[2018] NSWCA 204

Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited

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

Judgment

[1]
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.
[2]
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.
[3]
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:
1. (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. (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. (3)
  Costs of this application to be costs in the causes.