's loan to her husband. In my view, whether Robyn told her mother that she would provide security for her husband's loan is not something that she would have forgotten - notwithstanding the assertion that it was said many years ago. If it was to be genuinely disputed, it would have been a simple thing for the defendant to obtain relevant evidence.

[119] The Deed of Loan which was prepared contains the following clauses relevant to security for the loan:

8.1 In consideration of the Mortgagee advancing or agreeing to advance moneys to the Mortgagor under or pursuant to this Deed each of the Mortgagor and the Guarantor (if any) agrees to execute or upon demand from the Mortgagee procure the execution in favour of the Mortgagee of the securities referred to in the Third Schedule.

8.2 The Mortgagor and the Guarantor (if any) agree that each of the securities described in the Third Schedule is a Collateral Security to the intent that the Moneys Owing are secured thereby. Default under any of the Collateral Securities shall constitute default under this Deed.

Caveat over property owned by Robyn Elizabeth Nowytarger situated at and known as 7 Barrabooka Street Clontarf New South Wales being the whole of the land contained in Folio Number 14/K/2601 and being more fully described as Lot 14 of Section K in Deposited Plan 2610 at Clontarf, Local Government Area Manly, Parish of Manly Cove, County of Cumberland."

[120] The Deed of Loan document includes as its last page Robyn's signed consent to the plaintiff registering a caveat over the property "to better secure the loan evidence by his deed". I acknowledge the defendant's assertions about: (a) how this consent came to be signed by Robyn; and (b) whether it was attached to the Deed document that he executed.

[121] Clause 10 of the Deed of Loan also provides for the payment of all legal and professional fees, charges and expenses to be met by "the Mortgagor" (the way in which the defendant is described in the Deed).

[122] The Deed of Loan speaks for itself. It seems to have been prepared by a lawyer; it provides for security over Robyn's home; and it provides that the defendant will bear the costs of its preparation.

[123] Having regard to the evidence of the content of the Deed of Loan and the absence of relevant evidence from the defendant, I will not grant the defendant leave to withdraw the paragraph 4 deemed admissions. I am not persuaded that there is a genuine dispute which needs to be addressed in the interests of justice about whether Robyn orally agreed to provide security over her Property for the loan to her husband; or whether Mrs Nixon said she would engage a lawyer to prepare a loan document with security over Robyn's home; or whether Mrs Nixon said that the defendant would pay for the costs of preparation of the loan documentation. The critical issues in genuine dispute are the interpretation of the Deed of Loan; its content when it was executed by the defendant; whether he authorised (or is to be taken to have authorised) the handwritten annotations to it; and its character as a specialty from a limitation perspective.

[124] Paragraph 6 of the filed Defence responds to paragraph 11 of the Statement of Claim.

[125] Paragraph 11 of the Statement of Claim alleges a conversation between Mrs Nixon, the defendant and Robyn in early March 2010 during which -

(a) the defendant asked Mrs Nixon to advance loan funds before a formal agreement was prepared and executed;

(b) Mrs Nixon "agreed, on behalf of the plaintiff, to provide funds of up to $500,000 prior to a formal loan agreement or other arrangement being prepared and executed on the condition that any such advances made prior to the formal loan agreement or other arrangement being entered into would form part of the principal loan sum provided for under the formal loan agreement or other arrangement, which was to be prepared by her solicitor".

(c) the defendant agreed and stated that he would have an initial informal document prepared on that basis and in anticipation of the Deed of Loan being formalised and executed.

(a) denies that Robyn was involved in any of the discussions; and

(b) otherwise denies the allegations made in that paragraph."

[127] The defendant accepted that that pleading resulted in deemed admissions, upon which the plaintiff relied. They are set out in the plaintiff's matrix.

(i) a meeting occurred between Mrs Nixon and the defendant in or around early March 2010;

(ii) the defendant requested that the plaintiff advance loan funds to Schoolbiz;

(iii) Mrs Nixon agreed that funds of us to $500,000.00 would be advanced;

(a) denies that Robyn was involved in any of the discussions, as that allegation is untrue;

(b) otherwise denies does not admit the balance of the allegations made in that paragraph because he does not recall any such statements being made and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries."

[129] I note that the amended paragraph 6(b) pleads a non-admission rather than the initial denial. As I understand the proposed amended paragraph, the defendant seeks to not admit that:

(a) he asked for $500,000;

(b) he asked for money in advance of the formal loan agreement being prepared;

(c) Mrs Nixon agreed to provide the $500,000 prior to the execution of the formal loan agreement - which would be prepared by her solicitor;

(d) Mrs Nixon said that the amount advanced would become part of the principal sum under the formal agreement.

(e) he agreed; and

(f) he said he would prepare an informal document on that basis and in anticipation of a formal loan agreement.

[130] As before, there was no evidence of the defendant having made reasonable inquiries and one might be forgiven for concluding that the second amended draft defence was prepared formulaically, without proper consideration of the truthfulness of what it asserted. Nor was the SchoolBiz letter itself before me - although some of its content appeared in paragraph 13 of the Statement of Claim.

[131] What the Statement of Claim alleges was said would be done is broadly consistent with what was in fact done. Money was provided by the plaintiff in advance of any formal loan agreement. The defendant prepared an informal document - the SchoolBiz letter. A formal loan agreement was prepared. It defines "Moneys Owing" to mean all moneys which are or which hereafter may become owing or payable [by the borrowers]. The reference to moneys "which are ... owing" suggests that it intended to cover advances which had already been made.

[132] It might be that the most difficult thing for the defendant about these deemed admissions is the admission that he agreed that any advances made prior to the formal loan agreement would become part of the principal sum under that agreement - although that was not submitted to me. But in any event, he does not wish to deny it.

[133] I note that the plaintiff's second version of the List includes as an issue to be determined, "Whether discussions occurred in early March 2010 where it was agreed that the plaintiff would advance up to $500,000 prior to formal documents being executed on the basis that such amounts would ultimately be provided for under a formal Deed of Loan".

[134] The plaintiff's position as per that List is inconsistent with its position when it comes to the deemed admissions arising out of the pleading of paragraph 6(b) of the filed Defence.

[135] In my respectful view, the plaintiff's position as set out in its second version of the List is broadly consistent with the substance of the defence. In the interests of justice, I will therefore grant the defendant leave to withdraw the paragraph 6(b) deemed admission to the extent that it is necessary to reflect the issues to be determined, as per paragraph 32 of the second version of the List.

[136] As an aside, I note that the defendant seeks to deny Robyn's involvement in the discussion. But paragraph 11 of the Statement of Claim does not allege that she was involved at all - on the assumption that "involvement" means something more than presence.

[137] Paragraph 11 of the filed defence responds to paragraph 17 of the Statement of Claim.

[138] Paragraph 17 of the Statement of Claim concerns the second advance of money by the plaintiff. It says:

"On or about 17 March 2010, the defendant verbally made a request to Mrs Nixon to the effect that:

1. the plaintiff make a further loan advance to him and McGinley;
2. that the advance be in the sum of $150,000; and
3. that such advance be made to the same account as provided during the telephone discussion pleaded in paragraph 14 above [that is, Schoolbiz's bank account]."

"In answer to paragraph 17 of the claim (sic): the defendant:

(a) admits that he made a request for the plaintiff to advance money to Schoolbiz; and

(b) otherwise denies the allegations made in the paragraph.

[140] Thus, the effect of paragraph 11 of the filed Defence is to create deemed admissions as to the quantum of the advance and the direction about where the money was to be paid.

[141] The defendant seeks to amend 11(b) to read: "otherwise denies does not admit the allegations made in the paragraph because he does not recall stating those matters and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries.

[142] There was no evidence that reasonable enquiries had been made about this matter (if indeed there were any to be made). But most significantly, the defendant did not contest the fact that on 17 March 2010 the plaintiff in fact paid $150,000 into the SchoolBiz account (see paragraph 12 of the Defence and Mr Mathas' mark ups to the List). Whether the defendant can recall asking the plaintiff to do so is of limited relevance. Bearing in mind all relevant factors, the withdrawal of the deemed admission is not warranted in the interests of justice. I will not grant the defendant leave to withdraw the paragraph 11(b) deemed admission.

[143] Paragraph 14 responds to paragraphs 20 - 22 of the Statement of Claim. Those paragraphs state:

"20. On or about 22 March 2010, the defendant and McGinley executed a written document entitled "Deed of Loan" (Deed of Loan) and provided it to Mrs Nixon, on behalf of the plaintiff.

1. The signature of the defendant and McGinley was stated as:

1. On or about 23 March 2010, the plaintiff executed the Deed of Loan."

"In answer to paragraphs 20 - 22 of the Claim (sic), the defendant:

(a) admits that on 20 March 2010 he (and McGinley) signed a document titled "Deed of Loan" in a form that had been sent to him by the plaintiff (Executed Document);

(b) admits that his signature (and that of McGinley) on the Executed Document was stated to be "signed, sealed and delivered" and was witnessed by [X];

(c) says that he sent the Executed Document to Mrs Nixon;

(d) says that at the time the Executed Document was signed, witnessed and sent to Mrs Nixon:

(ii) the handwriting including definitions of "the Mortgagee" and "the Mortgagor" on the first page had not been completed;

(iii) the date in item 2 of the first schedule had not been completed; and

(iv) denies that it included a page including the heading "consent" signed by Robyn."

[145] The plaintiff claimed, and the defendant accepted, that he was deemed to have admitted paragraph 22 of the Statement of Claim - that is, that the plaintiff executed the Deed of Loan on 23 March 2010 (as per the plaintiff's matrix).

[146] The defendant wishes to amend his filed Defence to confine paragraph 14 to a response to paragraphs 20 and 21; and to include his response to paragraph 22 in a new paragraph 14A.

(a) asserts that the Mrs Nixon amended the Deed of Loan document executed by the defendant and McGinley by making handwritten annotations to it;

(b) admits that Mrs Nixon signed a document entitled "Deed of Loan" which was dated 23 March 2010 (not that she signed it on that date);

(c) does not admit the date the plaintiff signed the document;

(d) asserts that what she signed/the plaintiff executed, was not the Executed Document.

[148] The plaintiff's second version of its List did not include as an agreed fact that the plaintiff executed the Deed of Loan on 23 March 2010. This may be contrasted with paragraph 16 of the first version of the List.

[149] The plaintiff's second version of its List included as issues to be determined the following:

"34. Whether the Deed of Loan contained the Consent to Caveat page when it was provided to the defendant.

1. Whether any alterations were made to the Deed of Loan after it was signed by the defendant.
2. Whether any alterations to the Deed of Loan after it was signed by the defendant were authorised by the defendant."

[150] Given the plaintiff's understanding of the filed Defence, I will grant leave to the defendant to withdraw his deemed admission/s to ensure that the amended Defence reflects the position taken by the plaintiff on this issue, as per its second version of the List.

[151] Paragraph 15 of the filed Defence responds to paragraph 23 of the Statement of Claim which sets out some of the detail of the Deed of Loan; including that it states that it was "made on "23[sic] day of March 2010"; and that it defined the plaintiff as the "Mortgagee" and each of the defendant and McGinley as the "Mortgagor".

[152] The Deed of Loan document was a typed document. I note that -

(a) its signature page (12/14) bore the signatures of Mrs Nixon, on behalf of the plaintiff the defendant and McGinley, but the date upon which the document was signed (by each or all) does not appear on that page;

(b) Robyn's consent appears to bear her signature and is dated 22 March 2010;

(c) item 2 of the First Schedule includes a handwritten "22" in the Item 2 "Due Date" of 22 March 2011.

(d) the first page of the Deed of Loan includes a handwritten "23" in its opening sentence, "THIS DEED is made the 23 day of MARCH 2010".

(e) On the front page, where the parties are identified, after the plaintiff's name, in handwriting, appears "(hereinafter called the mortgagee)" and after the defendant's and McGinley's names, in handwriting, appears (as I interpret it) "([ditto][5] called the mortgagor)".

[153] In broad terms, paragraph 15 of the filed Defence asserts that the "Executed Document", that is, the Deed of Loan document which the defendant returned to the plaintiff after he and McGinley signed it, did not include the handwritten dates or mortgagee/mortgagor descriptors; nor was the defendant requested to, nor did he authorise, the handwritten additions. Paragraph 15 of the filed Defence states:

"In answer to paragraph 23 of the Claim (sic), the defendant:

(a) says that the Executed Document did not include a date and he was not requested and did not authorise the insertion of a date in the document;

(b) says that the Executed Document did not include definitions of "the Mortgagee" and "the Mortgagor" and he was not requested and did not authorise the insertion of those definitions into the Executed Document at a later time;

(c) says that the Executed Document did not include any reference to "22 March 2011" in item 2 of the first schedule;

(d) will rely at the hearing of this matter on the Executed Document as if it were set out in full in this defence; and

(e) otherwise denies the allegations made in that paragraph."

[154] The plaintiff asserted, and the defendant accepted, that he was deemed to have admitted all of the allegations in paragraph 23 of the Statement of Claim. That paragraph outlines the content of the Deed of Loan, including the handwritten annotations.

[155] Given the way in which the plaintiff understands matters, as reflected in the second version of the List, and in its Reply, which is consistent with the defendant's position, there is no reason in the interests of justice requiring the withdrawal of the deemed admission. The parties understand what each is conveying by referring to the Executed Document rather than the Deed of Loan. The plaintiff's Reply conveys that it is accepted that the Executed Document did not include the handwritten annotations but asserts that their inclusion was authorised. I will not grant the defendant leave to withdraw the paragraph 15 deemed admissions.

[156] I note that the second version of the plaintiff's List states as an agreed fact that the defendant and McGinley signed the Deed of Loan "on or about 20 March 2010" - which is consistent with the defendant's present position.

[157] Paragraph 17 of the filed Defence responds to paragraph 25 of the Statement of Claim, which states, "On or about 19 April 2010, the plaintiff personally gave the Deed of Loan, fully executed by all the parties to it, to the defendant, for and on behalf of himself, McGinley and Robyn.

"In answer to paragraph 25 of the Claim (sic), the defendant:

(a) repeats his answer in paragraph 14 [essentially denying that he saw the Deed of Loan/Executed Document with the handwriting on it];

(b) denies that the Executed Document included a page including the heading "consent" signed by Robyn at the time that he gave it to Mrs Nixon; and

(c) does not recall the date on which he provided the Executed Document to Mrs Nixon."

[159] The plaintiff relied on the deemed admission which arose because paragraph 17 did not respond to the allegation in paragraph 25 of the Statement of Claim, which concerned Mrs Nixon giving the defendant the fully executed Deed of Loan. The deemed admission, as set out in the plaintiff's matrix, was that on 19 April 2010, the plaintiff personally gave the Deed of Loan, fully executed by all parties to it, to the defendant, for and on behalf of himself and McGinley and Robyn.

[160] The defendant seeks to withdraw the deemed admissions and to plead instead that he:

(i) after the defendant signed the Executed Document, he sent the original document to Mrs Nixon (as pleaded in paragraph 14 above);

(ii) the defendant did not ever receive a copy of the Executed Document back from Mrs Nixon;

(iii) On or about 14 October 2019, the solicitors for the Plaintiff sent the Defendant a letter enclosing a copy of various documents;

1. Letter from Muir Lawyers to MathasLaw, dated 14 October 2019

(iv) One of the documents enclosed in the letter referred to at paragraph 17(iii) above was the Executed Document, however it had been:

(1) modified in the form described at paragraph 14A(a), and 15(a)-(c) above; and

(2) signed by Mrs Nixon.

(v) The receipt of this document on 14 October 2019 was the first time the Defendant received the modified version of the Executed Document.

(c) denies that the Executed Document included a page including the heading "consent" signed by Robyn at the time he gave it to Mrs Nixon; and In the premises of the matters pleaded at paragraph 17(b) above, the Defendant denies paragraph 26 (sic) because it is untrue as the true events are as described at paragraph 17(b) above."

[161] The defendant produced no evidence (either from himself or Mr Mathas) to explain how paragraph 17 of the filed Defence came to be and when it was, and why, that he determined it was necessary to change his pleading in response to paragraph 25 of the Statement of Claim. Nor did he produce any evidence in support of the proposed amended paragraph. Nor, as mentioned, did the defendant even produce an affidavit verifying the contents of the proposed amended Defence.

[162] The second version of the plaintiff's List does not mention as an agreed fact or an issue to be determined the date on which the plaintiff gave the defendant the fully executed Deed of Loan. (Who she thought he was receiving it on behalf of does not appear to be relevant.)

[163] In my view, it would be to indulge the defendant too much to grant him leave to withdraw the admission that he was given the fully executed Deed of Loan by Mrs Nixon in April 2010 in the absence of any evidence in support of the assertions he now seeks to include in paragraph 17, which change his case on this point. In my view, to grant him leave to withdraw the deemed admission would be to allow him to do so "for the asking". Nor do the interests of justice require the granting of leave as it is the effect of the Deed of Loan, and its binding content, which is critical - not when the defendant received a copy of it. I will not grant the defendant leave to withdraw the paragraph 17(c) deemed admission.

[164] Paragraph 19 of the filed Defence responds to paragraph 27 of the Statement of Claim which states:

1. On or about 12 April 2010, the defendant verbally requested that the plaintiff make a further advance to the defendant and McGinley, in accordance with clause 2.2 of the Deed of Loan, in the amount of $100,000.

The request for the amount of $100,000 was made by the defendant to Mrs Nixon, on behalf of the plaintiff, during a conversation by telephone."

1. I am not sure what the plaintiff was intending to convey by the use of the phrase "in accordance with". It seems from the second version of the List that the plaintiff is not contending that the defendant asked for the money expressly under the Deed of Loan or a particular clause of it.[6] This may be something to be clarified by the parties.

"In answer to paragraph 27 of the Claim (sic), the defendant:

(a) admits that he verbally requested that the plaintiff make a further advance to SchoolBiz; and

(b) does not recall any discussion with Mrs Nixon in which he made a request that any such advance be made under the Executed Document."

[167] The defendant was taken to admit the allegations in paragraph 27 of the Statement of Claim because the pleading in 19(b) did not contain a denial or non-admission.

[168] The defendant sought leave to withdraw that admission and to plead instead as follows:

"(b) does not admit that recall any discussion with Mrs Nixon in which he made a request that any such advance be made under the Executed Document because he does not recall saying any such thing and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries."

[169] I am very concerned about the formulaic approach to the re-drafting of the Defence. I infer that the only "enquiries" the defendant made were of himself. However, weighing up all relevant factors, I will grant leave to withdraw the paragraph 19(b) admission in case the plaintiff maintains that the defendant expressly asked for a loan in pursuance of the Deed of Loan or a paragraph of it because I consider that this issue ought to be pursued in the interests of justice, bearing in mind the cases of each party.

[170] Paragraph 20 of the filed Defence responds to paragraph 28 of the Statement of Claim which states:

"On or about 13 April 2010, the plaintiff, following the request of the defendant pleaded in paragraph 27 above [the third advance of $100,000] (and in accordance with clause 2.2 of the Deed of Loan), deposited a cheque in the amount of $100,000 into the account of Schoolbiz held with the National Australia Bank with BSB number 082-... and account number 15 ... (Third Advance)."

[171] I am not sure what the plaintiff intends to convey by putting in brackets "and in accordance with clause 2.2 of the Deed of Loan". My best guess is that the phrase is in brackets because the plaintiff is not alleging that the defendant referred to the deed at all when asking for the loan. But that is just a guess.

[172] By paragraph 20 of the filed Defence, the defendant admits that the payment was made and that he had provided the bank details to "the plaintiff", but says he -

"(c) does not recall any discussion with Mrs Nixon in which he made a request that any such advance be made under the Executed Document; and

(d) does not admit the allegations concerning what Mrs Nixon relied upon because they are matters entirely within the knowledge of the plaintiff (sic)."

[173] The defendant accepted that the paragraph as drafted gave rise to the deemed admission that the request was in accordance with clause 2.2 of the Deed of Loan.

[174] The defendant wished to re-plead 20(c) as follows:

"(c) does not admit that recall any discussion with Mrs Nixon in which he made a request that any such advance be made under the Executed Document because he does not recall saying any such thing and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquires."

[175] I will grant leave to withdraw the paragraph 20(c) deemed admission for the same reasons I gave for leave to withdraw the paragraph 19(b) admission. Also, for the same reasons, I will grant leave to withdraw the paragraphs 21(b) and 22(c) deemed admissions.

[176] Paragraph 23 of the filed Defence responds to paragraphs 31 - 33 of the Statement of Claim which fall under the heading "Communications between the plaintiff and the defendant prior to default".

[177] Paragraph 31 asserts that, in 2010, after the four advances were made, Mrs Nixon, the defendant and Robyn had a number of conversations during which Mrs Nixon "said words to the effect that the plaintiff expected the advances and the interest accruing pursuant to the Deed of Loan would be paid to the plaintiff in full by 22 March 2011".

[178] Paragraph 32 asserts that in early March 2011, Mrs Nixon said to the defendant and Robyn that she expected the amounts advanced under the Deed of Loan to be repaid in full by 22 March 2011 and that the interest rate on amounts outstanding would increase to 14 per cent. Robyn said that 14 per cent was quite high and she asked whether the plaintiff would consider reducing the interest rate. Mrs Nixon said the plaintiff was not a bank and would not reduce the rate.

[179] Paragraph 33 asserts that, during those conversations, the defendant did not deny that he was liable to pay the amounts lent to him by the plaintiff or that he was bound by the terms of the Deed of Loan for any reason.

"In answer to paragraphs 31 to 33 of the Claim (sic), the defendant:

(a) denies that Robyn was involved in any of the discussions;

(b) denies that Mrs Nixon ever said words to the effect that any money needed to be repaid by 22 March 2011 or any other date;

(c) says that the paragraphs 32 and 33 do not appear relevant to any cause of action; and

(d) otherwise denies the allegations made in those paragraphs."

[181] The plaintiff's contention (according to its matrix) was that the denial in paragraph (d) was pleaded in such a way as to give rise to the implied admission that "During the course of 2010 (but after all four advances pleaded above were made), Mrs Nixon (on behalf of the plaintiff) and the defendant ... had a number of verbal conversations".

[182] Although that was the way the deemed admission was presented in the matrix, the first version of the List prepared by the plaintiff on the strength of its understanding of the deemed admissions, included at paragraph 27 as an admitted fact that: "At no time during conversations with Mrs Nixon during the course of 2010, or at all, did the defendant deny that he was liable to repay the amounts loaned to him by the plaintiff or that he was not bound by the terms of the Deed of Loan for any reason.

[183] Mr Mathas only deleted from paragraph 27 the phrase "or at all".

[184] The second version of the List adopts Mr Mathas' deletion.

[185] The defendant now wishes to replead paragraph 23(d) as follows:

"... does not admit whether he did or did not deny that he was liable to repay the amounts loaned to him by the Plaintiff because he cannot recall whether this was said or not and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries. otherwise denies the allegations made in those paragraphs."

[186] In the absence of evidence reconciling Mr Mathas' amendments to the List with the proposed amendment to the filed Defence, and in the absence of evidence intended to persuade me that there is a genuine dispute about this matter or that it is an issue which requires addressing in the interests of justice, and bearing in mind all other relevant matters, I will not grant leave to withdraw any deemed admissions said to arise out of paragraph 23.

[187] Paragraph 24 of the filed Defence responds to paragraph 34 of the Statement of Claim, which falls under the heading "Collateral Security" and which states:

"As pleaded in paragraph 24 above, Robyn signed the Consent to Caveat, which was the Collateral Security (as that term was defined in the deed of Loan) provided pursuant to the Deed of Loan."

(a) he did not know that Robyn had signed the "consent" at that time;

(b) the "consent" was unenforceable as it was obtained under duress and without any consideration being provided to Robyn; and

(c) otherwise denies the allegations made in that paragraph."

[189] As I understand the position of the parties (having regard to the plaintiff's matrix in particular), the plaintiff asserts, and the defendant accepts, that his pleading of paragraph 24 gives rise to the deemed admission of that which is asserted in paragraph 34 of the Statement of Claim.

[190] I note that as per the filed Defence, the defendant accepts that Robyn signed the "consent" but argues that it is unenforceable. His filed pleading only makes sense if he understood the consent to be intended as the Collateral Security under the Deed of Loan document - which it is, on the face of the document.

[191] The defendant wishes to replead paragraph 24(c) as follows:

"... otherwise denies the allegations made in that paragraph that the consent was provided under the Deed of Loan Executed Document because that is untrue for the reasons pleaded at paragraphs 14 to 16, and 18, above."

[192] Speaking generally, paragraphs 14 to 16 of the second proposed amended Defence assert that the "Executed Document" did not have Robyn's consent attached when the defendant and McGinley signed it; and that Mrs Nixon "subsequently procured Robyn to execute the "consent" without [the defendant's] knowledge". Paragraph 18 asserts that the Executed Document was either not valid and binding as a deed or was only valid and binding in the form in which it was provided to Mrs Nixon (that is, without the handwritten insertions).

[193] The critical issue at trial is not whether Robyn signed the consent, but its effect. It is not suggested that, by his pleading of paragraph 24(c), the defendant is deemed to have admitted that Robyn signed the consent not under duress; or that the consent is enforceable. That is not the plaintiff's position as may be seen from the plaintiff's second List, which identifies as an issue for trial whether the consent was signed with the defendant's knowledge and under duress (see paragraph 35). That paragraph (paragraph 45 of the first List) was not amended by Mr Mathas.

[194] I will not grant the defendant leave to withdraw the paragraph 24(c) deemed admission. It is not required in the interests of justice.

[195] Paragraph 26 of the filed Defence responds to paragraphs 41 and 42 of the Statement of Claim which fall under the heading of "Collateral Security" and which assert that the caveat is unenforceable because it lapsed and that (as per 4.2 of the Deed of Loan), the defendant is required to, and is liable to, pay all Moneys Owing to the plaintiff. Paragraph 42 also says that the Statement of Claim was to be taken as a written demand for the payment of the Moneys Owing.

"In answer to paragraph 41 and 42 of the Claim (sic), the defendant:

(a) says that the nature of a caveat under NSW law ... is to notify an interest in land;

(b) says that a caveat (or at least a caveat that is not supported by an interest in land) and (sic) did not provide any "security" under NSW law;

(c) repeats his answer in 24(b) [the consent was unenforceable being obtained by duress and without consideration to Robyn];

(d) says that the lapsing of the caveat and (sic) did not make the "caveat" unenforceable and did not provide any entitlement for the plaintiff in (sic) to make any demand or seek the repayment of "Moneys Owing"."

[197] Because of non-compliance with rule 166, the defendant was taken by this pleading to have admitted that the caveat, being the collateral security under the Deed of Loan, was unenforceable for the purposes or clause 4.2 of the Deed of Loan.

[198] The defendant seeks leave to withdraw that admission and to plead as follows:

"In answer to paragraph 41 and 42 of the Claim (sic), the defendant denies the allegations made in those paragraphs for the reason that they are untrue and says further:

(a) says that the nature of a caveat under NSW law ... is to notify an interest in land;

(b) says that a caveat (or at least a caveat that is not supported by an interest in land) and (sic) did not provide any "security" under NSW law;

(c) repeats his answer in 24(b) [the consent was unenforceable being obtained by duress and without consideration to Robyn];

(d) says that the lapsing of the caveat and (sic) did not make the "caveat" unenforceable and did not provide any entitlement for the plaintiff in (sic) to make any demand or seek the repayment of "Moneys Owing"; and

(e) denies that lapsing of the caveat has any effect on the repayment of Moneys Owing as they had become repayable under clause 4.1 earlier.

(f) The defendant further:

(i) Says that the defendant is not required or liable to pay any monies under the Executed Document for the reasons pleaded at paragraph 43 below; and

(ii) In the premises of paragraph 26(f)(i), denies paragraph 42 of the Claim (sic)."

[199] Clause 4.1 of the Deed of Loan states, "The Mortgagor covenants with the Mortgagee to repay the Principal Sum or so much thereof as is then unpaid to the Mortgagee on the Due Date". I note that "Principal Sum" means something different from "Moneys Owing" under the Deed of Loan. The proposed pleading in 26(e) does not make sense to me.

[200] Paragraph 43 of the filed Defence contains arguments about the limitation period applicable to the claim.

[201] I note that the first version of the plaintiff's List includes the following as issues for determination:

"51. Whether the Consent to Caveat or the Caveat provided any security for the purposes of the Deed of Loan.

1. Whether the lapsing of the Caveat or the removal of the Caveat from the title to the Property gave rise to an entitlement on the part of the plaintiff, under clause 4.2 of the Deed of Loan, to make a demand for the Moneys Owing and whether such a demand was made. Further, whether the defendant is in breach of the Deed of Loan by failing to pay the Moneys Owing."

[202] Mr Mathas made no amendments to these paragraphs, and they are reproduced at paragraphs 42 and 43 of the second version of the List.

[203] It seems to me that, in accordance with the way in which the plaintiff understood the filed Defence, the matters which the defendant seeks to raise by the proposed amendments to paragraph 26 have already been accepted as in issue (on the strength of his filed Defence as a whole). Thus, the interests of justice do not require the granting of leave - especially not simply for the asking. The parties understand each other's position on this issue. The caveat has lapsed. The real question is not whether it is "unenforceable' but whether its lapsing gave rise to a relevant entitlement. I will not grant the defendant leave to withdraw the paragraph 26 deemed admission.

[204] Paragraph 27 responds to paragraph 43 of the Statement of Claim which is under the heading 'Default by the defendant" and which states:

"In the circumstances pleaded in paragraphs 15, 18, 28 and 30 above, the plaintiff loaned the defendant and McGinley the total amount of $446,700, pursuant to the Deed of Loan."

"In answer to paragraph 43 of the Claim (sic), the defendant:

(a) repeats his answer in paragraphs 9, 11, 20 and 22;

(b) denies that the payments were advances under the Executed Document;

(c) says that the obligation to repay under clause 4.1 of the Executed Document only extended to "the Principal Sum" and not to other amounts repayable under the Executed Document; and

(d) admits that amounts under the Executed Document (other the (sic) "Principal Sum") it (sic) was repayable upon call being made by the plaintiff."

[206] The defendant accepted that his original pleading gave rise to a deemed admission that the plaintiff lent $446,700 to the defendant and McGinley pursuant to the Deed of Loan. He now wishes to plead as follows:

"In answer to paragraphs 43 and 44 of the Claim (sic), the defendant:

(a) repeats his answer in paragraphs 9, 11, 20 and 22;

(b) does not admit denies that the payments were advances under the Executed Document because he does not recall any request being made that the payments be made "pursuant to clause 2.2" of the Executed Document and is therefore unaware of the truth or falsity of the allegation despite having made reasonable enquiries;

(c) denies (as a matter of the proper construction of the Executed Document) says that the obligation to repay under clause 4.1 of the Executed Document only extended beyond to "the Principal Sum" (being the amount of $250,000 referred to in item 1 of schedule 1 of the Executed Document) and not to other amounts repayable under the Executed Document. ; and

(i) Says that, for the reasons pleaded at paragraphs 9, 12, 20 and 22 above, the plaintiff paid a total amount of $446,700 to Schoolbiz;

(ii) denies paragraph 43 as untrue because the plaintiff did not loan an amount to "the defendant and McGinley" because the true loan arrangement was as described at paragraph 27(d)(i) above; and

(iii) says that the defendant is not required or liable to pay any monies under the Executed Document for the reasons pleaded at paragraph 43 below [the limitation period defence]; and

(iv) In the premise of paragraph 27(d)(iii), denies paragraph 44 of the Claim (sic) as untrue.

(d) admits that amounts under the Executed Document (other the (sic) "Principal Sum") it (sic) was repayable upon call being made by the plaintiff."

[207] Paragraph 44 of the Statement of Claim asserts that the defendant was obliged (jointly and severally) to repay the Principal Sum of $446,700 to the plaintiff on or before 22 March 2011.

[208] Apart from identifying the deemed admission, the plaintiff also observed that, by his amended paragraph, the defendant purports to withdraw the express admission contained in paragraph 27(d) of the defence.

[209] The plaintiff's first version of the List does not include as an issue whether the money was lent to the defendant and McGinley or to Schoolbiz.

[210] Balancing the principle that leave to withdraw admissions is not to be granted simply for the asking; and the principle that a court's decision about leave is to be made in the context of rule 5, as well as matters of delay and prejudice, and given that, as I interpret the defendant's defence, the matter of to whom the loan was made was always intended to be put in issue, I will grant leave to withdraw the admission that the money was lent to the defendant and McGinley so as to permit the parties to join issue on whether the money was lent to the defendant and McGinley or to Schoolbiz; and whether the plaintiff's claim is statute barred.

[211] In the absence of any evidence about how the express admission came to be made or evidence that it is a matter genuinely contested, and bearing in mind all other relevant matters, I will not grant leave to the defendant to withdraw the paragraph 27(d) express admission.

[212] In reaching that decision, I acknowledge the defendant's argument that paragraph 27(d) did not refer to the Deed of Loan - but instead to the Executed Document. Indeed, the defendant's counsel was not sure what it was intended to plead. Frankly, that illustrates the problem with the evidence, or lack of it, in the defendant's case. But viewed as a whole, the "Executed Document" was the way in which the "Deed of Loan" document signed by the defendant and McGinley was described. That is, the Deed of Loan document without the handwritten notations and without Robyn's consent. The reference to the "Executed Document" in paragraph 27(d) is a reference to the Deed of Loan at least prior to the notations added to it and without the consent attached to it. It is, in my view, an admission which was responsive to that which was pleaded in the Statement of Claim.

[213] Paragraph 28 of the filed Defence responds to paragraph 44 of the Statement of Claim which asserts that the defendant and McGinley were obliged to pay the plaintiff the Principal Sum of $446,700 under the Deed of Loan.

"In answer to paragraph 44 of the Claim (sic), the defendant repeats his answer in paragraph 27."

"In answer to paragraph 43 of the Claim (sic), the defendant:

(a) repeats his answer in paragraphs 9, 11, 20 and 22;

(b) denies that the payments were advances under the Executed Document;

(c) says that the obligation to repay under clause 4.1 of the Executed Document only extended to "the Principal Sum" and not to other amounts repayable under the Executed Document; and

(d) admits that amounts under the Executed Document (other the (sic) "Principal Sum") it (sic) was repayable upon call being made by the plaintiff."

[216] The defendant accepted that his pleading gave rise to the deemed admission that he and McGinley (jointly and severally) were obliged to repay the plaintiff the Principal Sum of $446,700.

[217] Because of the amendment he wished to make to paragraph 27 (that is, to extend it as a response to paragraph 44), he sought to amend his filed Defence by omitting the existing paragraph 28.

[218] With respect to the question of leave, I will take the same approach to this paragraph as I did to paragraph 27. I will grant leave to withdraw the admission so as to permit the parties to join issue on whether the money was lent to the defendant and McGinley or to Schoolbiz; and whether the plaintiff's claim is statute barred.

[219] Paragraph 31 of the filed Defence responds to paragraphs 47 - 49 of the Statement of Claim. In general terms, paragraphs 47 - 49 assert that: the defendant was obliged to pay the Moneys Owing upon demand; despite the demand, the moneys remained owing; and the defendant was in breach of the Deed of Loan, and liable to repay the Moneys Owing, or alternatively, the Principal Sum, or the advances, plus interest.

"In answer to paragraphs 47 to 49 of the Claim (sic), the defendant:

(a) repeats his answer in paragraphs 15 and 30;

(b) says that no amount is recoverable by the plaintiff for the reasons set out in paragraph 43, below."

[221] Paragraph 15 of the filed Defence asserts that the Executed Document was amended in handwriting, including by the inclusion of the due date of 22 March 2011.

[222] Paragraph 30 denies that any demand for money was "pursuant to the Deed of Loan" "for the reasons set out in paragraph 43 below".

"Further or in the alternative and in answer to all of the claims made in the Claim (sic) the defendant says:

(a) each of the claims are a cause of action that cannot be maintained after the expiration of six years from the date on which the cause of action arose by virtue of section 10 of the Limitation of Actions Act 1974 (Qld);

(b) more specifically, the claims for repayment of a loan, for rectification or for unjust enrichment are each an "action" that arose at the latest at the time when the advances ... were made;

(c) in the alternative, if the Executed Document is a deed:

(i) at the time that it was signed, sealed and delivered it did not specify a time for repayment because item 2 of the first schedule was not completed;

(ii) as a consequence, each of the amounts referred to ... were payable on demand;

(iii) the limitation period for making those demands and commencing proceedings expired 12 years after the dates of those payments, the last of which was on 23 April 2022, before the commencement of these proceedings on 17 March 2023;

(1) would only effective (sic) if the alteration is affected (sic) by a further deed;

(2) the change to the Executed Document after the signature of the defendant was not by separate document in writing and signed by the defendant."

[224] I could see nothing in the plaintiff's matrix about paragraph 31 of the filed Defence.

[225] The plaintiff's Reply said that paragraph 31(a) of the defence was neither a denial nor a non-admission but did not go on to state that it amounted to a deemed admission.

[226] The defendant wishes to amend paragraph 31 to read as follows:

"In answer to paragraphs 47 to 49 of the Claim (sic), the defendant:

(a) denies these paragraphs because, in the premises of the matters pleaded in repeats his answer in paragraphs 15 and 30 above, the defendant:

(i) was not obliged to make payment of the alleged moneys owing upon the 'Demand' (as defined in paragraph 46 of the Claim (sic)) being made; and

(ii) was therefore not in breach of any term of the Executed Document

(b) Says further that no amount is recoverable by the plaintiff for the reasons set out in paragraph 43, below."

[227] I note that the second version of the List (a version responsive to Mr Mathas' markups of the first version of the List, before this application was formulated) includes as issues to be determined (my paraphrasing): whether the Deed of Loan is valid and binding as a deed or as an agreement; whether the consent to caveat, or the caveat itself, provided security for the purposes of the Deed of Loan; whether the lapsing of the caveat or its removal from the title of the Property gave rise to an entitlement on the part of the plaintiff to make a demand for the Moneys Owing; whether such a demand was made; whether the defendant is in breach of the Deed of Loan; whether the demand was made pursuant to the Deed et cetera.

[228] I cannot understand the deemed admission issue in relation to this paragraph. I will not grant the defendant leave to withdraw any deemed admission (if indeed one is deemed) said to arise out of his pleading of paragraph 31 of the filed Defence.

[229] Paragraph 32 of the filed Defence responds to paragraphs 50 and 51 of the Statement of Claim, which assert that interest has accrued, and continues to accrue, on the Principal Sum; and that interest in the amount of $2,109,871.35 as at 23 February 2023 is payable by the defendant.

"In answer to paragraphs 50 and 51 of the Claim (sic), the defendant:

(a) says that no "Principal Sum" was advanced under the Document (sic); and

(b) otherwise denies the allegations made under that paragraph (sic)."

[231] The plaintiff's first version of the List included as Agreed Facts that interest has accrued in accordance with the Deed of Loan as calculated in paragraph 50 of the Statement of Claim; that the defendant is liable to pay interest in the amount of $2,109,871.35 as at 23 February 2023; and that interest continues to accrue. Mr Mathas deleted those propositions from the List. They are not included in the second version as Agreed Facts. Instead, I infer that they are subsumed by paragraphs 44 and 45 of the second version of the List - which nominate as issues whether the demand by the plaintiff's solicitor in a letter dated 24 January 2023, which is not before me but which I assume demands the principle sum and interest, was made pursuant to the Deed of Loan and whether the defendant's failure to pay is in breach of the Deed of Loan (which provided for the calculation of interest).

[232] The defendant proposes the following amendments to the paragraph:

"In answer to paragraphs 50 and 51 of the Claim (sic), the defendant:

(a) says that no "Principal Sum" was advanced under the Document (sic);

(b) otherwise denies calculation of interest the allegations made under that in those paragraph (sic) as they are incorrect.

(c) Denies that he is liable to pay interest for the reasons pleaded at paragraph 43 below."

[233] As I interpret the plaintiff's matrix, it contends, and the defendant accepts, that by his pleading he is deemed to have admitted that in accordance with the Deed of Loan, interest has accrued and continues to accrue on the Principal Sum.

[234] In my view, it would be contrary to the interests of justice to hold the defendant to the deemed admissions arising out of his pleading of paragraph 32. The repayment of interest is an obvious matter in dispute as the second version of the List acknowledges. I will grant leave to the defendant to withdraw the paragraph 32(b) deemed admissions.

[235] Paragraph 36 of the filed Defence responds to paragraph 55 of the Statement of Claim which falls under the heading "Rectification of the Deed of Loan" and asserts that the plaintiff "executed the Deed of Loan in the belief that the Deed of Loan contained the term set out in paragraph 11b above". The term in 11b is, in effect, a term that any advances made by the plaintiff prior to the formal loan agreement or other arrangement (prepared by Mrs Nixon's solicitor) being entered into would form part of the principal loan sum provided for under the formal loan agreement or other arrangement.

"In answer to paragraph 55 of the Claim (sic), the defendant:

(a) admits that he signed the Executed Document; and

(b) otherwise denies the allegations made in the paragraph."

[237] The defendant accepts that the drafting of paragraph 36 gives rise to the deemed admission that the plaintiff executed the Deed of Loan in the belief that the Deed of Loan contained the term set out in paragraph 11b. I note immediately that it would be unlikely that the defendant would be in a position to know what the plaintiff believed at the time Mrs Nixon executed the Deed of Loan (for the plaintiff) in the absence of evidence of Mrs Nixon's state of mind - putting to one side the additional complication of his not being present for the execution of the Deed of Loan document in any event.

[238] I note that the plaintiff's first version of the List included as agreed facts the following:

1. the defendant said to Mrs Nixon in words to the effect that he requested the plaintiff to advance loan funds prior to the loan arrangement being formalised by a written a (sic) formal loan agreement or other arrangement;
2. Mrs Nixon agreed, on behalf of the plaintiff, to provide funds of up to $500,000 prior to a formal loan agreement or other arrangement being prepared and executed on the condition that any such advances made prior to the formal loan agreement or other arrangement being entered into would form part of the principal loan sum provided for under the formal loan agreement or other arrangement, which was to be prepared by her solicitor;
3. the defendant said words to the effect that he agreed that any advances made prior to the formal loan agreement or other arrangement being entered into would form part of the principal loan sum provided for under that Deed and stated that he would have an initial informal document prepared on that basis, in anticipation of the Deed of Loan being prepared, finalised and signed by all parties to it."

[239] Mr Mathas deleted the whole of paragraph 8 in his marked up version of the List.

[240] The second version of the List essentially converts those matters to issues to be determined - see paragraphs 32 and 33.

[241] The defendant wishes to amend his defence by deleting the whole of paragraph 36 and amending paragraph 35 so that it reads:

"In answer to paragraphs 54 and [55] of the Claim (sic), the defendant:

(a) says that the allegations areis entirely within the knowledge of the plaintiff; and

(b) accordingly, the defendant does not know and cannot admit the allegation."

[242] I note that that pleading in the filed Defence, in so far as it concerns paragraph 54 "and 54 (sic)" was not said by the plaintiff to give rise to any deemed admission.

[243] I consider that leave ought to be granted because the proposed amendment is required in the interests of justice. The deemed admission, concerning as it does Mrs Nixon's state of mind, is not one which the defendant is competent to make in the circumstances. I will grant leave to the defendant to withdraw the paragraph 36(b) deemed admission.

[244] Paragraph 37 responds to paragraphs 56 - 60 of the Statement of Claim which state:

"56. The defendant signed the Deed of Loan also without noticing the omission of the term set out in paragraph 11b above.

1. In the circumstances, the Deed of Loan was signed by the plaintiff and the defendant under a common mistake of fact.
2. In the alternative, the defendant signed the Deed of Loan knowing:
   1. that the term set out in paragraph 11b above was not included in the Deed of Loan;
   2. that the plaintiff expected that such a term would be included in the Deed of Loan; and
   3. that an agreement had been reached that such a term would be included in the Deed of Loan.
3. The defendant's state of knowledge, as pleaded in paragraph 58 above, can be inferred from the matter pleaded in paragraphs 11, 20, 22 and 25 above.
4. In the circumstances pleaded in paragraphs 58 and 59 above, the defendant:
   1. had actual knowledge that the plaintiff had entered into the Deed of Loan under a mistake of fact; or
   2. wilfully shut his eyes to (or was reckless as to) the obvious fact that the plaintiff had entered into the Deed of Loan under a mistake of fact,

such that it would be unconscionable for the defendant to now seek to rely on the Deed of Loan in the absence of the term set out in paragraph 11b above."

"In answer to paragraphs 56 - 60 of the Claim (sic), the defendant

(a) says that the plaintiff has not identified any "common mistake" (whether of fact or otherwise);

(b) the alternative pleading in paragraphs 58-60 is improper and confusing; and

(c) otherwise denies the allegations made in those paragraphs."

[246] According to the plaintiff's matrix, the plaintiff contends, and the defendant accepts, that he is deemed to have admitted that he "signed the Deed of Loan also without noticing the omission of the term set out in paragraph 11b above". The defendant seeks to amend paragraph 37 of his Defence to read:

"In answer to paragraphs 56 - 60 56-61 of the Claim (sic), the defendant:

(a) says that the plaintiff has not identified any "common mistake" (whether of fact or otherwise);

(b) the alternative pleading in paragraphs 58-60 is improper and confusing; and

(a) otherwise denies the allegations made in those paragraphs says that the term set out in paragraph 11b of the Claim (sic) was never intended, or agreed, to form part of the Executed Document;

(b) admits that the Executed Document was signed by himself without the inclusion of the term set out in 11 b;

(c) denies that this was an "omission", or that the Executed Document was signed without the defendant "noticing the omission of the term", because that term was never intended or agreed to form part of the Executed Document;

(d) In the premises of the matters pleaded at paragraph 37(a) to (c) above, the defendant denies the matters pleaded at paragraphs 56 to 61 of the Claim (sic) because they are untrue."

[247] Paragraph 61 of the Statement of Claim seeks rectification of the Deed of Loan to include an 11b term.

[248] The issue of whether the Deed of Loan/Executed Document was intended to govern payments made by the plaintiff into Schoolbiz's account prior to the execution of the deed/document is a critical issue in the case. The proposed amendments to the pleading are intended to properly plead the defendant's case as he attempted to do in the existing paragraph 37. While the quality of the defendant's application is poor from the point of view of the lack of evidence and the delay, on balance, the interests of justice call for the withdrawal of the deemed admissions. I will grant leave to the defendant for the withdrawal of the paragraph 37 deemed admission.

[249] Paragraph 38 responds to paragraphs 62 and 63 of the Statement of Claim which state:

1. In the alternative, and in the event the Deed of Loan is held not to be binding on the parties to it as a Deed, the plaintiff relies on it and seeks to enforce it as an enforceable agreement between the parties.
2. In the circumstances, the plaintiff repeats and relies upon paragraphs 6 to 61 above, mutatis mutandis."

"In answer to paragraphs 62 - 63 of the Claim (sic), the defendant:

(a) admits that the payments made referred to in paragraphs 15, 17, 28 and 30 of the Claim (sic) were advances of money at his request and were repayable by him but for the matters set out in paragraph 43 of this defence; and

(b) says that the re-pleading of paragraphs 52 - 61 is improper and confusing."

[251] The plaintiff's matrix contended, and the defendant accepted, that by his pleading he was deemed to have admitted that he signed the Deed of Loan knowing that: it did not include an 11b term; the plaintiff expected such a term to be included; and an agreement had been reached that such a term would be included in the Deed of Loan.

[252] I note that the first and second versions of the List rely upon these deemed admissions at paragraphs 56 and 47 respectively. Mr Mathas made no correction to paragraph 56.

[253] I acknowledge how poorly supported the defendant's application is, especially in this regard. However, I consider that leave to withdraw the deemed admissions arising out of paragraph 38(b) ought to be granted in the interests of justice. The filed Defence otherwise conveys that an issue arises about the way in which the prior advances were to be treated. Also, the defendant is not in a position to know what the plaintiff/Mrs Nixon expected.

[254] Paragraph 42 of the filed Defence responds to paragraph 67 and 68 of the Statement of Claim. It says, "In answer to paragraphs 67 and 68 the defendants (sic) rely on the matters set out in paragraph 43 of this defence". (It will be recalled that paragraph 43 deals with the limitation defences.)

[255] Paragraphs 67 and 68 of the Statement of Claim assert that "the enrichment of the defendant has been at the plaintiff's expense" and that "it would be unjust for the defendant to retain the benefit of the Principal Sum".

[256] I did not understand the plaintiff (by its matrix) to be suggesting that deemed admissions arose out of the plaintiff's pleading of paragraph 42. However, the reply asserted that the defendant was to be taken to have admitted that he had been unjustly enriched and that it would be unjust for him to retain the benefit of the Principal Sum.

[257] If the plaintiff intended to suggest on this application that the defendant ought to be taken to have admitted the matters pleaded in paragraphs 67 and 68 of the Statement of Claim, then I will grant leave to withdraw the deemed admission in the interests of justice.

[258] To the extent to which my granting leave permits the amendment of a paragraph of the filed Defence, the defendant accepted that there were further corrections to make to his proposed amendments to ensure compliance with the UCPR. It goes without saying that any amended Defence must comply with the rules.

[1] By Schedule 1, the loan was described as an interest only loan. By Schedule 2, interest was to be paid at 14 per cent per annum, unless it was paid monthly, in which case the interest rate would be 10 per cent.

[2] The consent was expressed in these terms, "... consent to R E Nixon Pty Ltd registering a caveat over my property to better secure the loan evidenced by this deed".

[3] This being an appeal from an interlocutory, discretionary order, which meant that appellant intervention was warranted only on House v R [[1936] HCA 40; (1936) 55 CLR 499] grounds.

[4] I found the written and oral submissions difficult to follow. And I was side-tracked at the hearing by the deficiencies in the proposed amended defence. I took the plaintiff's position on the deemed admissions from its matrix - although that document did not always reflect the position it took in its Reply. I initially relied upon the draft order provided to me by the defendant to indicate the paragraphs said to give rise to the deemed admissions the defendant sought leave to withdraw - but I discovered that the draft order was inconsistent with the submissions made which canvassed other paragraphs or referred to paragraphs which did not give rise to deemed admissions. I sought clarification from the defendant which was provided on 8 October 2025. The plaintiff responded to the defendant's clarification on 13 October 2025, pointing out that his revised draft order was still inaccurate.

[5] For the younger reader, a ditto mark looks like a double inverted comma and is shorthand for indicating that something is to be repeated. I note that the parties suggest that, rather than a ditto mark, the notation is the letter "h". Nothing turns on this.

1. [6] The first List included as agreed facts at paragraph 22 and 25 that on 12 April 2010 and 22 April 2010 respectively, the defendant requested an advance of $100,000 and then $96,700 "in accordance with clause 2.2 of the Deed of Loan". It included as an issue to be determined whether the advances made by the plaintiff on 10 March 2010 and 17 March 2010 were made in reliance of formal documents being executed and those formal documents including prior advances (at paragraph 43). But it said nothing about the basis for the payments made on 12 and 22 April 2010, consistent with its asserted agreed facts that the payments were made, "in accordance with clause 22 of the Deed of Loan".

The second List does not assert that it was agreed that the payments made on 12 and 22 April 2010 were made "in accordance with clause 22 of the Deed of Loan" - see paragraphs 16, 17, 18 and 19. It does include as an issue to be determined (obviously a critical issue) whether the defendant is in breach of the Deed of Loan in failing to repay the Moneys Owing, which may capture this issue.