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[2026] NSWSC 779
Supreme Court of NSW
2026-06-30
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: ABM v DDM [2026] NSWSC 779
Hearing dates: 30 June 2026
Date of orders: 30 June 2026
Decision date: 30 June 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: (1) Grants leave to the plaintiff to file and serve the further amended statement of claim substantially in the form annexed to the affidavit of Hayley Aldrich affirmed 2 June 2026.
(2) Directs the plaintiff to file and serve that further amended statement of claim by close of business on 2 July 2026.
(3) Directs the defendant to file and serve a defence to the further amended statement of claim by close of business on 30 July 2026, this order being without prejudice to the defendant seeking to preserve his right to silence in that defence.
(4) Subject to orders 6, 8, 9 and10 below, order that following the filing of the defence, these proceedings be stayed until the determination of the criminal proceedings currently pending against the defendant, being the proceedings described in the affidavit of Mr Farshad Sarabi sworn 6 March 2026, or earlier order.
(5) Reserves liberty to the plaintiff to seek that the stay be vacated following the determination of guilt or otherwise of the defendant.
(6) Directs the defendant to advise the Registrar in Common Law and the plaintiff’s solicitor of the determination of the criminal proceedings within 4 business days of the determination.
(7) Orders the defendant to pay the plaintiff’s costs of the hearing on 10 June 2026 and any additional costs occasioned by the defendant’s adjournment on that date, such costs to be assessable forthwith.
(8) Costs are otherwise reserved.
(9) Pursuant to s 99(4)(b) of the (NSW) orders the defendant’s solicitor, Mr Sarabi, to give his client:
(a) notice of the plaintiff’s application for personal costs against him within 48 hours of today; and
(b) a copy of these reasons within 48 hours of these reasons becoming available to him.
(10) If the plaintiff presses an application for an order against Mr Sarabi under s 99 of the , directs that it be renewed by notice of motion and in that event, directs that the plaintiff provide Mr Sarabi in writing with full particulars of what the plaintiff says was the serious neglect, serious incompetence or serious misconduct that warrants the order.
(11) Notes that the Court does not presently consider it appropriate to set down such application until after the trial or other substantive resolution of the plaintiff’s claim, unless the defendant himself makes an application under s 99 in respect of Mr Sarabi and the defendant seeks that the application be heard at an earlier date.
Original judgment source is linked above.
Catchwords: CIVIL PROCEDURE — Stay of proceedings — Concurrent civil and criminal proceedings — Same subject matter — where plaintiff commenced civil proceedings after charges laid in Queensland in respect of the same or similar alleged conduct — where the defendant contests the criminal charges — where there is a substantial factual overlap between proceedings — where plaintiff has interest in determining both proceedings as soon as possible — whether defending civil proceedings will abrogate defendant’s right to silence and may be used against him in prosecution of criminal proceedings — whether media coverage of civil proceedings may affect potential jurors — prejudice to the plaintiff from granting a stay — balancing exercise — whether interests of justice favour granting of a stay
COSTS — Party/Party — Costs orders in interlocutory proceedings — where proceedings were adjourned because defendant’s solicitor could not deal with an affidavit on which the plaintiff sought to rely — where adjournment was necessary because of the failure of the defendant to consider the affidavit — whether defendant could have fairly met the evidence in the 8 days between the date of service and the date of hearing
Legislation Cited: Civil Procedure Act 2005 (NSW), s 99
Cases Cited: A Daughter v A Father [2025] NSWSC 1609
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97
McMahon v Gould (1982) 7 ACLR 202
Smith v Kelsey (2020) 4 QR 1
Telstra Ltd v Sulaiman [2024] NSWSC 971
Category: Procedural rulings
Parties: ABM (Plaintiff)
DDM (Defendant)
Representation: Counsel:
M Windsor SC/B Epstein (Plaintiff)
I Erskine (Defendant)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Hannay Lawyers (Defendant)
File Number(s): 2025/00418224
Publication restriction: Nil
There are three applications before me:
the plaintiff’s notice of motion to file a further amended statement of claim (‘FASOC’);
the defendant’s notice of motion seeking an order that these proceedings be stayed pending the determination of criminal proceedings against him; and
the plaintiff’s application for wasted costs because it was necessary to adjourn the defendant’s motion when the matter first came before me on 10 June 2026.
The defendant seeks an order that these proceedings be stayed pending the determination of criminal proceedings against him.
The plaintiff accepts that orders should not be made for the defendant to serve evidentiary statements while the criminal proceedings are pending, but seeks other orders to progress the proceedings, including orders for a defence, service of expert medical opinion evidence, and a mediation. I will return to those proposed orders.
The plaintiff sues the defendant in this Court for sexual abuse or other sexual misconduct allegedly committed by the defendant between when the plaintiff was six years old and when the plaintiff was 14 years old.
Some years ago, the defendant was tried and found not guilty of charges of sexual or indecent assault against the plaintiff. The defendant was recently charged in another State with four counts of indecently dealing with a girl under the age of 16 years.
After those charges had been laid, the plaintiff commenced these proceedings against the defendant. On 23 December 2025, following a contested hearing, Slattery J granted a freezing order restraining the defendant from disposing or dealing with his interest in certain real estate without first giving 21 days’ notice: see A Daughter v A Father [2025] NSWSC 1609.
In the application before me, the defendant’s solicitor has stated by affidavit that:
the defendant denies the criminal charges, and has exercised and will continue to exercise his right to silence;
there is a substantial factual overlap between the current criminal charges and these proceedings (a proposition which I can see for myself from the face of the amended statement of claim and the terms of the charges); and
the defendant is concerned that defending these civil proceedings will abrogate his right to silence and may be used against him in the prosecution, including potentially enabling the Crown to fashion the criminal proceedings in a particular way.
The defendant is also concerned about newspaper articles or social media sensationalising the allegations against him and affecting potential jurors.
The plaintiff opposes the relief sought by the defendant. She proposes orders, as I have indicated, that she says would protect the defendant’s right to silence while allowing the matter to progress, specifically, refusing the stay, and ordering that:
1. the plaintiff be granted leave to file a further amended statement of claim by a date to be fixed;
2. the defendant is to file and serve a defence to the further amended statement of claim by a date to be fixed;
3. the defendant is to serve any expert medical opinion evidence upon which he intends to rely by a date to be fixed;
- the plaintiff is to serve any expert medical opinion evidence in reply by a date to be fixed;
5. the parties are to attend a mediation with a mediator by a date to be fixed;
- the matter is listed for further directions on a date to be fixed; and
- the parties have liberty to apply.
The plaintiff has put on evidence that includes an affidavit from her explaining that she is extremely anxious for these proceedings and the criminal proceedings to be determined as soon as possible. That is readily understandable. The plaintiff has also adduced evidence of her concern as to the dissipation of assets, and a further concern because the defendant’s wife is a foreign national and there are no bail conditions in respect of reporting or travel. I take those matters into account and will return to them.
I also have the plaintiff’s expert evidence, including from an expert psychologist and expert psychiatrist. I will return to that evidence.
Both parties place before the Court evidence as to the likely timing of the criminal proceedings. On the material before me, an indictment may not be presented until September 2026 or later, the complainant’s evidence might not be pre-recorded until the end of this year or early in 2027, and a trial would be listed after that date. On the material before me the criminal proceedings may not be determined until late 2027. I recognise this means a stay would carry with it material delay, another matter to which I will return.
The legal principles can be drawn in significant part from the High Court’s decision in Commissioner of the A**ustralian F**ederal P**olice v Zhao (2015) 255 CLR 46; [2015] HCA 5 (‘Zhao’) and the decision of the Full Federal Court in C**onstruction, F**orestry, M**ining and E**nergy U**nion v A**ustralian C**ompetition and C**onsumer C**ommission (2016) 242 FCR 153; [2016] FCAFC 97 (‘CFMEU’) at [22]-[25].
Where both civil and criminal proceedings are pending, a stay of the civil proceedings will be ordered where “the interests of justice require such an order”: see Zhao at [36].
The Court will not grant a stay of proceedings merely because related charges have been brought and criminal proceedings are pending: Zhao at [35].
At least as a general matter, it must be apparent that the accused is at risk of prejudice in the conduct of their defence in the criminal trial: Zhao at [35]. The risk of prejudice must be real and that risk is to be weighed against the prejudice that a stay of the civil proceedings would occasion: Zhao at [47] and [50].
A potential prejudice for an accused may be that the evidence given by that person in a civil proceeding would reveal or telegraph information to the prosecutor about the accused’s defence in the criminal proceeding. The foundation on which the High Court set this conclusion is that it is for the prosecution to prove the guilt of an accused person and cannot compel a person charged with a crime to assist in the discharge of its onus of proof: see CFMEU at [23]; and see Zhao at [18].
Protective orders suppressing evidence and other material in the civil proceedings would not suffice to remove the risk of prejudice to the accused person’s defence in the criminal proceedings: CFMEU at [24], Zhao at [46].
It is not necessary for an applicant for a stay to state the specific matters of prejudice. To require an applicant to do so would be to make the risk of prejudice a reality by requiring them to reveal information about their defence: Zhao at [43].
Closing the Court as a means of attempting to maintain the confidentiality of evidence given by an accused in the civil proceeding was not accepted in Zhao to be a proper reason for departing from the open court principle: Zhao at [44]; CFMEU at [25]. I recognise the interests of justice may be different from one case to the next. I place greater weight on the fact that suppressing material does not provide full protection against the intrusion upon the right to silence. An accused is still in effect forced to disclose what are likely to be aspects of his defence, including stating formally the version of events about matters likely relevant to the criminal trial. As was observed in Zhao at [43], the defendant should not be called upon to state the specific matters of prejudice because that requires revealing information about his defence.
I have also considered the oft-cited guidelines identified by Wootten J in McMahon v Gould (1982) 7 ACLR 202 at 206:
I approach the decision of this matter with the following guidelines:
(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19);
(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid);
(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905);
(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(e) The court's task is one of "the balancing of justice between the parties" (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905);
(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905);
(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below;
(h) However, the so-called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5);
(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905);
(j) In this regard factors which may be relevant include:
(i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905);
(ii) the proximity of the criminal hearing (ibid at 905);
(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905);
(iv) the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton);
(v) whether the defendant has already disclosed his defence to the allegations (Caesar v Somner at 932; Re Saltergate Insurance Co Ltd at 736);
(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6);
(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
(I) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed (Beecee Group v Barton).
I do not accept that the plaintiff’s proposal avoids prejudice to the defendant or avoids derogation from the defendant’s right to silence.
In relation to the defence, I would see considerable force in the proposition that being ordered to file and serve a defence involves an intrusion on the right to silence. However, one difficulty for the defendant is that he has already filed and served a defence to the amended statement of claim, which he filed and served at the same time as filing his motion for a stay.
This substantially impacts the degree of prejudice that the defendant would suffer by being ordered to file and serve a defence to the FASOC now. The defence the defendant has already filed, in certain respects, preserved the defendant’s right to silence. The defendant accepted before me that there is limited prejudice to the defendant being ordered to file a defence to the FASOC, at least provided he is permitted to preserve in a similar way his right to silence to the same extent as he has in his currently filed defence.
I accept, as the plaintiff submitted, that the filing of the defence will at least avoid any delay for that step when the matter resumes if a stay is otherwise granted. That is a sufficient reason to warrant ordering the defendant to file a defence regardless of whether a stay is ordered after that.
The defendant has a stronger case for resisting an order that he file and serve medical expert evidence. The Court does not know whether the history as asserted by the plaintiff will be agreed to or disputed by the defendant, and the defendant should not be required to indicate his position on that. Requiring the defendant to instruct experts either forces the defendant to instruct experts solely on the basis of the plaintiff’s case (which would diminish the utility of the evidence), or forces the defendant to disclose the substantive factual propositions he will dispute or advance as relevant to the medical expert opinions.
I place full weight on the fact that the defendant has already, in his currently filed defence, denied the significant allegations by the plaintiff. That does not, in my view, address the prejudice. I do not think that the prejudice can be addressed or the risk avoided by the proposals advanced by the plaintiff before me. In particular, orders for the defendant to give instruction in a confidential environment of one kind or another, would still create the prejudice and the risk to which I have adverted. I also do not think that it is appropriate to bifurcate the expert evidence in a way that requires the defendant to serve his expert evidence, but only on a particular basis. That may be productive of its own unfairness.
I have considered the plaintiff’s proposal that the defendant’s solicitors could provide a statement of assumptions, which would not necessarily be a statement of the defendant. But I cannot see how that avoids the prejudice or risk of injustice if those assumptions are to be useful in the proceedings.
In those circumstances, I am satisfied that there would be material prejudice to the defendant if he were ordered to serve his expert medical opinion evidence. I am satisfied that there is a real risk of injustice if the defendant is required to take these steps in civil proceedings while the criminal proceedings are still pending. If there is no medical evidence from the defendant or any incomplete medical evidence, I am not persuaded that there is utility in ordering the parties to attend a mediation at this stage. This is not to exclude the possibility of a mediation – if the defendant agrees to a mediation then the parties will be free to organise one and mediations often have real utility at an early stage in a dispute – but I am not persuaded that the matter calls for a Court-ordered mediation at this stage.
I take into account the possibility of publicity influencing prospective jurors. This risk is significantly ameliorated by the Court’s powers to make suppression and non-publication orders, including throughout Australia. However, I have evidence that the defendant’s wife is a foreign national and the defendant himself resides in a foreign country, and I cannot exclude the possibility of there being international media interest in the proceedings. If so, orders of this Court would not prevent publication abroad, and the Court cannot exclude the risk of jurors seeing reports abroad. I accept that such a risk would be increased by current civil proceedings if anything is occurring in open Court. However, the plaintiff is not proposing steps that would involve hearings in open court while the criminal proceedings are pending. Furthermore, nothing in the material before me suggests that the risk of overseas publicity is a substantial one. While I do not regard it as remote or speculative, I place little independent weight on the concern about the risk as to publicity.
I place full weight on the plaintiff’s prima facie right to have her action tried in the ordinary course of the procedure and business of this Court. In considering whether to grant the stay, I recognise that this is a case where it cannot be said that the prejudice is all or even primarily on one side. I accept that this is a case where the impact of delay on the plaintiff might be expected to be more acute, given that the plaintiff is a private individual and given the subject matter of the proceedings.
As I have indicated, the Court has evidence from the plaintiff’s expert psychologist and psychiatrist as to her psychological condition and mental health, including as matters presently stand and in the context of these proceedings. I have considered carefully and placed weight on the evidence of the impact, including the mental health impact, of the proceedings being ongoing – and being ongoing for a significant period of time.
I also recognise that duration of the stay is uncertain. While that is very much to be regretted, it may be unavoidable if the interests of justice require it. The defendant proposes a specific carve out that any stay be subject to any further order of the Court, so that if there are undue delays or if circumstances change, the plaintiff can come back to Court to ventilate the issue further.
I also recognise that delay before trial will be longer again than the time taken for the criminal proceedings to complete. If the civil proceedings did not resume until the end of 2027, the hearing of the trial in this Court if expedition is not granted could be late 2028, possibly even 2029. But on any view the matter cannot be set down for trial until much later than sometime in late 2027 or 2028, because the defendant will not be ordered to serve witness statements until after the criminal proceedings have been determined. When any stay comes to an end, there may be considerable force in an order for expedition, but I recognise that will be a matter for the Court at the time.
The delay is a material matter. I accept, in addition to the specific matters, the prejudice implicit in the delay itself.
I also take into account the plaintiff’s concern about dissipation of assets. I am mindful that this was separately assessed by Slattery J, who was persuaded to grant the freezing order I have described, rather than the more extensive freezing order the plaintiff sought. This leaves the defendant with access to his superannuation fund to meet his defence costs. It was clear from Justice Slattery’s reasons at [32] that his Honour regarded that as the appropriate outcome, and the application before me is not a forum to relitigate that decision. I nevertheless take into account as part of the circumstances the fact that refusing the order sought by the plaintiff is likely to mean the defendant will have his superannuation available to him to meet defence costs.
The plaintiff places weight on the fact that the defendant has not made an affidavit personally in support of this application indicating that he will give evidence in the criminal proceedings. The plaintiff in this respect draws attention to CFMEU at [38] and Telstra Ltd v Sulaiman [2024] NSWSC 971 at [23]. While I take that on board, it seems to me that the orders proposed by the plaintiff will still require the defendant to disclose significant aspects of his defence, so that “the invidious position” adverted to arises to a significant degree.
Recognising that the Court is called upon to decide where the balance lies, in the circumstances of the case I am satisfied that the balance favours granting the stay after the defence has been filed. I have given careful consideration to adopting a middle course or staged approach such as the one proposed by the plaintiff, but I am not persuaded that such an order would be consistent with the interests of justice. I am satisfied that the interest of justice requires a stay after the defence has been filed.
This matter first came before me on 10 June 2026. The Court could not deal with the matter on that day because the defendant’s solicitor, Mr Sarabi, said he could not deal with an affidavit on which the plaintiff sought to rely, being a second affidavit of Ms Aldrich dated 2 June 2026. I was satisfied that fairness to the defendant required that the matter be adjourned, even though, as I will explain, it did not appear that Mr Sarabi had an adequate explanation for being unable to deal with that affidavit, at least so far as it concerned the defendant’s own application for a stay. The plaintiff seeks her costs thrown away by reason of the adjournment. She seeks them on an indemnity basis forthwith in a lump sum, including against Mr Sarabi personally. I was not satisfied that it was fair to deal with the application for a personal costs order against Mr Sarabi at this resumed hearing on 30 June 2026. Accordingly, I decline to deal today with the plaintiff’s submission that the Court make a personal costs order. I deal here only with the question of costs as between the plaintiff and the defendant. If the plaintiff presses her application for a personal costs order, then subject to what I say below about the timing of any such application, she should renew her application by notice of motion with appropriate particulars. I will return to this.
Returning to the hearing before me on 10 June 2026, the plaintiff’s written submissions, which were filed on 3 June 2026, had made it clear that the plaintiff relied on Ms Aldrich’s affidavit of 2 June 2026.
In fairness, at that time, the only notice of motion returnable for hearing before me was the defendant’s motion for a stay. The Court also had before it the plaintiff’s notice of motion to amend the FASOC, which was filed on 2 June 2026, but that was for direction only, the motion being returnable at a later date. The plaintiff’s written submissions filed 3 June 2026 also addressed the amendment to the FASOC.
At the beginning of the hearing on 10 June 2026, the defendant’s solicitor, Mr Sarabi, said that he was not in a position to deal with the notice of motion to amend the pleading. Following a discussion with Mr Sarabi and the plaintiff’s counsel, I determined to defer that issue for the time being. The plaintiff’s counsel indicated he would have something to say about the statement of claim as an addendum to what he would otherwise have to say.
After reading the first affidavit of Ms Aldrich of 25 March 2026, the plaintiff’s counsel went to read the affidavit of 2 June 2026. I had the following exchange with Mr Sarabi:
HIS HONOUR: … Mr Sarabi, have you seen the second affidavit?
SARABI: Your Honour, I don't have it in front of me because it was in the joint court book nor agreed to be in there, so I object to that being tendered.
HIS HONOUR: Mr Sarabi, could you answer, have you seen that affidavit?
SARABI: Your Honour, can I say this? Having been in multiple courts during the week, I would have to refresh my memory about whether I've seen that affidavit or not.
HIS HONOUR: You're telling me, honestly, you don't know whether you've seen that affidavit?
SARABI: I probably would have seen that affidavit, your Honour. I just can't speak to what's contained in that.
HIS HONOUR: All right. What steps do we need to take to ensure that you have a copy of the affidavit?
SARABI: Perhaps my friend can email me a copy of that?
HIS HONOUR: Well, I take it you don't have a copy among your electronic records to which you have access?
SARABI: Your Honour, I would have to inconvenience the Court and try and find it.
HIS HONOUR: Once we've completed the record, Mr Sarabi, and worked out what the position is, I'll take an adjournment to give you an opportunity. I just want to understand the position. You appear to be saying to me that -
SARABI: Yes.
HIS HONOUR: Well, I'm not clear on whether you're saying to me that you have access to the affidavit or not.
SARABI: Your Honour, I would have to look back. If my friend could perhaps just tell me the date of that affidavit? There's been a lot of affidavits.
Despite this exchange, it eventually became clear that Mr Sarabi knew that the plaintiff had wanted this affidavit included in the court book before me and knew that the plaintiff would seek to rely on that affidavit at the hearing before me. I would add that this must have been obvious from the terms of the plaintiff’s written submissions.
Apart from summarising the applicant’s claim and setting out the procedural history, the affidavit included a single paragraph about the proposed FASOC, saying that it was “intended to clarify and simplify the claim against the Defendant. It contains no additional allegations of sexual or other abuse by the Defendant.”
The balance of the affidavit, that is, 11 more paragraphs, was under the heading, “Plaintiff’s instructions regarding the Defendant’s Motion”. It set out the plaintiff’s concerns about the risk of the defendant dissipating assets, the plaintiff’s substantive expert evidence in support of her claim, an explanation for two subpoenas that had been served, and a paragraph reporting an estimate that had been provided by a legal officer of the prosecutor as to the likely timing of the criminal proceedings and when a trial would be likely to be listed.
The last three paragraphs of the affidavit were as follows:
34 I am instructed to ask the court for the civil proceedings to not grant a stay but to instead take an alternative course, which is that the Plaintiff will not seek to have the Defendant file or serve any evidentiary statements pending the conclusion of the trial in the Queensland criminal proceedings.
35 On 1 June 2026 I sent an email to the Defendant's solicitors attaching the proposed FASOC and a letter setting out the Plaintiff's proposal for progressing the civil proceedings. Annexed and marked "E" is a copy of that letter.
36 Accordingly, I respectfully request that this Honourable Court make the following orders:
- The Plaintiff be granted leave to file the proposed FASOC annexed to this Affidavit.
- The Defendant to file and serve a Defence to the Further Amended Statement of Claim by 3 July 2026.
- The Defendant to serve expert medical opinion evidence by 31 August 2026.
- The Plaintiff to serve any expert medical opinion evidence in reply by 12 October 2026.
- The parties to engage in a mediation by 13 November 2026.
- The directions hearing of 8 July 2026 be vacated, and parties to attend a directions hearing on 24 November 2026.
It must have been obvious to a competent legal practitioner that the affidavit included material that would be of assistance to the Court in considering the defendant’s application for a stay. While I recognise that the affidavit included the plaintiff’s expert evidence in support of her claim, it must also have been obvious that the plaintiff was putting this before the Court so that the Court understood the plaintiff’s contentions in the proceedings, not with a view to the Court deciding whether to accept or reject the plaintiff’s substantive expert evidence.
I am comfortably of the view that the defendant could fairly have met that evidence within the 8 days between the date of service and the date of hearing. While Mr Sarabi refers in his affidavit to difficulty because his client resides overseas, the evidence does not enable the Court to assess the difficulty nor does it disclose why that should have rendered it impractical to deal with the matter.
Furthermore, if the defendant could not meet any part of this evidence, the defendant should have taken steps to have the matter relisted or should have otherwise raised the matter directly with the Court. The defendant, by his own motion, is seeking a substantial indulgence of the Court, and it is incumbent upon the defendant to facilitate the Court being fully informed of the procedural position so far as it concerned the question of whether a stay should be granted. Given the plaintiff’s application for a personal costs order, it would not be fair to make any findings about Mr Sarabi’s conduct at this stage. Mr Sarabi should be separately represented in respect of any such application.
I am satisfied that the adjournment was necessary because of the failure of the defendant, himself or through his legal team, to consider the affidavit of 2 June 2026 and either be ready to meet it on 10 June 2026 or to make an appropriate application in relation to it, which would have avoided a waste of Court time and the plaintiff’s costs.
I am accordingly satisfied that the defendant should pay the costs occasioned by the adjournment. I do not think the defendant should be ordered to pay those costs on an indemnity basis. While the defendant should have been in a position to deal with the affidavit, I accept that it was served outside the timetable that had been ordered for evidence for the hearing on 10 June 2026. While I have also found that the defendant should have taken appropriate steps to ventilate the issue earlier, that is not such a serious matter as to warrant an indemnity costs order.
While the plaintiff seeks a lump sum costs order, I am not persuaded that it is necessary or appropriate to make that order. Given I am only making the costs order on the ordinary basis, and given the likely need to assess particular invoices, the costs ought to be assessed in the usual manner.
However, given that the defendant will be the beneficiary of a stay which means these proceedings are unlikely to be substantively determined for a considerable period, I am not persuaded that it is appropriate to leave these costs to be assessed at the end of the proceedings. I am satisfied that the costs between the plaintiff and the defendant should be assessable forthwith.
As for the plaintiff’s application for a personal costs order, the Court needs to ensure procedural fairness, including in a context where the defendant is currently represented by Mr Sarabi’s firm and is facing serious criminal charges as well as these civil proceedings. In the circumstances, subject to one qualification, I am minded to defer the question of a personal costs order to the end of the proceedings. The qualification is that if the defendant personally were to seek an order under s 99 of the Civil Procedure Act 2005 (NSW), it would not be fair for the defendant to be obliged to pay the plaintiff forthwith, while being unable to recover the funds from his solicitor for an unknown period.
To balance these considerations, I propose to make a direction under s 99(4)(b) that Mr Sarabi give his client notice of the plaintiff’s application for a personal costs order (to the extent that that has not already occurred) within 48 hours of today, and provide to his client a copy of these reasons within 48 hours of the reasons becoming available.
I will direct that if the plaintiff presses her application for a personal costs order, that should be renewed by notices of motion, and the plaintiff should provide clear particulars of what the plaintiff says was the serious neglect, serious incompetence or serious misconduct. And I will note that the Court does not propose to set down any such application until after the trial or other substantive resolution of the plaintiff’s claim, unless the defendant himself makes an application for an order under s 99 in respect of Mr Sarabi and the defendant seeks that the application be heard at an earlier date.
So far as the other costs of the disputes before me are concerned, the defendant contended that the costs of his motion should be reserved. I will accede to that request.
Neither party sought particular orders as regards to the FASOC. Those costs should also be reserved.
That being the case, I made the following orders:
Grants leave to the plaintiff to file and serve the further amended statement of claim substantially in the form annexed to the affidavit of Hayley Aldrich affirmed 2 June 2026.
Directs the plaintiff to file and serve that further amended statement of claim by close of business on 2 July 2026.
Directs the defendant to file and serve a defence to the further amended statement of claim by close of business on 30 July 2026, this order being without prejudice to the defendant seeking to preserve his right to silence in that defence.
Subject to orders 6, 8, 9 and 10 below, order that following the filing of the defence, these proceedings be stayed until the determination of the criminal proceedings currently pending against the defendant, being the proceedings described in the affidavit of Mr Farshad Sarabi sworn 6 March 2026, or earlier order.
Reserves liberty to the plaintiff to seek that the stay be vacated following the determination of guilt or otherwise of the defendant.
Directs the defendant to advise the Registrar in Common Law and the plaintiff’s solicitor of the determination of the criminal proceedings within 4 business days of the determination.
Orders the defendant to pay the plaintiff’s costs of the hearing on 10 June 2026 and any additional costs occasioned by the defendant’s adjournment on that date, such costs to be assessable forthwith.
Costs are otherwise reserved.
Pursuant to s 99(4)(b) of the Civil Procedure Act 2005 (NSW) order the defendant’s solicitor, Mr Sarabi, to give his client:
(a) notice of the plaintiff’s application for personal costs against him within 48 hours of today; and (b) a copy of these reasons within 48 hours of these reasons becoming available to him.
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Paragraph [38] - "plaintiff" in the third sentence changed to "defendant"
ABM
DDM