Background
The plaintiff, Daniel Joel, claims he loaned $550,000 in cash to the late Said El Khouri on 14–15 September 2008, with the agreement documented in a deed executed on 15 September 2008. The defendants — the estate of El Khouri and three individual defendants — deny the transaction occurred at all, without alleging fraud, instead seeking to put the plaintiff to proof. A central plank of the defendants’ challenge was that the plaintiff’s account of how he accumulated and stored the cash — saved over many years and kept in a box at a concealed “secret safe spot” — was implausible or untrue.
The plaintiff’s primary affidavit sworn 19 December 2023 had already addressed in detail his use of the box and the secret safe spot (paragraphs 42–48). Shortly before trial, the plaintiff served a further affidavit dated 15 June 2026 containing photographs of the box and its storage location. The defendants raised an objection to that affidavit only immediately before the plaintiff sought to tender it at the hearing on 18 June 2026.
The plaintiff applied under rule 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) to extend the time for service of the further affidavit to 16 June 2026. The defendants opposed the application, arguing lateness and prejudice, and contending that the plaintiff should have anticipated a broad factual contest on the storage issue well before trial.
The Court’s Holding
Chen J granted the extension of time and allowed the plaintiff to rely on the further affidavit. His Honour found that the plaintiff’s solicitor genuinely did not appreciate that the defendants intended to contest the box and storage location until the defendants served their opening submissions on 15 June 2026 — the day before the hearing commenced. That lack of notice was directly attributable to the defendants’ failure to serve a statement of issues in dispute as required by clause 40 of Practice Note SC CL 1, a failure for which no explanation was offered. The defendants had conceded both that they did not file the required statement and that doing so would have identified the issue.
Chen J rejected the defendants’ claimed prejudice. Their suggestion that they would need expert evidence from a metallurgist and an occupational hygienist was characterised as highly theoretical and undeveloped. The Court noted that the defendants had possessed the further affidavit for several days before the hearing, had taken no steps to investigate, had not sought additional time before arguing the application, and could previously have sought to inspect the box or the storage location but had not done so. His Honour also observed that, in any event, the plaintiff would in all likelihood have been entitled to adduce the photographic evidence in re-examination after cross-examination on those facts.
The Court ordered, pursuant to rule 1.12 of the UCPR, that the time for service of the further affidavit of Daniel Joel sworn 15 June 2026 be extended to 16 June 2026. His Honour emphasised that once defendants elect to contest particular facts, basic principles of fairness and the statutory requirements under sections 56(3) and 58(2)(b)(iv) of the Civil Procedure Act 2005 (NSW) obligate them to give the opposing party reasonable notice of that contest.
Key Takeaways
- A defendant who fails to serve a statement of issues in dispute as required by Practice Note SC CL 1 cannot later credibly claim to be prejudiced when the plaintiff supplements evidence on a factual issue the defendant secretly intended to contest.
- Rule 1.12 UCPR confers a broad power to relieve against injustice; the “dictates of justice” under the Civil Procedure Act 2005 (NSW) strongly favour allowing late evidence where the opposing party’s non-compliance with procedural obligations caused the lateness.
- Claimed prejudice from late evidence must be substantiated; vague or undeveloped assertions about potential expert investigations will not suffice, particularly where the objecting party took no investigative steps of its own.
- Litigation is not a game: parties who identify a factual issue they intend to contest must notify their opponents promptly, and a practice of “quietly leaving footprints” to be discovered at trial will not be countenanced.
Why It Matters
This decision reinforces the obligation of defendants in NSW civil proceedings to proactively identify disputed factual issues through statements of issues in dispute, rather than adopting a passive “put to proof” posture while keeping their hand concealed. Chen J’s judgment draws together the statutory overriding purpose provisions of the Civil Procedure Act, longstanding Court of Appeal authority in Nowlan v Marson Transport and OneSteel v BlueScope, and Bell CJ’s recent restatement in Lam v Liu [2025] NSWCA 254, presenting a cohesive framework that treats compliance with procedural directions — including Practice Note requirements — as a professional and statutory duty, not a mere courtesy.
For practitioners, the case is a practical warning: a defendant who withholds its contested factual issues until opening submissions risks losing the ability to object to responsive evidence served by the plaintiff, and will find little sympathy from the Court when claiming surprise at evidence that directly addresses facts the defendant itself elected, silently, to put in dispute.