GLOBAL FOOD RETAIL GROUP PTE LTD (COMPANY REGISTERED NO.2009 127 65N) v SEPL PTY LTD (ACN 008 150 543) [2026] SASC 49

Applicant: GLOBAL FOOD RETAIL GROUP PTE LTD (COMPANY REGISTERED NO.2009 127 65N) Counsel: MR S ABBOTT KC WITH MR M MURPHY - Solicitor: CHARLTON ROWLEY First Respondent: SEPL PTY LTD (ACN 008 150 543) Counsel: MR M HOFFMAN KC - Solicitor: HWL EBSWORTH LAWYERS Second Respondent: ON THE RUN PTY LTD (ACN 638 356 466) Counsel: MR M HOFFMAN KC - Solicitor: HWL EBSWORTH LAWYERS Hearing Date/s: 14/04/2026 File No/s: SCCIV-15-1592 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. GLOBAL FOOD RETAIL GROUP PTE LTD (COMPANY REGISTERED NO.2009 127 65N) v SEPL PTY LTD (ACN 008 150 543) & ANOR [2026] SASC 49 Reasons for Decision of the Honourable Justice McIntyre 20 April 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - EXPERT REPORTS AND EXPERT EVIDENCE This is an application by the applicant for an extension of time to file and serve expert reports. The matter is currently listed to commence trial in four weeks, on 18 May 2026. Timetabling orders were made by consent on 3 November 2025 ordering that any expert reports were to be filed and served by 27 February 2026. No reports were filed or served by either party and no application seeking an extension of time was made until the present application. The applicant filed this application on 10 April 2026 seeking an extension of time nunc pro tunc to file and serve two expert reports: a marketing report by Dr Bill Page and an accounting report by Mr Ian Wigg. It is said that the reports address matters that are vital to the applicant’s case and that it is in the interest of justice to extend the time for filing. The applicant submits that granting the extension of time will not necessitate adjournment of the trial and that any prejudice to the respondent can be ameliorated by appropriate orders. The respondents oppose the application and do not wish for the trial to be adjourned. It is said that granting the application would be prejudicial to the respondents and that the applicant’s explanation for the delay is unsatisfactory. -- 1 of 10 -- Held: 1. Application granted. 2. The trial listed to commence on 18 May 2026 is vacated. Uniform Civil Rules 2020 (SA) rr 74.3, 74.12, 151.12 , referred to. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; PPG Development Pty Ltd v Capitano (2016) 126 SASR 307; Warren v District Council of the Lower Eyre Peninsula (No 2) [2022] SADC 88, applied. Global Rood Retail Group Pte Ltd v Shahin Enterprises Pty Ltd [2023] SASC 72; Channel Seven Adelaide Pty Ltd v Manock [2010] SASFC 59, considered. -- 2 of 10 -- GLOBAL FOOD RETAIL GROUP PTE LTD (COMPANY REGISTERED NO.2009 127 65N) v SEPL PTY LTD (ACN 008 150 543) & ANOR [2026] SASC 49 Civil: Application McIntyre J. 1 The applicant applied, by interlocutory application filed on 10 April 2026,1 for an extension of time for the filing and service of two expert reports sought to be relied on at trial. Background 2 The background to this matter is set out in my decision dated 11 May 2023,2 refusing leave to appeal an order of a Master of the Supreme Court that issues of liability and quantum be heard separately in two trials. 3 On 6 February 2025, orders were made setting the matter down for trial on the issue of liability for two weeks commencing on 18 May 2026. That trial date was confirmed on 3 March 2025. Various timetabling orders were made throughout 2025. Of relevance to the present application, orders were made by consent on 3 November 2025 inter alia that:3 Any expert reports sought to be relied on at trial be filed and served by the parties by 27 February 2026. Any expert reports in reply be filed and served by 31 March 2026. 4 No reports were filed or served by either party and no application seeking an extension of time was made until the present application. The application relates to a marketing expert report prepared by Dr Bill Page (‘Dr Page’) dated 8 April 2026 and an accounting report of Mr Ian Wigg (‘Mr Wigg’) dated 15 April 2026. The application 5 The applicant relies upon affidavits of its solicitor, Jason Rusch, made on 10 April 20264 and 15 April 20265 and has filed written submissions which summarise its position as follows:6 30. The applicant's summary position is that: 30.1 there is an adequate explanation for the delay in seeking the extension of time; 1 FDN 138. 2 Global Rood Retail Group Pte Ltd v Shahin Enterprises Pty Ltd [2023] SASC 72 at [3] – [4]. 3 FDN 127 [2] – [3]. 4 FDN 139. 5 FDN 142. 6 FDN 143 at [30]. -- 3 of 10 -- [2026] SASC 49 McIntyre J 2 30.2 after the mediation, the applicant moved with due expedition to seek experts and obtain their reports; 30.3 the reports of Dr Page and Mr Wigg are vital to the proof of matters which are at the heart of the issues in this case; 30.4 there is an absence of prejudice to the respondents arising from the extension sought, or alternatively, any prejudice capable of identification can be ameliorated by appropriate orders; and 30.5 it is in the interests of justice that the order be made extending time. 6 The applicant further contends that granting the extension of time will not necessitate the adjournment of the trial and seeks orders as follows: • That the time for the applicant to file and serve expert reports pursuant to order 2 of FDN 127 be extended, nunc pro tunc, to 17 April 2026. • That the respondents file and serve an expert report responding to the report of: o Dr Page by 11 May 2026; and o Mr Wigg by 18 May 2026. 7 The applicant concedes that the respondents should have their costs of the application. 8 The respondents oppose the application and rely on affidavits of their solicitor, Caitlin Surman, made on 14 April 20267 and 17 April 2026.8 The respondents do not wish the trial to be adjourned given the delay since proceedings were instituted and the substantial further delay that would occur if the matter is relisted. Relevant principles 9 The High Court considered the principles relevant to a late application to amend pleadings in Aon Risk Services Australia Ltd v Australian National University9 (‘Aon’). Aon was considered by the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock10 and in PPG Development Pty Ltd v Capitano where the Aon principles were restated by Doyle J as follows:11 • The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law. 7 FDN 141. 8 FDN 146. 9 (2009) 239 CLR 175. 10 [2010] SASFC 59. 11 (2016) 126 SASR 307 at [39]. -- 4 of 10 -- [2026] SASC 49 McIntyre J 3 • The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable. • The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial). • The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard. • Whether the party has had a sufficient opportunity to plead their case earlier. • The time, cost and inconvenience associated with any delay or disruption of the proceedings. • The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment. • The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources. • The impact upon the public’s confidence in the just and efficient administration of justice. 10 Judge Burnett of the District Court considered an application by a respondent for an extension of time to file and serve an expert report in Warren v District Council of the Lower Eyre Peninsula (No 2)12 and concluded:13 In my opinion the application of the respondent falls to be decided in accordance with the principles of Aon Risk Services Australia Ltd v Australian National University. Although Aon concerned a case that involved an amendment that would cause an adjournment and vacation of the trial, in my opinion it applies equally to cases where a party has failed to comply with a requirement under a rule and is now seeking dispensation from that rule or an extension of time to comply with the rule, particularly where that revision may cause the adjournment or disruption of a trial or some other prejudice to the other party. (Citations omitted) 11 I agree with this conclusion and consider that it applies equally to the present case in which the applicant has failed to comply with orders for the filing of reports and is seeking an extension of time to comply. Accordingly, the relevant issues to be considered are: • The nature, merits and probative value of the reports. • The stage of the proceedings at which the extension is sought, and the likely impact on the progress of the litigation, particularly the trial. 12 [2022] SADC 88. 13 Ibid at [32] – [33]. -- 5 of 10 -- [2026] SASC 49 McIntyre J 4 • The explanation for the delay and whether the party had a reasonable opportunity to obtain the reports earlier. • The time, cost and inconvenience flowing from any delay or disruption. • The uncertainty and strain imposed on the parties and witnesses by any delay or disruption. • The impact of any delay on judicial and court resources, including the effect on other litigants’ access to those resources. • The effect of any delay or disruption on public confidence in the just and efficient administration of justice. Nature, merits and probative value of the report 12 The report of Dr Page is annexed to Mr Rusch’s affidavit dated 10 April 2026. A report by Mr Wigg dated 15 April 2026 was produced in Court. It is difficult to assess the merits of the reports at this stage of proceedings. That is a matter for trial. The applicant contends that these reports are “central to the applicant’s case on liability”.14 Again this is difficult to assess but, taken at face value, the reports appear relevant to issues in dispute on the pleadings. For the purposes of this application, I accept the applicant’s submission that they are of critical importance to its case on liability. Having said that, Mr Wigg’s report appears to be a summary report, provided under r 74.12 of the Uniform Civil Rules 2020 (SA) (‘UCR’), that states his opinions absent any reasoning. It is unlikely to be admissible in this form. It seems inevitable that there will be a further, more detailed, report required prior to Mr Wigg giving evidence. Stage of proceedings and likely impact on trial 13 There is no question that this application comes at a very late stage of proceedings. UCR r 74.3 sets out the usual timetable for filing and serving reports and UCR r 151.12 precludes a party from relying on a new expert report without leave of the Court once a matter has been listed for trial. The UCR requirements were modified by consent, and with leave, by the orders dated 3 November 2025. Accordingly, the applicant’s reports ought to have been filed and served by 27 February 2026. 14 I do not accept the applicant’s assertion that the extension sought will not impact the trial. The time frame proposed is very short. The further suggestion that reports could be provided during the trial is impractical and would inevitably disrupt the efficient conduct of the hearing. 15 The trial is listed on 18 May 2026 – some 28 days from now. This is a very short time frame for the respondents to brief two experts, for the experts to come to grips with the material and then write reports. I note also that any further report 14 FDN 143 at [11.2]. -- 6 of 10 -- [2026] SASC 49 McIntyre J 5 provided by Mr Wigg would inevitably raise additional issues for the respondents’ accounting expert to address. In addition, the timetable requires the parties to attend to other matters in preparation for the trial. These are not minor matters and include provision of evidence in chief by the respondent and responding material by the applicant and written openings. These are matters which will be impacted by the expert reports. 16 It is also likely, if not inevitable, that an extension of time for these reports would impact the length of the trial. At the least there will be four expert witnesses, and it may be, as is apparent from the respondents’ affidavit material, that there will be additional lay evidence as to factual matters raised in Dr Page’s report. It seems unlikely that the evidence could be completed in the two weeks allocated resulting in the undesirable outcome that the matter is part heard. Explanation for delay and opportunity to obtain reports earlier 17 The delay in filing an application for an extension of time within which to file expert reports is said to be attributable to two principal causes: Mr Rusch’s belief that there was a moratorium on the timetable set by the orders made on 3 November 2025 until after a private mediation arranged between the parties had taken place and Mr Rusch’s oversight in seeking an extension of time to file and serve reports after the mediation had terminated. The mediation commenced on 9 December 2025 and was adjourned until 3 February 2026. The mediation was terminated on 2 February 2026. 18 The parties conferred about some timetable issues, but not the issue of expert reports, between 12 February 2026 until 11 March 2026. Orders were made by consent on 12 March 2026.15 As no expert reports were filed, my Chambers wrote to the parties on 12 March 2026 enquiring whether any reports had been served in line with the 3 November 2025 orders. On 17 March 2026, Mr Rusch responded to that email, stating he would confer with the respondents and “revert back shortly”. Ms Surman responded on 26 March 2026, confirming that the respondents did not intend to file any expert evidence. Subsequently, on 27 March 2026, Mr Rusch advised my Chambers that the applicants had instructed experts and expected to reply upon their reports. It was raised by Mr Rusch that there may be an objection by the respondents. 19 On 17 March 2026, Mr Rusch advised the respondents’ solicitors that the applicant intended to file and serve expert evidence. The respondents’ solicitors asked for details on 17 March 2026. The applicant’s solicitor replied, by email dated 19 March 2026, that experts had not been engaged due to ongoing negotiations but that the applicant had undertaken availability and conflict checking of experts in marketing and accounting. The applicant’s solicitors further 15 FDN 132. -- 7 of 10 -- [2026] SASC 49 McIntyre J 6 advised that they anticipated that reports would be available by 10 April 2026. In terms of the content of any such reports, it was said:16 We anticipate at this stage that any expert report on marketing will address rebranding strategies and any financial expert report will address the allegation of reduced profit earned by SEPL. 20 This is hardly a fulsome or helpful description of the proposed evidence. The respondents’ solicitors advised the applicant’s solicitors that they objected to the calling of expert evidence on 26 March 2026. 21 Mr Rusch sent letters of engagement to Dr Page and Mr Wigg on 27 March 2026. Copies of the letters of engagement were sent to the respondents’ solicitors on 30 March 2026. The present application was foreshadowed at a directions hearing on 8 April 2026 and was filed on 10 April 2026. 22 The respondent’s solicitors deny that there was an agreement to a moratorium on the orders of 3 November 2025. On balance, having considered the affidavit material, I accept that this is so, but I also accept that Mr Rusch’s belief as to the moratorium was honestly, albeit erroneously, held. Frankly, however, even had a moratorium been agreed between the parties, this issue ought to have been referred to the Court. Whilst the timetable orders were made by consent – they were still Court orders. The purpose of a timetable for trial preparation is to ensure that a matter will be ready to proceed efficiently when it is listed. A departure from the timetable required leave of the Court. This was clearly a matter to which the respondents were alive given their attention to other aspects of the timetable. In light of the fact that the timetable was already tight, it would have been necessary to establish that a variation of the timetable would not impact the parties’ readiness for trial. The likelihood of variations to the timetable for expert reports to impact the trial is obvious. The applicant’s disregard for the efficient preparation of the matter for trial in line with the agreed timetable is explained by the mediation and subsequent negotiation process but it does not excuse what I can only describe as its cavalier approach to Court orders. 23 Self-evidently these reports could have been obtained at any stage of the proceedings which have been on foot for many years. The reports are said to be critical to the applicant’s case – this must have been obvious to the applicant for some time. The decision not to obtain such reports until this late stage of proceedings was presumably a forensic decision to save costs in the event that the matter settled. Having arranged a mediation and then delaying further whilst negotiations continued so close to the trial, this decision was attended by considerable risk. 16 FDN 139, see exhibit JR-1 at 21. -- 8 of 10 -- [2026] SASC 49 McIntyre J 7 Delay and disruption 24 The applicant says that it will be significantly prejudiced if it is precluded from relying on these reports. The applicant further contends that there is an absence of prejudice to the respondents arising from the extension sought. The respondents do not agree and have identified several areas of prejudice or potential prejudice which I accept are valid. 25 The applicant contends in the alternative that any prejudice can be ameliorated by “appropriate orders”. It is my view, outlined above, that the orders proposed by the applicant do not provide any comfort that the trial will be ready to proceed as listed on 18 May 2026. There is, further, a significant risk that the evidence will not be completed in the two weeks allocated. In those circumstances, the spectre of a lengthy adjournment of the trial either wholly or in part looms large. 26 Clearly there will be significant time, cost and inconvenience flowing from any adjournment for both parties. This could be ameliorated for the respondents by appropriate costs orders. Likewise, there will be uncertainty and strain imposed on the parties and witnesses. However, the nature and history of this dispute suggests that such concerns do not weigh as heavily as in some other matters where lives and livelihoods may be impacted. 27 The impact of an adjournment or a part heard matter on limited judicial and court resources is significant and has a real impact upon other litigants’ access to those resources. As the public rightly expects, the Courts strive to use scarce resources to ensure the just and efficient administration of justice. Our civil litigation system is often criticised for the cost and time involved. Many potential litigants are dissuaded from seeking redress by those factors. Any delay, particularly in a long running matter such as this, has the potential to adversely impact public confidence in the system. Conclusion 28 There is no question that this is a difficult balancing exercise. The applicant says that the expert evidence is critical to its case on liability. That being the case there would be significant prejudice if the applicant was not permitted to call those experts. I am reluctant to deprive the applicant of the opportunity to properly present its case. The other side of the coin is the position of the respondents who did not agree to any delay in the timetable and, not unreasonably, assumed that the applicant did not propose to obtain any expert evidence and prepared for trial on that basis. There is no suggestion that the respondents are not otherwise able to proceed. 29 No party wants the trial to be adjourned but I have significant doubts about the ability of the parties to be fully prepared for trial by the commencement date in the event that I grant this application. The prospect of expert reports being provided during the trial will inevitably be disruptive and inefficient. Further, it -- 9 of 10 -- [2026] SASC 49 McIntyre J 8 seems probable that the trial would be incapable of completion in the time allotted with the addition of this evidence. Part heard matters are inefficient and impose significant burdens on the parties and the Court in circumstances where a part heard matter would be unlikely to be relisted any sooner than a new trial. It is my view that allowing this evidence to be called requires the trial date to be vacated and a new trial date to be set which accommodates the additional evidence and provides sufficient time for the parties to ensure that the liability trial is completed. 30 In all of the circumstances, I have concluded that the appropriate course is to grant the application and vacate the trial on the basis that the prejudice to the respondents can be ameliorated by appropriate costs orders. I will hear the parties on the question of costs. I propose to list a directions hearing at which a new timetable can be set and the trial relisted. -- 10 of 10 --