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[2026] NSWSC 1018
Supreme Court of NSW
2026-08-28
Lonergan J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Adamson v Chalik (No. 2) [2026] NSWSC 1018
Hearing dates: 11 June 2026
Date of orders: 28 August 2026
Decision date: 28 August 2026
Jurisdiction: Common Law
Before: Lonergan J
Decision: (1) The first plaintiff’s notice of motion filed 23 April 2026 is dismissed, with costs.
(2) The first defendant’s notice of motion filed 25 November 2025, amended May 2026 is dismissed, save as to the order sought for dismissal of proceedings, each party to bear its own costs.
(3) The proceedings are dismissed, the first plaintiff to pay the second, third and fourth defendants’ costs.
(4) The first plaintiff is to pay the fourth defendant’s costs of the proceedings on an indemnity basis, assessed in the gross sum of $25,426.00 inclusive of GST.
Original judgment source is linked above.
Catchwords: PRACTICE & PROCEDURE – summons – dismissal – events overtaken relief sought – proceedings now pointless – UCPR r 13.4 – no reasonable cause of action disclosed against fourth defendant – to continue proceedings is now an abuse of process – deliberate delays – failure to file and serve affidavits – failure to comply with Court orders
AMENDMENT – attempt to convert proceedings commenced on summons into a different cause of action by statement of claim – abuse of process – UCPR r 6.3 – causes of action to be commenced by statement of claim – these proceedings were commenced by summons – amendment refused
COSTS – application for gross sum indemnity costs granted – fourth defendant wrote to the first plaintiff upon receipt of summons requesting discontinuance and warning indemnity costs would be sought
COSTS – costs assessment – cost assessor’s obligations – interaction between Legal Profession Uniform Law Application Act 2014 (NSW) ss 70 and 71 and Legal Profession Uniform Law Application Regulation 2025 (NSW) reg 44 – certificate of costs assessor’s determination only released when costs of assessment are paid (reg 44(2)(ii)) – possible interpretation of s 71 for Assessor or Manager to file Certificate of Determination of fees of assessment if not paid by party determined to be liable to pay – s 71 ambiguous in this respect
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal Profession Uniform Law Application Regulation 2025 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adamson v Chalik [2026] NSWSC 414
Adamson v Chalik [2026] NSWSC 415
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Bellerive Homes Pty Ltd v FW Projects Pty Ltd (2019) 106 NSWLR 479; [2019] NSWSC 193
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; (1988) 81 ALR 397
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930
Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433
Leary v Leary [1987] 1 All ER 261
Paclaw Pty Ltd v Chalik [2026] NSWSC 766
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Walton v McBride (1995) 36 NSWLR 440
Category: Procedural rulings
Parties: Christopher Michael Adamson (Plaintiff)
Gregory Roman Chalik (First Defendant)
Manager, Cost Assessment (Second Defendant)
Marilyn Filewood, Costs Assessor (Third Defendant)
Isaac Chalik (Fourth Defendant)
Representation: Christopher Adamson (Self-represented)
Gregory Roman Chalik (Self-represented)
Mr Allchurch, Solicitor (Second & Third Defendants)
Mr Ziman, Solicitor (Fourth Defendant)
Solicitors:
Paclaw Lawyers (Plaintiff)
Crown Solicitor’s Office (Second & Third Defendants)
Ziman & Ziman Solicitors (Fourth Defendant)
File Number(s): 2025/00287200
Publication restriction: Nil
Listed before me for hearing on 11 June 2026 were three applications arising from and in the context of proceedings commenced by summons on 28 July 2025. Those proceedings arise from the question of costs in what appears to have been protracted and acrimonious proceedings in the Equity division, involving the Estate of Mrs Chalik, the mother of brothers Gregory and Isaac, the first and fourth defendants.
The relief sought in the summons is circumscribed. Mr Adamson, a solicitor acting for himself, sought review of a decision by the Manager of Costs Assessment of this Court, (the third defendant) (“the Manager”), to refer a costs assessment to a particular costs assessor, Ms Filewood, (the second defendant) (“the Assessor”). Mr Adamson also sought associated declarations that the assignment should be revoked or reassigned, on the basis that the costs assessor was biased and had a conflict of interest given her location in the same neighbourhood as Mr Adamson. Gregory Chalik (“Gregory”) was Mr Adamson’s client in those estate proceedings, before their solicitor/client relationship broke down.
An amended summons filed on 29 August 2025 added further relief including an order in the nature of mandamus, that the Court order that the costs assessment be conducted by a different person, and a declaration that the fourth defendant, Isaac Chalik, (“Isaac”) “is not and never was a person concerned in any legitimate way in the cost assessment within the meaning of s 69 of the ULPAA, (presumably a reference to the Legal Profession Uniform Law Application Act 2014 (NSW) (“the LPULA Act”).
On 28 November 2025, Sweeney J, in her role as duty judge, heard a notice of motion filed by Mr Adamson in November 2025 seeking an urgent interim stay of the costs assessment pending determination of the proceedings on the summons, and that “Paclaw Pty Ltd as Trustee of the 2010 Discretionary Trust” be joined as the second plaintiff in the proceedings. Gregory opposed the orders and sought other orders not dealt with in her Honour’s judgment as her Honour was only dealing with the urgent parts of the matter. The Manager and the Assessor had already filed submitting appearances through the Crown Solicitor’s Office, save as to costs. Isaac appeared via his solicitor Mr Ziman and argued that he should not have been named as a defendant in the proceedings and that the proceedings against him should generally be dismissed. Her Honour did not deal with that application at the time, and confined her judgment to Mr Adamson’s urgent application.
In her judgment, (on file but not published on Caselaw), Sweeney J referred to the assertion that during the estate proceedings an amount of $250,000.00 was ordered to be paid into Mr Adamson’s trust account to be held on trust for Gregory. Gregory says that Mr Adamson - then acting as his solicitor - took that money out of the trust account without his authority, and claimed it for payment of legal costs. Her Honour noted the involvement of Isaac seems to have included providing some commentary on the way in which the legal costs were incurred and dealt with by Mr Adamson during the estate proceedings, to which Mr Adamson has apparently taken exception.
Her Honour allowed the joinder of Paclaw Ltd as second plaintiff based on the conclusion that she could not see any prejudice to the defendants in taking that step. In respect of the urgent interim stay to prevent the referred costs assessment to continue, her Honour concluded that there was no basis upon which to infer any apprehension of bias or any impropriety at all in the Assessor seeking input from Isaac, nor in the Manager referring the matter to the Assessor for assessment. Her Honour dismissed the motion and made an order that Mr Adamson pay Mr Ziman’s professional costs for appearing on the motion, assessed at the very modest gross sum of $3,500.00, to be paid forthwith. The costs order had still not been paid as at 11 June 2026 and Mr Adamson’s submissions and later activities suggest he has no intention of paying it.
On 1 December 2025, Mr Adamson filed, but did not serve, a notice of motion seeking the orders made by Sweeney J be set aside pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 36.16, and to in essence re-agitate the same relief that had already been refused. He filed no affidavit evidence in support. The motion sat on the file until discovered by the Common Law Registrar at a directions hearing in February 2026. She ordered it be served immediately, made orders for service of evidence, and listed it for hearing. Mr Adamson never filed or served any affidavit evidence in support of this motion.
On 16 February 2026 the Assessor determined the costs assessment (in a way unfavourable to Mr Adamson) and wrote to the parties confirming that she had completed the assessment and on payment of her costs by any party, the Certificate will be sent. She separately determined that Mr Adamson must pay the costs of the assessment in the sum of $36,674.01. A bill to that effect dated 19 February 2026, was sent by the Manager, addressed only to Mr Adamson, with a due date for payment of 19 March 2026.
The Assessor’s bill was not paid, and on my understanding, still has not been paid.
On 10 March 2026, Mr Adamson commenced proceedings in the Defamation List of this Court against Isaac. (I understand he also later in May 2026 commenced proceedings in the Defamation List, against Gregory).
On 20 April 2026, I dismissed Mr Adamson’s UCPR r 36.16 notice of motion for the reasons set out in Adamson v Chalik [2026] NSWSC 415. Those reasons include that Mr Adamson did not file any evidence or submissions in support of the orders he sought, and that he failed to take part in the hearing, having absented himself in circumstances where he was apparently angry and upset that I had refused his unmeritorious application made that morning for an adjournment: Adamson v Chalik [2026] NSWSC 414.
On 23 April 2026, Mr Adamson, as “the first plaintiff” filed the further notice of motion. He did not serve it on the other parties until he was ordered to do so by me on 4 May 2026.
On 4 May 2026, I made directions for the filing and service of any other notices of motion or outstanding issues in the proceedings, with a view to dealing with Gregory’s outstanding motion filed in November 2025, and Isaac’s indemnity costs application. Mr Adamson was ordered to file and serve his affidavit evidence by 8 May 2026. He did not. He was to provide evidence of alleged service of the 23 April 2026 notice of motion by 8 May 2026. He did not do so. He was to serve outline written submissions in support of his motion by 13 May 2026. He did not comply with that order either.
Later that same day, 4 May 2026, Mr Adamson filed in the Court of Appeal a Notice of Intention to Appeal the directions I had made that morning, as well as my decisions of 20 April 2026. The parties were advised by email on 5 May 2026 in response to an email of Mr Adamson’s enclosing the Notice of Intention to Appeal, that this did not operate as a stay and the orders made would need to be complied with and the hearing on 11 June 2026 would proceed.
The applications for determination were:
A notice of motion filed on 23 April 2026 by Mr Adamson seeking leave to file a statement of claim (naming all four defendants to the summons) in an apparent attempt to convert these proceedings into a totally different claim for declarations of bias and injurious falsehood, and seeking damages in the sum of $1,000,000.00 from Isaac. Supplementary orders sought a stay of the costs orders made in the proceedings, a stay of proceedings generally, and that Mr Ziman must cease to act for Isaac as he will be required to be a “witness” in the proposed newly constituted proceedings.
A notice of motion filed 25 November 2025 by Gregory, amended in May 2026, seeking a mix of orders refusing or striking out Mr Adamson’s notice of motion, as well as dismissal of the proceedings on various bases, including that events have overtaken the orders sought in the summons. The motion also sought relief for a situation that has arisen in the costs assessment process where, due to Mr Adamson’s failure to pay the Assessor’s fee for the assessment that was completed in February 2026, Gregory was not given the Certificate of Assessor’s Determination which had determined effectively that Mr Adamson needed to refund to Gregory a sum of over $50,000.00 for overpaid costs.
An application for gross sum indemnity costs made by Isaac, by way of affidavit and submissions filed in late April and early May 2026, as directed by the Court.
“(1) A declaration that the third defendant has exhibited bias against the first plaintiff in costs assessment case 2025/00466793.
(2) A declaration that, because of the apparent bias, the third defendant had no jurisdiction to proceed with the costs assessment and to issue certificates of determination.
Further or in the alternative,
(3) A declaration that the third defendant had no power to permit the fourth defendant to make a submission in the Costs Assessment 2025/00466793 (the Costs Assessment).
(4) An order setting aside the Costs Assessment case and the Certificates of Determination issued thereunder.
(5) A declaration that the second defendant ought not to have referred the Costs Assessment to the third defendant.
Further or in the alternative,
(6) A declaration that the second defendant ought to have revoked the appointment of the third defendant and appointed a replacement assessor.
(7) An order that the second defendant refer the costs assessment to another costs assessor not located in the Coffs Harbour area.
(8) A declaration that the fourth defendant made injurious falsehoods in the said assessment including that his solicitor Derek Ziman had emailed the first plaintiff a Calderbank offer on 17 September 2021 which the first defendant had not disclosed to his then client, Gregory Chalik, the first defendant herein.
(9) An order that the fourth defendant pay damages to the first and second plaintiffs damages for the making of the said injurious falsehood in the sum of $1,000,000.00.
(10) A positive interim injunction that the defendants be restrained from passing on the false and injurious statement that the plaintiff may not have passed on offers of settlement to the first defendant.”
The “Pleadings and Particulars” set out in pars 1 to 32 of the document are difficult to follow. They appear to be an airing of Mr Adamson’s displeasure with the costs assessment process.
The pleading claims that the Assessor made “unreasonable and unduly onerous demands” for production of “many hundreds”, (presumably a reference to “pages”), involving an “unreasonable interruption” to Mr Adamson’s practice. It also complains of the Assessor being a friend or associate of other lawyers in the area, (not identified), whom Mr Adamson has had to “criticise on a professional level”.
The narrative goes on to complain that the Assessor allowed submissions by Isaac via his solicitor and should not have done so:
“27. In his application and his submissions, the fourth defendant made false and injurious statements that his solicitor Derek Ziman, his solicitor on the record herein his solicitor had sent a Calderbank offer to the applicant on 9 September 2019 which the applicant may not have passed on to the first defendant. Those statements are false and made with malice and have and will continue to cause financial loss and damage to the plaintiff.”
“30. As a result of the unlawful submissions and production of voluminous documents (including the entire transcript of the hearing) by the fourth defendant and the apparent bias of the second defendant in making findings which required a the procedures and protections of a hearing by a court of law and which in any event the assessor lacked jurisdiction to make costs of the assessment sought by the third defendant was sum of $36,674.01 which sum was wildly out of proportion to the amount of costs being assessed and evidenced the assessors bias and even animosity towards the first plaintiff.
31. The plaintiff has instituted proceedings for defamation against the fourth defendant and has made a complaint to the Law Society of NSW against the Derek Ziman solicitor fourth for the making of allegations to the Supreme Court of NSW for the purpose of making costs applications on behalf of the fourth defendant that he sent a Calderbank offer to the first plaintiff on 17 September 2021 which the first defendant did not pass onto his then client, the first defendant herein.
Particulars
Concerns Notice Dated 5th January 2026
Amended Statement of Claim filed 10 March 2026
Complaint to Law Society dated 14 January 2026
32. As a result of the said false and injurious statements of the fourth defendant, the first plaintiff likely that the first plaintiff has lost clients and will lose his ability to attract clients and earn income as a solicitor and the consequent loss of income of the second plaintiff.”
The proceedings commenced against Isaac in the defamation list by statement of claim filed on 10 March 2026 were summarily dismissed by Campbell J, with costs, on 22 June 2026: Paclaw Pty Ltd v Chalik [2026] NSWSC 766.
The claims there dismissed bore some similarities to the matters complained of in the draft proposed statement of claim in the present proceedings. In the defamation list matter, damages were sought in the sum of $1,000,000.00 for alleged defamation of Mr Adamson by Isaac because of submissions made by him to the Assessor as part of her role in assessing the costs of the Estate proceedings. There were also claims for aggravated and exemplary damages in the sum of $200,000.00 each.
The Concerns Notice and Law Society Complaint referred to in par 31 of the proposed statement of claim were not provided to me. Nor was any affidavit evidence filed or served. Mr Adamson stated on 11 June 2026: “I don’t need affidavit evidence”, relying on the proposed statement of claim and his oral submissions. I was able to access the statement of claim filed in the defamation list against Isaac to at least partially fill the evidentiary gap. Mr Ziman referred to the nature of this other statement of claim in his submissions.
Both Gregory and Isaac opposed leave being given to file the proposed statement of claim and opposed all orders sought by Mr Adamson.
Mr Adamson submitted that UCPR r 6.3 requires a statement of claim be filed for “bias”, which he described in his oral submission as “a very ancient tort”. He stated that the bias here was “against the Manager, the first defendant and the alleged bias against the fourth defendant”. He argued that these proceedings should be stayed to allow the defamation proceedings to be determined. He seemed to then suggest that the result of leave being given to replead by way of the statement of claim meant that he could not be ordered to repay the costs due to Gregory because he had an active defamation case entitling him to over $1,000,000.00 damages from Gregory. (I later learned he had in fact commenced defamation proceedings against Gregory on 20 May 2026, but that document was not made available to me).
In respect of the declaration sought requiring Mr Ziman to cease to act for Isaac in these proceedings, Mr Adamson relied on r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) arguing that Mr Ziman would have to be called as a witness in the defamation proceedings.
None of those issues arise unless I give leave to file the proposed pleading. I do not give leave. The point of UCPR r 6.3 is that the proceedings must be commenced by statement of claim. These proceedings were commenced by summons. It is an entirely wrong approach, if a party does not succeed in obtaining orders that they want, or if the orders that they seek become otiose, to try to convert the case to some other cause of action. The attempt by Mr Adamson to do so here, by seeking leave to file the proposed statement of claim, is such an approach. Leave to do so is refused.
Gregory’s amended notice of motion sought a mix of orders, some of which were really in the nature of submissions in response to Mr Adamson. Gregory relied on his affidavit affirmed 7 May 2026 and written submissions dated 7 April 2026 and 14 April 2026. One of the orders sought was for dismissal of the proceedings. Isaac also sought dismissal. I agree the proceedings should be dismissed.
The UCPR provides for dismissal of proceedings for want of due despatch, and/or frivolous and vexatious proceedings:
12.7 Dismissal of proceedings etc for want of due despatch
(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.
…
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Gregory submitted that the Court should dismiss the proceedings because events have overtaken the relief sought and so continuing them amounts to an abuse of process. He also submitted Mr Adamson was in contempt of Sweeney J’s November 2025 order that he pay Mr Ziman’s costs of $3,500.00 forthwith, and so should not be allowed to continue the proceedings or convert them into “bias” proceedings by the proposed statement of claim.
It is not necessarily contempt to fail to pay a “forthwith” costs order: see Bellerive Homes Pty Ltd v FW Projects Pty Ltd (2019) 106 NSWLR 479 at 503-505, 508-510, 517; [2019] NSWSC 193 per N Adams J, but it is certainly disregard of a Court’s order. It is difficult to escape the conclusion that Mr Adamson’s filing of the motion the day after Sweeney J’s order was to try and avoid the consequences of her Honour’s orders, including the costs order that she made against Mr Adamson. Ironically the application filed in the way it was, contends that her Honour was wrong in granting an order Mr Adamson did seek; the joining of Paclaw as second plaintiff. In the same way, the filing of the 23 April 2026 motion, three days after orders were made that were unfavourable to Mr Adamson, was an attempt to avoid the consequences of those orders, which included that Mr Adamson pay the defendants’ costs.
To continue the proceedings now is an abuse of process, because events have clearly overtaken the limited issues raised. The referral to the Assessor was acted on and the assessment process completed in February 2026.
McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42 said that although the categories of abuse of process are not closed, cases usually fall into one of three categories:
“(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.”
In my view, all of these categories apply. The proceedings were arguably vexatious from the beginning in involving Isaac as a party at all. Mr Adamson’s deployment of filed but unserved applications, allegations unsupported by affidavits, and cavalier approaches to the Court’s orders continued throughout the proceedings.
Litigation is not a game by which parties hide from their responsibilities, avoid the consequences of orders made against them and instead engage in brinkmanship at the expense of the Court’s finite time and resources. To the extent that a party chooses to engage in that behaviour, based on his or its own misguided attitudes, they do so at their peril. The relief sought in the summons has been superseded by events. The summons should be dismissed.
I would also have considered dismissal under UCPR r 12.7 due to the failure by Mr Adamson to serve his various applications in an appropriate and timely way and in his repeated failure to comply with the Court’s orders to file and serve evidence and submissions in support of a number of those applications. However, I have no need to resort to that alternative basis for dismissal given the reasons set out above at [32] to [36].
70 Certificate as to determination of costs to parties
…
(5A) The regulations may make provision for or with respect to the forwarding of a certificate issued under this section (or a copy of the certificate)—
(a) by the costs assessor to the parties to the costs assessment or the Manager, Costs Assessment or both, and
(b) by the Manager, Costs Assessment to the parties to the costs assessment.
71 Certificate as to determination of costs of costs assessor and Manager, Costs Assessment
(1) On making a determination of costs, a costs assessor is to separately determine—
(a) the amount of the costs incurred by the costs assessor and the Manager, Costs Assessment, and
(b) the costs related to the remuneration of the costs assessor, and
(c) by whom those costs are payable and the extent to which they are so payable.
(2) On making a determination under this section, a costs assessor is to issue a certificate that sets out the determined costs.
(3) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court against the party to the assessment by whom the costs are payable in favour of—
(a) a party to the assessment that has paid some or all of the amount to the Manager, Costs Assessment—for that amount, and
(b) the Manager, Costs Assessment—for any amount of unpaid money.
44 Certificate of costs assessor’s determination
(1) For the Act, sections 70(5A) and 93(1)(b)(vi), on making a determination of costs, a costs assessor must give the following to the Manager—
(a) the certificate issued under the Act, section 70,
(b) the certificate issued under the Act, section 71.
(2) After receiving the certificates, the Manager must—
(a) if costs of the assessment are payable—give the parties—
(i) an invoice for the costs of the assessment, and
(ii) a written notice that a copy of each certificate will be given when the costs of the assessment are paid, and
(iii) a copy of each certificate on payment of the costs of the assessment, or
(b) if no costs of the assessment are payable—give a copy of each certificate to the parties.
(3) In this section—
costs of the assessment means the costs of the costs assessor and Manager referred to in the Act, section 71(1)(a) and (b).
The invoice for the Assessor’s costs was sent by the Manager to Mr Adamson to pay on 19 February 2026. The effect of reg 44 is that unless and until Mr Adamson pays the Assessor’s invoice for the costs assessment, a sum of $36,674.01, the s 70 Certificate as to determination of costs to parties will not be forwarded to those parties. This means that Gregory cannot take steps to register the Certificate as a judgment, and Mr Adamson will not have to repay to Gregory the overpaid solicitor/client costs, assessed to be more than $52,000.00. Regulation 44 does not seem to make any allowance for a situation such as here, where a client has overpaid his solicitor, and the solicitor has been requested to pay, but will not pay, the Costs Assessor’s costs of the assessment.
It was submitted by Mr Allchurch that the only option Gregory has to recoup the money owed to him by Mr Adamson is to pay the $36,674.01 owed by Mr Adamson to the Assessor.
As noted by Mr Allchurch, this situation is unsatisfactory. He submitted that there appears to be no solution to this impasse. He invited the Court to consider any other process or procedure for the Assessor and the Manager thought by the Court to be available.
Gregory submitted that the prescriptive language in ss 70 and 71 means that I must order, or must make a declaration, that the Manager or Assessor must send the s 70 Certificate of Determination to the parties, whether the Assessor’s costs are paid or not. He also submitted that the effect of Sweeney J’s judgment was that the determination of the costs issue must continue to completion.
I have some sympathy with Gregory’s frustration with his situation, but the prescriptive language: “is to issue”, and “is to separately determine”, in s 71 does not dictate the outcome he requires. To do so would be to ignore the requirements of reg 44.
Unfortunately the combination of ss 70 and 71 and reg 44 does appear to prioritise the payment of the Assessor’s fees over the rights of a party here to have a significant sum of money, assessed as rightfully due to him, registered as a debt and paid because of Mr Adamson’s refusal to pay the Assessor’s fees. Sweeney J’s judgment is irrelevant to this issue and did no more than refuse the stay of the referral to the Assessor that was sought by Mr Adamson. The most I can do is suggest that the Manager consider whether the Manager (or the Assessor) could file the Certificate as to determination of the costs of the assessment (the s 71 Certificate) as a judgment against Mr Adamson, given that he has been determined to be the person who should pay it, but he has not. Section 71 is ambiguous as to whether that option is available.
This can be dealt with succinctly because the law in this area is clear and settled to the effect that self-represented litigants are not entitled to charge for their time or recover costs for the value of time spent in preparing for or conducting litigation: Cachia v Hanes (1994) 179 CLR 403 at 417; [1994] HCA 14 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ; Walton v McBride (1995) 36 NSWLR 440 at 452-453 per Kirby P, 461-464 per Powell JA; Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 (“Bell Lawyers”).
To the extent Gregory argued to the contrary, his arguments are misconceived. They are at least partially based on a misunderstanding of comments of the High Court in Bell Lawyers, which dealt with an argument about self-represented litigants who also happened to be solicitors and held that self-represented litigants are unable to recover costs for the value of their time, whether or not they are solicitors.
First, there is no basis for any party to pay Gregory’s costs for the reasons set out at [47] and [48] above. Second, the Assessor and Manager responded to a compulsory process – a Notice to Produce for Inspection – served on them by Mr Adamson. The Notice was dated 2 March 2026 and sought “Reasons of the Costs Assessor in Supreme Court of NSW costs assessment number 2024/00466793”. Whilst it may have been preferable to list the matter for guidance from the Court given the Notice sought to effectively “find out the result” of the costs assessment and so had the potential to circumvent some of the LPULA Act and Regulations, it is understandable why the Crown Solicitor’s Office chose to comply. It is however another example of Mr Adamson using Court process to manipulate an outcome for himself.
To comply with the Notice in the circumstances does not provide any basis for an order of the type Gregory seeks. Compliance with the Notice is governed by the UCPR r 21.10 and requires compliance in a short timeframe – 14 days – and as it is served between the parties, did not require any procedural listing of the matter. This is no basis to make a costs order against the Manager or Assessor.
On 20 April 2026, the costs order that I made was that the plaintiff pay the costs of all defendants, subject to any further costs application that any of the parties wished to make: Adamson v Chalik [2026] NSWSC 415 at [24].
Pursuant to that order, Mr Ziman indicated on 4 May 2026 at the directions hearing that he had been instructed by Isaac to make an application for a gross sum indemnity costs order. I directed that affidavit evidence be filed in support. To the extent necessary, I dispensed with any requirement to file a notice of motion. The oral submission by Mr Adamson that a notice of motion was required to be filed by Mr Ziman is wrong.
In support of the application, an affidavit of Derek Errol Ziman sworn 4 May 2026 was filed and served, together with written submissions dated 27 April and 4 May 2026. A detailed bill of costs was annexed to the affidavit. Mr Ziman deposed to each attendance being necessary and the work carried out being reasonable and necessary.
Mr Ziman was admitted as a solicitor in NSW in 2003 and as a solicitor in South Africa in 1973. He is clearly a senior and experienced practitioner. Mr Ziman deposed to Mr Adamson’s ongoing failure to pay the $3,500.00 gross sum costs order made by Sweeney J in November 2025 and his concern that, given Mr Adamson’s behaviour in this litigation, Mr Adamson is likely to delay any assessment of costs orders against him.
98 Courts powers as to costs
(4) … at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.
“The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation. The power is appropriate to be used in complex cases. An order that costs be assessed as a gross sum does not envisage that any process similar to that involved in taxation should take place, but the power must be exercised judicially and after giving the parties an adequate opportunity to make submissions on the matter.”
The Court should only make the gross sum costs order if it considers that it can do so fairly between the parties and that it has sufficient confidence that it is able to arrive at an appropriate sum: see Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9]. The approach to estimation of costs should be logical, fair and reasonable: Beach Petroleum NL at 123. If the Court is persuaded to make a gross sum costs order, then the Court may adopt a broad-brush approach: see Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22].
In Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8] Campbell AJA accepted that situations where it might, depending on the individual circumstances, be appropriate to make a gross sum costs order would include:
Simple cases where there would be utility in "cutting the Gordian knot" of protracted fights about costs: see Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [5];
Where the amount in issue is a modest sum and it would not be appropriate to require a further process of assessment to be undertaken: see Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433; and
Where the costs assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay: see Leary v Leary [1987] 1 All ER 261 at 266.
As observed in Hamod v State of New South Wales [2011] NSWCA 375 (“Hamod”) at [818] to [820], per Beazley JA (Giles and Whealy JJA agreeing):
“818. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]).
819. The assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673.
820. The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2); Leary v Leary; Harrison v Schipp at 743; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported). The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165.”
Mr Adamson should have known the proceedings he commenced against Isaac had no prospect of success. The summons did not seek any relief against him. Including Isaac as a defendant required Isaac to take steps to protect his interests in litigation to which he was barely even peripherally relevant. The subsequent developments indicated Mr Adamson wished to use the proceedings to validate petty annoyances he had regarding matters unfavourable to him in other proceedings. Significant costs were incurred by Isaac as a result.
As set out in Mr Ziman’s affidavit, shortly after service of the initiating summons, on 29 July 2025, Isaac emailed Mr Adamson outlining why he should remove Isaac as a defendant. As Isaac correctly identified “Any decisions made by the costs assessor and costs manager have nothing to do with me and hence there is no basis for the inclusion of me as a defendant”. It appears no response was made by Mr Adamson. Isaac also advised in that email that if he was not removed as a defendant, he would seek indemnity costs if he was obliged to retain legal representation. It is not at all unreasonable, that having clearly warned Mr Adamson in that email, he now seeks that order. I accept the submission that Mr Adamson is likely to delay any potential costs assessment process.
I accept Mr Ziman’s outline of work done as set out in the bill annexed to the affidavit. It reveals the legal response(s) required to the proceedings. I accept the work done was necessary and the charges reasonable given Mr Ziman’s seniority, expertise and his practical and helpful approach with the Court to the issues raised. The sum claimed is $31,751.50 inclusive of GST. The bill does not include the hours in court dealing with Mr Adamson’s 20 April 2026 adjournment and UCPR r 36.16 application. It does however include the appearance before Sweeney J in November 2025. Given the affidavit is dated 4 May 2026 there is no work included for the appearance on 11 June 2026, where Mr Ziman again appeared for Isaac.
I reject Mr Adamson’s assertion that Isaac is not entitled to a gross sum order. No submission of content was articulated by Mr Adamson. The high point of Mr Adamson’s argument appeared to be “favouritism” in not requiring Mr Ziman to file a notice of motion. I reject that submission. I find that a gross sum costs order is appropriate and likely to avoid further argument, expense, delay and aggravation. That gross sum should be assessed on an indemnity basis for the reasons set out in pars [62], [63] and [64] of this judgment.
I have discounted the amount claimed by $3,500.00 to reflect the costs ordered by Sweeney J. I have reduced the sum by a further 10% to do justice between the parties, and to effect an impressionistic discount to reflect potential contingencies of the costs assessment process as suggested in the authorities referred to in Hamod, set out in par [60]. I consider this approach to be logical, fair and reasonable. This approach arrives at a figure of $25,426.00 inclusive of GST.
I assess the gross sum of $25,426.00 inclusive of GST as a fair and reasonable sum for Isaac’s costs of the proceedings in the circumstances.
I make the following orders:
The first plaintiff’s notice of motion filed 23 April 2026 is dismissed, with costs.
The first defendant’s notice of motion filed 25 November 2025, amended May 2026 is dismissed, save as to the order sought for dismissal of proceedings, each party to bear its own costs.
The proceedings are dismissed, the first plaintiff to pay the second, third and fourth defendants’ costs.
The first plaintiff is to pay the fourth defendant’s costs of the proceedings on an indemnity basis, assessed in the gross sum of $25,426.00 inclusive of GST.
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Adamson
Chalik (No. 2)
[2026] NSWSC 414
[2026] NSWSC 415
[2026] NSWSC 766
(1995) 57 FCR 119
(2019) 269 CLR 333
(2019) 106 NSWLR 479
(1994) 179 CLR 403
(1988) 81 ALR 397
(2002) 54 NSWLR 738
(1994) 181 CLR 251
(1995) 36 NSWLR 440
(2003) 58 IPR 445
(1999) 93 FCR 1