Tin-Tagel Majikk Pty Ltd v Hockey

1. [1]

   PRICE AJA: By notice of motion filed on 3 March 2026, the appellants seek relevantly to vacate the hearing date of the appeal currently listed on 16 March 2026. The underlying proceedings involves a dispute between the appellants and the respondents relating to the sale of shares in a company, Danc Pty Limited (ACN 079 357 869), which operated a real estate franchise known as Ray White Bateau Bay. It is unnecessary for the purposes of the determination of the appellants’ motion to provide any further background of the matter.

2. [2]

   The appellants’ submit that if the application to vacate is not granted that the appeal will be determined without what is said to be “newly identified and newly significant material”. According to the affidavit of Kenneth Roy Folley sworn on 6 March 2026, this evidence arose upon the review of the complete client file from their former solicitors, Jemmeson Fisher, which is referred to as the “Jemmeson Fisher File” and was received by the appellants in January 2026.

3. [3]

   In Mr Folley’s affidavit, he seeks to identify how the newly identified material will impact upon his appeal. Mr Folley’s affidavit further refers to the appellants’ legal representation during the trial and early stages of the appeal. The appellants’ former legal representatives filed a notice of ceasing to act on 28 January 2026. The appellants have been self-represented since that time. Mr Folley deposes in his affidavit that the appellants have sought legal advice and representation regarding the fresh evidence and procedural steps but have been unsuccessful “due to the complexity of the timeframe and financial circumstances”.

4. [4]

   A reason advanced for the application to vacate is to obtain legal representation as being self-represented they will be required to argue a complex appeal without legal representation. Mr Folley informed me in our discussions this morning that he was not hopeful of the prospects of obtaining legal representation.

5. [5]

   The appellants’ notice of appeal filed on 9 September 2025 raises 9 grounds of appeal which allege a number of errors in the Primary Judgment: Tin-Tagel Majikk Pty Limited v Hockey [2025] NSWSC 578. The appellants seek a new hearing date in late May or June 2026.

6. [6]

   The respondents oppose the appellants’ motion to vacate the hearing date. They point out that the hearing date for the appeal was fixed by the Court of Appeal Registrar on 1 October 2025. The affidavit from the respondents’ solicitor, Sharnie Jayde Leith sworn on 6 March 2026, provides a detailed chronology of the proceedings which were commenced by the appellants in May 2020 with the hearing not taking place until August and September 2024. The Primary Judgment was delivered in June 2025.

7. [7]

   In Ms Leith’s affidavit, she explains the prejudice that will flow to the respondents if the application to vacate is granted. It appears the respondents had been relying upon the repayment of the Vendor Finance in the sum of $690,000 to fund their retirement. The first respondent, Mr Wayne Hockey, has now returned to work to fund the legal fees of the proceedings and the appeal as a result of the appellants’ failure to repay the amount owing.

8. [8]

   The respondents contend that a further adjournment 10 days prior to the hearing date will increase that prejudice and will waste the legal fees incurred so far in preparation for the appeal hearing. The respondents rely on what was said by Leeming JA in Penson v Titan National Pty Ltd [2015] NSWCA 382 at [8] (“Penson”) (cited in Edwards v State of New South Wales [2022] NSWCA 144 at [7] (“Edwards”)), which referred to the “heavy burden” an applicant bears of an application to vacate made shortly before the hearing.

9. [9]

   In supplementary submissions, the respondents argued that the appellants’ fresh evidence involves only a small number of documents that the appellants wish to introduce and the arguments concerning the introduction of the evidence can be dealt with by the parties on the day that the appeal is to be heard. The appellants supplementary submissions were confined to arguments advanced in relation to the issue of fresh evidence which is not the subject of the motion presently being dealt with before me today.

10. [10]

    The appellant’s motion seeks to invoke the Court’s power to vacate the hearing date either under s 66 of the Civil Procedure Act 2005 (NSW) or by exercising the inherent power to do justice between the parties (or more generally pursuant to s 46(2) of the Supreme Court Act 1970 (NSW)): Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252 (Kirby P); Atanaskovic v Birketu Pty Ltd (ACN 003 831 392) [2021] NSWCA 11 at [11] (Gleeson JA).

Consideration

1. [11]

   The relevant considerations to be taken into account when determining an application to vacate a hearing date were stated by Ward JA (as the President then was) in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13]:

2. [12]

   The material which the appellant wishes to adduce as fresh evidence is narrowly confined. By the high standard of the written submissions and affidavits filed by the appellants, drafted by Mr Folley with his son’s assistance, I am satisfied that although not legally represented, Mr Folley is capable of advancing the arguments concerning the fresh evidence and all of the grounds of appeal at the hearing within the current timeframe. This case has been outstanding for a long period of time and the prejudice suffered by the respondents from further delay is significant.

3. [13]

   I am not persuaded that the appellants have discharged the heavy burden that it is in the interests of justice to grant the application to vacate the hearing date of the appeal: Penson; Edwards.

4. [14]

   Accordingly, the application is refused. I confirm the allocated hearing date for the appeal on 16 March 2026.

5. [15]

   I confirm the matter is listed for directions before the Court of Appeal Registrar on 11 March 2026.

Orders

1. [16]

   I make the following orders:

   1. (1)

      The motion to vacate the hearing date is dismissed.

   2. (2)

      The costs of this motion be costs in the cause.