Sanjiv v Coleman Greig Lawyers Pty Ltd

[2025] NSWSC 528

Supreme Court

New South Wales

Medium Neutral Citation:

Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528

Hearing dates:

26 September 2024, 7-8 April 2025 (hearing); 14, 23, 26 April 2025 (further submissions provided); 22 May 2025 (mention)

Date of orders:

26 May 2025

Decision date:

26 May 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

Summons dismissed.

Catchwords:

COSTS — Solicitor-client — Background — In late June 2018, Plaintiff confers with D2 (a solicitor) and engages D1 (D2’s law firm) to act for her in family law litigation, having previously engaged two prior firms of solicitors — D2 in the initial conference gives an estimate for work up until the next court listing (August 2018) and, from early August 2018 progressively over the next 9 months, gives further estimates by means of Family Law Rules Cost Notices — Proceedings fixed for final hearing in late April/early May 2019 and settled following negotiations at the hearing — 11 invoices rendered over 11 months totalling approximately $470,579 — First 7 invoices rendered during 2018 paid by mid-January 2019 and the 2019 invoices are at that time unpaid — Following the Family Court Orders, there are issues regarding payment of fees and enforcement of the orders — D1 ceases to act, sues for fees and obtains a default judgment against the plaintiff in the District Court — Subsequently plaintiff requests D1 to further act and D1 renders 2 further invoices for fees in July and August 2022 for approximately $12,286 — Matrimonial property sold and plaintiff authorises D1 to receive proceeds of sale to pay most of the outstanding fees — Plaintiff subsequently complains about amount of fees and disclosure

COSTS — Solicitor-client — Plaintiff (self-represented) commences proceedings and, prior to hearing, abandons relief seeking a declaration that costs agreements are void and invalid but presses orders requesting repayment of fees allegedly charged exorbitantly and without authorisation — Hearing is not completed on the allocated listing day — Shortly after the hearing is adjourned part heard, the plaintiff commences fresh proceedings attempting to re-instigate the abandoned relief — D1 named as the sole defendant in the fresh proceedings and seeks to have them summarily dismissed — Orders made in those proceedings dismissing that claim — On the resumed part heard hearing of these proceedings, the plaintiff presses claims for repayment and continues to raise issues regarding alleged inadequate disclosure of costs — Notwithstanding abandonment of claim that the costs agreement(s) are void and invalid, the (retained) claim for repayment of funds is essentially underpinned by various complaints of the plaintiff, including nondisclosure of total costs, inadequate disclosure of significant increases in costs, and assertions that D1 had agreed to act for a limited sum — Held, as repayment issue is premised on nondisclosure issues and other complaints, the Court ought to address those issues — Other issues including allegations of duress in respect of costs agreements and costs notices, allegations that that defendants guilty of contempt in failing to comply with Family Court Orders and claims for making a gross sum costs order or referring costs to be assessed by a referee also addressed — Plaintiff’s various claims dismissed

CIVIL PROCEDURE — Identification of real issues in dispute — Obligations of parties including self-represented litigants regarding identification of issues

UNREPRESENTED LITIGANTS — Content of procedural fairness

COSTS — Principles regarding costs agreements, disclosures, billing and assessment outlined and discussed — Requirement to provide an “estimate of the total legal costs”, “as soon as practicable after instructions are initially given in the matter” discussed — Meaning of “significant change” — Requirement to disclose “significant change to anything previously disclosed” discussed — Requirement for the legal practice to take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs discussed

EVIDENCE — Communication by a witness with others whilst under cross-examination — Principles discussed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Evidence Act1995 (NSW)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Legal Profession Act 1987 (NSW)

Legal Profession Uniform Law 2014 (NSW)

Family Law Rules 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Abbott v The Queen [2017] NSWCCA 149

Allianz Australia Insurance Ltd v Yu [2024] NSWSC 31

Arambatzis v Foundas (No 2) [2024] NSWSC 859

Barton v Armstrong [1976] AC 104; [1975] 2 WLR 1050

Bauskis v Liew [2013] NSWCA 297

Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162

Bevan v Bingham (2023) 111 NSWLR 7; [2023] NSWSC 19

Cameron v Geer [2020] VSC 75

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Crosby v Fica (No 4) [2018] NSWSC 632

Dai v Jiao [2011] NSWSC 538

Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333

Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gabrielle v Abood (No 4) [2023] NSWCA 100

Hamod v New South Wales [2011] NSWCA 375

John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12

Mohareb v Local Court of New South Wales [2024] NSWCA 235

New South Wales v Kable (2013) 252 CLR 118 at 133; [2013] HCA 26

Petselis v Tatarka (2019) 57 VR 375; [2019] VSC 8

Potier v R [2015] NSWCCA 130

Re Jabe [2021] VSC 106

Rusca Bros Services Pty Ltd v Dlaw Pty Ltd (No 2) [2019] FCA 1865; (2018) 140 ACSR 533

Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675

Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964

Snook v Western Australia (No 2) [2024] WASCA 135

Templeton v Australian Securities and Investments Commission [2015] FCAFC 137; (2015) 108 ACSR 545

Wang v Yu [2023] NSWSC 1182

Wentworth v De Montfort (1988) 15 NSWLR 348

Wills v Woolworths Group Ltd [2022] FCA 1545

Withyman v NSW [2013] NSWCA 10; [2013] ATR 82

Texts Cited:

Bible – New International Version

Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)

Encyclopaedic Australian Legal Dictionary (LexisNexis)

Federal Circuit and Family Court of Australia, “Practitioner and Litigant Guide to Electronic Hearings”

Macquarie Dictionary, online ed

Quick, Roger, Quick on Costs (Thomson Reuters)

Ritchie’s Uniform Civil Procedure NSW

Rosier, Peter, “Costs Disclosure and the Uniform Law: Has Your Client Really Understood You?” (February 2016) Law Society Journal 84

Shepherd, Ian, “Communications with witnesses before and during their evidence” (1987) 3 Australian Bar Review 28

Category:

Principal judgment

Parties:

Rekha Sanjiv (Plaintiff)
Coleman Greig Lawyers Pty Ltd (First Defendant)
Karina Ralston (Second Defendant)

Representation:

Counsel:
K Young (First and Second Defendant)

Solicitors:
Coleman Grieg Lawyers Pty Ltd (First and Second Defendant)

In-person (Plaintiff)

File Number(s):

2023/00299506

table of contents

Introduction 

Real issues 

Parties’ agreed issues 

Abandoned relief – Order 1 of the summons 

Issues arising in respect of Order 2 of the summons 

Abandoned relief – Order 5 of the summons 

Belated raising of issues 

Avoidance of increased legal costs issue 

Alleged negligent work and new common law proceeding 

Parties and associated persons 

Plaintiff 

Plaintiff’s asserted vulnerability 

CGL 

Communication with the plaintiff 

Hearing

Representation 

Evidence 

Cross-examination of Ms Ralston 

Credit and reliability of witnesses

Standard of proof and weighing evidence 

Plaintiff 

Defendants’ witnesses 

Communication by a witness with others whilst under cross-examination

Principles 

The plaintiff speaks with a friend 

Background 

Prior lawyers

Initial retainer (June 2018) 

July-9 August 2018 

Post 9 August 2018-December 2018 

January-April 2019 

Family Court hearing (April-May 2019) 

May-June 2019 

Fee recovery proceedings (July-December 2019) 

2020 

2022 

2023 

Commencement of current proceedings 

Related proceedings 

Costs agreement and disclosure principles 

Retainers, costs agreements and costs disclosures 

Purposes informing costs regulation 

Reasonableness of costs 

Disclosure requirements 

Estimate of total legal costs as soon as practicable 

Obligations on updating cost disclosures 

Disclosure in family law 

Client understanding and consent 

Non-compliance with disclosure obligations

Costs agreements 

Billing costs and assessment 

Limited sum issue 

Complaint 

Submissions 

Determination 

Disclosure of total costs estimates issue

The complaint 

Submissions 

Determination (initial estimate up to 9 August 2018) 

Determination (total costs estimated after 9 August 2018) 

Other matters 

Provision of costs agreements issue

Complaint 

Submissions 

Determination 

Invoice documentation issue 

Contemporaneous provision of invoices 

Rate and hour details 

Instructions issue 

Duress issue

Complaint 

Submissions

Determination 

Exorbitant costs issue 

CGL costs

Submissions 

Determination 

Mr Grew’s fees 

Funds dispersal issue 

Transfer of funds from trust account 

Garnishee order 

Use of money from the proceeds of sale of the Epping property 

District Court judgment issue

Are the Defendants required to repay any monies to the Plaintiff? (agreed issue 1)

Should a gross sum costs order be made? (agreed issue 2)

Issue 

Submissions 

Determination 

Should a referee be appointed? (agreed issue 3)

Issue 

Submissions 

Determination 

Is CGL guilty of contempt? (agreed issue 4)

Issue 

Submissions 

Determination 

Is the Plaintiff entitled to an order for pre-judgment interest and costs of the proceedings? (agreed issue 5)

Issue 

Submissions 

Determination 

Conclusion 

ANNEXURE A

JUDGMENT   

Introduction

1. HIS HONOUR: Over a decade ago, the plaintiff Rekha Sanjiv became embroiled in litigation consequent upon the breakdown of her marriage to Dr Sanjiv Shah (Dr Shah) and adjustment of property interests between them.

2. Unhappily, as the events of her vexed litigious life recorded in this judgment will show, the plaintiff has spent more final hearing time against her final lawyers (the defendants), over her disputed claims regarding the costs of them acting for her, than she did with Dr Shah in the family law litigation.

3. In October 2014, Dr Shah commenced proceedings in this Court seeking appointment of trustees for sale of matrimonial property the couple held at Epping, which property was registered in the sole name of the plaintiff (Epping property). Within two weeks, the plaintiff commenced proceedings in the Family Court of Australia (Family Court) ^[1] seeking orders pursuant to s 79 of the Family Law Act 1975 (Cth) (FLA) for adjustment of property interests between herself and Dr Shah.

   1. Pursuant to the Federal Circuit and Family Court of Australia Act 2021 (Cth), there was a merger of the Family Court of Australia and the Federal Circuit Court of Australia. From 1 September 2021, the Federal Circuit and Family Court of Australia commenced operating in two divisions. It is apparent that after September 2021, the family law proceedings between the parties was dealt with in Federal Circuit and Family Court of Australia (Division 2) (see Court Book (CB) 757). For convenience, I will simply refer to the Division 2 Court as the “Family Court”.

4. Since the commencement of that litigation, the plaintiff has had a number of lawyers acting for her, including Slater & Gordon, Prominent Lawyers and relevantly, the first defendant in these proceedings, Coleman Greig Lawyers (CGL). The second defendant, Karina Ralston (since July 2018, a Principal of CGL), ^[2] is the solicitor with CGL who had the main carriage of the plaintiff’s matter (Ms Ralston). Keith Spencer of Spencer Legal (Mr Spencer) relevantly acted for Dr Shah.

   2. CB 90.

5. The Family Court proceedings were, in circumstances recited below, resolved.

6. CGL commenced to act for the plaintiff in June 2018 pursuant, it says, to costs/fees agreements. Relevantly, there were two forms of such agreement:

1. an agreement dated 29 June 2018 ^[3] (CA1); and

2. an agreement dated 15 June 2022 (CA2). ^[4]

   3. CB 54-59 (and attached Terms of Business CB 60-69).

   4. CB 705-707.

7. CGL rendered 13 invoices to the plaintiff over a period from 29 June 2018 to 2 August 2022 totalling $482,865.35. The first 11 invoices were rendered pursuant to CA1 with the remaining two being rendered pursuant to CA2. The details are set out in the annexure at the end of these reasons for judgment. In summary, the invoices are as follows:

No.	Date	Invoice No.	Amount	Court Book page	Sent to plaintiff [5]
1	29 June 2018	309323	$440	77-79	-
2	6 July 2018	309480	$9,689.90	83-85	Ex. D2
3	17 July 2018	309611	$14,956.07	91-96	CB 86
4	9 August 2018	310380	$45,775.85	101-107	Ex. D3
5	17 August 2018	310525	$26,293.03	108-113	Ex. D4
6	24 September 2018	311570	$23,869.95	130-135	-
7	19 November 2018	313282	$71,685.14	137-146	Ex. D5
8	5 February 2019	315632	$78,425.60	174-185	-
9	6 March 2019	316623	$42,476.50	193-199	Ex. D6
10	8 May 2019	318634	$26,376.90	412-417	-
11	28 May 2019	319299	$130,590.17	490-498	Ex. D7
Sub-total	$470,579.11
12	12 July 2022	361240	$8,252.90	743-746	CB 735
13	2 August 2022	361970	$4,033.35	761-764	Ex. D8
Total	$482,865.36 [6]

5. Evidence provided of the invoice being sent to the plaintiff on or about the date of the invoice.

6. The total recorded in the plaintiff’s summary is $482,865.35, being short by one cent.

8. The first 7 invoiced fees up to the end of 2018 were paid by the plaintiff. The next 4 invoiced fees during 2019 were largely unpaid and the subject of a District Court judgment, details of which I note below. Eventually those invoices and the remaining 2 invoices rendered in 2022 were substantially paid from funds received into CGL’s trust account.

9. Costs Notices ^[7] were provided to the plaintiff on 4 occasions. The Costs Notices incorporate three categories (though not always clearly set out): costs and disbursements to date; costs incurred but not yet charged; and estimated future costs. From the figures provided in the Costs Notices, the following can be calculated:

   7. Addressed by me below, but essentially a form of costs disclosure document which at the time of the proceedings was mandated under Chapter 19 of the Family Law Rules 2004 (Cth) but which now is provided for by r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Date	Paid to date	Incurred but not paid	Estimated future costs	Total estimate
9 August 2018	$25,254.57	$45,940.85	$60,670.00	$131,865.42 [8]
29 November 2018	$110,271.40	$90,137.99	$67,960.00 [9]	$268,369.39
17 January 2019	$120,271.40	$126,464.49	$130,000.00	$376,735.89
26 April 2019	$212,089.40	$187,144.99 [10]	$80,035.90	$479,270.29

8. The total estimate calculated from the Costs Notice is actually $131,865.42. The figure provided in Annexure A of Mrs Young’s DCS is $124,871.00. It is not clear from where this figure originates.

9. The Costs Notice notes that this number excludes counsel’s fees (as counsel had not yet been chosen).

10. The Costs Notice includes in this figure fees owing to Prominent Lawyers.

10. In 2019, CGL sued for recovery of its outstanding fees and obtained a default judgment in the District Court at Parramatta for approximately $266,860. Under a garnishee order in December 2019, CGL was able to recover the sum of $5,872.84. Subsequently in or around June 2022, through the sale of the Epping property, CGL received a further sum of approximately $252,604 in reduction of the District Court judgment. A small part of the judgment debt of approximately $8,381 remained outstanding. CGL has not pressed the plaintiff for payment of that outstanding sum.

11. On 20 September 2023, the plaintiff commenced the present proceedings in which she makes complaints regarding CGL’s costs, costs agreements and costs disclosure in acting for the plaintiff.

12. Wisdom regarding choices in life encourages assessment of the cost of a proposed course of action before embarking upon it. ^[11]

    11. For example, Luke 14:28-32 in the Bible – New International Version.

13. Within the realm of the solicitor-client relationships, one of the purposes of legislative regulation of the relationship is to ensure or at least facilitate, by the use of early disclosure of information, the empowering of clients to make informed choices about the services they access and the costs involved. ^[12]

    12. Legal Profession Uniform Law 2014 (NSW) (Uniform Law) ss 3(d), 169(a), 174(1).

14. For the solicitor, meaningful implementation of the statutory purpose requires careful thought regarding what disclosure should be properly given to a client regarding costs and any qualifications on such disclosure.

15. For the client, the purpose will be effective if the client is able to soberly reflect upon the information provided. If litigation is then embarked upon, it will be done on an informed basis with the client’s eyes wide open.

16. The plaintiff has many complaints regarding the fees charged to her and the actions of the defendants in rendering those charges. I will say more regarding the complaints below in addressing the real issues in the proceedings. However, broadly speaking the plaintiff seeks repayment to her of monies charged in respect of costs, for various reasons, including alleged initial inadequate disclosure of the estimated total legal costs involved in the retainer and significant changes to initial estimates.

17. The defendants, affronted by some of the plaintiff’s claims, especially a claim of duress, have stridently resisted the totality of the relief sought by the plaintiff and assert that they had given the plaintiff appropriate advice, various costs estimates and ongoing information to assess her position.

18. Frequently, in many cases, of which this is one (in a context I will explain below), there is some degree of truth in the positions taken by either side. On the plaintiff’s side, she did not receive an initial estimate of the total ^[13] amount of the likely costs that would be incurred in the litigation. The first estimate of total likely costs occurred on 9 August 2018 (approximately 6 weeks after 29 June 2018). Leaving aside the question of whether an estimate at that time was “as soon as practicable after instructions are initially given”, that estimate ($131,865.42) was not an estimate which (at least numerically) accorded closely with the total amount of costs actually rendered. One of the plaintiff’s assertions is that, had she initially received advice that the costs to her of the defendants acting in the matter would approach the order of close to $500,000, she would not have retained CGL. On the defendants’ side, they claim that, with limited initial information to hand, they gave an adequate costs estimate up to the time of the next court listing and, as further information came to light, they gave to the plaintiff further appropriate costs estimates.

    13. The word “total” is underlined for emphasis, which is only viewable on the Caselaw website.

19. There are, as will be seen below, what I will simply call some “queries” regarding CGL’s costs disclosures. However, overall, I do not regard them as being such substantial matters so as to justify any of the relief sought by the plaintiff. Rather, I have determined to dismiss the plaintiff’s summons and the relief sought and I find for the defendants in respect of the issues and the relief on the summons.

20. I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (CB), transcript pages (T) and exhibit numbers, and cite the submissions by reference to the plaintiff’s opening written submissions dated 22 September 2024 (POS), her closing written submissions dated  14 April 2025 (PCS) and her closing reply written submissions dated  26 April 2025 (PCRS), and Mrs Young’s opening written submissions filed 20 September 2024 (DOS) and closing written submissions provided on 23 April 2025 (DCS). References to the transcript will be to transcript pages of the final hearing unless otherwise specified.

10. In addressing a number of the issues below, it should be observed that the initial written opening outline of submissions were provided by the parties out of order. Mrs Young’s DOS were provided first and the plaintiff replied to that in her POS. The effect of that is that certain of the submissions the plaintiff made in her POS are not an outlining of her case but rather a reply to the submissions in the DOS.

Real issues

22. Issues are identified in proceedings in various ways, including by reference to:

1. the relief sought;

2. legal principles regarding what matters may justify or counter such relief;

3. assertion and admission or disputation of material facts in pleadings;

4. evidentiary disputes appearing in affidavits;

5. the conduct of the hearing including issues apparent from cross-examination; and

6. submissions (both pre-hearing and final).

23. In addition to the above, parties are often requested by the Court (in both pleaded and non-pleaded proceedings) to prepare agreed lists of issues.

24. The task of identifying real issues in dispute generally speaking ought to be straightforward. Parties’ contentions regarding what matters are or are not in issue are generally strongly informative of what matters are addressed by a judge in a hearing and subsequent judgment. However, judges are not necessarily bound by the parties’ assertions of “agreed issues”. Whether they are or are not will depend upon the particular circumstances of each case. In some cases, including those involving self-represented litigants, parties fail to adequately identify real issues but muddy the waters giving rise to difficult questions for the Court in determining what the real issues to be determined in the proceeding are. This is one of those cases.

25. These proceedings were commenced by summons. The parties served affidavits and, pursuant to pre-trial directions, prepared and provided to my Associate an agreed list of issues. However, from at least the first day of the hearing, there was both disputation and complication regarding the real issues.

26. Both parties to some degree (although, in my estimation, the plaintiff to a much larger degree) bore responsibility for complication regarding the real issues.

27. Some number of the aspects of the complication were as follows:   

1. during the first day of the hearing, the defendant’s assertion that the plaintiff had abandoned an issue as to whether a costs agreement was void;

2. lack of engagement of the parties regarding the basis underlying one of the issues identified by the parties, namely whether the defendants were obliged to repay monies to the plaintiff;

3. the plaintiff’s disordered conduct of the proceedings, including making complaints in affidavits sometimes by use of only a few words, which complaints were not identified by the parties as being “agreed issues”;

4. the propensity of the parties during the litigation to raise and address generally in the conduct of the hearing, in cross-examination and in submissions matters which seem to be complaints but had not been expressly characterised by the parties as “agreed issues”; and

5. the plaintiff’s conduct in commencing after the first day of the hearing 2 separate legal proceedings against the defendant which were either related or referable to matters raised in these proceedings.

28. The plaintiff, who is self-represented, particularly muddied the waters in the matter in at least three material respects. First by making certain serious allegations of threats and duress against Ms Ralston (which I find are completely unfounded), secondly after the completion of the first day of the hearing by commencing fresh proceedings seeking to re-agitate relief that I had determined had been abandoned, and thirdly by allegations of negligence (by minor reference in material initially presented in these proceedings and later by commencing fresh proceedings).

29. In light of the above, I propose in this section of the judgment to consider and identify the real issues to be determined. I have sought to do so in light of the parties’ “agreed issues” but also by reference to the body of the material presented in the case and how it was conducted.

Parties’ agreed issues

30. On 10 September 2024, the parties, pursuant to pre-trial directions, prepared and provided to my associate the following agreed issues:

1. Are the Defendants required to repay any monies to the Plaintiff?

2. Should the Court make an order for a gross sum costs assessment under section 98 of the Civil Procedure Act 2005 (NSW) (CP Act) and, if so, in what amount?

3. If the Court is not prepared to make a gross sum costs assessment under section 98 of the CP Act, should the Court appoint a referee pursuant to rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to make determination as to costs which the Plaintiff is liable to pay to the First Defendant?

4. Did the Defendants commit contempt of court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the orders made in Family Court of Australia No. SYC6488/2014 on 30 April 2019?

5. Is the Plaintiff entitled to an order for pre-judgment interest and costs of the proceedings?

31. Those issues, as listed, did not reflect certain matters raised in the plaintiff’s summons and others evident from her affidavit evidence.

32. That gave rise to some debate at the commencement of the hearing regarding whether the plaintiff had abandoned certain relief and subsequently as to what matters underpinned the plaintiff’s claim for relief for repayment (agreed issue 1).

Abandoned relief – Order 1 of the summons

33. The first order sought on the summons is:

An order declaring cost agreement, if any between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside.

34. On the first day of the hearing of the matter (26 September 2024), I made various orders, including the following:

1. Notes the plaintiff has abandoned the following relief sought in the Summons filed 20 September 2023:

a. Order 1; and

b. Order 5.

2. Orders that leave to file an amended summons in the form of MFI-1 be refused.

35. The plaintiff, despite having abandoned the relief, subsequently sought to re-agitate that relief below. The plaintiff’s attempt to do that was via separate proceedings by the plaintiff against CGL (2024/361481) and is the subject of a separate judgment delivered by me on 10 December 2024, Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675 (Sanjiv No.1).

36. Up until 22 May 2025, the plaintiff, as far as I was aware, has not sought leave to appeal the orders made on 26 September 2024 nor to appeal the orders made consequent upon the judgment I delivered in Sanjiv No.1. On the listing on 22 May 2025, Mrs Young stated ^[14] that the plaintiff had filed a notice of intention to appeal “your Honour’s prior cost decision”. She added “I think that’s now expired”. Whether that is the case or not, in respect of costs, I reject any attempt by the plaintiff to seek relief in terms of Order 1 of the summons.

    14. T 3.36-.37 (22 May 2025).

37. In her PCS, the plaintiff stated: ^[15]

ANY OTHER ISSUE THIS COURT TAKES JUDICIAL NOTICE IN THE INTEREST OF JUSTICE ^[16]

I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages.

On 10 December 2024 at [46] on page 13 in [2024] NSWSC 1675 Judge Meek wrote “Ultimately, having established from Mrs Young that the relief sought under the alternate ground of r 13.4 of the UCPR would rely upon the same substantive evidence and submissions, I formed the view that I should allow the notice of motion to be amended in order to address the real issue that had been disclosed on the material”.

I would suffer a substantial miscarriage of justice if I am not allowed to press order number 1 of my summons in these proceedings relying upon the same substantive evidence and submissions.

15. PSC page 4.

16. This heading is underlined, which is only viewable via the Caselaw website.

38. Mrs Young, in her DCS, responded as follows: ^[17]

The final submissions relating to judicial notice, issue estoppel or res judicata do not make sense. It is hard to respond usefully to these matters. The issue of disclosure has been agitated previously and resolved by His Honour’s prior interlocutory rulings. That was the basis on which the 3-day hearing was conducted, and it is unfair if this issue is permitted to be agitated now in closing submissions.

17. DCS [51].

39. Mrs Young’s submission cannot be so readily accepted. What the plaintiff abandoned was relief that the costs agreements are void. However, I do not consider that the “issue of disclosure” was previously resolved by my interlocutory rulings in these proceedings in such a way as to preclude the plaintiff from asserting that alleged nondisclosures or inadequate disclosures justified her seeking the other relief that she sought, including the repayment relief. Contravention of disclosure obligations leads not only to a costs agreement being void, but also to the client not being required to pay legal costs until they have been assessed or any costs dispute determined: s 178(1)(b) Legal Profession Uniform Law 2014 (NSW) (Uniform Law).

Issues arising in respect of Order 2 of the summons

40. The relief sought in Order 2 of the summons is:

An order requiring defendants to repay under the equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs.

41. Mrs Young, in both her DOS ^[18] and DCS, ^[19] submitted that there is uncertainty regarding the basis on which the plaintiff seeks this repayment of monies. Her submissions in the DCS were as follows:

20. There is significant uncertainty around the basis of the Plaintiff’s claim that the Defendants are required to repay any monies to her. It is not clear whether the Plaintiff relies on equitable principles or some common law cause of action. It is not clear what amount needs to be repaid. The absence of a pleading makes it difficult to discern the exact legal basis the Plaintiff relies on as the Defendants are left with a broad-range of complaints and allegations of alleged dishonourable conduct such that it is difficult to address in any comprehensive manner.

21. Doing the best they can, the complaint made by the Plaintiff, seems to be that the fees for legal services rendered by the First Defendant to the Plaintiff were exorbitant and so improper that somehow this Court acting within its inherent jurisdiction over lawyers is required to order the First Defendant to pay back some or all of the monies previously paid to them or makes some order which will lead to an assessment of those costs. However, these orders and complaints as against Ms Ralston make no sense as she was at all material times an employed solicitor and did not receive any of the Plaintiff’s fees.

22. There also seems now to be a complaint, which was not articulated properly until the cross-examination of the Plaintiff, that she was subject to unreasonable pressure to continue the retainer with Coleman Greig which somehow involved dishonourable conduct by Ms Ralston in that she was said to have locked the Plaintiff into a cabin, cupboard or conference room and forced the Plaintiff to sign costs agreements, acknowledgements and authorities. The problem with new claim is that none of her claims were put to Ms Ralston during cross-examination nor was it properly articulated in her affidavit material, so Ms Ralston did not have a proper opportunity to respond to such serious accusations. Such submissions should not be permitted to be made now.

18. DOS [89].

19. DCS [20].

42. The plaintiff, in her PCRS, responded: ^[20]

20 Plaintiff is relying on quantum of repayment to be made by referee or is relying on equitable principles or inherent jurisdiction for repayment of 30% reduction in total cost charged by defendants or any percentage determined by Judge Meek.

20. PCRS page 4.

43. Several observations can be made.

44. First, the plaintiff in her POS noted that the defendants did not seek orders for “summons to be substituted by statement of claim under r 6.6 UCPR”. ^[21] That appears to be correct. If the defendants were concerned as to the seriousness of allegations and wished the plaintiff to plead her case, it was open to them to make that application. I assume the matter was listed before me on the basis that it was ready for hearing. At the pre-trial directions listing, I made directions for the parties to agree on issues. It is unclear to me whether the defendants, prior to the hearing, ever requested the plaintiff to outline the basis for the claims for repayment. However, there was an opportunity for the defendants, if they wished to seek elucidation of the plaintiff’s case, to clarify the basis for the repayment relief.

    21. POS page 1.

45. Secondly, at the start of the hearing, the defendants did not make any application before me for the plaintiff to outline specifically the basis on which the repayment the subject of agreed issue 2 was sought.

46. Thirdly, the plaintiff makes reference to the Court’s “inherent jurisdiction” in her summons ^[22] but has not provided any specific submissions on the inherent supervisory jurisdiction. Mrs Young submitted that there is nothing in the legal charges or conduct of the legal practitioners which enliven this Court’s inherent jurisdiction over solicitors. ^[23]

    22. See Summons CB2 under the heading “Type of Claim” and CB 3 (Order 2).

    23. DCS [25].

47. If one asks why the plaintiff asserts that the costs were “exorbitantly charged and unauthorised”, it seems to me clear that she bases the assertion, and a number of her complaints regarding her costs arrangements with CGL, principally upon alleged non-compliance with statutory disclosure provisions under the Uniform Law. ^[24]

    24. For example, see POS pages 1-4 which include references to Uniform Law ss 3(d), 169(a), 172(2)(e), 174(1)(b), 178(1)(b) and (c), 198, 198(4), 198(7)(b); PCS which include references to Uniform Law ss 173, 174(1)(a) and (b), 175.

48. Disclosure complaints (as will be seen) emerged from the evidentiary material before the court, the cross-examination and the parties’ submissions.

49. In my assessment, the main complaints of the plaintiff underlying the repayment relief included the following:

1. Did CGL agree to act for the plaintiff on the basis that the total costs to be charged to her would be no more than a sum of $50,000 ^[25] (limited sum issue)?

   25. T 101-102.

2. Did CGL fail to disclose to the plaintiff an estimate of the total amount of fees that would be charged to her for acting in relation to the family law proceedings ^[26] (disclosure of total costs estimate issue)?

   26. POS pages 1-2.

3. Did the plaintiff receive copies of CA1 and CA2 (provision of costs agreements issue)?

4. Was the plaintiff provided with certain invoices or provided with details of invoices showing the rate per hour of the person doing the work and number of hours utilised by that person (invoice documentation issue)?

5. Did CGL request instructions from the plaintiff, did the plaintiff give instructions for the tasks itemised in the invoices, and did CGL refuse repeated requests to provide copies of the instructions and evidence of work performed by them ^[27] (instructions issue)?

6. Was the plaintiff forced to sign documents and acknowledgements ^[28] (duress issue)?

7. Were the total fees charged by CGL exorbitant ^[29] (exorbitant costs issue)?

8. Did the plaintiff give instructions for disposal of funds to CGL ^[30] (funds dispersal issue)?

9. Is the District Court judgment invalid (District Court judgment issue)?

   27. CB 10[5].

   28. CB 30[8]; T 138.12-.38.

   29. CB 10[8]-[9].

   30. CB 10[2].

50. Mrs Young asserts that a complaint of unreasonable pressure to continue with the retainer was not articulated properly until the cross-examination of the plaintiff. I consider that is partly true. However, even as early as the plaintiff’s affidavit affirmed 4 December 2023, it is clear that the plaintiff asserted conduct that amounts to compulsion, threats, duress, and false representations. ^[31] Further, Ms Ralston in her affidavit dated 2 April 2024 responded to the plaintiff’s assertions of compelling and threatening conduct. ^[32]

    31. CB 30[8], 32[26].

    32. CB 40-41[24].

51. Principally, whether repayment should be ordered as relief (as the first agreed issue) depends upon answers to these subsidiary issues. Accordingly, I propose to address them first.

Abandoned relief – Order 5 of the summons

52. Order 5 of the summons sought the following: ^[33]

An order for all invoices with number of hours and rate per hour to be given to plaintiff.

33. CB 3[5].

53. The plaintiff abandoned this relief: see Sanjiv No.1 at [22]-[31]. That abandoned relief reflects one of the complaints raised by the plaintiff at least in her affidavit ^[34] and submissions regarding the invoice documentation issue. Notwithstanding this matter was abandoned, Mrs Young cross-examined the plaintiff on the issue, at least for the purposes of challenging the plaintiff’s credit, and made submissions regarding it. ^[35] Accordingly, I will address it below.

    34. CB 10[4].

    35. DCS [27(c)].

Belated raising of issues

54. The plaintiff in her POS, PCS and PCRS raised a number of other matters which were not agreed issues.

55. Mrs Young complained about the raising of new issues. ^[36] The plaintiff responded: ^[37]

45 I have not raised any new issues. My issues are based on evidence in the court book and my submissions. I will be denied procedural fairness if all my evidence and submissions is not considered and those this Court make take judicial notice of on its own motion in the interest of justice and for the purpose of maintaining the proper administration of justice.

36. DCS [45]-[51].

37. At page 5.

56. I regard some of what the plaintiff has raised as being new issues and now explain why I reject the belated raising of them.

Avoidance of increased legal costs issue

57. In her POS, the plaintiff, in providing a summarised answer to issue number 1 (repayment of fees), asserted: ^[38]

    38. POS pages 4-5

Yes: - because defendants costs are excessive for the following reasons:

1. Poor quality of work under s 172(2)(e) of Legal Profession Uniform Law (LPUL) because from the time I engaged defendants in 2018, defendants caused me substantial loss (to gain legal fees of about ½ million dollars only to prepare a balance sheet for trial See Templeton at [34] where Full Federal Court held that a lack of proportionality between the cost of the work done and the value of the services provided may support a conclusion of overcharging or excessive remuneration) by failing to give me advice to obtain an order for trustee to be appointed under s 79 and/or s 80(e) of Family Law Act 1975 to sell all assets, pay off all liabilities and pay net sale proceeds into family court for family court to determine the percentage of division of money paid into family court (Since Sanjiv Shah took away more money, I could negotiate a higher percentage).

2. Defendants incurred money on domestic violence matters which were never filed and on super fund matters that were unnecessary to [1] above.

3. Defendants charged me substantial amount of money for barrister fees when the matter settled without a hearing and matters could have been handled by a trustee appointed under s 80(e) of Family Law Act 1975.

4. Defendants filed a notice of ceasing to act but continued to charge me.

5. Defendants obtained an order from Family Court to act as conveyancer but refused/failed to act as conveyancer after continuing to charge fees.

6. Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside because under s 178(1)(b) of Legal Profession Uniform Law I am not required to pay legal costs until they have been assessed and under s 178(1 )(c) of Legal Profession Uniform Law the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed due to my challenge to disclosure obligations.

7. Defendants abused my trust and confidence and took unconscionable advantage of my vulnerability to earn substantial amount of fees for their own financial benefit even though defendants knew that I was a vulnerable client subject to principles governing non est factum.

8. Legal costs charged by defendants are not fair and reasonable in all the circumstances and that in particular are NOT

(a) proportionately and reasonably incurred; and

(b) proportionate and reasonable in amount.

58. In her PCS, the plaintiff stated: ^[39]

Defendants must not act (but in fact acted) in a way that unnecessarily resulted in their increased fees in breach of section 173 of Legal Profession Uniform Law.

39. PSC page 3.

59. Mrs Young, in her DCS, submitted: ^[40]

The issue of disclosure is not an agreed issue in these proceedings. Further, the claim that somehow the Defendants acted in breach of section 173 of the Uniform Law is a new claim that is denied and was never put to Ms Ralston in cross-examination. There is no evidence that Coleman Greig in any way increased the overall costs.

40. DCS [48].

60. Section 173 of the Uniform Law provides:

173 Avoidance of increased legal costs

A law practice must not act in a way that unnecessarily results in increased legal costs payable by a client, and in particular must act reasonably to avoid unnecessary delay resulting in increased legal costs.

61. I agree with Mrs Young that the complaint of the plaintiff by reference to s 173 of the Uniform Law was, prior to receipt of the PCS, not raised as an issue and I reject the plaintiff’s specific complaint regarding it.

62. I regard some of the 8 matters under issue 1 in the plaintiff’s POS as being raised without adequate notice. Others fall under other issues such as the exorbitant costs issue and I will address them there.

63. By reference to the 8 matters above, I briefly observe the following.

64. The first and eighth matters raise an issue of a lack of “proportionality” between the cost of work done by CGL and the value of the services provided. That is a very generalised complaint. It was not listed per se amongst the list of issues. Apart from some other aspects which I will expressly refer to within the 8 points, the plaintiff did not identify specific instances of lack of proportionality by reference to specific evidence and submissions.

65. In the first matter, the plaintiff references s 172(2)(e) of the Uniform Law and “s 79 and/or s 80(e) of Family Law Act 1975”.

66. The third matter also makes reference to “s 80(e) of Family Law Act 1975” which is obviously intended by the plaintiff to be a reference to s 80(1)(e) of the FLA.

67. Section 172(2)(e) of the Uniform Law provides as follows:

(2) In considering whether legal costs satisfy subsection (1), regard must be had to whether the legal costs reasonably reflect—

…

(e) the quality of the work done;

68. Section 80(1)(e) FLA relevantly provides:

(1)  The court, in exercising its powers under this Part, may do any or all of the following:

…

(e)  appoint or remove trustees;

69. As will be seen below, on 5 February 2020, Dr Shah was appointed under Court orders as a sole trustee for the sale of the Epping property. Some complaint was raised by the plaintiff regarding this, seemingly in respect of Dr Shah not being registered on title as trustee and I will deal with it below under the question of alleged negligent work.

70. The second matter raised by the plaintiff is a submission that “Defendants incurred money on domestic violence matters which were never filed and on super fund matters that were unnecessary to [1] above”. It is also new. It is not clearly raised by the summons nor in the plaintiff’s affidavit in chief and I reject the plaintiff’s belated attempt to raise it.

71. The fourth matter in which the plaintiff asserts that “Defendants filed a notice of ceasing to act but continued to charge me” is also new. No particulars are given of that, and I reject the plaintiff’s belated attempt to raise it.

72. The fifth matter in which the plaintiff asserts that “Defendants obtained an order from Family Court to act as conveyancer but refused/failed to act as conveyancer after continuing to charge fees” has clear connection to the plaintiff’s claim regarding alleged contempt and I will deal with it as such below.

73. The sixth matter in which the plaintiff asserts that “Defendants wasted my money (without seeking my instructions) to obtain garnishee orders knowing that these garnishee orders made by an inferior court (District Court) are not valid until set aside …” has clear connection to the plaintiff’s claim regarding the District Court judgment issue and I will deal with it as such below.

74. The seventh matter in which the plaintiff asserts that “Defendants abused my trust and confidence and took unconscionable advantage of my vulnerability to earn substantial amount of fees for their own financial benefit even though defendants knew that I was a vulnerable client subject to principles governing non est factum.” has several aspects to it. I address the plaintiff’s asserted vulnerability below under the heading “Parties and associated persons”. I reject the notion that the plaintiff had any relevant vulnerability that bears upon the issues to be decided in these proceedings. In any event, even if the plaintiff were able to establish any such vulnerability, her claim that the defendants abused it was not properly particularised and I reject the plaintiff’s claims regarding it.

Alleged negligent work and new common law proceeding

75. In my opening remarks I noted that a third respect in which the plaintiff had muddied the waters in the matter related to allegations of negligence.

76. Whether the defendants had acted negligently was not one of the agreed issues.

77. In the plaintiff’s affidavit affirmed 4 December 2023, in which she replies to paragraph 43 of Ms Ralston’s affidavit sworn 7 November 2023 (which formed part of the evidentiary materials in the Court Book at the time of the commencement of the hearing) an isolated reference to negligence appeared.

78. Paragraph 43 of Ms Ralston’s affidavit is as follows: ^[41]

I am aware that on 5 February 2020 the Plaintiff’s ex husband became sole trustee for the sale of the Plaintiff’s property. at no time did myself or any other person at Coleman Greig receive instructions from the sole trustee to prepare a contract for sale.

41. CB 19.

79. The plaintiff’s reply was as follows: ^[42]

43. Defendants made no attempt at any point in time to seek variation of family court order to exclude their obligation to prepare and exchange and settle contract of sale. Defendants knew or reasonably ought to know that ex-husband did not become sole trustee because he did not transfer title to himself as required by section 86(1) of Real Property Act 1900 to avoid paying stamp duty and therefore, orders made by Judge Rees appointing Sanjiv Shah, ex husband as trustee had no legal effect under section 86(2) of Real Property Act 1900 and Rekha Sanjiv remained registered proprietor. Under section 172(2)(e) of Legal Profession Uniform Law, defendants are not entitled to costs for their poor quality of work/negligence/negligent failure to give proper advice that caused a fraudulent exchange of contract and fraudulent settlement.

42. CB 33.

80. In the POS ^[43] (as noted above) the plaintiff references s 172(2)(e) Uniform Law and submits that she did not receive advice in order to obtain an order for a trustee to be appointed under ss 79 and 80(1)(e) of the FLA.

    43. POS pages 4-5.

81. Whilst reference is made to s 172(2)(e), a claim regarding negligence is not clearly set out. As best as I can glean, it appears the plaintiff is asserting that the land was not properly vested in her ex-husband and that the defendants should have known that. Even assuming what I have just stated is the natural tenor of the plaintiff’s assertion, the plaintiff had not provided in any procedurally clear or fair way how any case in negligence is put, nor provided evidence for her assertions, nor any further arguments based on those assertions.

82. During the first day of the hearing, the plaintiff did not mention negligence.

83. However, on 2 April 2025, 5 days before the resumed hearing commenced, the plaintiff filed a statement of claim in the Common Law Division (Professional Negligence List) of the Supreme Court of New South Wales naming CGL as defendant (new proceedings).

84. Broadly, the particulars in the new proceedings are that the defendant owed and breached a duty of care to give the plaintiff “accurate and adequate advice and exercise reasonable care and skill” with respect to certain clauses of the consent orders made on 30 April 2019 with her ex-husband and aspects of implementation of those orders.

85. During the second and third days of the hearing, the parties did not expressly draw my attention to the fact that these new proceedings have been filed by the plaintiff.

86. In her PCS dated 12 April 2025, the plaintiff states:

ANY OTHER ISSUE THIS COURT TAKES JUDICIAL NOTICE IN THE INTEREST OF JUSTICE

I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages.

87. Mrs Young, in her DCS, stated:

The final submissions relating to judicial notice, issue estoppel or res judicata do not make sense. It is hard to respond usefully to these matters…

88. The plaintiff then, in her PCRS, stated as follows: ^[44]

27 The Cost Agreements are void due to lack of proper disclosures. The quality of work done under section 172(2)(e) of Legal Profession Uniform Law was negligent. That is why I have sued Coleman Greig Lawyers Pty. Ltd. in the Supreme Court of New South Wales - Common Law Division.

..

51 I filed and served a statement of claim against first defendant for negligence and loss of opportunity. I respectfully request for an adjournment of decision-making in these proceedings or a decision that will not create issue estoppel or claim preclusion or res judicata in my above negligence proceedings in Supreme Court common law division.

44. PCRS pages 4, 6.

89. These instances in the PCS and PRCS were the first in which the plaintiff requested the Court to defer the delivery of judgment, adjourn the proceedings or make some other specific orders by reference to the new proceedings.

90. On 20 May 2025, my Associate sent an email to the parties indicating that judgment would be delivered on 22 May 2025. On 21 May 2025, in circumstances in which I became cognisant of the existence of the new proceedings, my Associate at my request sent an email to the parties notifying them that the matter would be listed for mention rather than judgment.

91. On 22 May 2025, I raised with the parties the circumstances described above. Mrs Young for her part expressed her understanding that the statement of claim concerns different issues to the ones before me in these proceedings. ^[45]

    45. T 6.15-.21 (22 May 2025).

92. I gave the plaintiff an opportunity to put her case regarding why I should determine her claim in these proceedings on the basis that negligence is in issue.

93. I made an observation that the plaintiff did not use the terms “negligent” or “negligence” during the three days of hearing. In response, the plaintiff stated: ^[46]

…once we finish cross-examination, I went through everything, and knowing the situation, I was very disappointed, and only way this negligence happened again and again. Anybody can see that. And that is the only reason I have filed again at a later stage because that is something very, very important…

46. T 13.21-.37 (22 May 2025).

94. I am unpersuaded that the claims in negligence have been fairly and adequately raised as issues to be dealt with in the existing proceedings. The question of whether CGL’s work was negligent was not listed as an agreed issue. The plaintiff did not cross-examine Ms Ralston or any other of CGL’s employees regarding it. She has not particularised her assertions nor provided any evidence for those assertions. Mrs Young confirmed she made forensic decisions on this basis. In light of this, I reject the plaintiff’s belated attempt to assert it as an issue.

95. On this same basis, I also reject the plaintiff’s request to adjourn the existing proceedings, concurrently deal with both the existing and new proceedings, or to defer any further the judgment in these proceedings.

96. Accordingly, I made the following orders on 22 May 2025:

THE COURT:

1.   Notes that:

a.   on 2 April 2025 the plaintiff filed a statement of claim in the Common Law Division (Professional Negligence List) of the Supreme Court of New South Wales case number 2025/126128 in which she (Rekha Sanjiv) is named as plaintiff and the first defendant (Coleman Greig Lawyers Pty ltd CAN 125 176 230) is named as defendant (new proceedings);

b.   during the hearing which concluded on 8 April 2025 no party expressly drew to attention of the Court the fact that the new proceedings have been filed by the plaintiff;

c.   the plaintiff in closing written submissions filed on 14 April 2025 stated “I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages”;

d.   the plaintiff in closing written reply submissions filed on 26 April 2025 stated “51 I filed and served a statement of claim against first defendant for negligence and loss of opportunity. I respectfully request for an adjournment of decision-making in these proceedings or a decision that will not create issue estoppel or claim preclusion or res judicata in my above negligence proceedings in Supreme Court common law division”;

e.   on 20 May 2025 at 4:15 PM the Associate to Meek J sent an email to the plaintiff and to the legal practitioners for the defendants indicating that his Honour proposed to deliver judgment in the matter at 9:30 AM on Thursday, 22 May 2025;

f.   on 21 May 2025 at 10:55 AM, in circumstances in which his Honour became cognisant of the existence of the new proceedings, the Associate to Meek J, at his Honour’s request, sent an email to the parties notifying that the matter would be listed at 10 AM on 22 May 2025 for mention rather than for judgment;

g.   at no stage during the final two hearing days on 7 and 8 April 2025 nor prior to receipt of the submissions in 1c and 1d did the plaintiff request the Court to defer the delivery of judgment, adjourn the proceedings or to seek other specific orders in relation to the hearing of the proceedings by reference to the existence of the new proceedings or the relief being sought in the new proceedings;

h.   at the listing of the matter for mention at 10 AM on 22 May 2025 Mrs Young appeared on behalf of the defendants, and initially the plaintiff did not appear but subsequently did appear at a revised listing time of 12:30 PM;

i.   his Honour raised with the plaintiff and Mrs Young the above-mentioned matters and discussion ensued regarding how his Honour should proceed in the matter, in light of the request of the plaintiff identified in notations 1c and 1d;

j.   Mrs Young confirmed to the Court that she had made forensic decisions based on the fact that the plaintiff had not raised in these proceedings, or sought to raise, her claims in the new proceedings;

k.   the plaintiff orally requested Meek J to defer judgment in these proceedings for the purposes of his Honour taking over case management of and concurrently hearing the plaintiff’s claims in the new proceedings with these existing proceedings;

l.   his Honour gave the plaintiff an opportunity to clarify (i) why she wished to seek the relief identified in notations 1c and 1d, and (ii) why his Honour should deal with the existing proceedings on any basis other than that claims in negligence had not been fairly and adequately notified and raised as issues to be dealt within the existing proceedings; and

m.   his Honour not being satisfied that he should (i) proceed on the basis that claims in negligence had been fairly and adequately notified and raised as issues to be dealt within the existing proceedings; (ii) adjourn the existing proceedings to allow the new proceedings to be dealt with concurrently with the existing proceedings and (iii) defer for any significant further length of time judgment in these proceedings based on the existing litigated issues, foreshadowed those matters and indicated that he proposed to deliver judgment on Monday, 26 May 2025.

2.   Notes that judgment will be delivered in respect of the existing proceedings at 10 AM on Monday, 26 May 2025.

97. For abundant clarity, what I have done is address whether an issue of negligence has been fairly raised in these proceedings such that I should attempt to make a finding of “negligence” in respect of the plaintiff’s complaints regarding relief as to costs that she sought in the summons. I have determined that it was not fairly raised (including in light of forensic decisions made by Mrs Young). However, I have not, and do not propose to make any further determination as to whether, in light of my findings and the orders made by me on 22 May 2025, the plaintiff is in some way precluded or estopped from hereafter litigating issues of negligence against the defendants or at least against CGL.

Parties and associated persons

98. It is appropriate at this stage to set out some details regarding the parties and related persons.

Plaintiff

99. The plaintiff has a son, Isham (born in September 1996). ^[47]

    47. CB 257.

100. The plaintiff is well educated and credentialled. She graduated from Bombay University with a bachelor’s degree in chemistry and physics. ^[48] She appears to have qualified for a medical technology degree and worked as a laboratory technician at a biochemist in a local hospital in India. ^[49] She has a postgraduate bachelor’s degree in computer management and has completed a master’s degree in business systems analysis and design in computers. ^[50] She worked in South Kensington, London as a business analyst for about three and a half years before moving to Australia in 1984. She worked at Telstra as an IT consultant and moved to Wellington, New Zealand, to assist Dr Shah (her then husband) to set up and run his medical practice and was a director of the company that operated the practice. ^[51] She understood “business” and oversaw all the management, contracts, accounts and bookkeeping aspects of the management company and attended to payment of tax and GST. ^[52] She has also had involvement as a director in other companies.

     48. T 142.

     49. T 143.

     50. T 143.

     51. T 144.

     52. T 145.

Plaintiff’s asserted vulnerability

101. The plaintiff in her affidavit asserted that she is “a vulnerable person with special disadvantages”, “unwell” ^[53] and that “both defendants greatly abused my trust and confidence”. ^[54] It is unclear what the plaintiff meant by the asserted vulnerability and special disadvantages. Mrs Young addressed written closing submissions to these issues. She referenced much of the material I have recited above. ^[55] I am not persuaded that the plaintiff had any vulnerability or special disadvantage that amounts to any factor affecting her claim against the defendants in respect of costs.

     53. CB 10[6]-[7], 5.

     54. CB 10[8].

     55. DCS pages 12-14.

102. During the hearing, the plaintiff referred to “domestic violence” and “financial abuse”. ^[56] To the extent that it might be suggested that the plaintiff had difficulties arising from domestic violence or financial abuse, I readily accept that there is some material before the Court which refer to those terms. ^[57] However, the evidence does not disclose in any detail the nature of the alleged violence. It does indicate that the allegations, or at least some of them, were disputed. ^[58] Indeed, in May 2019, by reason of the plaintiff’s uninvited contact with Dr Shah, his legal representative Mr Spencer foreshadowed that there may be personal violence orders sought against the plaintiff. ^[59] The plaintiff cross-examined Ms Ralston regarding her awareness of claims of domestic violence and financial abuse. Ms Ralston’s email of 9 August 2018 indicates she was aware of these allegations. ^[60] She confirmed that in cross-examination, though did not go so far as to accept that the allegations had been established. ^[61]

     56. For example T 48, 49 and 58.

     57. For example, CB 97, 105 (item 119), 106 (items 132, 137, 143, 152, 155, 161), 110 (item 16), 112 (item, 124), 322 (item 300).

     58. CB 152[11(c)].

     59. CB 435.

     60. CB 97.

     61. T 49.21-50.8.

101. In any event, the plaintiff did not adduce any independent medical or other expert evidence suggestive that she had any particular vulnerability or “special disadvantage”.

CGL

104. CGL is a corporation and able to be sued as such.

105. Ms Ralston is a qualified legal practitioner. She was admitted as a lawyer of the Supreme Court in August 2011. She has been practising as a legal practitioner in New South Wales since January 2012. She has been working in the family law area since June 2012 and achieved Specialist Accreditation in Family Law in 2017. She has been employed by CGL since January 2014 and currently holds the position “Director and Team Leader of the Family Law Team”. ^[62]

     62. CB 13[2]-5].

106. Other CGL staff having some involvement with the plaintiff in her interaction with CGL include: Malcolm Gittoes-Caesar, one of the principals of CGL (Mr Gittoes-Caesar); Ambrose Teo, a support staff (Ms Teo), Colleen Cuthbert, a legal secretary (Ms Cuthbert); Diane Elven, a legal assistant (Ms Elven); Wendy Cousens, a senior legal clerk (Ms Cousens); Therese Austin, a licensed conveyancer (Ms Austin); Warrick McLean, a general manager and Emma Nichelsen, an Associate lawyer (Ms Nichelsen).

107. At least in relation to this litigation, three other CGL staff have had involvement, namely: Ashley Lamb, the current CEO of CGL (Mr Lamb); Caroline Hutchinson, the solicitor on the record for the defendants (Ms Hutchinson); and James Michael Ferguson, an employed solicitor assisting Ms Hutchinson (Mr Ferguson).

Communication with the plaintiff

108. During the period of time that CGL acted for the plaintiff, the plaintiff used a number of email addresses and CGL communicated with the plaintiff via those email addresses. ^[63]

     63. CB 14[13].

109. At times CGL, had some correspondence with Isham, principally by email, at least on occasions when they were unable to contact the plaintiff.

Hearing

Representation

110. The plaintiff has at all material times in these proceedings represented herself, as she is entitled to do. Mrs Young appeared for the defendants.

111. During the hearing, the plaintiff performed dual roles, being an advocate conducting her own case and also separately as a witness.

112. The role of the Court in dealing with self-represented litigants is explained in a number of Court of Appeal decisions, including Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], Bauskis v Liew [2013] NSWCA 297 at [67]-[70], and, most recently, in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [37].

113. At the outset of the hearing, ^[64] I provided the plaintiff with necessary information about court practice and procedure to ensure a fair trial for both parties, while clearly indicating that I could not advise her on how to exercise her legal rights. I reiterated certain aspects throughout the hearing to remind the plaintiff.

     64. T 1-2.

114. The plaintiff in her evidence asserted that “I have no legal education and no legal training and no legal experience”. ^[65] Whilst I have no reason to doubt that is true, the plaintiff is well educated, as evident from above. The plaintiff appeared to me to understand the court processes as I explained them to her and exhibited the ability to make choices regarding those processes.

     65. CB 46[5].

115. However, as I will elaborate below, the proceedings were not conducted efficiently by the plaintiff, leading to the length of the hearing being extended into a three-day hearing, well beyond the initial time allocated, being a single day.

Evidence

116. The evidence on the hearing comprised affidavit and documentary material.

117. The plaintiff relied upon three affidavits of herself, affirmed on 20 September 2023, 4 December 2023 and 24 June 2024. The defendants relied upon two affidavits of Ms Ralston sworn on 7 November 2023 and 2 April 2024 and two relatively formal affidavits being one from Ashley Lamb sworn 7 November 2023 and the other from Mr Ferguson sworn 21 August 2024. Each of their deponents were cross-examined.

118. A bundle of documentary material included in the Court Book was tendered and marked JP-1. In addition, the defendants tendered a number of exhibits.

Cross-examination of Ms Ralston

119. On the first day of the hearing, after the affidavit evidence was read and I clarified which witnesses were required for cross-examination, Mrs Young indicated to me that Ms Ralston had had childcare responsibilities later that day and they were hoping that she might be interposed for cross-examination. ^[66] I enquired of the plaintiff as to whether she was in a position to cross-examine Ms Ralston, indicating that I was not requesting her to do so. The plaintiff indicated that she was able to cross-examine Ms Ralston and that she did not think she would be very long. ^[67]

     66. T 30.

     67. T 30.

120. In fact, what occurred was that Ms Ralston was cross-examined for a lengthy period of time. Ms Ralston was called to the witness box just prior to 1 pm. She gave some brief evidence in chief and then, after the luncheon adjournment, the plaintiff conducted the cross-examination through the afternoon sitting and well beyond the Court’s usual 4 pm adjournment, for a total of three hours and twenty minutes.

121. The purpose of sitting late was attempting to give the plaintiff a fair opportunity to conduct the cross-examination of Ms Ralston, but nonetheless complete it that day, so that there may not be any ultimate need for Ms Ralston to return.

122. I formally excused Ms Ralston on the basis that she was no longer under cross-examination but noted that, at some point, the plaintiff may wish to seek leave to further cross-examine her. ^[68]

     68. T 90.

123. On the resumed hearing of the matter, at the commencement of the second day, the plaintiff did not seek to further cross-examine Ms Ralston. However, towards the end of the third day, the plaintiff intimated that she might wish to do so. The plaintiff had not given any such notice to CGL or Ms Ralston. ^[69] With regard to that, and also to the facts that the proceedings had extended several days beyond the single day estimate and Ms Ralston was not, in any event, in the precincts of the court, no further cross-examination of Ms Ralston was realistically possible. ^[70]

     69. T 233.22-234.18.

     70. T 234.20-266.10.

124. The plaintiff, in her PCRS, makes the following submission: ^[71]

22 to 26 Karina Ralston had an opportunity to be honest in her affidavit evidence and testimony but failed to do so. I was denied procedural fairness causing jurisdictional error by defendants who sought Karina Ralston to be cross-examined before I was cross-examined.

71. At page 4.

125. Whilst, towards the end of the third day of the hearing (as noted above), the plaintiff raised the prospect of possibly further cross-examining Ms Ralston, at no stage prior to serving her PCRS did the plaintiff complain that she had been denied procedural fairness by the defendants in seeking to have Ms Ralston cross-examined before she was cross-examined.

126. In light of the context that I have set out above, I reject the submission that the plaintiff has been denied procedural fairness.

Credit and reliability of witnesses

Standard of proof and weighing evidence

127. In this case, the requisite standard of proof for determining the facts in issue is on the balance of probabilities: s 140(1) Evidence Act1995 (NSW) (Evidence Act).

128. Without limiting the matters the Court may take into account in deciding whether it is so satisfied that the facts in issue are established, it is to take into account (a) the nature of the cause of action or defence; (b) the nature of the subject‐matter of the proceeding; and (c) the gravity of the matters alleged: s 140(2) Evidence Act.

129. Evidence should be approached and weighed having regard to objective surrounding facts which are either undisputed or established by contemporaneous documents, logic and the inherent probabilities of life as they bear upon the events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.

130. Having regard to the plaintiff’s complaints regarding costs disclosure and, in particular, her initial expectations and understanding of the total costs likely to be incurred, it is surprising that none of the parties saw it fit to set out the discussions between the plaintiff and Ms Ralston in the initial meeting of 29 June 2018.

131. The plaintiff’s affidavit evidence did not descend to any particular detail regarding how she came to engage CGL or the discussions she had with Ms Ralston or other CGL staff.

132. During her cross-examination of Ms Ralston, the plaintiff did not put to Ms Ralston some of the relevant conversations that she said she had had with her. It was only during Mrs Young’s cross-examination of the plaintiff that assertions of what had been said to CGL or its staff arose. Even then, it was generally in non-responsive answers to questions.

133. Mrs Young, in her DCS, made submissions on the legal principles relating to fact-finding and credit, ^[72] including citing Withyman v NSW [2013] NSWCA 10; [2013] ATR 82 per Allsop P at [65] (with whom Meagher and Ward JJA agreed at [154] and [155] respectively) and Kunc J in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [464]-[473]. I have had regard to those judgments and Mrs Young’s submissions.

     72. DCS [8]-[12].

Plaintiff

134. The plaintiff was cross-examined across the second and third days of the hearing.

135. The plaintiff made no particular submissions regarding her credit and reliability as a witness. However, in the DCS, Mrs Young is scathing of the plaintiff’s credibility based on her conduct during the hearing and cross-examination. ^[73]

     73. DCS [2],[3],[13].

136. In summary, Mrs Young made the following submissions and referenced various examples in each case, which I have had regard to:

1. “key parts of the Plaintiff’s evidence are completely at odds with the contemporaneous documents. There were many occasions where it was clear the Plaintiff was simply not telling the truth when she was caught out on inconsistencies with contemporaneous documents”; ^[74]

2. “there were many occasions where the Plaintiff added to or qualified her claims made in her affidavit during cross-examination”; ^[75]

3. “the Plaintiff’s recollection was poor or non-existent on matters which did not suit or hindered her case in these proceedings and yet it was abundantly clear on matters which assisted her position (such as her personal history or issues with her husband)”; ^[76] and

4. “her evidence comprises many serious and outrageous accusations not supported by any independent evidence whatsoever”. ^[77]

   74. DCS [14].

   75. DCS [15].

   76. DCS [16].

   77. DCS [17].

137. Further, Mrs Young submitted (omitting the footnote) as follows: ^[78]

…there were a number of aspects of the manner in which Ms Sanjiv gave evidence, particularly in cross-examination, which undermined her credibility as a witness as well as the plausibility of her evidence. She did not answer most questions put to her promptly and responsively, with consistency or candour. In some cases, including questioning by His Honour as to who she had spoke to over the Court recess while under cross-examination, she refused to answer the questions outright. Her oral evidence also often consisted of lengthy orations, mostly non-responsive answers to straightforward questions, in which she repeated over and over her mantra that she had been taken advantage of by the Defendants. Her demeanour further demonstrates that her evidence is neither credible nor reliable. Her evidence should only be accepted where it is inherently credible or corroborated by contemporary documents or other independent evidence or is otherwise against her interest.

78. DCS [18].

138. The plaintiff was, in my estimation, an unimpressive witness.

139. Much of the plaintiff’s evidence was punctuated by long pauses (noted in the transcript) ^[79] and was followed by the plaintiff volunteering information that had not been asked about. ^[80] On some occasions, the plaintiff appeared to lose train of thought and questions were repeated for her. At other times, the plaintiff made statements or gave answers which were “non-responsive” to the questions, in the sense that they did not directly address the question and were tangential. My impression is that the plaintiff, at least in relation to certain critical aspects of the questioning, simply evaded the question and stated what she wished the Court to hear. On critical issues where there is conflict between Ms Ralston and the plaintiff, I prefer the evidence of Ms Ralston.

     79. For example, T 102.44-.46, 116.39, 160.30, 177.38-.39, 182.41-.48.

     80. For example, T 104.20-.27, 106.9-.24, 108.28-.38.

140. There are important aspects of the plaintiff’s complaints which were not made out by her on the evidence and, in some respects, were shown to be incorrect. A number of examples will suffice.

141. First, the plaintiff’s denial that she signed CA1 on the first day of engaging CGL ^[81] is incorrect and I reject it.

     81. POS page 1.

142. The plaintiff stated: ^[82]

I have not received a copy of cost agreement executed by all parties. If such a cost agreement exists it is void for lack of proper disclosures to enable me to make an informed decision whether to engage and continue engagement with defendants.

82. CB 10[3].

143. The fourth page of the letter from CGL dated 29 June 2018 contains the following: ^[83]

     83. CB 57.

Acceptance, Understanding & Acknowledgement

I:

1. confirm that I have read and understood your fee proposal dated 29 June 2018 and the attached Terms of Business (Terms);

2. confirm acceptance of your fee proposal dated 29 June 2018 and the Terms.

Dated:             

………………………………

Signed by

144. The plaintiff’s signature lies underneath the acceptance of the fee proposal and the date inserted is 29 June 2018. ^[84]

     84. CB 76.

145. On the first day of the hearing, in the context of the plaintiff cross-examining Ms Ralston, I asked the plaintiff about the basis for asserting that the costs agreement was void. The following exchange occurred: ^[85]

HIS HONOUR: All right. Well, I think this, in a sense - so just so I understand it, your basis for asserting that the costs agreement was void, which you’ve abandoned, but just for clarity’s sake, your basis for asserting that, as I understand it, is not because you didn’t sign the agreement, but rather because you say you weren’t given an estimate or updated estimates of the cost. Is that a fair statement‑‑

PLAINTIFF: Yes.

HIS HONOUR: ‑‑of what you‑‑

PLAINTIFF: Essentially, yeah. If I knew, I would not have continued.

85. T 41.37-.48.

146. Further, the plaintiff acknowledged in cross-examination she had been issued with a costs agreement, though seemingly complained about the disclosure of the extent of costs. ^[86]

Q. You accept Coleman Greig issued you with a costs agreement? You accept that as a proposition?

A. That’s up to the - I started in 29 June, so it was just up to the August.

Q. But they gave you on 29 June, didn’t they?

A. Yes, so that was only up to that month and nothing after that disclosed anything but that was also very weak. It wasn’t telling me exactly the situation‑‑

86. T 98.36-.43.

147. Later, she asserted that she had been told to sign it in a context in which she understood costs would be only $20,000. ^[87]

     87. T 108.6-109.20.

148. Secondly, the plaintiff claimed that she had not received all invoices showing the rate per hour of a person doing the work and number of hours utilised by that person. ^[88] The defendants provided evidence showing that at least some of the disputed invoices were sent to the plaintiff by email. This was put to her during her cross-examination. I will say more below regarding provision of invoices to the plaintiff. However, for present purposes it suffices to note that the plaintiff acknowledged in cross-examination that she received all 7 of the invoices Mrs Young examined her about (Exhibits D2-D8 - see the table above for details).

     88. CB 10[4].

149. Thirdly, the assertion that Mr Grew had charged $50,000 for one day is simply false. ^[89] There are no invoices in which Mr Grew charged $50,000 in one day. The plaintiff was cross-examined regarding the two invoices he sent ^[90] (26 February 2019 for $7,892.50 and 1 May 2019 for $40,425).

     89. T 172.

     90. CB 464-465 (invoice 26 February 2019) and CB 378-380 (invoice 1 May 2019).

150. Fourthly, the plaintiff in her affidavit evidence asserted that she had been threatened and compelled to sign Costs Notices and authorities for payment of costs under duress and false representations. ^[91] During the hearing, she asserted that she had been put in a “cabin” which had been closed and forced to sign documents. ^[92] It later transpired that her use of the word “cabin” was likely intended by her to mean a conference room. ^[93] The plaintiff reiterated the assertion that she had been locked in a “cabin” and forced to sign documents. ^[94] I reject the plaintiff’s evidence in this regard. There is nothing in the documentary evidence even remotely supportive that any such locking of the plaintiff into a conference room and being forced to sign documents occurred. The evidence does not show that the plaintiff ever reported any such threatening conduct to the Office of the Legal Services Commissioner, or to anyone else. ^[95]

     91. CB 30[8], 33[26].

     92. T 138.

     93. T 151.

     94. T 181.

     95. T 186.

Defendants’ witnesses

151. The plaintiff made no particular submissions in relation to the evidence of Mr Lamb and Mr Ferguson. Regarding Ms Ralston, the plaintiff stated the following in her PCRS:

2 Both defendants who have wilful and knowing and deliberate and contumacious contempt for court cannot be witness of truth.

22 to 26 Karina Ralston had an opportunity to be honest in her affidavit evidence and testimony but failed to do so…

152. Mrs Young submitted in relation to the defendants’ witnesses: ^[96]

Ms Ralston, Mr Lamb and Mr Ferguson’s evidence should be accepted without qualification. Ms Ralston, in particular, gave careful and fully responsive answers; was polite and could even be described as “kind” to the Plaintiff during cross-examination and ‘almost’ assisting her to put a proper question to her while in the box. She fully engaged in answering each question from Ms Sanjiv and Court. Her evidence is supported by contemporaneous documents and she was not attacked in cross-examination on any point in any way. Similarly, with Mr Lamb and Mr Ferguson.

96. DSC [19].

153. As I explained above, Ms Ralston was cross-examined by Ms Sanjiv for a lengthy part of the first day of the hearing. There is no need for me to make any particular finding as to how “polite” or “kind” Ms Ralston was in giving her evidence. Her evidence, broadly speaking, accorded with the documentary material which I will recite below. She gave her evidence clearly and made appropriate concessions. I accept her evidence. I do not accept the plaintiff’s submission regarding Ms Ralston’s credit as a witness.

154. The plaintiff cross-examined each of Mr Lamb and Mr Ferguson. It was clear that neither of them had any particular familiarity with the plaintiff’s family law claim during the period in which CGL was acting for the plaintiff, as distinct from the awareness of the current proceedings. Both gave their evidence in a straightforward way. I accept their evidence.

Communication by a witness with others whilst under cross-examination

Principles

155. For various reasons, including to preserve the integrity of evidence, it is common for judges to give witnesses who are being cross-examined a direction that the witness should not discuss their evidence with anyone whilst they are under cross-examination. The practice applies in both criminal law and civil proceedings. The power to give such a direction derives from the inherent power of a court to control its own proceedings and to ensure that a trial is fair: Western Australia Court of Appeal (Mazza, Hall and Vandongen JJA) in Snook v Western Australia (No 2) [2024] WASCA 135 (Snook) at [73].

In the absence of a proper basis for an informed determination of the appropriate costs amount, a court should refuse an application for a gross costs order: SAB Closed 1 Pty Ltd v Bees and Honey Pty Ltd [2015] NSWSC 1162; BC201507748 (Stevenson J) (no independent costs evidence — invoices not detailed).

529. The plaintiff’s reference to the decision of Kunc J in Arambatzis v Foundas (No 2) [2024] NSWSC 859 at [10] and [11] is inapt and has no relevant application in the circumstances of this case. That equally applies to the plaintiff’s assertion that, somehow or other, it is appropriate for the Court to apply a 30% discount to the fees that were charged by CGL based on comments of the Court of Appeal in Gabrielle v Abood (No 4) [2023] NSWCA 100 at [10] and [11].

530. Suffice it to say I do not find that a gross sum costs order should be made.

Should a referee be appointed? (agreed issue 3)

Issue

531. If the Court is not prepared to make a gross sum costs assessment under section 98 of the CPA, should the Court appoint a referee pursuant to rule 20.14 of the UCPR to make a determination as to costs which the plaintiff is liable to pay to CGL?

532. This third agreed issue is clearly sourced from part of the relief the plaintiff seeks in Order 3 of the summons, as follows: “An order to …. or reference to a referee under UCPR 20.14”.

Submissions

533. In her PCS, the plaintiff stated: ^[410]

In view of the above, due to failure to make proper disclosures, cost agreement of defendants is void with no legal effect and this Court can refer the total exorbitant costs incurred to a referee or make a lumpsum assessment by applying 30% discount.

410. PSC page 3.

534. Mrs Young, in her DCS, submitted: ^[411]

32. It is not disputed this Court has the power to refer a matter or issue to a person with appropriate costs expertise in accordance with its power to refer issues to a referee for inquiry and report under Part 20.14 of the Unform Civil Procedure Rules; Attard v James Legal Pty Ltd [2010] NSWCA 311 at [180] to [183]; Newell v De Costi [2018] NSWCA 49 at [63]and [236]. That would involve the preparation of a formal report by the Referee and the holding of a formal adoption hearing in relation to the report. Significant costs would be involved in such a course if adopted.

33. However, importantly, there needs to be a “question”, defined broadly under rule 20.14 for such a referral to be made. In this case, Coleman Greig has complied with its obligations under the Uniform Law both initially and in respect to its continuous disclosure obligations; applied hourly rates as per the costs agreement such rates being on any view of it, fair and reasonable and on par with the market for legal services; carried out the work in accordance with its retainer and has a judgment of the District -- 19 Court in its favour which has now been satisfied. There is no real question to be resolved in this case which warrants referral.

411. DCS [32]-[33].

535. The plaintiff, in her PCRS, replied: ^[412]

32 No significant costs are incurred for a referee-cost assessor to make a report because cost assessment is out of time due to Coleman Greig Lawyers failure to make a timely application for cost assessment.

33 The question is: Is the cost assessment out of time? If no, did the defendants fail to make proper disclosures and what is the amount of fair and reasonable costs? These are the real questions in this case which warrant referral.

412. PCRS page 6.

Determination

536. In light of my findings in relation to agreed issues 1 and 2, there is no relevant basis to appoint a referee to make a determination in relation to costs.

Is CGL guilty of contempt? (agreed issue 4)

Issue

537. Did the defendants commit contempt of Court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the Family Court orders made in No. SYC6488/2014 on 30 April 2019?

538. The plaintiff in her summons complains that the defendants disobeyed Order 2.4.3 of the Family Court orders made on 30 April 2019. ^[413]

     413. CB 3 (summons Order 4).

Submissions

539. Mrs Young in her DOS addressed this agreed issue and made a number of submissions which I have had regard to. For present purposes, it is helpful to set out the plaintiff’s submissions, which are essentially a reply to Mrs Young’s submissions on the issue.

540. The plaintiff in her POS, in respect of this agreed issue, submitted as follows: ^[414]

     414. Pages 7-8. The following headings are outlined, which is only viewable on the Caselaw website: “Defendant submits”, “My reply”, “Statement of charge”.

Defendant submits:

94 No. There are serious jurisdictional and procedural problems ..... contempt claim brought against both defendants. First, ... this court has no jurisdiction to deal with the contempt claim. Fourth, the order made does not in any way relate to Ms Ralston.

My reply: My contempt claim is against first defendant only. I have not brought and cannot bring contempt claim against Karina Ralston because of Notation B below (See CB 10 at [10] “seek an order for contempt of court under this court’s inherent jurisdiction as first defendant refused to comply with this court order”).

This court has jurisdiction (a) under its inherent jurisdiction (b) because defendants were not a party to family law proceedings and (c) under SCR Pt 55 r 11 “guilty of contempt of the Court or of any other court” ^[415]

415. The words “contempt” and “of any other conduct” are underlined, which is only viewable on the Caselaw website.

Defendant submits:

Second, the summons does not comply with ......... test the case against him or her.

My reply:

Part 55 Contempt

Division 3 Motion or proceedings for punishment

6 Procedure generally

(1) if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders

(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons,

7 Statement of charge A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.

I filed statement of charge with my summons CB 10 at [10]. It would be unfair to hold me to the same standard as solicitors and barristers.

Defendant submits:

Third, key elements of civil contempt of court have not been established ...... instead she engaged another lawyer.

My reply:

I did not engage another lawyer. Sanjiv Shah engaged his own solicitor as solicitor for the conveyance.

I repeatedly begged of Therese Austin of first defendant’s conveyancing team to act on the conveyance but Therese Austin repeatedly refused.

Karina Ralston and Ashley Lamb both conceal the following critically important emails from their respective affidavits:

CB 733: PS I note also your firm has not accepted the Pexa invitation to join the workspace. (Name of person on top of email has been deleted)

CB 734: My firm is not acting on the conveyance for Mrs Sanjiv and do not intend to join the PEXA workspace. I request that as all relevant work has now been completed to provide vacant possession, you provide a Settlement Adjustment Sheet as soon as possible but by no later than Monday morning so the final figures can be reviewed. Your office can then facilitate the PEXA settlement without my firm joining the workspace ....

These 2 concealed emails clearly establish that first defendant also received instructions from Sanjiv Shah (through his Solicitor Keith Spencer) to act on the conveyance by accepting Pexa invitation to join workspace but first defendant refused yet was interested to act for me to review settlement adjustment sheet to ensure their outstanding fees of about $252,000 was being deducted from my share of sale proceeds.

My summarised answer to issue number 4 is:

Statement of charge

A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty.

2.4.3 Coleman Greig Lawyers to prepare a contract of sale.

Notation B: “It is noted that a solicitor at Coleman Greig not part of the Family Law Department shall act in respect of the sale of the Epping property on behalf of both the husband and wife”.

In above circumstances and on the evidence before the Court, Meek J can directed, pursuant to Pt 55 r 11 of the Supreme Court Rules 1970 (NSW), that the Registrar (Prothonotary of the Supreme Court of New South Wales) to apply by motion for punishment of first defendant, Coleman Greig Lawyers for contempt to the effect that first defendant “knowingly and deliberately and wilfully breached and disobeyed the above order of the court made by Family Court” See Madsen v Darmali (No 3) [2024] NSWSC 582 at:

[30] Even when a person is charged with contempt, it is not necessary to show that the person charged was aware of the full terms of the court’s order: Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535 at 538 (per Pincus J); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209 at [18] (per Jagot J).

[31] Even more so, the Court is entitled to expect that qualified legal practitioners will adhere to orders made in Court. ^[416]

416. The words “the Court is entitled” until the end of the sentence is underlined, which is only viewable on the Caselaw website.

541. Mrs Young in her DCS made detailed submissions regarding the alleged contempt as follows (omitting footnotes): ^[417]

     417. DCS [34]-[42]. The opening words “First”, “Second”, “Third” and “Fourth” are underlined, which is only viewable on the Caselaw website.

34. There are serious jurisdictional, procedural and evidentiary problems facing the Plaintiff in relation to the contempt claim which has been brought against both ^[418] Defendants.

418. The word “both” is underlined, which is only viewable on the Caselaw website.

35. First, the Defendants submit this Court has no jurisdiction to deal with a contempt relating to an order made by the then Family Court. It is accepted, as a superior court of record, the Court has acquired the traditional common law contempt powers in respect to its own proceedings and also a supervisory jurisdiction to deal with contempts, except perhaps civil contempts, affecting inferior courts within the same court hierarchy, or proceedings in such courts. However, its jurisdiction does not extend to dealing with alleged contempt of the Family Court of Australia as it was then known, given the Family Court is not a court within its hierarchy. The relevant order is one made by the Family Court of Australia on 30 April 2019, not this Court or any Court in its hierarchy. It is worthy also to note that the order was made over 5 years ago. This Court has no jurisdiction to deal with an alleged breach of an order of the Family Court.

36. Second, the Summons filed does not comply with SCR Pt 55 r 7, which requires that a Statement of Charge specifying the contempt, to be subscribed or filed with the summons. As stated by Rothman J in Young v Young [2016] NSWSC 1051 at [9]: “The purpose of SCR Pt 55 r 7 is to provide the person concerned with due notice and to accord a proper opportunity to answer the charge. It is a fundamental of the rules of procedural fairness and/or natural justice that a person charged with an offence, even under the common law, or especially under the common law, is entitled to a reasonable opportunity to prepare and to present her or his case (including to test the case against her or him).”

37. Third, even if a Statement of Charge had been prepared in proper form, key elements of civil contempt have not been established by Mrs Sanjiv. The elements that need to be established in an application for civil contempt for breach of a court order are conveniently set out in the recent decision in Goldspring v Jordan [2024] NSWCA 158 at [34], Bell CJ. The party alleging contempt must establish that:

a. an order was made by a Court;

b. the order was sufficiently clear such that one can be sure that the order was not complied with;

c. the alleged contemnor had knowledge of the terms of the order and, if required by the court rules, the order was served on the alleged contemnor or service was for some reason dispensed with; and

d. the alleged contemnor took a deliberate step which, even if not intended to, breached the order.

38. Importantly, the contempt claim fails at the outset as the proper construction of the order imposed obligations on the parties to the litigation, not the legal practice or their employed staff. There are only two references ^[419] to Coleman Greig in the orders:

Para 2.4.3, which imposes obligations on the husband and wife to give instructions as are necessary to prepare a contract for sale to Coleman Greig Lawyers110; and

Notation B -a notation, not an order, ^[420] which records that a solicitor at Coleman Greig, not part of the Family Law Department shall act in respect of the sale of the Epping Property on behalf of both of the Husband and Wife.

39. Paragraph 2.4.3 is an order but the primary obligation was imposed on the husband and wife to give the appropriate instructions to Coleman Greig so they could prepare a contract. In this case, the wife, Ms Sanjiv did not provide such instructions. Despite efforts by Ms Ralston and Ms Austiin to seek those instructions on 13 May 2019; 14 May 2019; 23 May 2019; 24 May 2019; 29 May 2019 she was not successful in getting instructions from Ms Sanjiv. Coleman Greig then ceased to act in early June 2019. Until such instructions are provided, then Coleman Greig could not act for both the Husband and Wife on the contract.

40. Notation B is not a Court order. Further, and importantly, neither Defendant took any step in deliberate breach of the order. In this case, despite many attempts by Ms Ralston and the licensed conveyancer Ms Therese Austin, to get Ms Sanjiv to engage Coleman Greig to prepare the contract for sale, Ms Sanjiv did not instruct Coleman Greig, nor did she provide the proper authority so the practice could act for her in relation to the preparation of a contract of sale of the Epping property. Neither did the husband provide such instructions. Even if the notation imposes obligations on Coleman Greig, without the Husband and the Wife’s instructions, Coleman Greig was not in a position to comply with the order as made.

41. Fourth, the order made does not relate to or require Ms Ralston to do anything -she is not in breach of such an order and the claim against her is without any foundation. It not appropriate for the Plaintiff, now that she realises her own misguided approach, to say she only brings the contempt claim against Ms Ralston. That is not what is set out in the Summons.

42. The Defendants contend that the claims of contempt should be dismissed with costs. Such claims are beyond the jurisdiction of this Court; not in proper procedural form and without merit on the evidence.

419. The words “two references” are underlined, which is only viewable on the Caselaw website.

420. The words “not an order” are underlined, which is only viewable on the Caselaw website.

542. The plaintiff in her PCRS replied as follows: ^[421]

     421. PCRS pages 1-3.

WILFUL AND KNOWING AND DELIBERATE AND CONTUMACIOUS CIVIL AND CRIMMINAL CONTEMPT OF COURT - ISSUE 4

Reply to paragraph 34

There are no jurisdictional and/or procedural and/or evidentiary problems in relation to wilful and knowing and deliberate and contumacious civil and criminal contempt of court. Reply to paragraph 35 The Court has jurisdiction to deal with contempt in relation to defendants because defendants were not parties to family court proceedings/family court orders made on 30 April 2019 and are solicitors whose unlawful conduct falls under the jurisdiction of Supreme Court of New South Wales.

Reply to paragraph 36

I as a self-represented person with no legal training must not be held to same standard of the defendants. Both defendants were provided with due notice at all times and accorded procedural fairness to answer the charge. This is in addition to them as qualified and experienced solicitors knowing on and after 30 April 2019 whether they are in contempt of court orders they advised me to accept.

Reply to paragraph 37

Both defendants were aware that orders 2.4.3 with Notation Band 4.4.2 were made on 30 April 2019.

Orders 2.4.3 with Notation Band 4.4.2 were sufficiently clear such that Judge Meek can be sure that these orders were not complied with.

Both alleged contemnors had knowledge of the terms of orders 2.4.3 with Notation Band 4.4.2. Both alleged contemnors took deliberate step which, even if not intended to, (a) breached order 2.4.3 by not preparing contract of sale despite being instructed by me and Sanjiv Shah (b) breached order 4.4.2 by directing Solicitor Keith Spencer to pay balance amount of money payable to me into their “office account” NOT “trust account” as ordered.

Reply to paragraph 38

Orders 2.4.3 with Notation B obligated Coleman Greg Lawyers to prepare contract of sale NOT parties to prepare contract of sale.

Orders 4.4.2 obligated Coleman Greg Lawyers (not parties) to direct payment of balance money to be paid into trust account not office account whose account number was only known to Coleman Greg Lawyers.

Reply to paragraph 39

The words in CB 773 “You engaged us to ensure that settlement took place” clearly establish that I engaged and instructed Coleman Greig Lawyers to prepare contract of sale to ensure settlement took place.

The words in CB 733 “I note also your firm has not accepted the Pexa invitation to join the workspace” clearly establish that Sanjiv Shah through his Solicitor Keith Spencer instructed Coleman Greig Lawyers.

The words in CB 734 “My firm is not acting on the conveyance for Mrs Sanjiv and do not intend to join the PEXA workspace. I request that .... , you provide a Settlement Adjustment Sheet as soon as possible but by no later than Monday morning so the final figures can be reviewed” clearly establish that instead of joining PEXA to complete settlement in relation to contract of sale Coleman Greig was obligated to prepare and settle, Coleman Greig Lawyers were interested in reviewing settlement sheet to ensure payment of money was directed into their “office account” and not into their “trust account” as ordered by Family Court.

Reply to paragraph 40

Coleman Greig Lawyers assert that they knew that I am Sanjiv Shah had not engaged them and not given them instructions to prepare contract of sale, yet clearly Coleman Greig made not attempt to have orders 2.4.3 with Notation Band 4.4.2 varied or set aside. This only because first defendant’s assertions are false to avoid being found in wilful, knowing, deliberate and contumacious civil and criminal contempt of court.

Reply to paragraph 41

On the evidence supported by my submissions, Coleman Greig Lawyers are in wilful, knowing, deliberate and contumacious civil and criminal contempt of court orders 2.4.3 with Notation B.

On the evidence supported by my submissions, Coleman Greig Lawyers and Solicitor Karina Ralston are in wilful, knowing, deliberate and contumacious civil and criminal contempt of court orders 4.4.2.

Reply to paragraph 42 I contend that both defendants be held in civil and criminal wilful, knowing, deliberate and contumacious civil and criminal contempt of court orders 2.4.3 with Notation B and 4.4.2 with an order for costs in my favour.

Reply to other paragraphs

1 Clear and convincing and definite proof is available to establish, including but not limited to, that Solicitor Karina Ralston and Coleman Greig Lawyers Pty. Ltd. wilfully and knowingly and deliberately and in contumacious disregard for court order 4.4.2 gave the office account number to Solicitor Keith Spencer to enable him to pay balance money payable to me into Coleman Greig Lawyers Pty. Ltd. office account NOT trust account as ordered.

2 Both defendants who have wilful and knowing and deliberate and contumacious contempt for court cannot be witness of truth.

3 Both defendants who have wilful and knowing and deliberate and contumacious contempt for court cannot be witness of truth.

4 Both defendants were obligated to give me an estimate of total legal costs (their fees and disbursements such as counsel fees) but failed to do so at the outset which obstructed me from making an informed decision as to whether to engage Coleman Greig Lawyers Pty. Ltd.

5 The issues enlisted are inaccurate and incomplete. 6 A review of the transcript will reveal that I did not abandon the issue about defendant’s failure to make proper disclosures. 7 to 19 Both defendants who have wilful and knowing and deliberate and contumacious contempt for a court of law and justice cannot be witness of truth - Defendants continued acting for me when they knew that I was not paying their invoices timely that breached mutual trust and confidence because of their successful repeated threats that I would lose my home and money entitlements if I changed lawyers again that helped defendants continue making money.

543. Further, the plaintiff stated as follows: ^[422]

46 The contents of paragraph 46 are inaccurate. If Coleman Greig could not comply with any family court orders they were obligated to have made an application (on my behalf or on their own behalf) before settlement (when acting for me in relation to sale of property). I have established that both defendants are in clear civil and criminal contempt of court.

47 Both defendants are qualified and experienced lawyers who know whether their actions at any time are/were in contempt of court or are/were not in contempt of court. I have established contempt of court based on the evidence in the court book prepared by and known to defendants.

422. PCRS page 6.

Determination

544. The Family Court orders relevantly provided: ^[423]

2.4 Should the Epping property not be sold during the blind tender process then within a further twenty eight (28) days of the blind tender the parties do all acts and things necessary to list for sale by public auction the Epping property for the best price reasonably obtainable and in particular will:

2.4.1 give such instructions and to list the Epping property for sale with a real estate agreed upon by the parties and failing agreement the Wife shall forthwith in writing nominate two real estate agents from which the Husband shall within a further seven (7) days select one, and failing which the Wife shall select one who shall be the real estate agent appointed (“the agent”);

2.4.2 sign all documents requested by the agent for the sale of the Epping property;

2.4.3 give such instructions as are necessary to a Coleman Greig Lawyers (“the lawyers”) to prepare a Contact for Sale for a forty two (42) day settlement period (unless agreed to otherwise between the parties in writing);

2.4.4 list the Epping property for sale by public auction and such auction shall be on a date as nominated by the agent but no later than 5 weeks after the conclusion of the blind tender process, at a reserve of price of $2,500,000.00;

423. CB 346-347, 363.

545. Notation B of the Orders states as follows: ^[424]

B. It is noted that a solicitor at Coleman Greig, not part of the Family Law Department, shall act in respective of the sale of the Epping property on behalf of both of the Husband and Wife;

424. CB 371.

546. In her affidavit in support of the relief in the summons, the plaintiff stated what she asserted was a form of charge for contempt as follows: ^[425]

I serve the following statement of charge for civil and/or criminal contempt of court - breach of order 2.4.3 made on 30 April 2019 “Coleman Greig Lawyers to prepare a contract for sale for 42 day settlement period - Notation B: It is noted that a solicitor at Coleman Greig not part of the Family Law Department, shall act in respect of the sale of the Epping property on behalf of both of the husband and wife”. I seek an order for contempt of court under this court’s inherent jurisdiction as first defendant refused to comply with this court order.

425. CB 10-11[10].

547. During the hearing, the plaintiff asserted that Order 2.4.3, when read with notation B, created a responsibility in CGL to act in relation to the sale of the property and that they had failed to do so. ^[426] The plaintiff sought to cross-examine both Mr Lamb and Mr Ferguson regarding this, notwithstanding that they had no relevant involvement in the sale of the property.

     426. T 214-216.

548. The notion that CGL breached Order 2.4.3 such that it amounts to a form of civil and/or criminal contempt of court (as alleged by the plaintiff) ^[427] is entirely misconceived.

     427. CB 10[10].

549. First, properly construed, Order 2.4.3 is an obligation on the parties, not on CGL.

550. Secondly, at no stage did the plaintiff (nor Dr Shah) relevantly ask CGL to prepare a contract for sale for the Epping property.

551. The plaintiff’s complaint appears to relate to 2 time periods. The first in May 2019 and the second in July 2022.

552. In relation to the period in May 2019, I have set out the narrative of events above based on the correspondence between the parties. In summary, it is clear that, on 3 May 2019, Ms Austin spoke with the plaintiff and sent her an email. ^[428] The email introduced Ms Austin to the plaintiff and requested instructions regarding some of the property. Thereafter, between 6-30 May 2019, Ms Ralston sought instructions from the plaintiff and it is clear that the plaintiff declined to give instructions to Ms Ralston and CGL to act on the sale of the Epping property. ^[429] The reason the plaintiff declined to give instructions is not expressly evident from the correspondence. However, as I have noted earlier, by at least 10 May 2019, it seems the plaintiff was contemplating trying either to vary the Court orders or to delay the sale of the Epping property. ^[430]

     428. CB 393.

     429. CB 404, 420-428, 440-441, 443, 444, 445, 485, 500, 502.

     430. CB 427.

553. The above narrative is consistent with Ms Ralston’s affidavit evidence that, whilst the Family Court orders dated 30 April 2019 envisage that the parties will instruct CGL to prepare a contract for the sale of the property and the “property team” at CGL will open a file, due to lack of instructions leading up to 30 May 2019, CGL ceased to act for the plaintiff. ^[431] Whilst the plaintiff cross-examined Ms Ralston to the effect that she had in some way breached Order 2.4.3, ^[432] Ms Ralston confirmed that CGL was no longer instructed at the time and so CGL did not prepare any contract for sale. ^[433] I accept Ms Ralston’s evidence.

     431. CB 17[33]-18[41].

     432. T 33.39-36.1.

     433. T 36.8-.10, 36.46-.49.

554. In relation to the period in July 2022, the plaintiff further challenged Ms Ralston in respect of her reply evidence that CGL did not act for her in respect of the sale of the Epping property as the plaintiff did not provide CGL with any instructions to do so (noting that the plaintiff was in April 2022 represented by Gary Pickering, solicitor, in respect of the settlement of the sale of the property). ^[434] Ms Ralston disagreed that her evidence regarding that was incorrect. ^[435] I accept her evidence.

     434. See CB 40[21], 41[28]-[29].

     435. T 79, 81-83.

555. The plaintiff’s particular complaint for the second period relates to an alleged refusal on 8 July 2022 by CGL to accept an invitation to join a PEXA workspace at the invitation of Mr Spencer. ^[436] As I have indicated above, Ms Nichelsen responded to Mr Spencer, noting that CGL was not acting on the conveyance for the plaintiff, and accordingly did not intend to join the PEXA workspace. ^[437]

     436. T 33.39-36.6 (referencing emails that CB 733- 734); PCS page 1.

     437. CB 734.

556. Briefly, at the end of the plaintiff’s cross-examination of Ms Ralston, the plaintiff made reference to the email Ms Ralston had sent on 22 August 2022.

557. In her PCS, the plaintiff stated as follows: ^[438]

On 22 August 2022 (CB 773) Solicitor Karina Ralston said in her email “You engaged us to ensure that settlement took place”.

Despite Coleman Greig Lawyers knowing that I engaged them to ensure settlement took place after contract of sale must be prepared by them, Coleman Greig Lawyers wilfully and knowingly and in contumacious disregard for order 2.4 .3 disobeyed order 2.4.3 and did not prepare contract of sale. All that Coleman Greig Lawyers were interested in was their monetary benefit in the settlement adjustment sheet to verify if their outstanding fees was included therein for being paid outside the trust account directly into their office account in contempt of court.

At any point in time and under all circumstances, defendants made no attempt to get the above order varied.

Conclusion: I submit that I have established that Solicitor Karina Ralston and Coleman Greig Lawyers are in contempt of court. I further submit that if Solicitor Karina Ralston and Coleman Greig Lawyers as qualified and experienced legal professionals had contempt for Court orders, it would be unsurprising that Solicitor Karina Ralston and Coleman Greig Lawyers had contempt for me as their client established as under:

…

438. PCS page 1.

558. The plaintiff’s reference to the above-mentioned single sentence in the email fails to reveal the context. Rather than that sentence demonstrating that CGL had undertaken to prepare a contract for sale and disobeyed Order 2.4.3, the contrary is the case. I have set out the full content of the email earlier. However, the second point emphasises the lack of instruction from the plaintiff: ^[439]

2. You engaged us to ensure that settlement took place. You did not want to be evicted from your home (and wanted to vacate at the time of settlement). You however did not instruct us in a timely manner to file an application to vary the orders and ultimately you were evicted. Settlement did however proceed;

439. CB 773.

559. The notion that somehow Ms Ralston or CGL had breached an order was mystifying to Ms Ralston, who stated: ^[440]

You have indicated I have breached an order. I do not know which order you say that I have breached and would ask that you set out in more detail.

440. CB 773.

560. Seemingly, there was no response to Ms Ralston’s question in that regard. Certainly, none appears in the Court Book.

561. Thirdly, as observed by Mrs Young, it is entirely unclear how the Supreme Court has jurisdiction to deal with a claim for contempt relating to an order made by the Family Court. ^[441] Whilst it may be acknowledged that the Supreme Court has power to deal with, not only contempt of itself but contempt of any inferior court, the Family Court is not an inferior court within the same court hierarchy: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 360 per Dixon CJ, Fullagar, Kitto and Taylor JJ; [1955] HCA 12.

     441. DOS [94], DCS [35].

562. Those matters are sufficient to dispose of the plaintiff’s claims. It is not necessary to address Mrs Young’s further submissions regarding the alleged deficiency of the charge of contempt for non-compliance with Supreme Court rules Part 55 r 7. ^[442]

Is the Plaintiff entitled to an order for pre-judgment interest and costs of the proceedings? (agreed issue 5)

442. DOS [96], DCS [36]-[37].

Issue

563. The plaintiff in Order 5 of her summons seeks pre-judgment interest and costs “such as payment for court fees”. This was formalised into agreed issue 5.

Submissions

564. The plaintiff, in her POS, submitted as follows: ^[443]

Yes - I respectfully submit that I am entitled to pre-judgment and/or post-judgment interest and costs such as fees paid in this court, if successful.

443. POS page 9.

565. Mrs Young, in her DCS, submitted: ^[444]

43. No. As against Ms Ralston, there is no basis for this claim whatsoever as she never received any part of the legal fees paid to Coleman Greig.

44. In terms of Coleman Greig, if an order is made for re-payment of any funds, then it is conceded that the Court may make an order for interest. However, as stated above, there is no foundation for a repayment of funds by Coleman Greig. Costs of the proceedings however will depend on the overall merits of the matter and other considerations.

…

53. The Summons should be dismissed in its entirety with costs.

54. The Defendants reserve their rights to make further submissions on costs or bring an application for a fixed orders once the final decision is made by His Honour.

444. DCS [43]-[44].

566. The plaintiff, in her PCRS, simply responded as follows: ^[445]

43 Yes. I am entitled to an order for pre-judgment interest and costs.

445. DCS [43]-[44].

567. Finally, the plaintiff concluded:

52 There is strong legal and evidentiary basis for any order sought or that Court deems fit to make in the interest of justice.

53 The summons should be granted with costs.

54 I reserve my position and my legal right to a statutory cost assessment.

Determination

568. Having regard to my findings above, it is unnecessary to decide whether the plaintiff is entitled to any order for pre-judgment interest.

569. Costs are in the discretion of the Court, subject to the CPA, rules of Court and any other Act: s 98(1)(a) CPA. The Court has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA. The Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA.

570. The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR. If the Court makes an order for dismissal of the proceedings, then generally speaking, unless the Court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed: r 42.20(1) UCPR.

571. In light of my findings, I intend to dismiss the plaintiff’s summons.

572. There is, in my opinion, no principled basis for departing from an order that costs follow the event. Nonetheless, I apprehend that Mrs Young, by her submission in DCS [54], intends to seek a specific order regarding costs and, accordingly, I will give the parties an opportunity to make a specific submission regarding.

Conclusion

573. For the reasons detailed above, I dismiss the plaintiff’s summons.

574. I will address the issue regarding submissions on costs upon delivery of these reasons for judgment.

ANNEXURE A

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Endnotes

Decision last updated: 26 May 2025