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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 139
Decision Date: 24 February 2020

CaseChat Overview and Summary

In Stepanoski v Aslan (No 5), the dispute was brought before the Federal Court of Australia by the plaintiff, Stepanoski, against the defendant, Aslan. The case revolved around issues of evidence, specifically whether the court could reopen the case to allow the plaintiff to adduce additional evidence. This matter had been previously considered in multiple interlocutory hearings, with the court repeatedly finding that the plaintiff was not entitled to reopen the case. The plaintiff sought to challenge this ruling, arguing that the court had misapplied the law in relation to the admissibility of new evidence.

The legal issues before the court centred on the application and interpretation of the relevant provisions of the Federal Court of Australia Act and the Uniform Civil Procedure Rules. The plaintiff contended that the court had the discretion to allow the reopening of a case to admit additional evidence, while the defendant argued that the court had correctly applied the law and that reopening the case was not permissible. The court had to determine whether the trial judge had correctly exercised their discretion in refusing to allow the plaintiff to adduce new evidence.

The court found that the trial judge had exercised their discretion correctly. The trial judge had considered the relevant principles and the circumstances of the case, including the timing and relevance of the proposed new evidence. The court held that the trial judge had not erred in concluding that reopening the case was not appropriate, as the new evidence was not sufficiently compelling or relevant to warrant a departure from the usual rules of procedure. The court affirmed the trial judge's decision, finding that the plaintiff's application to reopen the case was properly rejected.

In conclusion, the court dismissed the plaintiff's appeal and upheld the decision of the trial judge. The court found that the trial judge had correctly exercised their discretion in refusing to allow the plaintiff to adduce new evidence. The court did not find any error in the trial judge's assessment of the relevance and timing of the proposed new evidence, and therefore upheld the trial judge's decision to not reopen the case. The final orders of the court were that the plaintiff's appeal be dismissed, with no orders as to costs.

Orders