Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. LEEMING JA: By motion filed on 2 June 2025, the second defendant to these proceedings commenced slightly more than three years ago, Mr Nicholas Patrick Cain, seeks among other things that the hearing be vacated and the matter set down for a trial at some later date. The trial was set down for hearing to commence on 28 July 2025 with an estimate of five days. That happened as long ago as 15 November 2024, itself somewhat more than two years after the proceedings were commenced.

2. As Mr Luitingh who appears for Mr Cain has emphasised, the allegations in the litigation are of the utmost seriousness. Red blooded fraud is alleged against him, and it is rightly said that if on the civil standard the plaintiff's allegations of overcharging and theft of materials are made out in full, then he would be exposed at least to the risk of the papers being referred to the authorities with a view to prosecution.

3. There are two aspects to the explanation put forward in support of the vacation of the hearing today. The most immediate is the personal circumstances of two of the legal practitioners involved. The third defendant to the litigation is Mr Cain's wife, Ms Karen Anne Cain, and I accept what has been said from the Bar table that her solicitor has been placed in a situation of utmost personal difficulty over the last few days. Moreover, Mr Luitingh who appears for Mr Cain himself has been ill-disposed: he has been able to appear today by AVL link and has advanced submissions with appropriate force, but I accept what he says that for a period of time in recent days he has been incapacitated.

4. However, the difficulties in the personal circumstances of two of the legal practitioners acting for the defendants in the last fortnight fall well short of establishing that nothing could have been done to prepare Mr Cain's case since his motion last came before the Court on 6 June so as to establish a material change of circumstances from the position on that occasion.

5. The more substantial reason for the delay put forward in the material is the fact that Mr Cain is presently an undischarged bankrupt. That happened by sequestration order made on 4 December 2024 upon a debtor's petition filed on 29 November 2024. At that stage, s 58 of the Bankruptcy Act 1966 (Cth) had the effect of staying further against him in the proceedings. That stay remained in place until, on 28 May of this year, the plaintiff was granted leave to proceed against him by a federal court. During the period of his bankruptcy prior to the grant of leave, Mr Cain appears not to have taken steps to progress the matter. In particular what has been emphasised today is the failure to take steps to respond to the expert evidence supplied by the plaintiff towards the end of last year, a couple of months before his bankruptcy. In short, Mr Cain's bankruptcy as an explanation for vacating the hearing does not address the time before Mr Cain became bankrupt, nor does it address the time after the plaintiff obtained leave to proceed against him. Most fundamentally, this was prominent when the application last came before this Court.

6. The motion came before Stevenson J on 6 June 2025. The motion not merely seeks to vacate the hearing, but also seeks a raft of other orders, concerning filing evidence, issuing subpoenas and notices to produce, granting access to the property to experts, and so on. Stevenson J dealt with it in informal but unequivocal terms:

HIS HONOUR: ... As to the evidence, I don't propose to give your client leave to do anything. If he wants to serve evidence that he would seek to rely upon, then he can do that, and he can then make an application to rely upon that particular evidence, and I'll hear or someone here will hear submissions as to whether that is to be permitted. I'm not going to give leave in advance, so that's that.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f813aa968b1b237c3276a)

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