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: A Loel (Respondent) Solicitors: 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 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] EX TEMPORE 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. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2018