Monteleone & Ors v Warren [2026] VSC 423 (26 June 2026)

Monteleone & Ors v Warren [2026] VSC 423 (26 June 2026) AustLII Search Supreme Court of Victoria Search AustLII ▼ Search Options All databases This database only Full text Titles only Advanced Search… Search term: × Close About Contact Copyright & Usage Privacy Disclaimers Feedback Help Type Cases Jurisdiction Victoria Database Supreme Court of Victoria Year 2026 Citation [2026] VSC 423 All Databases Cases & Legislation Journals & Scholarship Law Reform Treaties Libraries Communities LawCite Australia CTH ACT NSW NT QLD SA TAS VIC WA New Zealand Specific Year Any 2015 Year Range 1970 2015 2015 2015 Apply --> Any Any 2026 --> Any 2015 2014 2013 --> Any 2015 2014 2013 --> Monteleone & Ors v Warren [2026] VSC 423 (26 June 2026) Last Updated: 26 June 2026 IN THE SUPREME COURT OF VICTORIA Not Restricted COMMERCIAL COURT COMMERCIAL LIST S ECI 2025 00409 ANTONIO MONTELEONE (and others according to the attached Schedule) Plaintiffs v NICOLE LEANNE WARREN Defendant --- JUDGE : Craig J WHERE HELD : Melbourne DATE OF HEARING : 25 May 2026 DATE OF JUDGMENT : 26 June 2026 CASE MAY BE CITED AS : Monteleone & Ors v Warren MEDIUM NEUTRAL CITATION : [2026] VSC 423 --- APPEAL – Appeal from an Associate Justice – Defendant did not comply with deadlines for filing evidence and provided no explanation on oath – Defendant was self-represented until days before the hearing – Associate Justice refused adjournment and granted summary judgment – No duty on the part of the Court to advise the Defendant of the consequences of failing to file evidence – No error in refusing the adjournment – Appeal made pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) – House v The King (1936) 55 CLR 499, applied – Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , applied – Nobarani v Mariconte [2018] HCA 36 ; (2018) 265 CLR 236 , applied; Roberts v Harkness [2018] VSCA 215 ; (2018) 57 VR 334 , applied – Appeal dismissed. APPEAL – Appeal from an Associate Justice – Application to tender new evidence on appeal – Did not establish that evidence could not have been adduced with reasonable diligence prior to initial hearing – Application refused – Clark v Stingel [2007] VSCA 292 , applied. --- APPEARANCES : Counsel Solicitors For the Plaintiffs Vanessa Plain Summer Lawyers For the Defendant In person -- Contents HIS HONOUR: A Introduction to the appeal The defendant, Ms Nicole Warren, appeals against the entirety of the orders made by Associate Justice Irving on 7 October 2025. Those orders relevantly were as follows: 1. The defendant’s application for an adjournment is refused. Judgment is given to the plaintiffs for possession of all that piece of land being Lots 1 and 2 on Title Plan 624356R, being the land more particularly described in Certificate of Title Volume 06517 Folio 296 situated at and known as 12 The Ridgeway, Ivanhoe in the State of Victoria. 3. The defendant is to pay the plaintiffs’ costs on a full indemnity basis. The orders were made at the hearing of an application by the plaintiffs for summary judgment pursuant to the Civil Procedure Act 2010 (Vic) ( CPA ). In essence, the plaintiffs’ case was that they advanced the sums of $577,300 and $150,000 to CHS Consolidated Holdings Pty Ltd ( CHS ) pursuant to two separate loan agreements. Both loan agreements were guaranteed by Ms Warren. The loan advances were secured by two separate mortgages registered over Ms Warren’s property at 12 The Ridgeway, Ivanhoe (the Property ). CHS and Ms Warren defaulted in their payment obligations under the loans and guarantees respectively, and the plaintiffs therefore sought possession of the Property. The material before the Associate Justice on the hearing of the original application was as follows: (a) a summons dated 19 June 2025 seeking summary judgment and possession of the Property; (b) a written outline of submissions dated 19 June 2025 ( June 2025 Submissions ); (c) an affidavit of Paul William Stone sworn 19 June 2025 ( Stone Affidavit ); (d) an affidavit of Matthew Hempel sworn 19 June 2025 ( Hempel Affidavit ); and, (e) an affidavit of Bianca Josephine Quan sworn 7 October 2025 ( Quan Affidavit ). Ms Warren advanced eight grounds of appeal by way of an amended notice of appeal. The notice of appeal was divided into three ‘procedural’ and five ‘substantive’ grounds. The procedural grounds of appeal were as follows: The learned Associate Justice erred in refusing the Appellant's application for an adjournment in circumstances where her then-solicitors, Brown & Turner Legal, had been retained only on or about 3 October 2025 — approximately four days before the hearing — and had not had adequate time to review the evidence, prepare responsive affidavit material, or properly advise the[defendant]. The defendant had been unrepresented until that time. The learned Associate Justice erred in admitting and relying upon the affidavit of Paul William Stone sworn 19 June 2025 (Stone Affidavit) in circumstances where: (a) the Stone Affidavit was purportedly served by way of a hyperlink in an email; (b) that hyperlink was broken and non-functional; and (c) the [defendant] did not receive a readable copy of the Stone Affidavit at any time before the hearing on 7 October 2025, and did not in fact receive it until on or about 29 April 2026 pursuant to an order of Justice Craig. The learned Associate Justice erred in failing to afford the [defendant], who was for all practical purposes unrepresented, the degree of procedural assistance required to ensure a fair hearing, including by failing to inform the [defendant] that proceeding without responsive affidavit evidence was likely to result in judgment against her. In summary form, the substantive grounds of appeal were as follows: (a) Ground 4: the learned Associate Justice erred in granting summary judgment in circumstances where there were real triable issues as to whether Ms Warren received genuinely independent legal advice before signing the guarantee and mortgage documents. (b) Ground 5: the learned Associate Justice erred in granting summary judgment in circumstances where there were real triable issues as to whether the special equitable protection afforded to surety spouses applied to Ms Warren. (c) Ground 6: the learned Associate Justice erred in granting summary judgment in circumstances where there were real triable issues as to whether the plaintiffs’ conduct constituted unconscionable conduct. (d) Ground 7: the learned Associate Justice erred in granting summary judgment in circumstances where, even if the defence had no real prospect of success, the nature of the dispute — involving equitable principles concerning a spousal guarantee, the adequacy of independent legal advice, and the potential loss of a family home — was such that the discretion under s 64 of the CPA required the matter to be allowed to proceed to trial. (e) Ground 8: the learned Associate Justice erred in making an order for indemnity costs in circumstances where: (a) if the mortgages and guarantees are voidable, the costs provisions within those instruments cannot be enforced independently; (b) the costs order was predicated upon a summary judgment that was itself infected by the procedural errors identified in Grounds 1 to 3 above; and (c) the exercise of the discretion to award indemnity costs miscarried in circumstances where Ms Warren was not properly served with the primary evidentiary document and her solicitors had been retained only days before the hearing. This appeal is made pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic). As explained in Oswal v Carson , [1] an appeal under this rule is a rehearing which requires that, in the absence of further evidence or a change in the law, that the appellant demonstrate error on the part of the Associate Judge before appellate power may be exercised. [2] On an appeal from an Associate Judge, a judge has all the powers of the Associate Judge that heard the matter at first instance. [3] This includes the power to give any judgment and make any order which ought to have been given or made, and make any further or other order as the case may require. [4] On the appeal, Ms Warren relied upon: (a) an amended notice of appeal dated 8 May 2026; (b) amended written submissions dated 8 May 2026; and (c) written submissions in reply dated 22 May 2026. Ms Warren also sought leave to rely upon the following two affidavits which were not before the Associate Justice at the hearing of the summary judgment application: (a) an affidavit of Ms Warren sworn 8 May 2026 (the Warren Affidavit ); and (b) an affidavit of Wayne Saman sworn 8 May 2026 (the Saman Affidavit ). The plaintiffs opposed the appeal. Save for paragraphs 32 to 35 of the Warren Affidavit, to which I will come in more detail, the plaintiffs also opposed the tender of the Warren Affidavit and Saman Affidavit on the appeal. The plaintiffs submitted that the further evidence did not satisfy the criterion for admission on an appeal of this type, having regard to the principles articulated by the Court of Appeal in Clark v Stingel . [5] In oral submissions, the plaintiffs accepted that if the further evidence was admitted on appeal, there were triable issues for determination [6] and the appeal ought to be allowed. [7] B Procedural Background The relevant procedural history is as follows. On 29 January 2025, the plaintiffs filed a writ and statement of claim. On 27 March 2025, Ms Warren filed a defence. The defence appears to be signed by Ms Warren. No solicitors were identified as being on the record for Ms Warren. The email address nominated by Ms Warren on her notice of appearance and defence was [email protected] . On 22 May 2025, Judicial Registrar McCann made orders by consent and on the Court’s own motion, timetabling the plaintiffs’ application for summary judgment ( May 2025 Orders ). Pursuant to those orders, the application was originally set down for hearing on 8 July 2025. On 13 June 2025, Associate Justice Irving made orders by consent, extending the timetable set down in the May 2025 Orders ( June 2025 Orders ). The hearing date for the application was adjourned to 12 August 2025. On 19 June 2025, the plaintiffs filed the summons seeking summary judgment (the Summons ) supported by the Stone Affidavit, the Hempel Affidavit and the June 2025 Submissions. Ms Quan deposed, in unchallenged evidence, that the Summons, the Stone Affidavit, the Hempel Affidavit and the June 2025 Submissions were served on Ms Warren at [email protected] . Pursuant to the June 2025 Orders, Ms Warren was required to file and serve any submissions and affidavit material upon which she relied in response to the summary judgment application by 18 July 2025. On 22 July 2025, Ms Warren emailed the plaintiffs’ solicitors informing them that she was urgently seeking legal representation and sought an extension of time to file and serve any material in response to 31 July 2025. The plaintiffs consented to the requested extension. By 6 August 2025, no material had been filed and served by Ms Warren in response to the application for summary judgment. [8] On that date, the plaintiffs’ solicitors sent an email to Ms Warren informing her that the plaintiffs intended to proceed on the basis that Ms Warren did not intend to file any material in respect of the application. On 6 August 2025, a Mr George Petselis sent a text message to Ms Quan of the plaintiffs’ solicitors as follows: Nicole Warren will be seeking to appoint Jules Marra, Solicitor tomorrow. This is my introduction. Would your client be amenable to consent on the papers for a 2 week adjournment to the hearing for summary judgement on Tuesday? It was confirmed at the hearing before the Associate Justice that Mr Marra was a solicitor of Brown & Turner Legal. [9] Later that day, the following email was sent by or on behalf of Ms Warren to the plaintiffs’ solicitors: Dear Sanam, Thank you for your email sent at 2.22pm today. [I]n case you are not already aware Mr George Petselis acting as a consultant on my behalf and with my authority made contact with Bianca Quan of your office at 11.33am today. At 12.41 pm today Ms Quan responded that she was seeking instructions from your client and would revert. In short a further two week adjournment was requested and the grounds for such adjournment were provided to Ms Quan in Mr Petselis's communication. Accordingly I look forward to your response at your earliest convenience. Kind Regards, The following morning, the plaintiffs’ solicitors responded: Dear Nicole, We are instructed to consent to your request for an adjournment. Please note that this is the final extension our client will agree to, We are currently seeking confirmation of counsel's availability for the purpose of proposing a new date for the hearing of our clients' application, and we will provide you with some draft consent orders in due course, Kind regards, The correspondence was unambiguous. This was the final adjournment and extension that would be the subject of consent from the plaintiffs. On 7 August 2025, Associate Justice Irving made orders by consent further extending the timetable for the plaintiffs’ summary judgment application to allow Ms Warren to file a response. More specifically, the orders afforded Ms Warren until 14 August 2025 to file and serve responsive material. The hearing of the summary judgment application was adjourned until 7 October 2025. Importantly, the orders also recorded the following matters: (a) that evidence or submissions filed out of time will not be considered without a summons for leave supported by an affidavit explaining the party’s non-compliance with the timetable; and (b) in advance of any anticipated non-compliance with the timetable, the parties were to: (a) confer with respect to amendments to the timetable; and (b) email the Associate to the Associate Justice to explain the reason that further time may be required and provide draft minutes of order addressing a revised timetable. (the 7 August 2025 Orders ) C The Hearing on 7 October 2025 On 7 October 2025, the hearing of the plaintiffs’ application for summary judgment took place before Associate Justice Irving. The hearing relevantly consisted of an application for an adjournment by Ms Warren and, upon refusal of that application, the hearing of the application for summary judgment. Mr Raso, solicitor at Brown & Turner Legal, appeared on behalf of Ms Warren and made an application for an adjournment of the plaintiffs’ application for summary judgment. No affidavit material was filed in support of Ms Warren’s application for an adjournment. Mr Raso made the following submission to the Associate Justice: HIS HONOUR: Good morning. Mr Raso, was there any application which you wanted to make or intended to make this morning? MR RASO: Yes, we intend to make an application for an adjournment. We received instructions late yesterday afternoon, and received part of the relevant file this morning. We just simply haven't had a chance or an opportunity to review anything at this stage and unfortunately we're just not in a position to. HIS HONOUR: And what's the length of the adjournment that you're seeking? MR RASO: At a minimum, it would be two weeks, but with the Melbourne Cup holiday upcoming, I understand that it might not be possible. Certainly, at least two weeks, though, to get counsel on board and have the file reviewed. His Honour subsequently drew attention to the terms of the 7 August 2025 Orders and enquired as to Ms Warren’s explanation as to why Mr Raso was briefed only at ‘the very last moment’. Mr Raso’s response was as follows: I only have instructions at a very high level on that 1 point, and it's simply a financial issue. She just hasn't had the funds available to do so until now. Indeed, my client made initial contact with our office last week but it was only very brief, and it appeared to be proceeding beyond that, and then only, as I said, late yesterday afternoon did we get formal instructions to appear. Beyond the financial issues, I don't have instructions at this stage. I hadn't seen those orders either. In response to the application for an adjournment, the plaintiffs relied upon the Quan Affidavit and drew specific attention to the 6 August 2025 communications regarding the proposed retainer of Mr Marra. His Honour then provided Mr Raso with an opportunity to make any further submissions, which led to the following exchange: HIS HONOUR: Was there anything further that you wanted to say in response to the matters Ms Plain has raised? MR RASO: No, nothing at this stage, save to say, I'm not aware of this text message from early August. I can seek some instructions on that, but I just don't have anything at this stage. HIS HONOUR: Is your client at court or is she watching or? MR RASO: No, she's not. She's not in - - - HIS HONOUR: She's somewhere else today. MR RASO: Yes. HIS HONOUR: Okay. All right. MR RASO: And just one further point: Mr Marra is a solicitor of our office and he would be the solicitor with primary carriage of the matter once it proceeds, but again, I don't have any instruction as to whether or not the contact was made back in August. To my understanding, contact was only made last week. As I have foreshadowed, the application for an adjournment was refused. The ruling of the Associate Justice drew attention to the following matters: (a) the information in support of the application for an adjournment was scarce; (b) this was the third proposed adjournment of the hearing date; (c) the timetable was amended by consent on 7 August 2025 after the text message exchanges referred to above; (d) the consent orders were signed by the defendant herself; and (e) the structure of the orders had afforded Ms Warren, ‘in practical reality’ two months after the plaintiffs had filed their materials. His Honour concluded his ruling as follows: Given the history of this matter and the wholesale non-compliance without explanation, notwithstanding the warning, if you like, that was in the other matter/section of the order that I made on 7 August, it seems to me that I cannot have any real confidence that that, even if I did adjourn the matter for a period of a week or two weeks, that there would be any compliance by the defendant. So having regard to the overarching obligations of the Civil Procedure Act , I am going to refuse the application for an adjournment today. Following delivery of the ruling refusing the adjournment, the Associate Justice enquired of Mr Raso as to whether his instructions extended beyond the making of the adjournment application. The relevant exchange was as follows: HIS HONOUR: Thank you, Mr Raso. I don't know whether your instructions extend beyond making the application for the adjournment. MR RASO: Not at this stage, no. HIS HONOUR: No. All right. Well, in that case, it's up to you. You're excused. MR RASO: Thank you. HIS HONOUR: If you have no further instructions. Otherwise, you are welcome to stay here. Thus, Ms Warren had determined not to attend the hearing and had limited the instructions of Brown & Turner to apply for an adjournment. The clear implication is that if the adjournment application was refused, Ms Warren had placed herself in the position that she would be unrepresented at the hearing of the summary judgment application. D Consideration D.1 Admission of the New Affidavit Material As I have already noted, Ms Warren sought leave to rely on two new affidavits at the hearing of the appeal. The applicable principles are well settled and of long-standing. Leave should be given only if three prerequisites are satisfied: [10] (a) First, if by the exercise of reasonable diligence such evidence could not have been discovered in time in order to be used in the original hearing. (b) Secondly, if it is reasonably clear that if the evidence had been available at the hearing, and had been adduced, an opposite result would have been produced. (c) Thirdly, if the evidence proposed to be adduced is reasonably credible. As is clear, the pre-requisites are cumulative. They are drawn from decisions of the High Court in Orr v Holmes ( Orr ) [11] and Wollongong Corporation v Cowan . [12] As those decisions remind us, a successful party is not to be deprived of a successful outcome ‘except to fulfil an imperative demand of justice’. [13] As Dixon J observed in Orr, new evidence ‘makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence’. [14] The new affidavit material was comprised of the Warren Affidavit and Saman Affidavit. Save for the four paragraphs admitted into evidence by consent, [15] the tender of the new affidavit material was opposed on the basis that first threshold requirement for adducing new evidence on appeal was not satisfied. In broad summary, the Warren Affidavit contained evidence as to the following matters: (a) Ms Warren was and remains married to Mr Saman. (b) At the time the documents the subject of this proceeding were executed, Ms Warren was financially and emotionally dependent on Mr Saman. (c) Mr Saman managed all of the financial affairs and did not tell Ms Warren that she was the guarantor of the debts of CHS or that the family house had been provided by security. (d) Ms Warren did not understand that she was taking on any personal liability or encumbering the Property. (e) Ms Warren received no financial benefit from either of the loans to CHS. The loans were made for the purpose of Mr Saman’s business. Ms Warren had no personal involvement in the business and derived no personal advantage from the transactions. (f) Ms Warren signed the documents solely because Mr Saman asked her to do so and she did not understand the true nature of what she was signing. (g) Ms Warren attended Zoom calls in relation to the loans, but Mr Saman coached her to say that she understood everything. Any confirmation of understanding on her part was neither informed nor genuine. (h) The legal advice received by Ms Warren was not truly independent as her advising solicitor was both Mr Saman’s and CHS’s personal solicitor. (i) The solicitor did not advise Ms Warren as to the nature or consequences of what she was signing, including that she was personally guaranteeing the debts of CHS and that the family home would be mortgaged. (j) Ms Warren was given no opportunity to read or consider the documents before signing them. Mr Saman’s evidence broadly corroborated Ms Warren’s evidence to the extent Mr Saman had direct knowledge of those matters. The evidence summarised above, if true, paints a very sad picture. As counsel for the plaintiffs conceded, it is evidence capable of giving rise to a triable issue. However, the evidence was known to Ms Warren or capable of being ascertained at the time of the hearing before the Associate Justice. There is no suggestion in the evidence that the matters referred to in the Warren Affidavit or Saman Affidavit were not known to Ms Warren and therefore incapable of being adduced in evidence at the hearing of the application. They are matters of historical record which are largely within the personal knowledge of Ms Warren. Ms Warren has not established that no reasonable diligence on her part would have enabled her to adduce it before the Associate Justice. [16] In those circumstances, the tender of the new evidence on appeal does not give rise to ‘an imperative demand of justice’ and must be rejected. D.2 Ground 1 Ms Warren made the following submissions in support of ground 1. First, that Brown & Turner were retained on or about 3 October 2025, only days before the hearing on 7 October 2025. As a consequence, they had not had adequate time to review the 272 page Stone Affidavit, obtain instructions, prepare responsive evidence or properly advise Ms Warren. Second, the Associate Justice acknowledged that the defence was in an ‘invidious position’ and yet despite that acknowledgement, proceeded to refuse the application without adequate weight being given to the practical impossibility of counsel retained the afternoon before being able to adequately represent a defendant at a summary judgment application of such significance. Third, the plaintiffs had consented to multiple earlier adjournments and frankly conceded that there was no prejudice to them beyond financial prejudice. In those circumstances, the refusal of the adjournment was an error of principle that caused actual injustice. This ground challenges the exercise of a discretion. Before a discretionary decision of a court may be overturned, an appellant must show an error of the kind identified in House v The King : [17] It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if [she or] he allows extraneous or irrelevant matters to guide or affect [her or] him, if [she or] he mistakes the facts, if [she or] he does not take into account some material consideration, then [her or] his determination should be reviewed and the appellate court may exercise its own discretion in substitution for [her or] his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in [her or] his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. [18] As the refusal of an adjournment is a matter of practice and procedure, an appellate court must also exercise particular caution in reviewing the decision. [19] Ground 1 must fail. There is no demonstrated error of the House v The King [20] kind. The Associate Justice took into account the full context in which the application for an adjournment was being made. That context included: (a) the application was filed four months earlier; (b) the application had already been adjourned on two occasions; (c) the fact that the 7 August 2025 orders were made following the text messages of 6 August 2025 (which had proposed the adjournment for the purpose of appointing Mr Marra of Brown & Turner); (d) the warning provided to the defendant recorded in the 7 August 2025 orders; (e) the absence of any explanation for the wholesale non-compliance with the Court’s orders in light of the Court’s warning on 7 August 2025; and, (f) the overarching obligations in the CPA. The Associate Justice’s reference to Mr Raso as being in an ‘invidious position’ is either mischaracterised or misunderstood by Ms Warren. Read in context, the Associate Justice’s remarks were clearly referable to the fact that Mr Raso was in an ‘invidious position’ because he had been briefed at ‘the very last moment’. The Associate Justice appropriately did not give weight to the late retainer of Brown & Turner. Ms Warren was on clear notice of the hearing date and had already proactively sought and obtained an adjournment in order to secure legal representation through Brown & Turner. Her subsequent delay in doing so and the reasons for that delay were not explained in evidence before the Associate Justice. In the circumstances in which the Court was being asked to exercise a discretion in favour of Ms Warren, an explanation on oath was clearly necessary. [21] The limited nature of the prejudice to the plaintiffs was taken into account in the Associate Justice’s ruling. There was therefore no failure to take into account a relevant consideration nor any other relevant error in the exercise of the Associate Justice’s discretion. Quite appropriately, the prejudice to the plaintiffs formed part of the overall broader evaluation as to whether or not an adjournment was warranted in the circumstances of the case. Amongst those broader considerations was the need to give effect to the overarching purposes in the CPA. The reference to the timely and efficient determination of disputes in s 7 of the CPA must, consonantly with the approach of the High Court in Aon Risk Services Australia Ltd v Australian National University ( Aon ), [22] be taken to constitute statutory recognition that the ill-effects of delay by parties to proceedings can ‘extend to other litigants who are also seeking a just resolution in their proceedings’. [23] As the High Court has observed, ‘the resolution of disputes serves the public as a whole, not merely the parties to the proceeding’. [24] D.3 Ground 2 Ms Warren correctly submitted that the Stone Affidavit was the primary evidentiary foundation for the summary judgment application. Ms Warren submitted that she was unable to access the affidavit before the hearing because the hyperlink contained in the email serving the affidavit was broken. Ms Warren submitted that admitting the Stone Affidavit into evidence in those circumstances denied Ms Warren the ability to read, challenge or respond to its contents and thereby denied her procedural fairness. The evidence adduced in support of this ground, and admitted on the appeal, was from the Warren Affidavit as follows: The respondents filed an application for summary judgment on 19 June 2025. An email purporting to serve the Stone Affidavit was sent to me on that date. The email contained a hyperlink to the Stone Affidavit. That hyperlink was broken. I was unable to access the Stone Affidavit and did not receive a readable copy before the hearing on 7 October 2025. I therefore had no opportunity to read or respond to its contents prior to the hearing. I did not receive a readable copy of the Stone Affidavit until on or about 29 April 2026, when it was provided pursuant to Order 1 of the orders of the Honourable Justice Craig made on 29 April 2026 (Appeal Book Tab O, p 349). That order required the respondents to serve a complete electronic copy of the Stone Affidavit on me by 1 May 2026. From 19 June 2025 until 29 April 2026 - a period of approximately ten months - I had no access to the primary affidavit relied upon by the respondents at the hearing below. It is in direct response to having received that document for the first time that I have prepared this amended affidavit, which responds to the Stone Affidavit's contents in detail. This ground of appeal falls to be evaluated in the following context. (a) The email serving the Stone Affidavit on 19 June 2025 made it clear on its face that it was serving an affidavit of Mr Paul Stone. The affidavit of Mr Hempel which was attached to the email in pdf form expressly adopted matters attributed to him in the Stone Affidavit. The written submissions, which were also attached in pdf form, made extensive reference to the matters canvassed in the Stone Affidavit. (b) There was no contention, by affidavit or otherwise, that Ms Warren was not aware of the contents of the Hempel Affidavit or written submissions or that the plaintiffs were seeking to make a case based on the Stone Affidavit. (c) Despite each of the above matters, at no stage between the filing of the application for summary judgment on 19 June 2025 and the hearing of the application on 7 October 2025, did Ms Warren (or her representatives) ever advert to or complain about her inability to access the Stone Affidavit. In fact, on 13 June 2025 and 7 August 2025, Ms Warren consented to orders extending her time to file responsive material. On 7 October 2025, Mr Raso appeared and made no application to be served with the Stone Affidavit and made no complaint about its non-receipt. (d) Ms Warren did not depose as to when she sought to access the Stone Affidavit. The complaint about service was first raised in Ms Warren’s original notice of appeal dated 21 October 2025. (e) Ms Warren did not depose to making any forensic or litigation based decision as a result of not being able to access the Stone Affidavit. For example, Ms Warren did not depose to making a decision not to file any affidavit in opposition to the application because the affidavit evidence she was able to review did not disclose a case against her. It is, of course, a fundamental obligation of every court to ensure a fair hearing for the parties before it. [25] As the Court of Appeal in Roberts v Harkness explained: [26] (a) it is an essential requirement of a fair hearing that each party be given a reasonable opportunity of presenting its case; and, (b) this will ordinarily include being informed of the case to be advanced by the opposing party, and having an opportunity to respond. Critically however, what the duty to act fairly requires is a fact driven practical inquiry. [27] As Gleeson CJ stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam : [28] Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Subject to one caveat, the framework for analysis as to what fairness requires does not change in any significant respect where one of the parties is unrepresented. [29] The caveat is that, in the case of a self-represented litigant, the court has to assess the capability of the litigant to formulate and communicate the case which he or she wishes to present. [30] Ms Warren was self-represented until 3 October 2025. There is no suggestion in the evidence before the Associate Justice or on this appeal, that either the Associate Justice or the plaintiffs were on notice or otherwise aware of the fact that Ms Warren could not access the Stone Affidavit. If Ms Warren tried to access the Stone Affidavit prior to the hearing, she made no mention of her inability to access the material prior to the hearing of the summary judgment application. Nor, it appears, did she communicate it to her solicitors on and from 3 October 2025. Ms Warren was clearly able to communicate the fact of the broken hyperlink, if true, to the Court and her solicitors. It was within Ms Warren’s power and capability to inform the Court, the plaintiffs and her solicitors of her inability to access the Stone Affidavit. She simply failed to do so. In those circumstances, there was no failure to afford procedural fairness. The same conclusion necessarily arises if Ms Warren only sought to access the Stone Affidavit after the summary judgment application on 7 October 2025. In that circumstance, there was no injustice occasioned to Ms Warren, as she had only tried to access the material well after the (twice extended) deadline for the provision of responsive affidavit material and after her belated attempt to adjourn the hearing had been refused. D.4 Ground 3 In support of ground 3, Ms Warren submits that because Brown & Turner were only retained in the days prior to the hearing, they were not in a position to represent her effectively and she was ‘[f]or all practical purposes’ an unrepresented litigant. Ms Warren further submitted that courts are required to take reasonable steps to assist self-represented and inadequately represented parties to understand the nature of the proceeding and the likely consequences of their choices. Ms Warren contended that in the context of a summary judgment application, a court should inform a defendant who has not filed responsive evidence that proceeding without such evidence is likely to result in an adverse judgment. This ground faces insurmountable practical and legal hurdles. First, Ms Warren was not an unrepresented litigant at the hearing. She instructed solicitors to appear but limited the ambit of their instructions. Having done so, she then did not attend the hearing in order to make submissions on her own account in the event that the application for an adjournment was refused. Second, Ms Warren’s submission elides an important temporal point – namely, when it is she submits that the Court ought to have advised her that the failure to adduce responsive evidence would likely result in an adverse judgment. The duty could not have arisen at the hearing on 7 October 2025, because the deadline for evidence had already passed and Ms Warren did not appear personally. Moreover, all of the time-tabling orders made in the proceeding were ‘on the papers’ and by consent. The precise occasion on which the duty was alleged to have arisen and the means by which it was to be discharged was therefore left unidentified. Thirdly, and in any event, the alleged duty does not arise as a matter of law. In Nobarani v Mariconte , [31] the High Court cited with approval the following passage from the judgment of Samuels JA in Rajski v Scitec Corporation Pty Ltd : [32] the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent. [33] Whilst a trial judge may need to seek to elicit and elucidate a legal point through exchanges with a self-represented litigant, [34] the duty of a trial judge to assist an unrepresented litigant ‘does not extend to advising the litigant as to how his or her rights should be exercised’. [35] In Chalik v Chalik , the New South Wales Court of Appeal recently reiterated that it is not the function of the court to give judicial advice to an unrepresented litigant. [36] In doing so, the New South Wales Court of Appeal stated: In Cicek v Estate of late Solomon [2014] NSWCA 278 at [130] , Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed: “suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her.” Handley JA expressed similar views more than 20 years earlier in Rowett v Westpac Banking Corp [1993] NSWCA 240: “Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge's role, as I have said, is that of an umpire.” [37] In Reisner v Bratt & Anor , [38] Hodgson JA stated: Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator. ... Where a case is brought before the Court by an unrepresented litigant, and material required for adequate consideration of that person’s case is not available or not presented to the Court, it is not generally the case that the Court should itself undertake an investigation of whether such material exists, and if so, seek to have it brought to the Court so that it can be considered. It may be sometimes appropriate for the Court to attempt to have such material available, particularly if the deficiency of the material is obvious and can be remedied without prejudice to the other side; but otherwise, it would generally conflict with the Court’s position as an impartial adjudicator for it to take steps to seek to improve an unrepresented litigant’s case by investigating whether there is more material to support that case than has been presented to the Court, and then taking steps to obtain that material . [39] To impose a duty to advise of the type contended for by Ms Warren upon a judicial officer in the pre-application or pre-trial phases of a proceeding, would disturb the balance which the rules of practice and procedure are designed to afford both parties, [40] and potentially create a very real constraint on the ability of courts to implement the objects of the CPA to efficiently conduct their business and efficiently use judicial and administrative resources. [41] D.5 Grounds 4 to 8 Each of grounds 4 to 7 are dependent upon the reception into evidence of the Warren Affidavit and Saman Affidavit. Put differently, without that material, there was no evidence capable of supporting those substantive grounds of appeal. For the reasons identified in section D.1 above, save for the limited tender of the Warren Affidavit, the absolute tender of the new affidavits has been rejected. In those circumstances, grounds 4 to 7 lack any factual basis and must be dismissed. As the procedural grounds (1 to 3) and grounds 4 to 7 have all been dismissed, it follows that ground 8 must also fail as it derived its efficacy from establishing some or all of the matters alleged in the earlier grounds. E Disposition The appeal will be dismissed. To facilitate the determination of costs, I will make the following orders: (a) subject to further order, the costs of the appeal will be determined on the papers; (b) within 7 days of the publication of these reasons, the plaintiffs are to file and serve an outline of submissions (limited to 2, A4 pages) in relation to the costs of the appeal; and, (c) within 7 days of the plaintiffs filing and serving their submissions on costs, the defendant is to file and serve an outline of submissions (limited to 2, A4 pages) in relation to the costs of the appeal. --- SCHEDULE OF PARTIES S ECI 2025 00409 BETWEEN: ANTONIO MONTELEONE First Plaintiff COMMUNITY & CORPORATE LIFESAVERS PTY LTD (ACN 142 587 951) Second Plaintiff SKM INVEST PTY LTD (ACN 637 637 300) Third Plaintiff and – NICOLE LEANNE WARREN Defendant [1] [2013] VSC 355 (Ferguson J). [2] Ibid [11]; Glass (a pseudonym) v Chief Examiner [2015] VSC 29 , [2] (Garde J). [3] Supreme Court Act 1986 (Vic), s 17(3) and Supreme Court (General Civil Procedure) Rules 2025 (Vic), rr 77.06, 77.06.1 and 77.06.9. [4] Re IPO Wealth Holdings No 2 Pty Ltd (in liq) [2022] VSC 199 , [53] (Elliott J). [5] [2007] VSCA 292 , [25] (Warren CJ, Chernov and Kellam JJA) ( ‘ Clark v Stingel ’). [6] Transcript of hearing on 25 May 2026 in Monteleone, Antonio & Ors v Warren, Nicole Leanne (‘ Transcript of appeal hearing ’)Transcript of appeal hearing T59:17-18. [7] Transcript of appeal hearing T62:16-22. [8] Quan Affidavit, [7]. [9] Transcript of hearing on 7 October 2025 in Monteleone, Antonio & Ors v Warren, Nicole Leanne , 5:5-12. [10] Clark v Stingel , [25]; Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors [2013] VSCA 237 , [522] (Warren CJ, Osborn JA and Macaulay AJA). [11] [1948] HCA 16 ; (1948) 76 CLR 632 (‘ Orr ’), 635 (Latham CJ) and 640–2 (Dixon J); [1948] HCA 16. [12] [1955] HCA 16 ; (1955) 93 CLR 435 , 444 (Dixon CJ); [1955] HCA 16. [13] Orr , 640 (Dixon J). [14] Ibid. [15] Warren Affidavit, [32]–[35]. [16] See, Orr , 644 (Dixon J). [17] (1936) 55 CLR 499 (Starke, Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (‘ House v The King ’). [18] Ibid, 504.9-505.4 (Dixon, Evatt and McTiernan JJ). [19] Oswal v Carson [2013] VSC 355 (Ferguson J); Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (Gibbs CJ, Aickin, Wilson and Brennan JJ); [1981] HCA 39. [20] House v The King , 504-5 (Dixon, Evatt and McTiernan JJ). [21] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), 214–5, [102]–[103] and 217, [114] (‘ Aon ’); [2009] HCA 27. [22] Aon . [23] Ibid, 214 [101]. [24] Aon , 217 [113]. [25] Roberts v Harkness [2018] VSCA 215 ; (2018) 57 VR 334 , 354 [47] (Maxwell P, Beach and Niall JA) (‘ Roberts ’); [2018] VSCA 215. [26] Ibid 354–5 [48]. [27] Roberts, 354 [47], 355 [50]. [28] [2003] HCA 6 ; (2003) 214 CLR 1 , 14 [38]; [2003] HCA 6. Cited in Roberts, 354 [47]. [29] Roberts , 356 [53]. [30] Roberts, 356 [54]. [31] [2018] HCA 36 ; (2018) 265 CLR 236 (Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ ) (‘ Nobarani ’ ); [2018] HCA 36. [32] Unreported, New South Wales Court of Appeal, 16 June 1986 (‘ Rajski ’). [33] Nobarani , 250 [47] citing Rajski , 27. [34] Roberts , 356–7 [56]. [35] Bauskis v Liew [2013] NSWCA 297 , [69] (Gleeson JA with Beazley P and Barrett JA agreeing). Cited with approval in Chalik v Chalik [2025] NSWCA 136 , [70] (Bell CJ, Payne and Free JJA) (‘ Chalik ’). [36] Ibid. [37] Chalik, [70]–[71]. [38] [2004] NSWCA 22. [39] Ibid, [4], [6] (emphasis added). [40] Chalik , [69]. [41] See, Civil Procedure Act 2010 (Vic), s 9(1)(c) -(d) . 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