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Catchwords: COSTS — Party/Party — specified gross sum order sought instead of assessed costs – Civil Procedure Act 2005, s 98(4)(c) – probate proceeding – defendant/cross-claimant succeeds on motion to strike out Summons due to plaintiff’s repeated default in complying with the Court’s orders and the plaintiff’s failure to prosecute the proceedings with due dispatch – indemnity costs order made against the plaintiff – the plaintiff is also a cross-defendant on an unresolved cross-claim – defendant/cross-claimant seeks a specified gross sum costs order – whether a specified gross sum costs order should be made – whether fixing a specified gross sum costs order should be referred to a referee – whether the available costs material is sufficient for the Court to be confident in making a specified gross sum costs order – whether a specified gross sum costs order should not be made because of the potential for a costs overlap with the unresolved balance of proceedings – whether expert evidence or a referee’s report is required to reach a specified gross sum costs order.
CIVIL PROCEDURE — Pleadings — Amendment – cross-defendant seeks to amend defence to cross-claim – cross-defendant is also a plaintiff whose Summons has been struck out – whether the amendment to the defence to cross-claim should be allowed but subject to terms, including terms that the cross-defendant may not (a) seek to re-agitate issues the subject of the struck-out Summons, and (b) will strictly comply with the Court’s orders and provide security for such compliance.

Legislation Cited: Civil Procedure Act 2005, ss 61, 91, 98(4)(c).
Uniform Civil Procedure Rules 2005, r 42.4

Cases Cited: Abraham v Goldberg [2025] NSWSC 473
Abraham v Goldberg (No. 2) [2026] NSWSC 277 Andrew v Baradom Holdings Pty Ltd (in Liq) (1995) 15 NSWLR 700
Hamod v State of New South Wales [2011] NSWCA 375
Hancock v Rinehart (Lump Sum Costs Order) [2015] NSWSC 1640
Huang v Wei (No 4) [2023] NSWSC 164
LawCover Insurance Pty Limited v Muriniti and Newell [2018] NSWSC 588
Nobarani v Mariconte (2018) 265 CLR 236
Rahman v Rahman (No 2) [2025] NSWCA 266

Category: Costs

Parties: Plaintiff: Yael Abraham Longobardi
Defendant: Annie Goldberg by her tutor NSWTAG

Representation: Counsel:
Plaintiff: Mr L. McIntyre
Defendant: A.J. Grant
Solicitors:
Plaintiff: Andrew John Fleming, Fleming Law
Defendant: Nicole Marie-Charle Fay, W K Cahill & Associates

File Number(s): 2022/00080874

Publication restriction: No

EX TEMPORE JUDGMENT

1. This is the Court’s third judgment in these proceedings. The Court’s first judgment was given on 15 May 2025: Abraham v Goldberg [2025] NSWSC 473 (“the first judgment”). The Court’s second judgment was given on 26 March 2026 Abraham v Goldberg (No. 2) [2026] NSWSC 277 (“the second judgment”). This judgment should be read with the Court’s prior judgments and assumes familiarity with them. Events, persons and things are referred to in the same way in this judgment as in the two prior judgments.

2. The Court’s second judgment gave reasons for the Court’s orders on 27 February 2026, which dismissed the plaintiff’s Summons and made indemnity costs orders against the plaintiff on the defendant’s motion of 9 February 2024. Since then the plaintiff/cross‑defendant, Ms Abraham, has filed a Summons in the Court of Appeal seeking leave to appeal from the orders made with the second judgment.

3. The matter has been before the Court of Appeal for directions on 29 June 2026 and is next before the Court of Appeal on 27 July 2026. The Court understands that the Court of Appeal would be assisted by the resolution, to the extent possible, of issues raised on the various motions the subject of this judgment before any application for leave to appeal is heard. The competing motions were heard yesterday, 20 July 2026. The full background to these proceedings is set out in the first and second judgments and will not be repeated here.

4. The motions on each side claim the following relief. The defendant/cross claimant, Ms Goldberg, seeks a specified gross sum costs order instead of assessed costs in respect of Order 2 made on 26 March 2026, namely the order that the plaintiff pay the defendant’s costs of the plaintiff’s motion of 9 February 2024 on the indemnity basis.

5. For the reasons given in the second judgment, the Court also ordered Ms Abraham to pay Ms Goldberg’s costs of the Summons on the ordinary basis. The assumption behind that order was that Ms Abraham would not be further advancing the Summons because it had been dismissed. Some order for costs was therefore appropriate.

6. But within the time allowed under the rules to vary or set aside orders, Ms Goldberg sought to vary the order that Ms Abraham pay Ms Goldberg’s costs of the Summons on the ordinary basis. She has done so on the basis that the Court did not take into account her submission that the costs of the Summons should, at least in part, be awarded to her on the indemnity basis because of the plaintiff’s failures to accept Calderbank offers and offers of comprise made in April and July 2022. The Court accepts that submission was overlooked and it is now considered in these reasons.

7. On the other side, Ms Abraham seeks by motion to amend her defence to Ms Goldberg’s cross‑claim in the proceedings. The amendment Ms Abraham seeks is to paragraph 12 of the cross-claim, which is the pleaded foundation for Ms Goldberg’s claim for probate in solemn form of Leon’s April 2018 will. Ms Abraham’s existing defence merely denies paragraph 12 in general terms without specifying the grounds of defence. Pleas of general denial are commonly liable to be struck out if they do not reveal the real issues for trial.

8. Paragraph 12 of Ms Goldberg’s cross claim is pleaded as follows:

“On 20 April 2018, Leon executed his last will and testament (“Leon’s Will”) by signing it in the presence of Michael Vaughan and Georgina Krimizis, who then attested and signed Leon’s Will in Leon’s presence.”

9. Ms Abraham’s defence to paragraph 12 is as follows:

“Denies paragraph 12.”

10. Ms Abraham’s current defence to paragraph 12 does little to reveal the real issues for trial. The existing defence does not make clear whether Ms Abraham is merely challenging the deceased’s execution of his April 2018 will, his knowledge and approval of that will, or his testamentary capacity, or more than one of these. Ms Abraham’s motion proposes an amendment to her defence to cross-claim to plead clearly that she only puts in issue the deceased’s testamentary capacity on specified grounds, such as his admission to an aged care facility and NCAT’s decision to place him under the guardianship of the public guardian at a time approximate to the making of the April 2018 will.

11. These reasons now address the costs issues followed by the question of the proposed amendment to Ms Abraham’s defence to cross-claim.

Gross Sum Costs for the Costs of Ms Goldberg’s 9 February 2024 Motion?

12. The parties are in contest as to whether there should be a specified gross sum costs order made in respect of the costs of the 9 February 2024 Motion. The orders made by the Court on 27 February 2026 directed the parties to agree upon appropriate directions to liaise about the making of a specified gross sum costs order under Civil Procedure Act 2005 s 98(4)(c) and any other further relief. No agreement about the issue was reached.

13. The authorities as to when a specified gross sum should be fixed instead of a costs assessment are well known. They were recently summarised in the Court of Appeal's decision in Rahman v Rahman (No 2) [2025] NSWCA 266 at [61] to [67], and earlier in Hamod v State of New South Wales [2011] NSWCA 375 at [813] to [820], and need not be repeated here.

14. Ms Abraham now resists such an order. She argues that a full costs assessment on the ordinary basis should be undertaken, or in the alternative that the Court should appoint a referee to assist it in calculating an appropriate specified gross sum. She submits that otherwise the Court cannot be confident in the result, for several reasons.

15. Ms Abraham submits there is a need for a detailed consideration of costs in a costs assessment, because of the high costs that Ms Goldberg claims in this matter.

16. But in the Court's view the costs in this case are no more remarkable than in many of its type. They total a sum in the order of $190,000 for Ms Goldberg’s 9 February 2024 motion. But this figure is not disproportionate for Supreme Court litigation against an often procedurally delinquent opponent such as Ms Abraham, in a motion which has been on foot for two years and relisted on several occasions. Both that procedural background and the substantial sums in question in this estate neutralise any suggestion of disproportionate charging.

17. Ms Abraham next points out that there is no risk of any inability on her part to meet any costs ordered by a costs assessment, so there is no reason why the matter should not proceed to assessment. In the Court's view, Ms Abraham’s capacity to pay may be relevant to whether a stay is granted. But it is not a reason not to order a fixed gross sum instead of assessed costs: an order of the former is designed to accelerate the costs outcome and reduce unnecessarily aggravating additional contests between already hostile parties such as these.

18. The next argument Ms Abraham advances is that it is potentially unfair to her for the Court to exercise its discretion to order a specified gross sum costs order in circumstances where it is difficult to delineate between the costs of the 9 February 2024 motion and Ms Goldberg’s other general costs of the proceedings. Ms Abraham points out that the other general costs of the Summons have only been ordered against the plaintiff on the ordinary basis, not the indemnity basis.

19. This issue occupied some time in argument. The evidence now before the Court includes all Ms Goldberg’s solicitor’s and counsel's fees on the 9 February 2024 motion, except for an estimate in respect of costs likely to be incurred since February this year. All costs that are said to be incurred other than on the motion are identifiable but have been blanked out. Mr Grant for Ms Goldberg made clear in submissions that (a) the blanked-out costs are not being claimed on the motion, and (b) that any sum which is not blanked-out and is before the Court and used to calculate the present lump sum costs order, will not be claimed later in respect of any costs assessment in respect of costs on the dismissal of the Summons.

20. What costs are being considered now and what costs will be dealt with in the future have been clearly delineated, and this bright line division is a sufficient basis for the Court now to proceed to deal with costs of the motion on a specified gross sum basis. The Court has the detail of the solicitor’s and counsel’s memoranda of fees. These are a sufficient basis to reach a reasonable assessment of whether there might be any overlap in the costs now sought to be charged on the 9 February 2024 motion with those that might be more applicable to the Summons.

21. The Court is satisfied that any potential disadvantage to the plaintiff from the possibility of overlap will be overcome by the clear and verifiable undertaking given by the defendant, Ms Goldberg, to the Court that no attempt will be made upon the later assessment of costs on the Summons to seek any costs that are attributable to the motion and considered for a lump sum costs order. If there is still some uncertainty about the boundary between these two categories of costs, then this Court will take that into account in reaching a costs discount.

22. Ms Abraham next argues that it would be difficult for the Court fairly to apply a broadbrush approach to fixing a specified gross sum under Civil Procedure Act 2005 s 98(4)(c), because of the general quality of the information in the memorandum of fees which the Court will be considering. What has been provided to it for its consideration in this case is typical of the materials that a Court frequently and satisfactorily uses under Civil Procedure Act s 98(4)(c). In this case, like many of its kind in what is essentially a summary process, the Court can be confident in reaching a result without the assistance of expert evidence.

23. But should this application be referred to a referee as Ms Abraham submits? Mr Christopher Wall, a well-respected solicitor, gives affidavit evidence for Ms Abraham to the effect that a referral out to a referee is now the usual course for specified gross sum applications and he suggests that such a referral should occur on this occasion.

24. Referral out to a referee is not required in this case. An appropriate course needs to be tailored to the circumstances of each case. The Court is very concerned about the lengthy delays that have already occurred due to the procedural chaos in these proceedings. The Court wishes to bring this matter to a conclusion as soon as possible. Fixing a specified gross sum instead of assessed costs now will give the Court of Appeal a definite costs figure for consideration before the application for leave to appeal is heard. If the matter is referred out to a referee, an outcome before a hearing in the Court of Appeal is unlikely.

25. Ms Abraham also says that referral out to a referee would involve only minor delay compared to the length of time that has elapsed already in the present conduct of these proceedings. This argument somewhat reverses the true considerations here. Although any delay would indeed be minor compared to the length of time elapsed, much of the delay was caused by Ms Abraham herself. Moreover, any further delay is an immense disadvantage to these parties for whom these proceedings must be very distressing, for all the reasons explained in the first and second judgments. The Court will not refer the matter out to a referee.

26. Ms Abraham’s submissions then object to specific costs and charges that Ms Goldberg claims.

27. Ms Abraham contends that counsel charging $520 an hour to draft materials and a court book index and to collate the motion bundle is excessive. She submits that such work should have been done by a paralegal for between $135 and $300 an hour.

28. Mr Grant's answer to this is persuasive. He says that he was acting for a sole practitioner solicitor who was less familiar than he was with the standard of documentation the Court expects to have available on an application such as this. One of the advantages of an independent Bar is that a sole practitioner solicitor has direct access to the advocacy and organisational skills of experienced barristers in many different specialised fields. These barristers are familiar with procedural directions and timetables to prepare bundles and affidavits for the presentation of a case to their best advantage. This case, now the subject of the charges under challenge, has been very well prepared on Ms Goldberg’s side.

29. The fact that Mr Grant's instructor is a sole practitioner with limited secretarial staff means that there may well have been delay involved in complying with the Court's orders if this work had not been done by Mr Grant. Then the additional costs of paralegals learning how to do the job properly likely would have been claimed, potentially replacing and exceeding Mr Grant’s fees. The criticism Ms Abraham advances on this issue is not persuasive.

30. Ms Abraham next contends that travel time incurred between the solicitor’s office in Bondi Junction and Selborne Chambers should not be charged. She also contends that Ms Goldberg’s solicitor’s charges for time spent perusing emails including from counsel were unnecessary or excessive, as was the time charged for reviewing the Court’s judgments and other documents.

31. This is a remarkable submission. The travel time claimed is quite acceptable. And someone had to read the Court’s judgment to ascertain what orders the Court had made and how the Court expected the parties to manage the case efficiently thereafter. Reading the Court’s judgments is integral to the proper conduct of these proceedings.

32. The Court would have been concerned if various other items criticised totalling some $13,290 had not been incurred by Ms Goldberg. These include producing an efficient index for the Court bundle and reviewing submissions. The Court will not discount Ms Goldberg’s specified gross sum on account of Ms Abraham’s criticism of these charges. However, the overall volume of evidentiary material adduced, and submissions advanced on behalf of Ms Goldberg could have been reduced somewhat given the Court’s close familiarity with the matter and some discount will be applied for this reason.

33. Ms Abraham has also put submissions about the application of an appropriate discount. The Court has considered the wide range of authorities on that question. These include cases such as Hancock v Rinehart (Lump S**um C**osts O**rder) [2015] NSWSC 1640 at [57] to [62]; LawCover Insurance Pty Limited v Muriniti and Newell [2018] NSWSC 588; and Huang v Wei (No 4) [2023] NSWSC 164.

34. These cases and the many others in the area illustrate that even where an indemnity costs order is the subject of a fixed gross sum costs order under s 98(4)(c) that a range of views are available as to whether there should be a discount at all, and the extent of that discount. The cases overall support discounts of between zero and 25% even on an indemnity costs assessment. Courts balance a range of factors including anticipation that some disallowance of costs may occur upon an assessment for costs that have not been “reasonably and properly” incurred.

35. The Court therefore will fix a specified gross sum and will not order a costs assessment in this matter. The specified gross sum can now be fixed.

36. Ms Goldberg seeks a full indemnity in the sum of $190,121.67 for her costs of the motion and submits that no discount from her actual costs incurred should be allowed.

37. Ms Goldberg’s solicitor, Ms Nicole Marie-Charle Fay of W K Cahill & Associates, constructs the sum of $190,121.67 claimed as follows. All sums identified here are inclusive of GST. The total cost of disbursements relating to the motion, (after deducting the $10,000 paid by Ms Abraham under Lindsay J’s costs orders of 17 December 2025) are $160,321.67. The costs estimate given for the hearing of the motion up to 26 February 2026 was $19,800. The total of these costs and disbursements include Counsel's fees for Mr Grant, of which all the memoranda of fees have been included, bring the total to $180,121.67 ($160,321.67 plus $19,800). The Court made orders on 27 February 2026 under Uniform Civil Procedure Rule**s 2005, r 42.4 (“UCPR”) to limit the cost of argument about costs to the maximum sum of $10,000. The Court can see, from the material provided to it, that the actual costs of the contest about costs up to 26 February 2026 are likely have been more than $10,000. Therefore, the Court has no hesitation in adding a further $10,000 onto the amount claimed as having been established. The total amount Ms Goldberg claims of $190,121.67 is fully supported by the documentary materials that her solicitors have provided.

38. The Court has examined (a) the W K Cahill & Associates invoices (and their supporting materials) of 25 February 2025 for $23,450.42, of 28 April 2025 for $13,486.68, of 17 February 2026 for $57,160.52, and of 18 February 2026 for $3,143.25, and (b) Mr Grant's memoranda of fees.

39. In the Court's view, there should be some discount from the full amount claimed on account of several factors. Firstly, even on a costs assessment on an indemnity basis, a few costs and disbursements will probably be disallowed as not reasonably and properly incurred. Secondly, some greater efficiencies on the part of W K Cahill & Associates and counsel could have eliminated some of the costs incurred by reducing the volume of material. Thirdly, as these reasons have foreshadowed, some discount should be allowed for the possibility overlap between an ultimate costs assessment of the costs of the Summons and the costs now being considered on the motion. The court will reduce the amount claimed to a lump sum of $165,000.

Other Costs Issues

40. The next costs question is whether this specified gross sum costs order should be stayed, pending the outcome of Ms Abraham’s application for leave to appeal. Some limited stay is justified as the Court’s 27 February 2026 orders may be altered in the Court of Appeal. In the Court’s view, given that the matter is about to come before the Court of Appeal, it is more efficient for the Court of Appeal itself to continue or dissolve a stay on the specified gross sum costs order, without a separate hearing. Therefore, the Court will order a temporary stay, pending the outcome of the proceedings in the Court of Appeal. The stay will operate until further order of the Court of Appeal to avoid additional contests about stays.

41. The next costs question is about whether indemnity costs should be awarded in the proceedings upon dismissal of the Summons. In support of her contentions Ms Goldberg advances two groups of Calderbank letters and offers of compromise. The first Calderbank letter and offer of compromise is dated April 2022. The second Calderbank letter and offer of compromise is dated July 2022.

42. The Court will not make an indemnity costs order in respect of the April 2022 offers. The proceedings were of an entirely different character when the April 2022 offers were made. At the time those offers were made the proceedings dealt almost exclusively with applications to remove caveats over real estate. The issues in the proceedings were not then defined by any detailed pleadings, as they are now. The later issues in dispute were then opaque. The April 2022 offers are not a basis for indemnity costs order upon dismissal of the Summons.

43. Consideration of indemnity costs orders based upon the July 2022 offers is premature. The July 2022 offers assume an outcome of the cross-claim as well as the claim. But the Court’s orders in the second judgment have left the cross-claim unresolved. Further steps are yet to be taken before the cross-claim will be determined. Only upon that resolution will it be known whether the preconditions for the July 2022 offers have been met. An application based on the July 2022 offers may be made later, depending upon the outcome of the cross-claim.

Ms Abraham’s Application to Amend Her Defence to Cross-Claim

44. Ms Abraham seeks to amend paragraph 12 of her defence to cross-claim. Ms Abraham’s Summons has been struck out. But Ms Goldberg’s cross‑claim seeking probate in solemn form of Leon's April 2018 will is still unresolved. Ms Abraham’s defence to cross-claim disputes the grant of that relief but the present paragraph 12 does not make the basis of the dispute clear. Unless an application were made to strike out paragraph 12 of Ms Abraham’s defence to cross-claim, ordinarily the denial pleaded in paragraph 12 would be resolved by a hearing.

45. Mr Grant now seeks the relief sought in the cross-claim: a grant of probate of the April 2018 will in solemn form (Ms Goldberg already having a grant in common form). Mr Grant submits the Court can act upon the existing affidavit evidence, which he says supports the grant of that relief. He submits the Court should now deal with his application for grant in solemn form in chambers, without further hearing from the plaintiff/cross‑defendant, Ms Abraham.

46. But that would involve a denial of procedural fairness to Ms Abraham. Ms Goldberg has not applied to strike out the defence to cross claim. Unless the defence to cross-claim is struck out, Ms Abraham as the cross‑defendant is entitled to contest Ms Goldberg’s cross-claim at a hearing if she wishes. The Court will not therefore accede to Mr Grant's application for a grant in solemn form in chambers.

47. But as Ms Abraham's Summons has been struck out, the structure of the pleadings means that she cannot propound the alleged 2015 will as Leon’s final testamentary instrument, or any testamentary instrument other than his April 2018 will. Her interest in opposing the cross-claim is therefore very slight: the possibility she might get leave (discussed later in these reasons) to commence fresh proceedings propounding the alleged 2015 will. She has had ample opportunity to propound the alleged 2015 will and has failed to take any reasonable advantage of that opportunity. A grant of leave to commence fresh proceedings is highly unlikely. But Ms Abraham is in the meantime entitled to put forward such evidence as she wishes to challenge the validity of the 2018 will in a hearing of the cross-claim.

48. The baleful history of these proceedings strongly suggests that the Court, having rejected Mr Grant's application for the cross-claim to be dealt with in chambers, should take firm control of how the cross-claim is conducted in the future, so the procedural chaos which Ms Abraham has generated in the past cannot be repeated. That objective will be achieved through the orders discussed below.

49. The first issue is whether Ms Abraham’s proposed amendments to her defence to cross-claim should be allowed. There are advantages in allowing Ms Abraham to amend her defence to cross claim and the Court will grant her leave to do so. The proposed amended pleading specifies and limits the issues raised in answer to the defence to cross-claim. Ms Abraham challenges whether Leon was of sound mind, memory and understanding at the time of his execution of the April 2018 will. Amending the pleading as Ms Abraham proposes has the advantage of removing disputes as to execution of the April 2018 will. This decision also avoids any further contest about whether Ms Abraham’s present plea to paragraph 12 should be struck out as an uninformative general denial that conceals the real issues in dispute.

50. Allowing the amendment with the specificity of amended paragraph 12 risks expanding the hearing and might increase costs and delay. But in the Court's view that risk can be ameliorated by allowing the amendment upon terms that control Ms Abraham’s future conduct of the proceedings.

51. First, the amendment should be on terms that make it clear that Ms Abraham may not propound at the hearing of the cross‑claim any testamentary instrument which was the subject of her struck out Summons, but her participation in the hearing of the cross-claim is limited to challenging Leon’s April 2018 will.

52. Secondly, the Court is not inclined to allow expert evidence at any hearing in this case. The Court understands that both parties have filed and served their lay evidence. The cross-claim can be listed for hearing on the existing lay evidence and will be determined without expert evidence, unless the trial judge otherwise orders. Both parties have filed their lay evidence so the cross-claim is ready to be heard now. At one stage during procedural argument, Mr Brown of counsel (who has recently commenced acting for Ms Abraham) offered on her behalf to take a hearing date on the existing lay evidence, if the Court would not allow expert evidence.

53. Thirdly, the first and second judgments show how Ms Abraham has repeatedly chosen not to comply with the Court's orders. As a result, Ms Goldberg and the Court have each wasted resources in managing the fallout from Ms Abraham’s non-compliances. Her procedural delinquencies (which are still unexplained by her own evidence) have led to an extraordinary waste of the Court's time. Ms Abraham's future conduct of her defence to the cross-claim must be disciplined to avoid any future defaults on her part.

54. Ms Goldberg and the Court have often been required to chase a defaulting Ms Abraham to comply with the Court's orders. This waste cannot continue. The Court will only allow the amendment on the basis that Ms Abraham pays into Court within 14 days the sum of $60,000 as security for Ms Goldberg’s costs, in the event that Ms Goldberg has to take any action against Ms Abraham to ensure Ms Abraham’s compliance with the Court’s orders and directions before the final determination of the cross-claim. This sum has been fixed to cover the potential for multiple future defaults which can be predicted from Ms Abraham.

55. It is open to the trial judge on the hearing of the cross-claim to closely limit Ms Abraham’s involvement in that hearing beyond putting on written submissions to assist the Court in analysing the evidence. Ms Abraham wants to contest Leon's capacity to make the April 2018 will. But she cannot now propound any earlier testamentary instrument and has no immediate interest in challenging the validity of the 2018 will: Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [49]. She may perhaps point to the earlier testamentary instruments as evidence relevant to Leon’s capacity when he made the April 2018 will, but she cannot propound those testamentary instruments with the result that there will be an intestacy from which Ms Goldberg will benefit as Leon’s only child. Her only potential interest is the very slight one of her later seeking leave to commence separate proceedings to propound the earlier wills, which is discussed in the next section of these reasons.

The Claim for Relief under Civil Procedure Act, ss 61 and 91

56. Mr Grant has drawn to the Court's attention that the Court's orders of 27 February 2026, and the reasons given in the second judgment did not deal with one of his claims for relief. He contended at the 26 February hearing that in the event the Summons was struck out that orders should be made under Civil Procedure Act ss 61 and 91 preventing Ms Abraham from bringing fresh proceedings claiming the same relief, or raising the same subject matter, as the proceedings that had been struck out.

57. For the reasons set out in my second judgment, some such relief is appropriate. The conduct of these proceedings was fully analysed in those reasons. Regrettable features of Ms Abraham’s conduct of these proceedings have been her (a) capacity to re-agitate issues where she had previously failed to appear, and (b) long delays in advancing her case. These features of her past conduct raise the risk that she may seek to bring fresh proceedings to work around the Court’s decision to strike out her Summons.

58. The circumstances of this case warrant making some orders of this kind under Civil Procedure Act s 61, so that such fresh proceedings raising further issues could not be commenced without further leave. The existing liberty to apply in these proceedings would encompass this possibility. The orders of 27 February 2026 were not the product of a determination on the merits. Given the terms of Civil Procedure Act s 91(1), a prohibition can be ordered under s 61 but by reason of s 91 it will always subject to possible leave applications and the order should be so construed. On any such leave application to Ms Abraham would be expected to explain her prior defaults before obtaining leave, which she has not yet done by her own evidence: cf Andrew v Baradom Holdings Pty Lt**d (in Liq*)* (1995) 15 NSWLR 700.

59. Finally, the parties are at issue as to what other costs orders should now be made, if any. The Court has made directions below for written submissions in relation to costs and under UCPR, r 42.4, and has limited the recovery of costs for arguing about costs to no more than $2500.

Conclusions and Orders

60. For these reasons the Court makes the following orders and notations:

61. ORDER pursuant to Civil Procedure Act 2005, s 98(4)(c) the fixing of a gross sum instead of assessed costs in the sum of $165,000 in respect of the defendant/cross-claimant’s costs of the motion dated 9 February 2024 ordered to be paid by the Plaintiff pursuant to ORDER 2 of the Orders of 27 February 2026.

62. STAY the operation of ORDER 1 hereof until further order of the Court of Appeal on the application for leave to appeal from the Court’s orders of 27 February 2026.

63. GRANT leave to the plaintiff/cross-defendant to amend her defence to cross-claim in accordance with the amendments proposed in her motion dated 1 July 2026, but upon the terms provided for in ORDER 4 below in relation to the preparation for and future conduct of the hearing of the cross-claim.

64. ORDER that (subject to such variations to these orders as the trial judge may order at the hearing of the cross-claim) the plaintiff/cross-defendant:

(a) shall pay into Court the sum of $60,000 within 21 days of the date of these orders as security for the cross-claimant’s costs in the event the cross-claimant has to take any action against the cross-defendant to enforce any directions of the Court due to default of the cross-defendant at any time before the determination of the cross-claim; (b) may not propound at the hearing of the cross-claim any testamentary instrument which was the subject of her struck out Summons and statement of claim; and (c) must conduct the cross-claim on the existing lay evidence and without expert evidence (and otherwise under the procedural directions of the trial judge) and using her best endeavours to conclude the proceedings expeditiously.

5. NOTE that if the plaintiff/cross-defendant does not comply with Order 4(a), GRANT liberty to the cross-claimant to list the proceedings before Slattery J to apply to strike out the cross-defendant’s defence to cross-claim.
6. ADJOURN the cross-claimant’s motion dated 9 March 2026 seeking a variation of the Court’s costs orders of 27 February 2026 (being ORDER 3 thereof) until the conclusion of any hearing of the cross-claim.
7. NOTE that the cross-claimant seeks costs on the ordinary basis (“the costs issue”) for:

(a) the Plaintiff and Cross-Defendant’s Notice of Motion; and (b) costs occasioned by the amendment,

8. DIRECT the cross-claimant to serve submissions on the plaintiff/cross-defendant in relation to the costs issue by 24 July 2026 (of no more than 2 pages).
9. DIRECT the plaintiff/cross-defendant to serve its submissions in relation to the costs issue on the cross-claimant by 27 July 2026 (of no more than 2 pages).
10. DIRECT the cross-claimant to serve its submissions in reply in relation to the costs issue on the plaintiff/cross-defendant by 29 July 2026.
11. ORDER that the Court will make under r 42.4 of the Civil Procedure Act 2005 a cost capping order in relation to the costs issue such that no party may seek to recover more than $2,500 from any other party for legal work on that issue*.*
12. In addition to ORDER 1 of the orders made on 27 February 2026 ORDER that the plaintiff may not commence fresh proceedings seeking substantially the same relief as the relief sought in the struck-out Summons and statement of claim in these proceedings.
13. RESERVE the defendant/cross-claimant’s application for the payment of all questions of interest on the sum of $165,000 fixed pursuant to ORDER 1 hereof until after the determination of the plaintiff/cross-defendant’s application for leave to appeal.