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The underlying dispute concerned the sale of shares in Danc Pty Limited, which operated the Ray White Bateau Bay real estate franchise. The judgment says that further background to that dispute was unnecessary to decide the motion ([1]). The appellants’ notice of appeal, filed on 9 September 2025, raised nine grounds of alleged error in the primary judgment, Tin-Tagel Majikk Pty Limited v Hockey [2025] NSWSC 578 ([5]).

The appellants said that a complete file from their former solicitors, Jemmeson Fisher, was received in January 2026 and contained “newly identified and newly significant material” ([2]). Kenneth Roy Folley’s affidavit described the material and its proposed relevance to the appeal. The appellants’ former representatives had ceased acting on 28 January 2026, and the appellants had been self-represented since then ([3]). Mr Folley said they had been unable to obtain legal advice and representation because of the complexity of the timeframe and their financial circumstances ([3]). Obtaining representation was one reason advanced for the requested delay ([4]).

The respondents opposed the motion. Their solicitor’s affidavit gave a chronology: the proceedings began in May 2020, the hearing took place in August and September 2024, and the primary judgment was delivered in June 2025 ([6]). The respondents also relied on the personal and financial effects of further delay. The judgment records that they had expected repayment of vendor finance of $690,000 to fund their retirement, and that Wayne Hockey had returned to work to meet legal costs following the appellants’ failure to repay the amount owing ([7]). Those details were evidence advanced by the respondents and recorded by the Court as part of the prejudice case.

The Court dismissed the motion, confirmed the 16 March 2026 hearing date, and ordered that the motion’s costs be costs in the cause ([14]–[16]). It did not decide the appeal, the merits of the nine grounds, or whether the proposed fresh evidence should be admitted.

Why the court decided this way

Price AJA identified the power invoked by the appellants as including the power under s 66 of the Civil Procedure Act 2005 (NSW), the Court’s inherent power to do justice between the parties, and the more general power referred to in s 46(2) of the Supreme Court Act 1970 (NSW) ([10]). The judgment cited Sydney City Council v Ke-Su Investments Pty Ltd and Atanaskovic v Birketu Pty Ltd in connection with the Court’s power.

The decision’s framework came from the passage in Kenoss Pty Ltd v Palerang Council reproduced at [11]. That passage identifies prejudice to the respondent if an adjournment is granted, prejudice to the applicant if it is refused, the circumstances in which the application is made, and considerations concerning administration and management of court matters. Price AJA treated those as the relevant considerations for this application.

Timing mattered. The respondents relied on Penson v Titan National Pty Ltd, as cited in Edwards v State of New South Wales, for the “heavy burden” borne by an applicant seeking to vacate a hearing shortly before it is due to take place ([8]). Price AJA expressly concluded that the appellants had not discharged that burden ([13]).

The Court’s assessment of the application was tied to the evidence before it. First, the proposed fresh evidence was described as “narrowly confined” ([12]). Secondly, although the appellants were self-represented, Price AJA was satisfied that Mr Folley’s written submissions and affidavits demonstrated his capacity to present the arguments about that material and the appeal grounds within the existing timeframe ([12]). This was a finding about Mr Folley’s demonstrated capacity in the circumstances before the Court, not a general statement that self-represented litigants can always manage complex appeals.

Thirdly, the history of the litigation and the respondents’ evidence of prejudice weighed against further delay. Price AJA described the case as having been outstanding for a long time and the respondents’ prejudice from further delay as significant ([12]). The respondents’ evidence included the financial consequences they said followed from non-repayment of the vendor finance and the legal costs of the litigation ([7]).

The Court did not decide the fresh-evidence question itself. The respondents submitted that the small number of documents and arguments about their introduction could be addressed at the scheduled appeal hearing. The appellants’ supplementary submissions focused on fresh evidence, but the judge stated that this issue was not the subject of the motion being determined ([9]). The narrow question was whether the hearing date should be vacated, not whether the proposed evidence met the requirements for admission.

Before and after state of the law

This judgment is a short procedural ruling applying existing principles. It does not purport to establish a new general test for vacating hearing dates. It identifies the relevant statutory and inherent powers at [10], refers to the established list of considerations from Kenoss at [11], and applies the heavy-burden principle drawn from Penson and Edwards at [8] and [13].

The position described in the judgment before the ruling was that the appeal had already been allocated a hearing date, and that the appellants sought to change it shortly before the hearing. In deciding the motion, the Court weighed the competing prejudice, the circumstances of the application, and case-management considerations. The result was that the existing date remained in place.

The judgment does not say that the statutory provisions or cited principles changed after this decision. Nor does it provide a comprehensive account of the law on admitting fresh evidence on appeal. Its treatment of the proposed material was relevant only to whether the listed hearing could proceed: the material was limited, and the arguments could be advanced in the available timeframe, in the judge’s assessment ([12]). The order therefore resolves the scheduling motion on its particular record, rather than deciding the broader evidentiary question.

Key passages with plain-English translation

At [11], Price AJA set out the considerations quoted from Kenoss: prejudice to each side, the circumstances of the application, and administration and management of court matters. In plain English, a court deciding whether to postpone a hearing considers not only the applicant’s reason for needing more time, but also what postponement would mean for the other party and for the management of the court’s work. The passage is expressly attributed to Ward JA in Kenoss; it is not a newly formulated test by Price AJA.

At [12], Price AJA said the proposed fresh evidence was “narrowly confined”. The Court then assessed whether Mr Folley could present the arguments about that material and the appeal grounds at the scheduled hearing. This indicates why the asserted need for extra time did not persuade the judge on this application. It should not be read as a ruling that the evidence was admissible or that it would affect the appeal’s merits.

At [13], Price AJA said: “I am not persuaded that the appellants have discharged the heavy burden that it is in the interests of justice to grant the application to vacate the hearing date of the appeal.” In plain English, the Court considered that the appellants had not shown enough to justify postponement, given the late timing and the circumstances assessed at [12]. The wording is a conclusion about this motion, not a prediction about the appeal.

At [14], the judge confirmed the allocated hearing date of 16 March 2026. At [16], the formal orders record that the motion was dismissed and that its costs would be costs in the cause. This means the motion did not change the appeal listing, and the costs of the motion were left to be dealt with as part of the costs outcome in the cause, rather than separately fixed in these orders.

What fact patterns trigger this precedent

The ruling is relevant to applications to vacate or adjourn a hearing where the request is made shortly before the listed date and the applicant relies on matters such as newly identified documents, self-representation, or a desire to obtain legal representation. It illustrates that those matters are assessed alongside timing, the applicant’s demonstrated ability to proceed, prejudice to the opposing party, the history of the litigation, and court administration.

Its factual setting is specific. The motion came after proceedings that had begun in 2020, a trial in 2024, and a primary judgment in 2025. The appeal date had been fixed months earlier, on 1 October 2025, and the motion was filed on 3 March 2026 for a hearing listed on 16 March ([1], [6]). The Court also had evidence that the proposed material was confined and that the appellant preparing the submissions could advance the arguments within the existing timeframe ([12]).

The ruling does not establish that every late adjournment request fails, or that an applicant’s self-represented status is immaterial. It shows how Price AJA weighed those circumstances in this case. The result depended on the specific evidence and submissions, including the respondents’ evidence of significant prejudice and the Court’s assessment of the appellants’ capacity to proceed.

How later courts have treated it

The supplied judgment does not describe any later court’s treatment of Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 26. It therefore cannot establish whether the decision has subsequently been followed, distinguished, or applied by another court.

The decision itself relies on earlier authorities. It cites Sydney City Council v Ke-Su Investments Pty Ltd and Atanaskovic v Birketu Pty Ltd concerning the source or scope of the Court’s power ([10]). It sets out the relevant considerations from Kenoss Pty Ltd v Palerang Council ([11]). It also invokes Penson v Titan National Pty Ltd and Edwards v State of New South Wales for the heavy burden associated with an application made shortly before a hearing ([8], [13]). These are relationships within this judgment, not evidence of how later courts have treated this 2026 ruling.

The decision is an ex tempore procedural ruling by Price AJA. Any account of subsequent treatment would require later judgments or other legal sources not included in the supplied text. No later authorities or treatment should be inferred from the fact that this judgment itself cited earlier cases.

Still-open questions

Several questions were expressly left unresolved. Most importantly, the Court did not decide whether the appellants’ proposed fresh evidence should be admitted. Paragraph [9] says that the fresh-evidence issue was not the subject of the motion before Price AJA. The judgment also does not determine the merits of the nine grounds of appeal, the correctness of the primary judgment, or the final result of the appeal.

The reasons do not identify each document proposed as fresh evidence or explain its detailed relevance. The judgment describes the material only as narrowly confined and records the parties’ positions about whether arguments on its introduction could be addressed at the hearing ([9], [12]). It does not set out the legal test for admitting fresh evidence on appeal, so no such test can be extracted from this ruling.

The reasons also do not determine whether the appellants would obtain representation, or whether legal representation would have altered the assessment of the motion. Price AJA recorded Mr Folley’s evidence that attempts to obtain representation had been unsuccessful and that he was not hopeful of obtaining it, but assessed his ability to present the arguments on the material available ([3]–[4], [12]).

Finally, the decision does not provide a general threshold for when prejudice from delay will be significant enough to justify refusing an adjournment. It applies the identified considerations to the particular chronology, evidence, and submissions. Its practical significance is therefore as an example of the balancing exercise in a late application to vacate a hearing, rather than a complete statement of every circumstance that could affect such an application.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.