Stepanoski v Aslan (No 5)

[2020] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation:

Stepanoski v Aslan (No 5) [2020] NSWSC 139

Hearing dates:

24 February 2020

Date of orders:

24 February 2020

Decision date:

24 February 2020

Jurisdiction:

Equity

Before:

Emmett AJA

Decision:

1.   The Plaintiffs be granted leave to re-open its case in the hearing proper and read and or tender the material on the issue of quantum of damages as follows:

 

Affidavit of Keith Redenbach Affidavit sworn 21 November 2019.
Exhibit KR 1 to Affidavit of Keith Redenbach sworn 21 November 2019.
The Affidavit of Mr Adam Brackenridge McMonigal sworn 28 October 2016 annexing Mr McMonigal’s expert report.
Affidavit of Mr Adam Brackenridge McMonigal sworn 11 February 2020.
Annexure ABM 1 to McMonigal Affidavit 11 February 2020: Letter from Keith Redenbach Legal dated 29 September 2016.
Annexure ABM 2 to McMonigal Affidavit 11 February 2020: Email from Keith Redenbach dated 28 September 2016
Annexure ABM 3 to McMonigal Affidavit 11 February 2020: Email from Andy Yeung of Ray White Real Estate Willoughby dated 21 September 2016
Annexure ABM 4 to McMonigal Affidavit 11 February 2020: the contract for Sale of Land completed on 9 September 2016
Annexure ABM 5 to McMonigal Affidavit 11 February 2020: Notice of Determination to Modify a Consent from Willoughby City Council dated 30 September 2015; and
Annexure ABM 6 to McMonigal Affidavit 11 February 2020: the stamped DA plans for the property.
The Court Notes: that the Plaintiffs rely upon its written submissions dated 5 November 2019 and 10 January 2020 on the question of quantum of damages.

 

2.   The Defendant to file and serve written submissions in response to the Plaintiffs’ submissions on the question of quantum no later than 16 March 2020.

 

3.   The proceedings be listed for further directions on 27 March 2020.

 4.   Costs of today reserved.

Catchwords:

EVIDENCE — Course of evidence — Re-opening case

Legislation Cited:

Nil

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Tony Stepanoski (First Plaintiff/First Cross Defendant)
Sonja Stepanoski (Second Plaintiff/Second Cross Defendant)
Mohammad Jamal Aslan (also known as Jim Aslan) (Defendant/Cross Claimant)

Representation:

Counsel:
P Folino-Gallo (Plaintiffs) and mentioning for D C Eardley (Defendant)

  Solicitors:
Keith Redenbach Legal (Plaintiffs)

File Number(s):

2016/139580

EX TEMPORE Judgment

1. HIS HONOUR: By notice of motion filed on 21 November 2019, the plaintiffs sought further interlocutory relief in relation to this part-heard proceeding. Specifically, the plaintiffs sought leave to rely on an affidavit of Keith Redenbach sworn 21 November 2018 and the affidavit of Adam McMonigal sworn 28 October 2016. The defendant opposed reliance by the plaintiffs on that material on the basis that the evidence was closed. Having regard to the rather unusual progress of these proceedings, I considered it appropriate to afford the plaintiffs the opportunity of explaining why that material had not been tendered earlier.

2. On 13 February 2020, I directed the plaintiffs to file and serve, on or before 17 February 2020, an affidavit explaining why the evidence now sought to be adduced was not adduced previously and why such affidavit evidence was not filed earlier. I also directed the defendant to file and serve, no later than 19 February 2020, any further submissions as to why the explanation contained in such an affidavit would not support the granting of leave sought in the plaintiffs’ notice of motion.

3. By affidavit sworn on 17 February 2020, Mr Redenbach proffered an explanation based, essentially, on a misapprehension as to the evidence that was before the Court and the evidence that had been foreshadowed but had not been tendered. Having regard to the unusual course of the proceedings, bearing in mind that there has been a change of legal representation, that misapprehension is understandable. No submissions were filed on behalf of the defendant indicating why that explanation would not support the granting of leave.

4. On 13 February 2020, I listed the matter for further directions today. When the matter was called on today, there was no appearance for the defendant. However, it emerged that counsel for the plaintiffs was asked to mention the matter on behalf of the defendant.

5. In the circumstances, I propose to make orders in terms of prayers 4 and 5 of the notice of motion of 21 November 2019. Counsel for the plaintiffs has indicated that the plaintiffs wish to rely on their submissions dated 9 January 2020 in support of prayer 6 of the notice of motion of 21 November 2019 seeking judgment in the sum of $2,698,656.28, less the judgment sum of $225,710.38 already entered in favour of the plaintiffs.

6. In the circumstances, I propose to direct the defendant by 16 March 2020 to file and serve any submissions on which he wishes to rely in response to the plaintiffs’ submissions of 9 January 2020. I will direct the plaintiffs to file and serve, by no later than 4 pm today, a statement of all the additional evidence on which they wish to rely in support of prayer 6 of the notice of motion of 21 November 2019, if it is not already in evidence as indicated in earlier reasons that I have published. There being no indication to the contrary, I will give you leave to rely on all of that material, as long as it does not go beyond what is in the affidavit.

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Decision last updated: 26 February 2020