Anderson v Windabble Pty Ltd as Trustee for Lizard Island Trust

General information, not legal advice.

Legislation Cited: Civil Procedure Act 2005 (NSW)
Income Tax Assessment Act 1936 (Cth)
Succession Act 2006 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: ALL IS 1 PTY LTD (t/as Banga Legal) v Townsend [2026] NSWSC 224
Bartlett v Coomber [2008] NSWCA 100
Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA
El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26
Grigor v Stock; Stock v Stock [2025] NSWSC 232
Johnston v Johnston [2004] NSWSC 497
Lord v Craig (2026) 119 NSWLR 33; [2026] NSWSC 17
Peter Sleiman Investments Pty Ltd (As trustee for the Sleiman Family Trust) v Deputy Commissioner of Taxation [2017] NSWCA 81

Texts Cited: Arkes, H and C. Blumer, ‘The Psychology of Sunk Cost’ (1985) 35(1) Organizational Behavior and Human Decision Processes 124.
Chief Justice T F Bathurst AC, ‘ADR, ORD, and AI-ADR, Or do we even need courts anymore?’ (Speech, Inaugural Supreme Court ADR Address, 20 September 2018)
Justice P A Bergin, ‘The Objectives, Scope and Focus of Mediation Legislation in Australia’ [2012] NSWJSchol 24 (delivered at the ‘Mediate First’ Conference at the Hong Kong Convention and Arbitration Centre)
Merriam Webster Dictionary (online ed)
Oxford English Dictionary (online ed)
The Hon. James Allsop AC, ‘Some modest reflections upon dispute resolution: the value of a dispute resolution culture’ (Eighth Annual Supreme Court ADR Address, 29 October 2025) (see endnotes for accessible link)

Category: Procedural rulings

Parties: Kimberly Anderson / Applicant
Windabble Pty Ltd as Trustee for Lizard Island Trust / Respondent

Representation: Counsel:
T Boyle – Respondent
Solicitors:
Carroll & O’Dea Lawyers - Respondent

File Number(s): 2024/00363842

JUDGMENT

Introduction

1. HIS HONOUR: Lizard Island, (also known as Jiigurru [1] ), with a few smaller islands, is situated within the Great Barrier Reef, Queensland [2] , being the only continental island group close to the outer barrier reef. It is said that its stark, rugged beauty contrasts sharply with the sparkling blue waters and rich fringing reefs surrounding the island group [3] . It has abundant wildlife and a luxury resort [4] .

2. A form of discretionary trust connected with the Anderson family (‘Lizard Island Trust’ (trust)) shares the same name as the Island.

3. Kimberly Anderson (Kimberly or plaintiff) is one of two children of Albert Anderson (Albert or father) and Karen Narelle Anderson (Karen, mother, or third defendant), (collectively the parents). Her sister is Summa Hoffman (Summa, sister, or second defendant). Summa is married to or in a relationship with Benjamin Hoffman (Benjamin). They [5] have a business named Hoffs Quality Meats Pty Ltd (HQM). Windabble Pty Ltd (Windabble), is the trustee of the trust (trustee or first defendant).

4. Kimberly explains that the trust name arises by dint of an expression used by her now late paternal grandmother, Hazel May Anderson (for whom it is obvious that Kimberly had great affection), who teased her, when the family visited, about not having seen them for a while and would rhetorically say “Where have you been, Lizard Island or somewhere” [6] .

5. Bleakly, Hazel’s good-natured quip about the frequency of contact had a prescient aspect to it. The operation of the trust, which one might think was intended to benefit and perhaps bind the family, has at least from Kimberly’s perspective, sown discord and estrangement between Kimberly and her mother and sister, and she has not spoken to her father for a long time [7] . Further, unlike the enjoyable, relaxing experience generally associated with a brief visit to the Island, this proceeding has given rise to conflict which has been vexed, prolonged and is currently at risk of further conflagration.

6. The proceeding bears classic hallmarks of tragic family litigation in respect of family trusts with minimal assets and, in circumstances I describe below, has become a fraught and unwieldy vehicle for ventilation of the plaintiff’s complaints from refusal of the trust to (re) lend to her $60,000, a very modest amount of money (in terms of litigation in this Court) — which fact was drawn to the attention of the parties over eight months ago [8] .

7. Kimberly has amended her claim twice. Each iteration of her amendments have in different ways significantly ramped up her claims against the trustee and more particularly against her mother and sister.

8. The first amendment added claims which extended to allegations of fraud, misrepresentation, and dishonesty [9] .

9. The second amendment, added her mother as a party to the proceeding and escalated exponentially the content of the pleadings almost fivefold [10] including: claims of sham trusts and transactions; anticipatory responses to absolute discretion clauses; embellished claims of fraud on power; magnified claims of breach of director duties; knowing receipt claims; a variety of estoppel claims including, promissory estoppel, equitable estoppel and “estoppel by inconsistent conduct”; claims of aggravated and psychiatric harm arising from “her known vulnerability”; claims of oppressive conduct against her as a shareholder; claims of invalid appointment of directors; claims of “complete governance exclusion of named beneficiaries”; claims of winding up of the trust and distribution with “hotchpot”. Relatedly, it sought a raft of 25 orders referable to the above matters in respect of the trust [11] .

10. The listed application [12] (current motion), which I will explain more precisely below, is another attempt by Kimberly to add a further party to the proceeding and seek discovery of 24 years of trust documentation from the trustee and documentation going back a decade against each of her mother, sister and the proposed new defendant (HQM) all with a view to her being permitted to yet further amend her claim.

11. Interlocutory applications are listed to be heard before judges on the basis that the Court will consider the relief sought by the applicant. However, the Court’s case management role is not constrained by the parties’ choices of relief, nor is the Court precluded from raising with the parties, the prospect of making other different forms of relief or case management orders that they have not themselves proposed. Indeed, the Court is expressly empowered to make such orders as the nature of the case may require whether in interlocutory stages or a trial [13] and has an expectation that parties are prepared to holistically address the same. Such exercise by the Court is not a novel proposition and is in consonance with the overriding purpose in civil case management [14] to which the Court must seek to give effect. Litigants, are under a duty to assist the Court to further that purpose and to participate in the processes of the Court to that effect. [15]

12. If representatives are unable to adapt or respond to the Court’s proposal of alternative orders in the context of case management (which to the parties might be unexpected), they are self-evidently free to seek to adjourn the matter to enable them to consider it and return to court at some point in the immediate (or at least non-distant) future, to address it.

13. The listing before me of the current motion is one of those alternative proposal occasions. In the early stages of my discussion with Kimberly (who was self-represented) and Mr Boyle of counsel (who acted for the defendants and proposed respondent), I provisionally foreshadowed to them that my inclination at that time was to not do what the parties wished the Court to do, namely to hear yet another interlocutory contest, but rather to request them to address me as to why the matter should not now be referred to a mediation in an attempt to see whether at this point the dispute, that so plagues this family, can be resolved without the conflagration of litigious steps and activity that has marked it so far [16] .

14. Neither party, when I raised the question of referral to mediation, sought to adjourn the matter, rather, commendably each of Kimberly and Mr Boyle were able to address the Court on the matter. The Court was assisted by them.

15. Thus far, the defendants have accommodated responses to Kimberly’s claims by participating in the Court’s processes including filing defences to each of her amended claims. Needless to say they oppose her current motion and seek for the matter to progress along its litigious path.

16. No question arises for me to make any findings regarding the motives of the parties, let alone any findings on credit. However, the escalation of her case against the trustee and her family members is explicable at least by dint of the fact that it is evident that Kimberly feels profoundly perturbed by the events which she claims have beset her. Likely, from her perspective she regards the steps she has taken thus far and seeks to further take as proportional and a righteous vindication of her travails.

17. In life, the assessment of what is ‘proportionate’ by way of response to a matter is often subjectively “in the eye of the beholder” [17] .

18. However, the Court’s assessment of what is appropriate by way of procedural fairness and case management to give effect to the overriding purpose and proportionate steps in litigation is not left to the vagaries of the parties’ perceptions of entitlement or subjective or arbitrary determinations but rather guided by and evaluated according to expressed guiding principles and considerations which give effect to the statutory purposes of effective and proportionate civil litigation.

19. The Court is not a silent or idle participant in the effective case management of civil litigation, rather progression of proceedings is actively overseen by the Court and not merely or predominantly left to forensic decisions of the parties [18] .

20. On any objective view of this matter, the just quick and cheap resolution of real issues in the proceeding at a cost proportionate to the importance and complexity of the subject-matter in dispute [19] , has been impeded and in my estimation is at significant risk of being further thwarted.

21. Much litigation in this Court is conducted quickly and relatively cost effectively. However, in some instances, there is a tendency for parties to become embroiled in protracted and costly litigation. All litigation involves some degree of sunk cost [20] . Indeed, the general rule as to costs ordered and assessed in civil litigation — that the costs of proceedings or part thereof be paid on the ordinary basis [21] — proceeds on the assumption that even successful parties will almost inevitably have some outlay of costs which they will have to bear themselves and which are not recoverable from the opposing parties.

22. More particularly, some parties (whether propounding or defending claims) may be tempted to persist in litigation in light of accumulated expense of money, time, and effort, notwithstanding that there are rapidly diminishing returns for their expenditure and effort and indeed disproportionate returns.

23. In life, particularly in commercial circles, this is referenced and analysed by the notion of ‘sunk cost effect’ [22] , ‘sunk cost fallacy’ and other cognate descriptions. In psychology, and behavioural economics, it is used with reference to a reluctance to abandon a strategy or course of action in which one has already invested heavily even when it is clear that abandonment is rationally the correct response [23] .

24. Some forms of litigation involve a ‘crossing the Rubicon’, which is an actual or at least a deemed point where parties become entrenched in the litigation and are unable or unwilling to resolve, other than by progressing undaunted to a concluded contested final hearing, because of the various forms of sunk cost.

25. During litigation, there is cause for reality checks, being occasions, for the Court to engage with the parties and require them to test their current litigious strategy and steps against the touchstone of the overriding purpose of civil litigation and cost proportionality.

26. Currently, there is “cause for pause”, and some deep reflection on the cost to the parties of the litigation to date and reconsideration of what other options for resolution, short of progression to a costly contested final hearing, may assuage what is essentially an underlying familial dispute.

27. The parties may not have yet ‘crossed the Rubicon’ of sunk costs, which, to be clear, are not merely financial, but personal, in terms of time, effort, and welfare. Nonetheless, they have reached a critical juncture, a ‘crossroads’, or vital moment in the litigation.

28. My assessment at present, is that the appropriate case management step — consistent with the overriding purpose of this type of civil litigation, cost proportionality and the dictates of justice — is to defer hearing the current motion until the parties have attempted a mediation of their dispute, which I have now ordered, against the defendant’s submissions. My reasons are elaborated below.

29. Various details bearing upon the matter and the dispute are simply unclear on the evidence. In stating details below, it should be clearly understood that I am not in any way making final determinations of fact. I have simply endeavoured to record what appears to be either agreed, uncontested or plausibly evident from various documents and statements in the Court Book or record what was asserted during the listing, taken from the transcript.

The application

30. Kimberly’s current motion was filed on 19 August 2026 seeking joinder, discovery and amendment orders.

31. Specifically, Kimberly seeks to join HQM to the proceeding (as fourth defendant) and be provided with extensive discovery of mostly financial records prior to being permitted to “amend the pleadings and particulars presently on the court record as to their accuracy, completing new material facts concerning a purported loan of $60,000 recorded against the Lizard Island Trust” [24] .

32. The discovery is directed to all the existing defendants and the proposed new defendant, but in slightly different ways. As against the trustee, the discovery sought is the complete accounts of the trustee and the trust, including all balance sheets, general ledgers, profit and loss statements, bank accounts, company resolutions and ASIC forms from the inception of the trust (2002) to date (a period of 24 years.) As against the others (Karen, Summa, and if joined, HQM) Kimberly seeks discovery of their “complete financial accounts” including all bank accounts from 2016 to date (a period of 10 years).

Contextual background

Family health and circumstances

33. Albert was born in June 1953 and is now aged 73. Kimberly says Albert suffers from ALS (Amyotrophic Lateral Sclerosis), a form of Motor Neurone Disease motor neurone disease [25] , and she had in an amended claim described it as an advanced terminal disability with little to no mobility or speech [26] . Her mother has a Services Australia carer’s payment, and it seems is devoted to the care of her father.

34. Kimberly married Adam Nichles [27] and is now divorced or separated from him. She has 3 teenage daughters — Kirra May Nichles, Aurora Jaide Nichles and Annalise Grace Nichles [28] . She has been involved in messy family law proceedings. She appears to have had some form of property settlement in or about June 2021. She claims that her children are in the custody of their father, who she describes as an abuser who took her children, and has been denied access to the children for at least 8 years, in contravention of court orders (as to which matters I emphasise that I expressly make no finding), and is still in legal proceedings attempting to contest that [29] . Initially in this proceeding, Kimberly described her occupation as “Nil - Total Disability” [30] . In October 2025, she described herself as a juris doctor law student and studying at Newcastle Law School [31] . On the hearing she intimated that she had started to get symptoms of motor neurone disease [32] and is attempting to get testing for this [33] .

35. Summa and Benjamin have two children, Ava Kate Hoffman and Sophie Amor Hoffman [34] . Other than the fact that Summa is one of the trustee’s directors and their association with the business HQM, their employment, occupation and current life circumstances are unclear.

36. The parties reside in or around the Hunter Valley, New South Wales. Kimberly initially described her address location as being “formerly” of a villa in Rutherford (Rutherford villa — see further below) and having “currently no physical address” [35] . She now resides in the ‘Newcastle region’ [36] . Summa resides at Aberglasslyn [37] . The trustee’s address is designated as being the Rutherford villa [38] .

Trust and trustee details

37. On 27 November 2002, Brett Michael Hart (a solicitor at Cleary Hoare, Brisbane) settled the trust with its terms embodied in a trust deed (trust deed) [39] . On 6 April 2021, by further deed, the trust was varied (variation) essentially to exclude foreign person beneficiaries (variation deed) [40] . Even though Brisbane solicitors were involved in those steps, the trust deed specifies that the law of New South Wales is the applicable law to the trust [41] .

38. The trust is a form of discretionary trust. The term ‘discretionary trust’ is not normative, but rather descriptive of the particular features of such trusts [42] . In each case, it is necessary to resort to context, the particular sources that constitute a trust and its terms (principally the trust deed supplemented by any relevant statutory provisions, general law principles and court orders) to understand what a trust provides and what is permitted.

39. Seemingly, since the trust’s inception, Windabble has been its trustee, the parents (at least for long periods) its directors, and Kimberly and Summa the shareholders [43] (in equal shares) [44] . Other material suggests that Karen was appointed as a director on 21 July 2010 and Summa was a director between 8 August 2005 and 5 November 2010 and reappointed as a director on 3 August 2022 [45] . At the variation date, the parents were the director signatories to the variation deed [46] .

40. Other than in respect of amounts settled on a trust, the size of a trust, the extent of trust property and the practical operation of workings of discretionary trusts are rarely, if ever found in the trust deed. They are found in associated documents including financial statements and tax returns.

41. There is not a large amount of material in the Court Book which bears upon the financial history of this trust and its current assets. However, other than for the purposes of considering an order for costs of the mediation, it is unnecessary for me to outline details in respect of the trust property. It suffices to simply note the following.

42. First, as at February 2011, the trust assets included three properties, being two residential properties at Tarro, New South Wales (P1 and P2) and another property at Pelican Waters, Queensland (P3) [47] .

43. Secondly, in January 2014, P3 was sold [48] . On or about 1 October 2014, P1 was sold and on 9 October 2014, the Rutherford villa was purchased [49] .

44. Thirdly, current financial statements have not been adduced. However, a trust balance sheet as at 30 June 2024 [50] indicates that the trust had negative equity of $7,909. The assets comprised cash on hand of $30,276, and the property P2 with a designated value of $182,169. The sole liability was an unsecured “beneficiary loan” ($220,354).

Trust terms

45. The trust deed is lengthy and sets out details regarding beneficiaries and discretions and powers of the trustee. It suffices to note the following (which I will cite by reference to clauses and or the schedule of the trust deed).

46. The trust has various types of beneficiaries — relevantly (as per the schedule):

47. Kimberly and Summa — are the ‘principal beneficiaries’;

48. ‘primary beneficiaries’ — are defined in such a way is to include Kimberly and Summa as the principal beneficiaries but also includes the children grandchildren and parents of the principal beneficiaries;

49. ‘secondary beneficiaries’ — is relevantly defined it in a way to include the spouses or widow or widower of any primary or secondary beneficiary;

50. ‘tertiary beneficiaries’ — is defined in such a way as to include any trustees of trusts, superannuation funds or any companies in which the trustee or any of the beneficiaries as a beneficiary or a member.

51. The trust perpetuity date is the last day of an 80 year perpetuity period from the date of the deed or such earlier date as the trustee appoints to terminate the trust: cl 1.7, 7.

52. Every discretion or power conferred on the trustee is exercisable by the trustee in its absolute and unfettered discretion: cl 9.1. The exercise by the trustee of any power, discretion authority conferred on the trustee may be made to take effect “during his lifetime and upon his death by oral declaration by the trustee or in writing signed by the trustee”: cl 9.1.6.

53. The trust permits the trustee to determine the ‘net income’ of the trust fund in accordance with ordinary income concepts (cl 3.2). Otherwise, the default position is that the net income is income as determined under s 95 I**ncome T**ax A**ssessment A**ct 1936 (Cth): cl 3.2.

54. The trustee may at any time prior to the expiration of any year before the end of the trust pay, apply or set aside all or any parts of the net income of the trust fund for all or one or more of the primary, secondary or tertiary beneficiaries living at that time or accumulate the same cl 3.3. The trustee has a similar power in relation to the “additional tax income” of the trust fund: cl 1.1, 3.4.

55. Net income not so paid, set aside or accumulated is by default accumulated: cl 3.5. The default position in relation to additional tax income is that it proportionately follows the payment, application setting aside an accumulation of the net income: cl 3.6.

56. The means by which a payment, application or setting aside may be made includes recording such amounts to the credit of a beneficiary in the books of the trust fund, by paying cash or drawing a cheque to or for the credit of a beneficiary: cl 3.9.

57. Importantly, the trustee has a complete discretion as to the making of any determination. The trustee may exclude any beneficiary, and pay, apply or set aside amounts in proportions and in such manner as in the trustee’s absolute discretion it thinks fit: cl 3.10, 3.11. The trustee is not bound to assign any reason for its determinations: cl 3.10.

58. By cl 10 the trustee has a broad generalised power to make or vary or sell any investment, to engage in any transaction or dealing on behalf of the trust fund (as it could do if it were the absolutely entitled beneficial owner). In addition, without prejudice to the generality of the clause 10 power, the trustee has extensive other powers including all or any of the powers, authorities and discretions conferred on trustees by the law of New South Wales (cl 11.1) and power to advance and lend monies to or borrow and raise moneys: cl 11.10.

59. Naturally, there are provisions which address payment of the whole balance of the trust fund upon the perpetuity date: cl 4.

60. However, the trustee may in its absolute discretion prior to the perpetuity date, pay, apply or assign the whole or any part of the trust fund to or for the benefit of one or more of the primary beneficiaries, in such amounts as in the trustee’s absolute discretion it appoints. Expressly there is a power to exclude appointment to some primary beneficiaries: c. 5.1, 5.2.

61. There are express exculpatory provisions in respect of the trustee. Thus, trustees of the trust (cl 9.1, 9.1.1, 9.1.2, 9.1.3) are not personally liable for:

62. any loss or damage occurring as a result of its exercising refusing or failing to exercise any such discretion or power;

63. any breach of trust however occurring except to the extent (if any) that such breach results from its own wilful default or wilful neglect; and

64. the consequences of any error or forgetfulness, whether of law or fact, on the part of the trustee or its legal or other advisors or generally.

65. There is authority to revoke, add to, release, delete or vary any of the trusts or powers and authority to release or revoke powers conditionally, unconditionally, temporarily or permanently: cl 9.2, 9.3.

66. The power to appoint a new trustee is vested in the “principal” (being the parents) [51] . The principal may also, prior to the perpetuity date, appoint additional secondary or tertiary beneficiaries [52] .

Trust loans

60. No details have been provided of the operation in history of the trust for much of its first decade.

2013/2016 — First loan

61. In or about December 2013, according to one assertion of Kimberly, the trustee lent $60,000 to Summa and Benjamin [53] . She contends that amount may have been advanced in or about late 2013 coinciding with the incorporation of HQM [54] . However, this narrative regarding that timing and the formal lending details, is at odds with details immediately below.

62. On 12 May 2016, a sum of $50,000 was credited to a Greater Bank account apparently associated with the trust [55] . On the same day, it appears there was a meeting of the trustee with the parents attending as directors which discussed the approval of what is described as a “beneficiary loan” to Summa in the sum of $60,000 under conditions set out in an agreed loan agreement. It was resolved that approval of the loan be granted [56] .

63. On 16 May 2016, a form of loan agreement was executed as between Summa and the trustee [57] . Windabble, as trustee for the trust is described as the lender and Summa is described as the borrower. Schedule 1 of the loan agreement indicates that the loan amount of $60,000 was to be advanced on 23 May 2016, the interest rate was 0%, the repayment date is specified as being “at settlement of the Lizard Island Trust dispersal if not before” and security for the loan is described as being “Lizard Island Trust settlement distribution to Summa Hoffman” [58] . Schedule 2 of the loan agreement contains special conditions which relevantly provide for the loan to be paid in full to the lender “within 30 days following settlement of the Lizard Island Trust dispersal” [59] . It is not evident what is meant by the trust “dispersal”. On one view, it references the ultimate vesting of the trust.

64. On 23 May 2016, a sum of $60,000 is disclosed as being transferred seemingly to an account in the name of HQM with a description “Summa Loan” [60] (Summa**’**s loan or first loan).

2018-2020 — Second loan

65. Between 2018 and 2020, Kimberly says that the trustee lent her amounts totalling $60,000 [61] (Kimberly**’**s loan or second loan). There is a schedule in the Court Book which gives details of those payments. It records 13 discrete payments apparently for various lawyers’ fees may between 3 April 2018 and 17 June 2020 totalling $52,844.48. Later, there were two payments made respectively on 14 May 2023 and 20 July 2023 totalling $10,000 [62] .

2021-2022 — family law proceedings and Kimberly’s travails

66. On or about 21 May 2021, Kimberly says in family law proceedings, orders were made for payment to Kimberly of $195,000 (Family Court Payment [63] ).

67. In or about June 2021, the Family Court Payment was disbursed to Kimberly. She says she paid the entire amount to her mother, who then deposited $60,000 into the trust account (Kimberly asserts thereby causing her to repay the second loan in full) and held the remainder (approximately $135,000) for Kimberly to access at will [64] .

68. In March 2022, Kimberly says she identified a property in Anambah valued at $800,000 that she wished to purchase (Anambah p****roperty) and paid a $2,000 holding deposit and obtained the sale contract from the vendor’s agent Raine and Horne, Mayfield [65] .

69. Kimberly says she needed funds to complete the deposit for the Anambah property and made requests regarding this. Her initial version of requests indicated that she sought to borrow $80,000 and use P2 as security for the loan for a short period [66] . Subsequently she claims she requested that the $60,000 previously repaid to the trust be made available to her and the trust act as guarantor for her mortgage loan until she had acquired 20% equity in the Anambah property [67] . She says her requests were refused [68] .

2024 — repayment of Summa loan

70. On 23 August 2024, a sum of $60,000 was credited by payment from Summa and Benjamin into the trusts Greater Bank account [69] . It appears to be a repayment of the first loan — although I make no express finding about that.

Procedural history

71. The proceeding was commenced by a statement of claim in the District Court at Newcastle filed on 2 September 2024. On 10 December 2024, Judicial Registrar Howard transferred the proceeding to this Court.

Statement of claim

72. Kimberly’s initial claim recited some details of the trust.

73. Essentially, Kimberly’s pleaded contentions complained that her sister and (Summa’s) family have benefited from the first loan, whereas she has not benefited from the trust by reason of events relating to her repayment of the second loan.

74. The benefits that Summa and her family are alleged to have received include that: the $60,000 loan helped them save their family home and their business HQM from insolvency; they enjoyed a period of 11 years without having to repay the loan (with a consequential privileged life); they have made $520,000 in equity from the increase in the value of their home between 2013 and 2024 and their businesses increased in an unknown amount.

75. The detriment that Kimberly says she has suffered as a consequence of being denied her request to borrow funds is that she: was unable to procure the Anambah property which required her to enter the rental market; lost approximately $70,000 in rental, moving and storage expenses; suffered high levels of trauma having to move frequently; and moved back into the family home in 2024 (P2) (which she claims Karen has benefited from living in rent-free for 22 years) but Karen demanded after three weeks that she leave [70] . Specifically she asserts that as a result (of the denial) she [71] :

is now forced to live in a car, and has been living rough for 8 weeks without cooking facilities, water, showers order toilet; while trying to do her Law Degree.

76. Kimberly claimed a raft of relief, both on the front cover page under the heading “Relief Claimed” and at the end of the document under the heading “Orders”.

77. In February – March 2025, there were listings before Registrar Walton and Justice Brereton. On 11 April 2025, Justice Brereton directed Kimberly to file any amended statement of claim.

Amended statement of claim

78. On 22 May 2025 Kimberly filed an amended statement of claim (ASC).

Pleaded claim

79. In the ASC Kimberly pleads:

80. at the time of the repayment of the “$60,000” referable to the second loan, Karen speaking for the trustee, represented to her that the repayment of funds could be withdrawn again specifically for the purpose of Kimberly purchasing property. Kimberly says this is why she allowed the $60,000 to be repaid to the trust rather than retaining it for her own personal use [72] ;

81. the trustee “provided no reasonable justification for this refusal given the disparate treatment between beneficiaries” [73] ;

82. various breaches of fiduciary duties by the trustee and contends that the directors of the trustee breached various duties of good faith obtaining advantages and preferring interests of her sister over the proper administration of the trust [74] , including:

“improperly allowing the parents as principles to live “rent-free for 22 years within the trust property (where they are not beneficiaries of the trust. using their positions to gain an advantage of free accommodation (“Free Rental Agreement”) for the Principals allowing them to live rent-free for 22 years within Trust Property where they are not Beneficiaries of the Trust” [75] ;

4. similar breaches are alleged against Summa [76] ;

5. by making representations to her that the trust funds would be available for property purchase and then denying access to those funds, the trustee breached its duty of good faith and fair dealing with beneficiaries [77] ; and

6. the conduct of the trustee and Summa in making loans constituted a fraud on the power and she makes other allegations of fraud, misrepresentation and dishonesty including concealing from her the fact of the First loan [78] .

7. Kimberly asserts that [79] :

These representations were made after the Plaintiff provided 2 years full time (live in) and 2 years part time unpaid disability assistance services to the Directors of the Trust within a Trust property, by assisting Karen Anderson to care for the other original Principal, Albert Anderson who suffers an advanced terminal disability with little to no mobility or speech. The Plaintiff made Special Contributions that were not equalled by the other Beneficiary to the Trust and were not acknowledged by the Principals.

81. She says that as a direct result of the refusal she: was unable to proceed with the purchase of the Anambah property; incurred significant costs in attempting to arrange alternative financing; was unable to re-enter the housing market; was forced to expend money on rent rather than building equity in a property; and lost the opportunity to benefit from subsequent increases in property values in the area [80] . Further details of loss have been articulated including [81] :

(i) financial hardship resulting from being forced to continue renting rather than owning property and later being forced to live in her vehicle and couch-surf for 7 months; and

(j) emotional distress resulting from the Defendants’ conduct.

82. In addition Kimberly intimates that she had an intention to build a web-related business, of which the defendants were aware [82] .

83. In the ASC, Kimberly sought extensive relief regarding the above matters including: declarations; release of funds to her; orders for removal of Karen and Summa as directors and installation of Kimberly and Summa’s daughter Ava as directors, or alternatively the appointment of an independent trustee to administer the trust; orders for equitable compensation and damages for deceit and misrepresentation, damages for breach of fiduciary duty to her for losses as a result of being denied access to funds for purchase of the Anambah property (including consequential and lost opportunity losses) and renewal of her websites and exemplary damages [83] .

84. On 22 July 2025, the defendants filed a defence to the ASC.

85. On 8 September 2025, the plaintiff filed a notice of motion seeking various orders. It is unnecessary to detail all the relief sought. However, it may be noted that some relief to that now sought was then sought. This included claims for orders: to have Karen, HQM and Benjamin joined respectively as third, fourth and fifth defendants in the proceeding; provision of discovery; leave to file a further amended statement of claim and evidence within six-week period effectively following provision of discovery. She also sought then, a directed mediation.

86. On 29 September 2025, at the listing before Registrar Walton the plaintiff appears to have foreshadowed amendments to her motion. The plaintiff was directed to file and serve an amended notice of motion and affidavit in support by 1 October 2025, and the matter was stood over to 15 October 2025.

87. On 1 October 2025, the plaintiff produced an amended notice of motion, containing some variations to the earlier form of motion (though not underlined). It was e-filed on 8 October 2025 (amended motion).

88. The amended motion other than being addressed to the defendants specified Karen, HQM and Benjamin as proposed respondents and sought various prayers for relief including relevantly:

89. referral of the matter for pro bono legal assistance to her: prayer 1;

90. that Karen, HQM and Benjamin be joined to the proceeding as respectively the third, fourth and fifth defendants: prayers 2-4;

91. detailed discovery of material from the proposed respondents: prayer 5;

92. referral of the matter to mediation: prayer 6;

93. payment to her of a sum of $50,000 (within 30 days of Court order) and a deposit towards 12 months of legal work performed by her and further that all her legal fees be paid by the trust: prayer 7;

94. (leave) to file and serve a further amended statement of claim and evidence based on the proposed discovery: prayer 8;

95. a direction that the respondents respond to the proposed further amended statement of claim and provide their evidence (within eight weeks of Court order): prayer 9; and

96. setting matter down for trial (in December 2025): prayer 10.

97. On 15 October 2025, there was a listing before the Registrar. In relation to Kimberly’s amended motion, the Registrar:

98. referred prayer 1, seeking a referral for pro bono assistance for her, to the Duty Judge (then Brereton J); and

99. listed the balance of the relief sought in the amended motion, for hearing before Slattery J on 4 February 2026.

100. Kimberly, though cognisant of the Duty Judge referral, was not in Sydney but in the process of driving to Newcastle Law School. Brereton J, (obviously in the context of a busy duty list), declined to deal with the matter whilst Kimberly was driving and, noting that the order was not opposed by Mr Boyle, made an order that she be referred to the Pro Bono Panel for legal assistance (with leave for her to revoke the orders should she choose to do so).

101. Following the Pro Bono Panel referral, it appears that Ms Sewell of counsel was engaged to provide some degree of assistance to the plaintiff. However, by 2 February 2026, Ms Sewell emailed the Associate to Slattery J and the defendants’ legal representatives, indicating that she intended to make an application to the Registrar for leave to cease providing legal assistance to the plaintiff. His Honour made directions for the parties to provide confirmation as to which prayers for relief in the amended motion were still in context and to provide a short outline of submissions the following day.

102. On 4 February 2026, the plaintiff’s amended motion was listed before Slattery J at 10am. Ms Sewell of counsel briefly attended and was then excused. Mr Boyle appeared for the defendants. The plaintiff had some difficulty it appears in connecting to the Court because the video on her computer was not working. There was a delayed start with the matter eventually commenced by audiovisual link at 11:10 AM. The hearing of the amended motion proceeded for a substantial time, concluding at 3:21 PM.

103. His Honour made detailed orders in respect of the amended motion. The orders are as follows:

1. NOTE the plaintiff moves on her Notice of Motion of 1 October 2025 (“the Motion”) and reads her affidavit in support dated 6 October 2025.

2. NOTE the issues joined in the Amended Statement of Claim filed on 22 May 2025 and the Defence filed on 22 July 2025.

3. As to the plaintiff’s application for prayers relief 3 and 4 of the Motion, the Court DECLINES to join either Hoffs Quality Meats Pty Ltd or Benjamin Hoffman as defendants as the existing pleadings and evidence do not disclose a cause of action against either of them.

4. In relation to prayer for relief 2 on the Motion, ORDER that Karen Anderson be joined as a third defendant in these proceedings on the basis that paragraphs 34-40 of the Amended Statement of Claim at least implicitly pleads a serious cause of action of fraud against her, as a director of the first defendant.

5. DIRECT that the plaintiff file a Further Amended Statement of Claim pleading causes of action directly against the third defendant.

6. DIRECT the Further Amended Statement of Claim be served on the solicitors for the first and second defendant within 21 days.

7. ORDER the plaintiff to pay the costs thrown away of the amendments for the Further Amended Statement of Claim.

8. ORDER the third defendant to file a Defence to the Further amended Statement of claim within 21 days.

9. As to prayer for relief 6 of the Motion, in relation to the parties attending a formal mediation, the Court DECLINES to make such an order on the basis that the trial issues are insufficiently formulated for a useful mediation to take place as yet.

10. In relation to prayer for relief 7 of the Motion, that the first defendant provide $50,000 to the plaintiff on account of her future legal fees in these proceedings, the plaintiff has not established that there is a presumption of equality of potential beneficiaries on the Lizard Island Trust (“the trust”) and the Court therefore DECLINES to make the orders sought as there is no other legal basis for the provision of such fees to the plaintiff.

11. In relation to prayer for relief 5 of the Motion, the Court DECLINES to grant that relief except the specific transactions in relation to the Amended Statement of Claim which relate to the two $60,000 loans, which are the subject of the next order.

12. ORDER the first defendant to produce within 21 days, the following documents:

(a) the written loan agreement, either in 2016, or any other year it was executed, made between the first defendant on behalf of the trust and the second defendant by which the trust advanced $60,000 to the second defendant (“the second defendant’s loan”);

(b) all primary and secondary transaction records of the trust recording the advancing of the second defendant’s loan and its repayment, together with balance sheets of the trust that record the making of the said loan and the repayment of the said loan and the documents produced should include actual bank statements of any bank account of the first defendant showing those transactions.

(c) all primary and secondary transaction records of the trust recording the advancing to the plaintiff from the trust of a loan (“the plaintiff’s loan”) and its repayment together with balance sheets of the trust that record the making of the plaintiff’s loan and the repayment of the said loan and the documents produced should include actual bank statements of any bank account of the first defendant showing those transactions.

(d) the first defendant’s corporate constitution.

13. Apart from the costs thrown away, ORDER the balance of the costs of the Motion will be each party’s costs in the cause.

14. ADJOURN these proceedings for further directions in the Equity Registrar’s List on 2 April 2026.

Further amended statement of claim

94. On 23 February 2026, the plaintiff filed a further amended statement of claim (FASC). The document (leaving aside certification by the plaintiff) is 36 pages in length. Existing claims were elaborated and new claims were added.

95. On 1 April 2026, Karen appointed Mr Fatches to act as her solicitor in the proceeding and shortly thereafter, the defendants (by Carroll & O’Dea Lawyers) filed a defence to the FASC.

96. On 2 April 2026, Registrar Walton made procedural directions (for the plaintiff to file any reply by 16 April 2026, the plaintiff’s evidence by 7 May 2026, the defendants’ evidence by 4 June 2026, and the plaintiff to reply by 18 June 2026) and the matter was stood over to before the Registrar on 25 June 2026.

97. On 15 May 2026, the plaintiff filed a reply to that defence. The reply (leaving aside certification by the plaintiff) extends to 10 pages.

98. On 19 August 2026, the plaintiff filed the current motion. She also filed a supporting affidavit affirmed 18 August 2026. The body of the affidavit is five pages in length. It attaches over 180 pages of annexures.

99. On 8 September 2026, the matter was listed before Registrar Walton, who directed the defendants to file and serve any evidence on the motion by 29 October 2026, the plaintiff to file any reply evidence by 2 October 2026 and stood the matter over to 7 October 2026.

100. The defendants have filed no affidavit evidence on the current motion. On 7 October 2026, the Registrar made directions for the parties to file and serve written submissions and listed the matter for hearing on 26 October 2026.

101. On 9 October 2026, my Associate notified the plaintiff and the legal representatives of the defendants of the listing of the matter for pre-trial directions on 12 October 2026. On 12 October 2026, the plaintiff failed to attend the pre-trial directions (later communicating to my Associate by email that she did not know about the listing but was happy to comply with the Orders). Mr Boyle appeared on behalf of the defendants. I made directions to facilitate the hearing of the current motion including for agreement of issues and provision of a Court Book.

102. The parties have not been able to agree on issues and prepared separate lists of issues.

103. The Court Book includes the current pleadings, the current motion and the plaintiff’s affidavit in support, the submissions, lists of issues, the trust deed and variation deed, and materials in respect of the earlier hearing of the amended motion before Slattery J on 4 February 2026.

Mediation and case management

Interaction of mediation and case management

104. Parties to civil litigation particularly involving families or trusts and estates are encouraged by the Court to compromise their disputes [84] .

105. Legal representatives must inform clients about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless they believe on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation [85] .

106. The overriding purpose of the CPA and UCPR in their application to civil proceedings, to facilitate the just, quick and cheap resolution of the real issues in the proceedings [86] , whilst at least directed to resolution by Court determination, also includes resolution by settlement.

107. The truth of that proposition is easily recognised and reinforced by other provisions of the CPA, which contains an entire part (Pt 4) placed strategically early in the structure of the CPA devoted to mediation proceedings including an express power (in amply broad terms) permitting the Court to refer any proceedings before it or part thereof for mediation with or without the consent of the parties to the proceedings, if the court considers it appropriate to do so (CPA s 26).

108. The significance of consensual resolution is both exemplified and fortified by other express powers under the CPA enabling the Court to: determine questions about compromises and settlements (s 73); approve settlements of claims (s 75) and proceedings (s 76) of persons under legal incapacity; and approve settlements of representative proceedings (ss 173-175).

109. Thus, the Court’s response to interlocutory applications brought before it is informed by the overriding purpose of civil proceedings [87] , express case management objects [88] , the dictates of justice [89] , the elimination of delay [90] and proportionality of costs [91] , and necessarily involves the Court giving consideration to whether it is appropriate for the proceeding to be referred to mediation.

110. In 2008, Mason P remarked that our legal system would collapse were it not for the fact that most disputes are resolved by agreement [92] .

111. In 2012, the Honourable P A Bergin, CJ in Eq, in a paper delivered at a conference at the Hong Kong International Arbitration Centre and The Hong Kong Mediation Council observed that [93] :

Long gone are the days when mediation could be accurately described as “alternative” dispute resolution. It is now an integral component of the civil justice system in Australia

112. In 2018, the Honourable T F Bathurst AC, Chief Justice of New South Wales, in the Inaugural Supreme Court ADR Address, observed that most of us now accept that alternative dispute resolution (ADR) and the Courts are now inextricably linked and reliant on each other in a significant regard [94] .

113. His Honour, whilst acknowledging that ADR is not a panacea for all disputes, echoed, the comments of Mason P a decade earlier indicating that the courts would be completely overrun within weeks if ADR were to cease [95] .

114. Fostering the resolution of familial disputes is beneficial to society. This is recognised by statutory mandate. In family provision proceedings, not only is there an express statutory object of encouraging the settlement by affected parties of disputes concerning the estate of a deceased person, but the Court must refer such an application for mediation before it considers it — unless there are special reasons for ordering otherwise [96] .

115. Virtually a year ago, the Honourable James Allsop AC, delivering the Eighth Annual Supreme Court ADR Address acknowledged that even highly emotionally charged family disputes may be successfully mediated [97] :

Crucial to its success, however, is the correct mindset. Many disputes in human relationship areas such as family disputes or neighbour disputes and the like can be highly emotionally charged. That, however, does not mean that they are hard to settle. People who are emotional can be calmed and even if they cannot be, they often instinctively realise that it cannot go on like this.

[and]

The task is to assess the value of the risk that the world might be as viewed by others and to consider what is common ground and what is mutually beneficial, and what is an acceptable compromise.

116. Bitter family disputes are often mediated. Feelings of righteousness of each of the respective parties of their claims and defences, and their sense of entitlement to lay claim to or to retain family wealth, are all common factors regularly encountered by mediators.

117. The success of such mediations self-evidently principally depends upon the willingness of the parties to see a mediated outcome as a reasonable (or at least acceptable) response to their dispute and to resolve it as such. It is facilitated by the acumen, sagacity and relational skills of the mediator in being able to engage the participants.

118. Decades of experience in succession law has demonstrated to me that even the bitterest family disputes are capable of being successfully resolved in the context of mediation with: capable mediators who are able to assist the parties; skilled, competent and sensible practitioners — who are able to assist clients in understanding the nature and extent of the risks attendant in the litigation, the range of available solution options; and good faith on the part of parties.

Submissions

119. Kimberly for her part was entirely content for the matter to be referred to mediation [98] . She emphasised that she had previously requested it, and that it had been resisted at prior stages [99] .

120. Mr Boyle’s submissions against mediation at this point of time was marked by commendable concision and clarity. He reminded me that Slattery J had declined (in the February 2026 hearing noted above) to direct mediation. Essentially, Mr Boyle challenged the proposition that by filing a defence to the FASC, the issues were known. He submitted that Kimberly’s current motion was seeking to expand issues beyond those even presently open on the pleadings and that was precisely why the matter was not yet ready to go to mediation. He added that Kimberly’s case has constantly evolved throughout a number of iterations of the pleading and that as matters currently stand, the defendants (in light of that) did not understand (or would not understand) what her claim was, such that it would be difficult to know what might be required to resolve the matter [100] .

Determination

Referral to mediation

121. Broadly speaking, the gravamen of Kimberly’s claim (as outlined above) is the notion that the trust is a “bloodline” discretionary trust created for the equal benefit of “both beneficiaries” (inferentially Kimberly and Summa) [101] yet the trustee (controlled by her mother and sister) has breached its obligations and engaged in conduct regarding loans which has been unequal resulting in benefits for her sister and detriment for her.

122. Specifically, Kimberly asserts that Summa benefited from generous terms of a (allegedly impermissible) $60,000 loan to her (now repaid) including being indulged in a sense of being given (Kimberly claims) 11 years to repay that sum and that she (Kimberly) whilst receiving loans totalling a similar amount: was required to repay her sums when monies became available to her; was promised that if she needed funds, the monies would be re-lent to her; but has been denied such funds in or about 2021-2022 when she requested it, resulting in a spiral of calamity for her including losing opportunity to purchase property and eventual homelessness.

123. In February this year, Kimberly before Slattery J, asserted that the defendants have refused to engage in any mediation about her claims [102] . Then, Slattery J, quite rightly was concerned that mediation may be inutile in circumstances where the parties do not understand the issues between them [103] . Ultimately, his Honour’s orders expressly reflected that fact by addressing prayer 6 of the amended motion and noting that the Court declined “to make such an order on the basis that the trial issues are insufficiently formulated for a useful mediation to take place as yet” [104] .

124. For the following reasons I consider that referral to mediation is appropriate now.

125. First, time has moved on, it is now eight months since listing before Slattery J. However, as with all litigation, the appropriateness of any proposed order (here a mediation referral) is to be viewed not by reference to the situation prevailing at some historic point but rather in light of current circumstances and exigencies. This proceeding has been on foot for close to 2 years. It was commenced in the District Court in December 2024 and transferred to this Court in February 2025. Thus far there have been significant listings before the Registrar and Duty Judges occupying considerable time.

126. Secondly, contrary to the application of the overriding purpose to the proceeding, the claim has been beset by various interlocutory applications, some of which have covered similar ground as the current motion, and each of which have required the attention of judges, the combined effect of which has been inimical to the just quick and cheap disposition of the real issues in the proceeding.

127. Thirdly, Kimberly’s claims with each successive revision have burgeoned in the manner described by me above. I acknowledge Mr Boyle’s submission that the current pleadings may not exhaust the issues which Kimberly might wish to further raise in this proceeding. However, in my estimation, that of itself is something that does not necessarily count against mediation at this point, but actually commends it.

128. Thus, even accepting Mr Boyle’s submission that the many issues (involving some complexity of legal principle) already joined by dint of the defence to Kimberly’s FASC and her reply to it, may in fact proliferate, that per se is not an obstacle to mediation. It is not unheard of that parties in the context of mediation may raise issues not necessarily evident from the existing pleadings or otherwise evident in the litigation.

129. Fourthly, whilst it is not necessary for me, nor appropriate, to make any findings regarding the current assets of the trust, I observe that based on the figures recorded in the 2024 financial statements, it is far from obvious that the trust has any significant assets or net equity.

130. Fifthly, the Court’s response to Kimberly’s current motion and whether to address it now or defer it until the mediation can occur is also informed by the fact that the dispute is centred in a familial context, and in this case the particular vicissitudes afflicting the parties and the broader family particularly those as to health, relationship breakdowns, and litigation which I have described above.

131. Sixthly, parties can benefit from the assistance that can be brought to bear by an experienced mediator and the creation of an opportunity for them to seek to resolve their differences themselves rather than have a resolution forced upon them by an adjudicatory process [105] .

132. Consistent with my observation during the hearing [106] , I emphasise that even in cases where goodwill between family members has diminished or evaporated, mediation may be powerfully effective to help them achieve a reasonable outcome to their disputes.

133. In essence, the Court is directing the parties to appropriately lift their gaze away from engagement in litigious interlocutory steps to attempt, with the assistance of a mediator, to holistically resolve their dispute, and to avoid further delay, cost, and stress to their lives, particularly in light of their circumstances recited above.

Costs of the mediation

134. Lastly, I address the issue of costs of the mediation.

135. In family disputes involving estates or trusts, absent agreement, it is common for the Court to make a provisional order for the mediator’s costs and costs associated with securing mediation premises to be paid, in the first instance, out of the estate or fund to make the mediation referral utile. It serves the purpose of providing an assured source for payment of the mediator and premises and avoids any collateral dispute between the parties about those matters, that might stymie or impede the mediation progressing in a quick and orderly way.

136. This is and has been a well-known and regular practice in the Succession law jurisdiction of the Court for many years.

137. Provisional costs orders are inherently subject to variation at the conclusion of proceedings (whether by resolution or court determination). The order in imposing an initial cost burden does not in any way indicate a presumptive position or predisposition of the Court as to how the ultimate burden of the costs is to be borne. The order is usually made on express terms that any affected party may later contend that the ultimate liability for those costs are to be borne in some other way than that specified in the initial burden order. Even, if not so expressed, that is the inherent interlocutory nature of the order.

138. Mr Boyle did not suggest that the trust was unable to provide the funds to meet the initial mediation expense burden. Further, understanding the interlocutory and provisional nature of the order, Mr Boyle did not seek to argue against it.

Conclusion

139. For the above reasons I made the following orders.

THE COURT:

1. Directs, pursuant to s 26 Civil Procedures Act 2005 (NSW), that the parties mediate the disputed claims in this proceeding.
2. Notes, pursuant to s 27 Civil Procedures Act 2005 (NSW), that it is the duty of each party to participate, in good faith, in the mediation.
3. Orders, pursuant to s 28 Civil Procedures Act 2005 (NSW), that the costs of the mediator and expenses associated with securing premises for mediation, are, in the first instance, to be paid out of the assets of the Lizard Family Trust (Trust) on the basis that:

(a) any party may later contend that the ultimate liability for those costs are to be borne in some other way; and (b) the initial burden of the costs out of the Trust does not in any way indicate a predisposition of the Court as to how the ultimate burden of the costs is to be borne.

4. Directs the parties to confer with view to providing to the Associate to Meek J by 4 pm on Monday, 2 November 2026, the name of a mediator which the Court will appoint to act in the matter and to further agree on a location or premises that the mediation may take place.
5. Orders, that in the event that the parties fail to agree on nomination of a mediator and/or specification of mediation premises, the parties are to convey by email to the appropriate officer of the New South Wales Bar Association, by 5pm on Monday, 2 November 2026, Court’s request that the President of the Bar Association or the President’s delegate nominate the name of a mediator for appointment by the Court, such nomination the Court respectively requests to be made by 5pm on Monday, 9 November 2026, and to be conveyed to both the parties and the Associate to Meek J.
6. Directs the parties to jointly nominate a date for mediation and conduct such mediation prior to Monday, 7 December 2026 if at all possible.
7. Stands the plaintiff’s Notice of Motion filed 19 August 2026 (Notice of Motion) and the matter generally over for mention before Meek J at 9am on 9 February 2027.
8. Grants liberty to the parties to restore the matter before Meek J on 2 days’ notice by email communication to the Associate to Meek J for further ancillary or consequential orders or orders in regard to the working out of the above orders (including for the purposes of adjustment of the above-mentioned dates).
9. Orders, that the costs associated with the listing before Meek J today be reserved to the intent that, subject to further order or agreement of the parties, they will be dealt with on ultimate disposition of the Notice of Motion.

**********

Endnotes

Queensland Government, Department of the Environment, Tourism, Science and Innovation ‘Lizard Island National Park’, Nature, culture and history (Web Page, 15 June 2026) https://parks.qld.gov.au/parks/lizard-island/about/culture.

Queensland Government, Department of the Environment, Tourism, Science and Innovation ‘Lizard Island National Park’, About Lizard Island (Web Page, 5 January 2026) https://parks.qld.gov.au/parks/lizard-island/about.The island's best-known creature is the yellow-spotted monitor Varanus panoptes.

Ibid.

Lizard Island Resort (Webpage) https://www.lizardisland.com.au/.

Or he.

Transcript 26 October 2026 (T) 16.4-.25. The last word in the unrevised transcript is "something", but I understood the expression to end with “somewhere”.

T 6.23-.39.

Transcript before Slattery J on 4 February 2026 (TSJ) 5.30-.49.

CB 357-369, Amended Statement of Claim.

CB 1-32 Further Amended Statement of Claim. From 7 pages of pleading, increasing to 32 pages.

CB 32-36, Orders 1-19, 19A, 19B and 20-23.

CB 63-68 — Plaintiff's notice of motion filed on 19 August 2026.

Civil Procedure Act 2005 (NSW) (CPA) s90(1).

CPA s 56(2).

CPA s 56(3).

T 6.12-.17.

Lord v Craig (2026) 119 NSWLR 33; [2026] NSWSC 17 at [1]-[4] especially [2].

ALL IS 1 PTY LTD (t/as Banga Legal) v Townsend [2026] NSWSC 224 at [32]; Grigor v Stock; Stock v Stock [2025] NSWSC 232 at [6].

CPA ss 56, 60.

See e.g. Merriam Webster Dictionary (online at 28 October 2026) ‘sunk cost’.

Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 42.2, read with the definition of "ordinary basis" see CPA s 3 ("ordinary basis" ,in relation to the assessment of legal costs that a court has ordered to be paid, means the basis of assessing costs in accordance with Division 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014).

H. Arkes and C. Blumer, ‘The Psychology of Sunk Cost’ (1985) 35(1) Organizational Behavior and Human Decision Processes 124.

Oxford English Dictionary (online at 28 October 2026) ‘sunk cost’.

CB 64 (current motion [2]).

T 6.41-7.23.

CB 364[38].

CB 174.

Statement of Claim — Pleading and Particulars [39a].

T 7.37-8.2; T 9.12-.21.

Statement of claim.

At least as at October 2025.

T 6.42-.48.

T 7.1-.2; T 17.19-.20.

Statement of Claim — Pleading and Particulars [39a].

Statement of claim.

CB 69.

Notice of Appearance filed 5 December 2024; CB 48.

Notice of Appearance filed 5 December 2024.

CB 323-346.

CB 347-352.

CB 345 (Trust Schedule).

Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226; [1998] HCA 4 at [8] (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26 (El Sayed) at [14]; Peter Sleiman Investments Pty Ltd (As trustee for the Sleiman Family Trust) v Deputy Commissioner of Taxation [2017] NSWCA 81 at [13] per Leeming JA.

CB 126; TSJ 7.5-.15.

CB1[1], 2[2].

CB 373 (defence).

CB 352.

CB 100.

CB 101.

CB 102.

CB 157-158.

CB 333 (cl 9.4.1).

CB 330 (cl 6).

CB 360.

CB 2, FASC [4a].

CB 76.

CB 95.

CB 79–94.

CB 92.

CB 93.

CB 76.

CB 361.

CB 160.

CB 361, ASC [19] (I have adopted her description).

CB 361, ASC [20]-[22].

CB 361, ASC [26].

SC [14].

CB 361, ASC [27]-[28].

SC [15]; CB 361, ASC [27]-[28].

CB 77.

SC [16]-[19].

SC [20].

CB 361, ASC [24]-[25], [28], [36], [37].

CB 362, ASC [28c].

CB 362-363, ASC [28 2nd)], [29 2nd)], [31], [32g].

CB 363, ASC [32].

CB 363, ASC [33].

CB 362, ASC [30].

CB 364, ASC [34], [35].

CB 364, ASC [38].

CB 361, ASC [29a-e].

CB 365, ASC [40].

CB 365, ASC [41b].

CB 358-359, ASC "Relief Claimed".

Bartlett v Coomber [2008] NSWCA 100 (Bartlett v Coomber) at [57] per Mason P, at [72] per Hodgson JA.

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 36 (barristers); Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 7.2 (solicitors).

CPA s 56.

CPA s 56, Ibid.

CPA s 57 (including just determination of proceedings, efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, the timely disposal of proceedings in light of other proceedings before the court at a cost affordable by the respective parties).

CPA s 58.

CPA s 59.

CPA s 60.

Bartlett v Coomber at [57].

Justice P A Bergin, ‘The Objectives, Scope and Focus of Mediation Legislation in Australia’ [2012] NSWJSchol 24 (delivered at the ‘Mediate First’ Conference at the Hong Kong Convention and Arbitration Centre) at [70].

Chief Justice T F Bathurst AC, , ‘ADR, ORD, and AI-ADR, Or do we even need courts anymore?’ (Speech, Inaugural Supreme Court ADR Address, 20 September 2018) at [39] (Bathurst CJ Address).

Ibid.

Succession Act 2006 (NSW) ss 98(1), (2).

The Honourable James Allsop AC, ‘Some modest reflections upon dispute resolution: the value of a dispute resolution culture’ (Eighth Annual Supreme Court ADR Address, 29 October 2025) https://disputescentre.com.au/adr-address-of-the-supreme-court-of-new-south-wales-2025-the-hon-james-allsop-ac/.

T 11.9-.49.

T 4.20-.21, T 5.6-.12; T 10.8-.9.

T 12.3-.36.

Statement of Claim (initial claim, SC) [1],[4],[6].

TSJ 10.44-.49.

TSJ 11.1-.17.

Order 9, of the Orders made by Slattery J on 4 February 2026.

Johnston v Johnston [2004] NSWSC 497 at [11] per Barrett J.

T 14.33-49.

[2008] NSWCA 100