In the matter of Anson Developments (Australia) Pty Ltd

1. [1]

   By a Notice of Motion filed 30 October 2025, the Defendants seek an order pursuant to r 23.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the Plaintiff, Mr Wai Ngor Pak (Mr Pak), be medically examined by one of two specified doctors for the purpose of obtaining an opinion as to his mental capacity to:

   1. (1)

      have decided and given instructions to issue notices on 18 August 2025 and 12 September 2025 for the purpose of calling a meeting of members of the First Defendant;

   2. (2)

      have decided and given instructions to commence this proceeding; and

   3. (3)

      give instructions in relation to the conduct of this proceeding.

Factual background

1. [2]

   Mr Pak is 90 years old and resides in Hong Kong.

2. [3]

   The Second Defendant, Mr Kin Ping Pak, is Mr Pak’s son.

3. [4]

   The Third Defendant, Mr Wai Shun Wilson Pak, is the Second Defendant’s son and Mr Pak’s grandson.

4. [5]

   For convenience, and without intending any disrespect, I will refer, as the Defendants did in their submissions, to the Second Defendant by the name “James” and to the Third Defendant by the name “Wilson”.

5. [6]

   The First Defendant, Anson Developments (Australia) Pty Ltd (the Company), was registered in 1999. It is the parent company of a group of property development and holding companies collectively known as the Anson Group.

6. [7]

   According to the Company’s consolidated financial statements for the year ended 30 June 2024:

   1. (1)

      the non-current assets of the Anson Group included land and properties of almost $450m as at the reporting date; and

   2. (2)

      the non-current liabilities of the Anson Group totalled $487m, which included loans from Mr Pak of around $330m and loans from the Commonwealth Bank of Australia (CBA) of around $157m.

7. [8]

   Mr Pak beneficially holds 90% of the shares in the Company, and James beneficially holds the other 10%.

8. [9]

   The current directors of the Company are James and Wilson. Mr Pak was a director up until 28 June 2023. There is a dispute, which it is unnecessary to resolve for the purposes of the present application, as to whether Mr Pak resigned as a director at that time or was removed without his consent. Similarly, there is a dispute, which is the subject of another proceeding in this Court (and which it is also unnecessary to resolve), as to whether Mr Pak authorised James, at around this time, to transfer money from Mr Pak’s personal account to James’ bank account, for the purposes of meeting costs and expenses incurred by the Anson Group.

9. [10]

   On 20 August 2025, a request to call a general meeting of members of the Company pursuant to s 249D of the Corporations Act 2001 (Cth) (Act) was served on behalf of Mr Pak by his solicitors, Henry William Lawyers (HWL) (the August Notice).

10. [11]

    On 29 August 2025, the solicitors for the Defendants, MinterEllison, informed HWL that, in the absence of documentary evidence that HWL had been personally engaged by Mr Pak and that Mr Pak possessed full legal capacity, their clients did not “accept any of the matters contained in the [August Notice]”. I will address below James’ evidence regarding the matters which gave rise to this concern about capacity.

11. [12]

    HWL subsequently gave assurances, in early September 2025, that they had been engaged by Mr Pak, but the Defendants did not accept those assurances, and no meeting was called pursuant to the August Notice.

12. [13]

    On 12 September 2025, a notice of meeting pursuant to s 249E of the Act was served on behalf of Mr Pak (the September Notice), which included proposed resolutions to appoint Mr Pak, his wife, Ms Chu Mok, and his daughter, Ms Quyen Bach, as directors of the Company.

13. [14]

    In respect of Ms Mok, James gave evidence, which was not disputed, that his relationship with his mother has become strained since about August 2025, as a result of Ms Mok raising allegations that James and Wilson had misappropriated money from Mr Pak.

14. [15]

    James also deposed that he does not have a good personal relationship with his sister, Ms Bach, and that they had not had a meaningful conversation for many years. Ms Bach has not had any previous involvement in the Company’s affairs.

15. [16]

    On 7 October 2025, MinterEllison sent a letter in response to the September Notice, informing HWL that James (being one of the two shareholders of the Company) would not be attending the meeting, and that his non-attendance would render the meeting inquorate.

16. [17]

    On 27 October 2025, Mr Pak commenced this proceeding, seeking an order pursuant to s 249G of the Act that a meeting of the Company be convened for the purpose of considering and voting on resolutions to appoint Mr Pak, Ms Mok and Ms Bach as directors of the Company, and an order pursuant to s 1319 of the Act that attendance by a single member, in person or by proxy, is to constitute a quorum.

The issue for determination

1. [18]

   The only substantive basis on which the Defendants resist the relief sought in this proceeding is that they dispute Mr Pak has the legal capacity to give instructions to commence and conduct this proceeding. Shortly after this proceeding was commenced, the Defendants filed their Notice of Motion seeking the Medical Examination as a means of resolving this issue.

2. [19]

   The Defendants confirmed, in the course of oral address, that if the medical practitioner conducting the Medical Examination reports that Mr Pak has such capacity, the Defendants will consent to the relief sought by the Plaintiff.

3. [20]

   In support of their Notice of Motion, the Defendants relied on an affidavit of James affirmed on 30 October 2025. They also relied on an affidavit of an interpreter, who provided translations of various documents that were exhibited to James’ affidavit.

4. [21]

   In response, the Plaintiff relied on three affidavits of his solicitor, Mr Stephen Williams, which were sworn on, respectively, 27 October 2025, 21 November 2025 and 24 November 2025.

5. [22]

   Counsel for the Plaintiff made an application for leave to cross-examine James, on the basis that she considered it necessary, as a matter of fairness, to put to James alleged inconsistencies between his affidavit evidence and certain documents that were exhibited to Mr Williams’ second affidavit. Following confirmation from Counsel for the Defendants that, in the event that there was no cross-examination, the Defendants would not, in submissions, raise any issue that such inconsistencies ought to have been put to James, Counsel for the Plaintiff confirmed that she did not press the application for leave to cross-examine James.

6. [23]

   Before addressing the substance of the evidence of each of James and Mr Williams regarding Mr Pak’s capacity, I have addressed the relevant principles below.

Relevant Principles

1. [24]

   Part 23, Div 1 of the UCPR applies, relevantly, to proceedings in which a party’s mental condition is relevant to a matter in question: r 23.1(1)(a) and (b)(i).

2. [25]

   Rule 23.4 of the UCPR provides as follows:

3. [26]

   The power granted to the Court in r 23.4 is discretionary, and “is to be exercised judicially and having regard to factors relevant to the exercise of the discretion in the particular case”: Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142 at [39] per Mitchelmore JA (Kirk JA and Simpson AJA agreeing). It is also necessary to bear in mind the overriding purpose of the rules of court, to which s 56(1) of the Civil Procedure Act 2005 (NSW) refers; the objects of case management in s 57(1); and whether the order sought is in accordance with the dictates of justice, as required by s 58(1): ibid.

4. [27]

   The Defendants relied on the decision of McCallum J (as her Honour then was) in Plaintiff (name withheld) v Stapleton [2017] NSWSC 914 at [4], where her Honour set out an extract from the decision in Crofts v Crofts [2001] QSC 220 at [25], summarising the relevant principles in the following terms:

5. [28]

   However, it is important to note the context in which this passage was quoted by McCallum J. In the relevant part of the judgment in Stapleton (at [4]-[5]), her Honour was referring to the decision of the Court of Appeal in Angliss v Urquhart [2001] NSWCA 441. Her Honour noted that, at first instance, the primary judge in Angliss (Barrett J) had quoted the passage from Crofts that is set out above and that, on appeal, Sheller JA (with whom Beazley and Stein JJA agreed) had made the following observations (at [16]):

6. [29]

   The issue arising in Angliss was whether Mr Angliss had capacity to execute a power of attorney, appoint an enduring guardian or make a will. The Court of Appeal held that Barrett J erred in ordering an examination of Mr Angliss, but this decision appears to have been due primarily to the fact that extensive expert evidence had already been filed regarding the issue of Mr Angliss’ capacity.

7. [30]

   In Angius v Salier [2020] NSWSC 114, Ward CJ in Eq (as her Honour then was) ordered, pursuant to r 23.4 of the UCPR, that the plaintiff submit to a medical examination by an expert neuropsychologist, in order to obtain an opinion as to the plaintiff’s capacity to give instructions in relation to the conduct of proceedings and to understand, with legal assistance, and make informed decisions about the issues in the proceedings.

8. [31]

   In the recent case of Mirosevich v Mirosevich [2025] NSWSC 490 at [22], Hmelnitsky J observed that:

9. [32]

   As noted above, Mr Pak resides in Hong Kong. I was not referred to any case in which the Court had ordered that a person located overseas (and in particular, in China) be required to submit to a medical examination, or which had considered whether any issues as to power or enforcement arise in such circumstances.

10. [33]

    It is unnecessary to reach a concluded view on any such issue. I am satisfied that, in the event that the Court determines it is appropriate, having regard to the considerations in ss 56-58 of the Civil Procedure Act, to require Mr Pak to attend a medical examination in respect of his capacity to commence and conduct this proceeding, the Court has power to order that this proceeding be stayed, with its further conduct being made conditional upon such an examination: see Rowlands v New South Wales (2009) 74 NSWLR 715; [2009] NSWCA 136 at [55]-[56] per Hodgson JA. Neither party expressed any difficulty with, or objection to, such an approach (presuming the Court was otherwise satisfied that the Medical Examination should be ordered).

11. [34]

    Such a course would not involve making an order requiring Mr Pak to submit to such an examination in Hong Kong, but would instead involve making the continuation of the proceeding in this Court conditional upon Mr Pak providing evidence to this Court that he had taken such a step. It would then be a matter for Mr Pak as to whether or not he takes this step.

Is there evidence that Mr Pak lacks capacity?

1. [35]

   The Defendants submitted that, in light of the evidence before the Court, there is a well-founded concern as to whether Mr Pak has the capacity to authorise, and has, in fact, authorised, the issue of the August Notice and the September Notice, and the commencement of the proceeding; and has capacity to provide instructions regarding the conduct of this proceeding.

2. [36]

   In this regard, the Defendants relied on James’ affidavit.

3. [37]

   James deposed that until around the middle of 2023, his father was generally in good health. In around May 2023, Mr Pak became seriously ill, and subsequently spent, on-and-off, a period of around four months in hospital from June 2023 to January 2024. During this period, Mr Pak underwent a tracheostomy procedure. As a result, he permanently requires a breathing tube to be attached to his nose through to his lungs. James deposed that, following this operation, Mr Pak was left with a very limited ability to communicate, generally using gestures to indicate “yes” or “no”, and occasionally being able to say a few words. James also gave evidence that Mr Pak, since being discharged from hospital in January 2024, has been physically frail, and has required extensive nursing care and in-home support.

4. [38]

   Those matters concerning Mr Pak’s physical frailty appeared, from Mr Williams’ evidence, to be largely common ground. However, the issue is, of course, whether there is a sufficient evidentiary basis for the concern raised by the Defendants regarding Mr Pak’s mental capacity to give instructions to commence and conduct these proceedings.

5. [39]

   James deposed that, since Mr Pak’s discharge from hospital in January 2024, he has observed, in addition to Mr Pak’s physical decline, his “mental decline”. In particular, during the course of 2024, he observed his father to be mostly unresponsive when he attempted to engage in conversations with him, and became unable to verify whether his father understood him (as his father would not provide gestures indicating his response, as described in paragraph [37] above). James further deposed that, on occasions, he brought in poems to read to his father, who did not respond or engage in any way when James did this.

6. [40]

   During the course of 2025, up until August 2025, James visited Mr Pak at his home “almost every day”, and “observed [his] father’s physical and mental condition to further deteriorate”. James deposed that he would usually greet Mr Pak upon seeing him and Mr Pak “would usually look at me and occasionally nod, but he otherwise provided no indication that he understood what I was saying”.

7. [41]

   James deposed that, since August 2025, his mother has limited his access to visiting his father, which he understands is because of her allegations that James and Wilson have misappropriated money from Mr Pak without his authority.

8. [42]

   James has only visited Mr Pak on one occasion since August 2025, namely, on 2 October 2025 (the October Meeting). He deposed that, on that occasion, he observed Mr Pak to be “unable to speak”, and in a “largely vegetative state”. James deposed that he spoke to Mr Pak “for approximately three minutes in the hope that he understood something, and although he appeared to be looking at me for that time, I did not observe any indication that he understood what I was saying” and he “appeared to be entirely unresponsive”.

9. [43]

   Counsel for the Plaintiff submitted that:

   1. (1)

      “many of the interactions with Mr Pak to which [James] deposes in his affidavit were interactions in 2023”, and “the evidence he gives concern Mr Pak’s physical capacity as a result of his tracheostomy”; and

   2. (2)

      James gives evidence of only one meeting since August 2025, and it “would not be surprising” that Mr Pak “may not have wished to speak to [James]” at the October Meeting, given the dispute about the sums allegedly misappropriated from Mr Pak’s personal bank accounts.

10. [44]

    These submissions ignore that James gives, as outlined above, evidence of almost daily contact with his father throughout 2024 and 2025 (up until August 2025), and deposes that, over the course of these regular visits, he has observed the mental deterioration that is described above, namely, his father becoming unresponsive when James attempted to engage in conversations with him, or read to him, and failing to give any indication of understanding James.

11. [45]

    Further, James’ evidence of the October Meeting is not that Mr Pak refused to respond to James, or that Mr Pak gave any indication of being angry with him (whether because of the alleged misappropriation of moneys or otherwise), but that Mr Pak was unable to respond and appeared to be in a “vegetative” state.

12. [46]

    James plainly has an interest in this proceeding, and in resisting the relief sought by the Plaintiff. I accept that, having regard to those matters, James’ evidence must be treated with some caution.

13. [47]

    However, in determining the weight that should be given to James’ evidence, it is also relevant to take into account the evidence that the Plaintiff could have, but has not, led in response to the Defendants’ application. In particular:

    1. (1)

       Mr Pak himself has not put on any affidavit in response to this application;

    2. (2)

       there is no affidavit evidence from Mr Pak’s wife or daughter regarding their interactions with, or observations of, Mr Pak (noting that each of them, having nominated to be a director of the Company, has an interest in the relief sought in the proceeding and is in the Plaintiff’s camp); and

    3. (3)

       there is no affidavit evidence from any third party who has regular contact with Mr Pak (such as, for example, a medical practitioner or nurse).

14. [48]

    Instead, the Plaintiff relied on Mr Williams’ affidavit evidence of a single meeting with Mr Pak, some time prior to the commencement of this proceeding, which I address below.

15. [49]

    In addition, James’ observations of Mr Pak are, to some extent, supported by a letter which was sent by HSBC on 1 February 2024, and which was exhibited to James’ affidavit. This letter was sent following a visit by a representative of HSBC with Mr Pak at his home. This letter stated as follows:

16. [50]

    Those observations and concerns, by an independent party with no interest in the present dispute, are consistent with James’ observations and concerns from early 2024 onwards.

17. [51]

    Counsel for the Plaintiff submitted that there was no evidence as to how this issue was resolved, or the current status of the dealings with HSBC. However, those were matters peculiarly within the Plaintiff’s knowledge, and the Plaintiff did not, in response to James’ affidavit, lead any evidence regarding those matters.

18. [52]

    Counsel for the Plaintiff further submitted that although James claimed that Mr Pak had been physically unable to perform execution of documents since his health complications in the middle of 2023, there were a number of documents in evidence which in fact have been signed by Mr Pak, including in 2025. This was said to be a matter which cast doubt on James’ evidence regarding his observations of Mr Pak. For example, Counsel for the Plaintiff referred in oral address to:

    1. (1)

       a deed entitled “Fourth Amendment Deed” dated 1 July 2025 between the Company, CBA, Mr Pak and other entities in the Anson Group, pursuant to which a facility agreement between them was amended, and which was signed by Mr Pak as guarantor and by Wilson on behalf of companies in the Anson Group; and

    2. (2)

       an (undated) Solvency Resolution relating to Kapau Holdings Pty Ltd, which bears the signatures of James, Wilson, Mr Pak and Ms Mok. This appears to have been signed some time between 16 December 2024 (when an email was sent requesting that this document be signed) and 12 March 2025 (when the signed document was returned).

19. [53]

    I do not consider that these matters cast any significant doubt on James’ evidence regarding his observations of the deterioration in Mr Pak’s mental capacity. The fact that Mr Pak appears to have, on a limited number of occasions, executed documents in 2024 or 2025 is not necessarily inconsistent with James’ evidence that he has, in that period, observed Mr Pak to be unable to do so. This apparent inconsistency may, for example, be explained by variations in Mr Pak’s physical capacity and strength on particular days. Further, Mr Pak’s signature on the Fourth Amendment Deed appears to be an electronic signature. In any case, the issue that arises on the present application is whether there is a sufficient evidentiary basis to give rise to a concern about Mr Pak’s mental capacity to commence and conduct this proceeding, and the fact that Mr Pak has signed documents on a limited number of occasions in the past year does not take matters very far, particularly since there was no evidence regarding the circumstances in which those documents were signed, the matters explained to Mr Pak at the time of signature, or Mr Pak’s responses to, or understanding of, those matters.

20. [54]

    The Plaintiff’s written submissions placed some reliance on a medical certificate signed by Dr Lee Chi Nam, a specialist in neurology, which was dated 27 August 2025 and which stated as follows:

21. [55]

    The Plaintiff did not lead any evidence from Dr Nam, including on information and belief. There is no indication, in this certificate, of the nature of the examination carried out by Dr Nam, or the basis for his opinions. Further, the opinion is expressed by reference to a particular “decision to be made” by Mr Pak, and there is no indication as to what this “decision” was (which might be far removed, in its nature and complexity, from the decision to commence and conduct the present proceeding). In those circumstances, I give this document no significant weight for the purposes of determining the present application.

22. [56]

    As noted above, the only direct evidence of observations of Mr Pak which was led in response to the Defendants’ application for the Medical Examination of Mr Pak was the evidence of Mr Williams, who described a single meeting with Mr Pak on 9 September 2025 (the 9 September Meeting).

23. [57]

    Mr Williams does not give evidence of having had any discussion or other communication with Mr Pak regarding the Company, the Anson Group or the subject matter of this proceeding prior to the 9 September Meeting. It appears, from Mr Williams’ affidavit, that his initial contact in respect of the present dispute was a telephone call from Mr Pak’s daughter, Ms Bach, “seeking [Mr Williams’] assistance to act for her father and [mother] in relation to some issues with her father’s family companies”. As the Defendants’ Counsel observed, it may therefore be inferred that the instructions to send the August Notice on Mr Pak’s behalf were received from Mr Pak’s daughter, rather than from Mr Pak himself.

24. [58]

    The 9 September Meeting between Mr Williams and Mr Pak was also attended by Mr Pak’s nurse, Ms Mok, Ms Bach, and Mr Stephen Chan of Fairbairn Catley Low and Kong. Mr Chan is described as “the family’s Hong Kong lawyer”. It is therefore not clear whether Mr Chan receives instructions from, and acts for, only Mr Pak, or also Mr Pak’s wife and daughter. Mr Chan was in attendance “to translate and explain issues”.

25. [59]

    Mr Williams gave evidence that Mr Pak recognised him, was “mentally alert”, was aware that Mr Chan was in attendance “to explain what [Mr Williams] was saying”, and was speaking faintly in Chinese and otherwise nodding in agreement or shaking his head in disagreement to various matters discussed in the meeting. Mr Williams also gave evidence that, after “Mr Chan translated my explanation of various matters and documents”, Mr Pak signed the September Notice and related documents, and that they then went to lunch, with Mr Pak appearing to Mr Williams “to be very aware of his surroundings”.

26. [60]

    There are a number of limitations with this evidence.

    1. (1)

       First, it is evidence of a single meeting, by a person who was only able to communicate with Mr Pak through a translator. That is to be contrasted with James’ evidence, being the observations of a close family member from his almost daily visits over the course of two years.

    2. (2)

       Secondly, the 9 September Meeting occurred several weeks before the October Meeting between James and Mr Pak, and almost two months before this proceeding was commenced.

    3. (3)

       Thirdly, Mr Chan’s role at this meeting was not simply to translate what was said, but to “explain issues”. There is no evidence (including on information and belief) regarding the substance of any explanation given by Mr Chan to Mr Pak, or of any response by Mr Pak to Mr Chan, prior to the documents being signed.

27. [61]

    Counsel for the Plaintiff submitted that the ability to put on evidence regarding the substance of any discussion at the 9 September Meeting was constrained due to a concern about waiver of privilege. There are, however, ways in which reference can be made to the topic of privileged discussions, or the fact of questions being asked by a client or of instructions being given, in such a way as not to disclose the substance of those communications.

28. [62]

    Further, while the desire to maintain privilege may explain why the evidence regarding the 9 September Meeting is limited, the Plaintiff could have led evidence from Mr Pak’s wife or daughter regarding their (non-privileged) communications with him regarding this proceeding or the Anson Group, but did not do so.

29. [63]

    Finally, the Plaintiff did not lead any evidence from Mr Williams to the effect that, following James’ refusal to attend the meeting called by the September Notice (which Mr Pak had signed at the 9 September Meeting), the Plaintiff gave Mr Williams instructions to commence this proceeding. There was no explanation for the failure to lead such evidence on this application.

30. [64]

    Having regard to those matters, I am satisfied that the Defendants’ evidence raises a genuine and well-founded concern about the capacity of Mr Pak to give instructions for the commencement and conduct of this proceeding.

31. [65]

    I am also satisfied that I should exercise my discretion to stay the proceeding, and to make the further conduct of the proceeding conditional upon Mr Pak attending the proposed Medical Examination in respect of his mental capacity to commence and conduct proceedings.

32. [66]

    In reaching that view, I have had regard to the following matters.

33. [67]

    First, the issue of Mr Pak’s capacity is the only substantive matter that has been raised by the Defendants in opposition to the relief sought in this proceeding. In the course of oral address, the Defendants confirmed that, if the medical practitioner who conducts the proposed Medical Examination reports that Mr Pak has the mental capacity to commence and conduct this proceeding, they will consent to the relief sought by Mr Pak. Accordingly, the orders which I will make have the potential to facilitate the overriding purpose of the just, quick and cheap resolution of the real issues in this proceeding (Civil Procedure Act, s 56(1)) and promote the objects of case management set out in s 57(1) of the Civil Procedure Act.

34. [68]

    Secondly, while I accept that the Court must have regard to the important issue of personal autonomy, this must be balanced with the Defendants’ right to seek the Court’s assistance, where they have a genuine and well-founded concern that the present proceeding has been commenced and is being continued in circumstances where Mr Pak may not have the capacity to give instructions in relation to the proceeding.

35. [69]

    Thirdly, it is relevant to take into account the nature of the examination that is proposed. It was common ground that any proposed Medical Examination should be conducted by a specialist medical practitioner who is approved under the Mental Health Ordinance (Cap. 136), Laws of Hong Kong, as having specialised experience in the diagnosis or treatment of mental disorders or having special experience in the assessment or determination of mental handicap. James gave evidence, on information and belief from two such specialist medical practitioners, that the proposed Medical Examination:

    1. (1)

       is estimated to take approximately one hour;

    2. (2)

       is capable of being performed at Mr Pak’s home; and

    3. (3)

       will involve assessing Mr Pak’s cognitive ability by asking him questions relating to his understanding, memory, knowledge of financial position and affairs, assets and general background.

36. [70]

    Fourthly, insofar as Mr Pak has a concern about submitting to a Medical Examination from one of the two specialists nominated by the Defendants (each of whom appears to have been previously engaged by the Defendants for the purposes of such an examination of Mr Pak), this concern can be addressed by framing the orders so that the Medical Examination is to be undertaken by the particular specialist whom the Plaintiff has nominated from the list of approved practitioners, namely, Dr (William) Tak-lam Lo (who is not known to Mr Pak and has not previously attended on him). The Defendants pointed out that Dr Lo has retired as Chief Executive of Kwai Chung Hospital in Hong Kong. However, Mr Williams exhibited to his affidavit documentary evidence that Dr Lo is included in the current version of the List of Approved Doctors for the purposes of Section 2(2) of the Mental Health Ordinance (published by the Hong Kong Law Society and dated July 2025), as a medical practitioner approved to provide a medical certificate under the Mental Health Ordinance (Cap. 136).

37. [71]

    Finally, Counsel for the Plaintiff questioned the utility of any orders for the proposed Medical Examination, submitting that “there is a real question as [to] whether a medical practitioner could even provide an opinion that is the subject of paragraphs 1(a) and 1(b) of the notice of motion” (namely, regarding Mr Pak’s mental capacity at various points in time over the past three months). The Plaintiff did not lead any expert evidence to the effect that no such opinion could be given by a reasonably competent practitioner. In circumstances where there is no issue that a specialist in the relevant field is capable of providing an opinion regarding Mr Pak’s capacity to give instructions in relation to the conduct of this proceeding, I consider that the appropriate course is to frame the orders so as to seek an opinion from Dr Lo as to each of the matters proposed in the Notice of Motion, on the basis that, if Dr Lo is unable to give an opinion as to any of those matters, he will indicate that this is the case.

38. [72]

    I will order that the costs of the Medical Examination be paid by James and Wilson in the first instance, and will otherwise reserve all questions of costs.

39. [73]

    For those reasons, I make the following orders:

    1. (1)

       Order that the proceeding be stayed.

    2. (2)

       Order that the further conduct of the proceeding be conditional upon:

    3. (3)

       In the event that an affidavit is filed in accordance with order 2(b) above, the parties have liberty to apply for the proceeding to be listed in the Corporations List on the next available date.

    4. (4)

       Order that the costs of the Medical Examination be paid by the Second Defendant and Third Defendant in the first instance and that costs otherwise be reserved.