Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 204 Hearing dates: 10 September 2018 Date of orders: 10 September 2018 Decision date: 10 September 2018 Before: Meagher JA Decision: 1. Direct that on or before 21 September 2018 the respondent file and serve a white folder containing the documentary material sought to be relied on in the appeal and in relation to which it seeks to be released from the implied undertaking in relation to the use of documents provided in legal proceedings.
2. Release the respondent from that implied undertaking to the extent necessary for it to comply with that direction and to prepare any affidavit to be filed in support of the admission of that material into evidence as well as any written submissions relating to that material.
3. Costs of this application to be costs in the causes.Catchwords: PRACTICE AND PROCEDURE – implied undertaking in relation to use of documents provided in legal proceedings – release from implied undertaking – no issue of principle Category: Procedural and other rulings Parties: Vito Zepinic (Appellant in First Proceeding, Second Appellant in Second Proceeding)
Nina Zepinic (First Appellant in Second Proceeding)
Chateau Constructions (Aust) Limited (Respondent in Both Proceedings)Representation: Counsel:
Solicitors:
A Loel (Respondent)
Toomey Pegg Lawyers (Respondent)
File Number(s): 2017/180327; 2017/180325 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- [2017] NSWSC 582; [2018] NSWSC 246; [2018] NSWSC 963
- Date of Decision:
- 25 May 2017
- Before:
- Pembroke J; Robb J
- File Number(s):
- 2016/97515; 2009/290598
EX TEMPORE Judgment
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HIS HONOUR: In these appeal proceedings, which are fixed for hearing on 30 October 2018, the respondent seeks to be released from the implied undertaking in relation to the use of documents obtained in other legal proceedings so as to be able to use those documents in these appeals. Those documents are listed in para 2(a) to (k) of the letter from Toomey Pegg to the appellants dated 3 September 2018.
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There is no appearance by the appellants this morning, although the affidavit of Mr Andrew Loel of 7 September 2018 establishes that they have received notice of the respondent’s application, and the documents which are the subject of it.
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In the circumstances, the convenient course is to release the respondent from the implied undertaking so as to permit it to file and serve a white folder containing the material sought to be relied on and written submissions relating to it. Accordingly, I make the following directions:
Direct that on or before 21 September 2018 the respondent file and serve a white folder containing the documentary material sought to be relied on in the appeal and in relation to which it seeks to be released from the implied undertaking in relation to the use of documents provided in legal proceedings.
Release the respondent from that implied undertaking to the extent necessary for it to comply with that direction and to prepare any affidavit to be filed in support of the admission of that material into evidence as well as any written submissions relating to that material.
Costs of this application to be costs in the causes.
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- AGLC
- Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 204
- Case
- [2018] NSWCA 204
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the respondent should be released from the implied undertaking in relation to certain documentary material. This undertaking generally restricts the use of documents obtained through court processes to the purposes of the litigation in which they were produced. The court was required to determine if the circumstances warranted an exception to this rule.
Meagher JA reasoned that the application did not raise any novel or significant issue of principle concerning the implied undertaking. The court's decision focused on facilitating the proper conduct of the appeal by allowing the respondent to rely on specific documentary material. To achieve this, the court directed the respondent to file and serve a white folder containing the relevant documents by a specified date. The respondent was then released from the implied undertaking to the extent necessary to comply with this direction, including the preparation of supporting affidavits and written submissions. The costs associated with this application were to be determined as part of the overall costs of the causes.
Orders
Orders of the court
1. Direct that on or before 21 September 2018 the respondent file and serve a white folder containing the documentary material sought to be relied on in the appeal and in relation to which it seeks to be released from the implied undertaking in relation to the use of documents provided in legal proceedings.
2. Release the respondent from that implied undertaking to the extent necessary for it to comply with that direction and to prepare any affidavit to be filed in support of the admission of that material into evidence as well as any written submissions relating to that material.
3. Costs of this application to be costs in the causes.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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