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[2026] NSWCA 33
respondent. Time for filing the summons seeking leave to appeal was extended to 18 December 2025; the application for leave to appeal was dismissed; and the applicant was ordered to pay the first respondent’s...
The Court extended the time for Aslan to seek leave to appeal, but refused leave. The decisive problem was that even if the allegations about the tenancy agreements were taken as true, the pleaded case did not show how the respondents’ conduct caused the losses Aslan claimed. The proposed new records did not fix that problem. The Court also rejected her fairness complaints and found no sufficient basis to challenge the costs order.
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2,187 words · generated 08/10/2026
Dina Aslan brought Supreme Court proceedings against originally sixteen defendants, seeking damages arising from an alleged conspiracy and related conduct. The background described in the judgment includes an earlier relationship with one of the “Pucci defendants”, a loan of approximately $490,000, a District Court judgment for that sum, and the borrower’s subsequent bankruptcy. Aslan alleged that various other defendants had participated in conspiracy, identity theft, intimidation or fraud [6].
6 cited instruments linked from this judgment.
Patricia Ficarra and Campion Realty Pty Ltd, trading as Unique Property Inner West, were among the defendants. The judgment describes Ficarra as a real estate agent and the company as the agency managing a residential tenancy agreement (RTA) relating to a property in Illawong [7]. Aslan alleged that the tenancy documentation was fabricated or altered and used as part of a wider scheme involving fictitious rental income and loan applications [9]-[10], [20].
In Aslan v Pucci (No 4), the primary judge dismissed the proceedings against the respondents under UCPR r 13.4(1)(b). He considered that, even assuming the factual allegations were true, they could not support the necessary inference that the respondents had participated in the alleged conspiracy or identity theft. He also found no pleaded connection between the respondents’ alleged conduct and the loss for which Aslan claimed damages [8]-[12].
In Aslan v Pucci (No 5), the primary judge refused to reopen the dismissal decision and ordered Aslan to pay the first respondent gross sum costs of $34,818.50 [13]-[14]. Aslan sought leave to appeal both the dismissal and costs orders. She also needed an extension of time for the application relating to the dismissal order. The Court granted that extension, but dismissed the application for leave and ordered her to pay the first respondent’s costs in the Court of Appeal [4], [48]-[49].
The judgment records that Aslan relied on proposed further evidence, including bank statements for the second respondent and emails about its property management system [31]. It also addresses her complaints about the legal test, causation, procedural fairness, and the costs discretion [16].
The central difficulty was causation. The Court focused on whether the respondents’ alleged conduct was pleaded to have caused the loss claimed by Aslan [19]. Her claim included approximately $490,000 said to have been lent to the first defendant, a further $8,200 said to have been deposited into a bank account and misappropriated, interest, and aggravated and exemplary damages [23].
The Court noted that Aslan accepted she had no interaction with the respondents before she transferred the identified sums at the first defendant’s instigation. She had signed an RTA, but the Court concluded that her signing was not caused by anything the respondents had done. It also considered that Ficarra’s alteration of the landlord’s name on the agreement had no causal significance [21], [24].
The Court considered the alleged use of tenancy documents to obtain a loan from Orde Financial. Aslan accepted that she had no connection with that lender, and the judgment records no suggestion that the lender was making a claim against her. The Court reasoned that any loss to the lender was not a loss suffered by Aslan, and that she had paid no rent. It concluded: “The RTAs lead nowhere in terms of the claimed loss” [25].
Aslan argued that the tenancy agreement was part of the inducement that led her to trust the first defendant and later lend him money. The Court recognised the argument, including her assertion that a formal agency-issued agreement reinforced the appearance of familial support [26]. It rejected the causal pathway on the basis that she had entered the RTA without interacting with the respondents. The later alteration of the document did not affect its alleged use by the Pucci defendants to ensnare her [27].
The Court also addressed allegations in the amended statement of claim that Ficarra was a “Money Mule”, had facilitated movement or concealment of funds, or had conspired with other defendants. It found those descriptions did not explain how the respondents’ conduct caused the claimed loss. Nor did the particulars identify a benefit Ficarra received [28]-[30].
The fresh evidence did not alter the problem. The primary judge had assumed the pleaded allegations to be true, rather than deciding an evidentiary contest about the records. Evidence that might support the allegations therefore did not undermine the basis of the summary dismissal [35]-[37]. The Court consequently found no reasonably clear injustice warranting leave [48].
The judgment applies existing appellate principles rather than announcing a broad new test for leave to appeal. It refers to Mohareb v Local Court of New South Wales for the proposition that an applicant generally must establish an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable [15]. Aslan did not rely on an issue of principle or a question of public importance; her case was that there was a reasonably clear injustice [15].
The judgment’s particular clarification concerns evidence on an application for leave. The first respondent argued that the proposed material did not meet the requirements for further evidence under s 75A(8) of the Supreme Court Act 1970 (NSW). The Court held that this treated the leave application as though it were an appeal. Section 75A(1), as quoted in the judgment, applies to an appeal, and an application for leave is not itself an appeal [32].
The Court described the leave jurisdiction as a broad discretionary power, guided by the interests of justice and serving as a gateway to determine whether a full appeal is appropriate. It follows that the Court has a wide discretion concerning evidence it may consider at that stage [32]. The judgment draws an analogy with the High Court’s ability to receive further evidence when considering special leave, while noting the difference that the High Court cannot receive further evidence to determine the appeal itself [32].
This does not mean that evidence proposed for an eventual appeal must be admissible or sufficient. The Court expressly observed that a respondent could argue that the material would not satisfy s 75A(8) if leave were granted, and that this could reduce its significance at the leave stage. It did not decide the admissibility question because it was unnecessary in this case [33].
On summary dismissal, the Court reiterated that a defendant faces a substantial persuasive burden and that the power under UCPR r 13.4 should be exercised “cautiously and sparingly” [48]. It did not dilute that standard. Rather, it upheld the dismissal because the assumed facts still did not establish a causal connection between the respondents’ alleged conduct and the pleaded losses [19]-[30], [48].
On costs, the Court applied the established caution towards granting leave on a costs-only appeal where no issue of principle is raised. It relied on the discretionary nature of costs decisions and the trial judge’s position to weigh the relevant interests [46]. It also noted the general rule that costs follow the event under UCPR r 42.1 [47].
At [32], the Court stated: “An application for leave to appeal is not an appeal.” In plain English, the procedural question whether to permit an appeal is distinct from deciding an appeal itself. The Court therefore did not treat s 75A(8), which concerns further evidence in an appeal, as controlling what it could consider on the leave application.
Also at [32], the Court said it had “a wide discretion as to the evidence that may be considered.” This describes the Court’s flexibility at the gateway stage. It does not resolve whether evidence would be received at a later appeal hearing, and the Court expressly left that question open here [33].
At [25], the Court said: “The RTAs lead nowhere in terms of the claimed loss.” This is the concise expression of the causation finding. The alleged tenancy documents might have been connected to a loan to a third party, but the judgment found no pleaded connection between that use and Aslan’s own claimed financial losses.
At [35], the Court explained that proposed evidence supporting the allegations was not to the point because the primary judge had assumed those allegations were true. In plain English, proving or further supporting a factual premise cannot answer a different problem in the claim: that the premise, even if true, does not connect the respondents’ conduct to the loss claimed.
At [48], the Court concluded that the claimed fresh evidence could make no difference, no procedural unfairness had been established, and there was no reasonably clear injustice warranting leave. This ties together the distinct grounds: the Court did not decide whether the alleged conspiracy occurred; it assessed whether the proposed grounds showed a sufficient basis to allow an appeal.
The judgment is most directly relevant where a party seeks leave to appeal and proposes new evidence before the appeal itself is underway. It indicates that the Court’s leave-stage evidentiary discretion is distinct from the statutory regime applicable to evidence in an appeal under s 75A(8) [32]-[33]. It also illustrates that a party responding to a leave application may argue that the evidence would not be admissible if leave were granted, where that point bears on the evidence’s significance [33].
The decision is also relevant to summary dismissal applications where the pleaded facts are assumed to be true but the claim nevertheless fails to connect the defendant’s alleged conduct with the claimant’s loss. In this case, the Court treated the missing causal link as decisive even without resolving whether the tenancy-related allegations were factually correct [19]-[30], [35]-[37].
The fact pattern should not be reduced to a rule that a tenancy document can never cause loss, or that evidence concerning an alleged conspiracy is irrelevant. The Court’s reasoning depended on the particular pleaded case and the applicant’s concessions: she had not interacted with the respondents before the transfers, had no connection with the lender, and had paid no rent [24]-[25]. The Court also considered and rejected her asserted inducement pathway on the facts she advanced [26]-[27].
Finally, the judgment is relevant where leave is sought to challenge a discretionary costs order without a distinct issue of principle. It applies the stated caution in granting leave on a costs-only appeal, especially where costs generally followed the outcome below [46]-[47].
The supplied judgment does not discuss any later judicial treatment of Aslan v Ficarra. It was decided on 19 March 2026, and the material provided contains no subsequent cases citing or applying it. It would therefore be unsupported to say that later courts have followed, distinguished, or otherwise treated this decision.
The judgment itself identifies authorities it applied or referred to. It applies Mohareb for the broad discretionary character and gateway function of a leave application [32]. It refers to Mount Bruce Mining by analogy on the distinction between an application for leave and an appeal [32]. It cites Cheng as another source of leave principles [15]. For summary dismissal, the judgment refers to the primary judge’s statement in Aslan v Pucci (No 3) that summary dismissal should be exercised cautiously and sparingly [48]. For costs, it quotes John Anthony Arena on the Court’s cautious approach to leave applications confined to costs [46].
Those relationships describe the authorities used by this Court in Aslan v Ficarra. They do not establish how courts have subsequently treated the 2026 decision.
Several issues were expressly left undecided or are not answered by the judgment. First, the Court did not determine whether the proposed bank statements and software-related emails would satisfy s 75A(8) if leave were granted. It held that the admissibility issue was unnecessary to decide because the evidence could not affect the causation reasoning on which the dismissal rested [33], [35]-[37].
Second, the judgment does not determine whether any alleged conspiracy, identity theft, alteration of tenancy records, or other wrongdoing actually occurred. The primary judge assumed the allegations against the respondents to be true for the purpose of deciding the dismissal application, and the Court of Appeal took the same approach [18]. Its conclusion concerned the sufficiency of the pleaded causal connection, not a final factual finding about those allegations.
Third, the judgment does not establish whether different pleadings or different evidence could have connected the respondents’ conduct to Aslan’s losses. The Court noted that she had not identified a proposed amendment that would answer the difficulties, and it assessed the amended statement of claim and arguments before it [29]-[30], [41]. It did not consider a hypothetical alternative pleading.
Finally, the decision does not resolve the position of a company that has been deregistered in all circumstances. It records that the second respondent had been deregistered and that the purported appearance and affidavit filed on its behalf did not advance determination of this application [3]. The Court’s observation is confined to the procedural circumstances before it.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Aslan v Ficarra [2026] NSWCA 33
Hearing dates: 10 March 2026
Date of orders: 19 March 2026
Decision date: 19 March 2026
Before: Bell CJ and Kirk JA at [1]
Decision: (1) Time for filing the summons seeking leave to appeal is extended to 18 December 2025.
(2) The application for leave to appeal is dismissed.
(3) The applicant is to pay the costs of the first respondent.
Catchwords: CIVIL PROCEDURE — Court of Appeal — Leave to appeal — applicant sought to rely on further evidence in appeal — application of Supreme Court Act 1970 (NSW) — whether application for leave to appeal within meaning of “an appeal” in s 75A — court’s power to receive further evidence in application for leave
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(c)
Supreme Court Act 1970 (NSW), ss 75A(1), 75A(8)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15, 51.9, 51.10
Cases Cited: Aslan v Pucci (No 3) [2025] NSWSC 1027
Aslan v Pucci (No 4) [2025] NSWSC 104
Aslan v Pucci (No 5) [2025] NSWSC 1489
Cheng v Motor Yacht Sales Australia Pty Ltd t/as Boutique Boat Co (2022) 108 NSWLR 342; [2022] NSWCA 118
John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Odtojan v Condon [2023] NSWCA 129
St Paul’s College Ltd v Allan [2026] NSWCA 22
Category: Principal judgment
Parties: Dina Aslan (applicant)
Patricia Ficarra (first respondent)
CAMPION REALTY PTY LIMITED trading as Unique Property Inner West (second respondent)
Representation: Counsel:
Applicant self-represented
C Robertson (first respondent)
No appearance for second respondent
Solicitors:
Hicksons | Hunt & Hunt (first respondent)
File Number(s): 2025/487468
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant commenced proceedings in the Supreme Court claiming damages against, originally, sixteen defendants in relation to an alleged conspiracy. The respondents were named as the tenth and fifteenth defendants. Orders were made dismissing proceedings against the respondents. The primary judge then declined an application to re-open that decision, and made a gross sum cost order in favour of the first respondent in the amount of $34,818.50. The applicant sought leave to appeal against the dismissal order and the gross sum costs order. The applicant also required an extension of time in respect of her appeal against the dismissal order.
The applicant indicated that she sought to rely on certain fresh evidence in the appeal. The first respondent argued the evidence did not have the characteristics required for receipt of further evidence pursuant to s 75A(8) of the Supreme Court Act 1970 (NSW) such that the Court should not receive it.
The Court (Bell CJ and Kirk JA) held, granting an extension of time and dismissing the application for leave to appeal:
(1) The first respondent’s argument misunderstood the position. As s 75A(1) states, the section “applies to an appeal to the Court and to an appeal in proceedings in the Court”. An application for leave to appeal is not an appeal. When determining an application for leave to appeal the Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. Reflecting the nature of that power, this Court has a wide discretion as to the evidence that may be considered in an application for leave: [32]-[33].
Mohareb v Local Court of New South Wales [2024] NSWCA 235, applied.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, referred to.
(2) The applicant has provided a sufficient explanation for an extension of time: [4]. However, she has not established a reasonably clear injustice meriting a grant of leave to appeal with respect to the challenged orders: [48].
THE COURT**:** These proceedings arise from a claim brought by Ms Dina Aslan in the Supreme Court for damages against, originally, sixteen defendants in relation to an alleged conspiracy. Ms Aslan is representing herself. Ms Patricia Ficarra and Campion Realty Pty Ltd t/as Unique Property Inner West (for whom Ms Ficarra worked) were named as the tenth and fifteenth defendants. They are the respondents in this matter. The current version of the applicant’s pleading is an amended statement of claim (ASOC), seemingly provided to the parties on or about 26 August 2025. The parties’ arguments proceeded by reference to that document, although this version has not actually been filed.
Justice Cavanagh has heard and determined a number of interlocutory applications in the matter. The applicant now seeks leave to appeal from two of those decisions. His Honour dismissed proceedings against the respondents: Aslan v Pucci (No 4) [2025] NSWSC 1047 (Aslan (No 4)). His Honour then declined an application to re-open that decision, and made a gross sum cost order in favour of the first respondent in the amount of $34,818.50: Aslan v Pucci (No 5) [2025] NSWSC 1489 (Aslan (No 5)). The applicant seeks leave to appeal against the dismissal order made in Aslan (No 4) and against the gross sum costs order made in Aslan (No 5).
The second respondent was deregistered in October 2025, subsequent to the orders made in Aslan (No 4). Despite that fact, a former director of that company named Ms Berta Esteves Dias – who herself previously was joined as the eleventh defendant but now appears to offer some support to the plaintiff – has filed a purported notice of appearance on behalf of the company. Ms Dias also filed an affidavit indicating that the company “does not oppose the grant of leave to appeal in these proceedings”, but did not seek to make submissions “on the ultimate merits of the Applicant’s claim”. Given that the company has been deregistered this material does not advance determination of the application for leave to appeal. In the Court below it was accepted that the position of the company rose and fell with that of Ms Ficarra: Aslan (No 4) at [9]. No contrary suggestion was made in this Court.
The summons seeking leave to appeal was filed on 18 December 2025. The orders in Aslan (No 4) and Aslan (No 5) were made on 10 September 2025 and 24 November 2025 respectively. A notice of intention to appeal was filed, late, on 8 December 2025. The applicant requires an extension of time with respect to her appeal against the former set of orders: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 51.9 and 51.10. The applicant has provided an explanation for the delay, relating to her understanding that she could and should apply to have ) reopened rather than appealing. The delay is not significant. No prejudice has been identified. The extension of time should be granted.
[2] …[T]he plaintiff sues 16 defendants, seeking damages including aggravated and exemplary damages said to arise from her dealings in 2021 with the first, second, third, sixth and sixteenth defendants who I describe as the “Pucci defendants”. The genesis of these proceedings is that the first defendant became involved in a romantic relationship with the plaintiff. He then convinced her to lend approximately $490,000 to him. He then terminated the relationship and did not repay the money. She sued him in the District Court and obtained a judgment for approximately $490,000. He entered bankruptcy.
[3] The plaintiff sues most of the defendants in the tort of conspiracy. As against a limited number of defendants she alleges that they have been involved in identity theft, intimidation and fraudulent conduct …
In Aslan (No 4) the primary judge dismissed the proceedings against the respondents pursuant to UCPR r 13.4(1)(b). His Honour concluded that the case against them was doomed to fail.
His Honour described the applicant’s claim against the respondents as alleging that they had knowingly participated in a fraudulent conspiracy to misappropriate the applicant’s personal identity and information and fabricate one or more RTAs for unlawful gain, in concert with the Pucci defendants. This was said to be part of a scheme to mislead lenders and channel cash from the first defendant (including the money obtained from the plaintiff) to the third defendant: at [20]-[23]. His Honour described the core of the applicant’s case against the respondents as follows:
[29] …[T]he basis of her allegations as to the criminal and fraudulent conduct of the tenth and fifteenth defendants is really that I should infer such fraudulent and criminal intent from a series of actions or professional misconduct said to have been committed by the defendants. Those actions are said to be so contrary to their ethical and legal obligations that it must be that they were in some way assisting the Pucci defendants in the wider conspiracy.
[30] In particular the plaintiff identifies the following alleged failures of the tenth and fifteenth defendants:
(1) The failure to properly disclose information to her.
(2) The hiding of the tenancy agreements by not putting the tenancy agreement on the whiteboard in their office.
(3) The failure to charge agency fees to the landlord.
(4) The attempts by the eleventh defendant to keep this arrangement away from the business.
(5) The correction of what is said to be a typographical error, that is the change of the name of the landlord from Alfred to Alfredo, and the failure to inform her of such a change.
(6) The continued evasiveness of the tenth defendant in dealing with her.
(7) The failure to provide the plaintiff with a copy of the relevant documentation.
(8) The failure to report the fraud (once discovered) by the Pucci defendants to Fair Trading.
[53] …that conduct does not and could not lead to any inference that they were engaged in some sort of wider conspiracy with the Pucci defendants or that they were engaged in identity theft.
[54] Accordingly, the very basis on which the plaintiff proceeds against the tenth and fifteenth defendants (being that I would infer fraudulent and criminal conduct against them) could not possibly be established.
His Honour held that there was no evidence that the respondents had participated in the wider conspiracy.
Critically, his Honour further held that the applicant had not in her pleadings identified any basis on which the allegation against the respondents – put simply, identity theft – had caused the loss for which she claimed damages. The applicant could not point to any link between the damages she claimed and the distress and reputational and legal risk alleged to have been caused by the respondents: at [55]-[57].
Aslan (No 5) involved two applications. The first was made by the applicant, the effect of which was that the orders dismissing the case against the two respondents should be set aside on the basis that they were obtained against good faith in that the respondents had relied on fraudulent evidence: UCPR, r 36.15(1). This motion was dismissed. The second was a notice of motion by the first respondent seeking an order that costs be paid by the applicant on a gross sum basis. Such an order was made. The applicant appeals against that order.
On that issue, his Honour first addressed the question of whether such an order should be made at all, and referred to factors which his Honour identified as “particularly relevant” (at [33]): that the applicant was self-represented and the first respondent would therefore be required to go through the process and expense of a costs assessment; that the process of costs assessment would likely be protracted and involve objections from the applicant; and that the first respondent was “an ordinary member of society”, not an institution, who had paid all her own costs (not being insured) and was entitled to recover costs from the unsuccessful applicant. His Honour determined that it was appropriate to make a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), applying a discount of 40% with respect to the costs incurred.
It was not disputed that the applicant requires leave to appeal with respect to the two judgments challenged. Principles relevant to the grant of leave to appeal were summarised in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[36]; see also Cheng v Motor Yacht Sales Australia Pty Ltd t/a**s Boutique Boat Co (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]. In general an applicant must establish that the proposed appeal involves an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable. The applicant does not say there is any issue of principle or question of public importance enlivened by this case. She argued that a reasonably clear injustice exists.
The applicant’s draft notice of appeal contains twelve proposed grounds of appeal, most of which contain a number of sub-grounds. In her primary written submissions the applicant addressed four “principal questions in this application for leave”. It is sufficient here to address those matters. They were (as re-ordered by us): error in applying the legal test; fresh evidence; procedural fairness; and discretionary error.
The first issue encompasses grounds which argue in various ways that the primary judge was wrong to conclude, on the material before him, that the applicant’s allegations against the respondents were doomed to fail.
The applicant makes very serious allegations against the respondents, doing so with the benefit of the privilege that attaches to court proceedings. Such allegations should not be made without a proper basis, and doing so is an abuse of process: note Odtojan v Condon [2023] NSWCA 129 at [24]-[31]; St Paul’s College Ltd v Allan [2026] NSWCA 22 at [35]-[38]. When the applicant was asked in this Court what her basis was for making these claims she articulated various matters, most of which related to evidence that the first respondent had herself provided after the proceedings had been commenced. It is difficult to see how the matters the applicant identified provided a basis for her to make the grave allegations she has made. However, the primary judge did not decide the case on that footing, though his Honour noted a concern about the point: Aslan (No 4) at [32], [42]. Rather, his Honour proceeded on the express assumption that the allegations made against the respondents were true. It is appropriate to take the same approach here.
As explained, the primary judge gave a number of reasons for his conclusion that the allegations were doomed to fail, but it is sufficient to focus on the reason relating to causation of loss. His Honour’s reasoning on the point was correct.
The claim against the respondents is pleaded in the ASOC at [156]-[162]. The applicant alleges that the respondents “participated in the fabrication of one or more residential tenancy agreements falsely purporting to bear the Plaintiff’s name and signature”. She alleges that these agreements “were created without the Plaintiff’s knowledge, consent or authority”, and that they were “used as false instruments” to project fictitious rental income for the purpose of making fraudulent loan applications, and “to channel or launder Defendant 1’s cash” to his father (being the third defendant). She then alleges that a fabricated RTA “was used to fraudulently obtain a mortgage facility from Orde Financial in excess of $980,000”. The conduct of the respondents is said to amount to “serious civil and criminal breaches”, including identity fraud and “[c]onspiracy to defraud Orde Financial”. The ASOC states that as a result of the pleaded conduct, the applicant “has suffered reputational harm, legal risk, and distress, and has been subjected to numerous legal consequences, including defending herself in tribunal proceedings”.
The RTAs relate to a property that belonged to the first defendant’s father. The applicant accepts that she signed an RTA agreeing to lease this property, as she was told the father was to move into an aged care facility. She says this was done under undue pressure from, in particular, the first defendant. However, she says that the RTA was later altered in various ways. The first respondent admitted in an affidavit dated 9 September 2025, and filed at 8:13am on 10 September 2025, that she took steps to “correct” a “typo” on the front sheet of the signed RTA, so that the identification of the landlord as “Alfred Pucci” was altered to refer instead to “Alfredo Pucci”. She said she could not “now recall specifically what steps were taken to correct the typo”.
[42] Separately, and critically for causation, the Applicant's evidence on the record prior to dismissal was that the tenancy documentation was not merely incidental "background". It operated as a formal and legally-significant proof point reinforcing the inducement narrative relied upon by Defendant 1 and others to defraud the Applicant. In her affidavit filed 8 September 2025, the Applicant deposed that the tenancy offer was presented as an act of “exclusive familial trust and support” at a time of personal vulnerability, and that the production of a formal agency-issued agreement was the tangible reinforcement that she was being integrated into the family and could rely on reciprocal support (Aff 8 Sept 2025 [13]-[21]).
[43] The Applicant further deposed that, although the tenancy did not eventuate, the trust and "familial support" environment reinforced by the formal agreement psychologically primed her to reciprocate that trust when Defendant 1 sought financial assistance approximately one month later, and that she advanced the loan in that induced context (Aff 8 Sept 2025 [23]-[24]).
[44] Read together, the pleadings and affidavit evidence raised an arguable causal pathway: the Respondents' alleged conduct in creating and deploying tenancy documentation (notwithstanding consequential alleged misuse of the Applicant's identity and signature) was capable of constituting part of the inducement mechanism by which the Applicant was led to act to her financial detriment, and was also capable of causing consequential harm of the kind pleaded (ASOC [156]-[162]; Aff 8 Sept 2025 [13]-[24]).
The difficulty with these arguments is that the applicant did enter an RTA, doing so without having interacted with the respondents. That the RTA was at some stage altered by the first respondent did not affect its alleged use by some of the Pucci defendants to ensnare her in the manner she alleges.
When the causal problem was raised with the applicant in this Court, she referred to other parts of the ASOC in which she had pleaded – contrary, she indicated, to the apparent view of the primary judge – that the first respondent was part of the “wider conspiracy” against her. In particular, she referred to parts of what is pleaded at [1] of the ASOC, in which she identifies and lists characteristics of each of the parties. The characteristics listed with respect to the first respondent at [1(k)] include relevantly that she was a “Money Mule” for the first defendant and his father; that she had “admitted her contribution to this conspiracy”, having provided the applicant with a ledger account relating to the tenancy arrangements; that she “facilitated the movement, concealment and laundering of funds in connection with those tenancy arrangements”; that she “knowingly conspired” with the first, second, third, sixth, eleventh and fifteenth defendants against the applicant and “benefited, directly or indirectly, from the proceeds of fraud, impersonation, and other lawful acts committed against” the applicant; and that her “cumulative acts and omissions … have caused the Plaintiff substantial emotional, psychological, and reputational harm”.
This part of the ASOC does not advance the matter. The sub-paragraph is summarising the case sought to be made against the first respondent, which case is then spelt out at [156]-[162] of the ASOC, being the paragraphs on which the primary judge focused. None of the characteristics identified at [1(k)] set out a case of how the conduct of the first respondent was a cause of the loss and damages for which she claims. With respect to the allegation of the first respondent having benefitted from the conspiracy, the particulars given for that allegation do not identify any benefit.
The applicant also referred to [39] and [149] of the ASOC. Those paragraphs allege that the third and sixth defendants, respectively, were involved in unlawfully using the applicant’s identity to forge tenancy agreements so as to fabricate income. Again, those allegations do not address the issue of linking the alleged conduct of the respondents to the loss and damage claimed.
In her draft notice of appeal the applicant indicates she seeks to rely on “fresh evidence”. That evidence is: (a) bank statements for the second respondent, which had been provided to the applicant by Ms Dias after the decision in Aslan (No 4); and (b) some email correspondence involving Ms Dias and a software company about the operation of the second respondent’s property management system, received in February of this year. The applicant had sought to make use of the bank statements in her re-opening application before the primary judge, but his Honour considered that no proper basis to reopen was established (see Aslan (No 5*)*).
The first respondent sought to argue that this evidence did not have the characteristics required for receipt of further evidence pursuant to s 75A(8) of the Supreme Court Act 1970 (NSW) such that this Court should not receive it. The argument misunderstood the position. As s 75A(1) states, that provision “applies to an appeal to the Court and to an appeal in proceedings in the Court”. An application for leave to appeal is not an appeal: Mohareb at [24]; see also, analogously, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [112] and [119]. When determining an application for leave to appeal the Court is exercising “a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate”: Mohareb at [24]. Reflecting the nature of that power, this Court has a wide discretion as to the evidence that may be considered. Analogously, the High Court may receive further evidence when considering whether to grant special leave to appeal, even though (unlike this Court) it is incapable of receiving further evidence for the purposes of determining the appeal itself.
Of course, in a case such as this it would be open and appropriate for a respondent to argue that the evidence would not meet the requirements of s 75A(8) if leave to appeal was granted, such as to undermine the significance of the evidence in considering whether to grant leave to appeal. If the application for leave to appeal and the appeal were being heard concurrently then the s 75A(8) issue would be central. In this matter it is not necessary to address the admissibility issue.
The applicant summarised the significance of the fresh evidence as follows (emphasis in original):
The fresh evidence demonstrates that:
a. the rental payments recorded in the ledger as having been paid by me were in fact paid by another person;
b. the attribution of those payments to me was not automatically generated from banking feeds;
c. the first rental payment occurred on a date inconsistent with the execution date asserted by the first respondent; and
d. the ledger relied upon as system-generated was not automatically generated by the software.
The difficulty with these claims is that they are not responsive to the manner in which the primary judge determined the summary judgment application, whereby his Honour expressly assumed the truth of the allegations pleaded against the respondents and was not resolving any evidentiary dispute. That there might be further evidence offering some support for those allegations is not to the point.
The applicant sought to meet that objection by arguing the following (emphasis in original):
[14] Even where a court assumes pleaded allegations to be true for a summary application, the exercise still proceeds against the factual premises advanced by the moving party and the surrounding evidentiary context relied upon to contend that the claim is untenable. Where fresh evidence demonstrates that a central documentary premise is materially inconsistent with objective banking records and system functionality, that may bear directly upon whether the proceedings were suitable for summary determination.
[15] The Applicant’s submission is therefore not that the fresh evidence “proves” the conspiracy. It is that the fresh evidence removes an asserted innocent explanation for the ledger and materially enlarges the range of available inferences, demonstrates an objective inconsistency going to a central document relied upon by the First Respondent, and demonstrates the existence of factual conflicts that were not capable of resolution on a summary basis.
In her draft notice of appeal the applicant asserts that the primary judge denied her procedural fairness in four ways. None of the complaints has merit.
First, she says that his Honour had indicated that “leave to amend the Statement of Claim would remain open until after the determination on dismissal” of the respondents, but this course was not followed. It is not apparent what statement his Honour is said to have made. On 30 July 2025 orders were made which included that the applicant was to serve on all defendants by email “any proposed amended statement of claim” by 7 August 2025; that any defendant seeking that the claim against them be dismissed was to explain why to the applicant; and if agreement was not reached, then the dismissal applications were to be heard on 27 August 2025. As noted, it seems that the ASOC was provided to the parties on or about 26 August 2025.
When the matter came on for hearing of the applications on 27 August 2025 it seems the applicant was not ready to deal with all of the arguments. As the primary judge said in his ex tempore judgment delivered that day, “[a]s against the tenth defendant, the plaintiff indicated that she was not ready to proceed for reasons which are not necessary to repeat”: Aslan (No 3) at [5]. As a result “[t]he application to dismiss or strike out by the tenth defendant has been stood over for further hearing on 10 September” (ibid). It is hard to see how the applicant could have been any doubt about what would then be at issue.
In her reply submissions in this Court she refers to having been “engaged in an iterative pleading process under the Court’s supervision”. Whilst some allowance must be made for a litigant representing themselves, that does not mean endless chances to change a pleading. In any event, the applicant has not identified to this Court any way in which she wished to change the ASOC so as to answer the difficulties raised.
Second, the applicant complains that the primary judge erred “by relying on the supplementary affidavit of the [first respondent] filed on the morning of the dismissal hearing”, in circumstances where she was denied a chance to consider and respond to that affidavit. As noted above (at [21]), an affidavit of the first respondent was filed at 8:13am on the morning of the hearing on 10 September 2025. The problem with this complaint is the same one as arises in relation to the fresh evidence point: the primary judge’s decision did not turn on evidence. Moreover, as his Honour noted in Aslan (No 5) at [10], no application for an adjournment was made at the hearing on 10 September 2025. In any event, it seems strange for the applicant to complain about this affidavit where she herself seeks to rely on the first respondent’s admission contained in it that she altered the front page of the RTA.
Third, the applicant asserts it was unfair to have asked her questions about “technical real estate practices” when Ms Dias, a real estate agent, was present in court. This complaint misunderstands the process of litigation. It is unsurprising and entirely proper for a judge to ask a litigant or their representative to explain an aspect of their case. It would be unorthodox, to put it mildly, to start peppering people sitting in the court room with such questions.
The applicant complained of “discretionary error”. Insofar as this was addressed to the summary dismissal order it appears to be a catch-all ground relating to the other grounds raised, adding nothing to the analysis. The applicant did make a brief, distinct attack in oral submissions on the gross sum costs order made in Aslan (No 5). The argument seemed to be that the primary judge erred in awarding costs to the first respondent given “misleading evidence” said to have been filed and served by the first respondent, which evidence subsequently was undercut by the first respondent’s affidavit filed on 10 September 2025.
As was said in John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139:
[18] More generally, the Court is slow to grant leave in respect of an appeal restricted to a challenge to an order for costs, especially in a case which raises no particular issue of principle, but involves merely the application of well-established principles: Dalma Formwork (Australia) Pty Ltd v Maricic (No 3) [2008] NSWCA 29 at [39]; Hillsea Pty Ltd v Joseph [2020] NSWCA 55 at [47]. That approach reflects not only the fact that decisions on costs are discretionary, but that the issue of awarding costs arises in nearly all cases, and trial judges are generally best placed to weigh up the interests involved.
A defendant faces a substantial persuasive burden in seeking that a claim be summarily dismissed pursuant to r 13.4 of the UCPR. As the primary judge had said in Aslan (No 3) at [13], the power summarily to dismiss proceedings should be exercised “cautiously and sparingly”. In this case the primary judge carefully considered the issue. No error has been shown in the core part of his Honour’s analysis, relating to loss and damage. The claimed fresh evidence can make no difference to the conclusion reached. There was no procedural unfairness. The applicant has not established a reasonably clear injustice meriting a grant of leave to appeal with respect to the dismissal decision made in Aslan (No 4). Nor has any such injustice been established with respect to the gross sum costs order made in Aslan (No 5).
Time for filing the application should be extended. Leave to appeal should be refused. There is no reason that costs should not follow the event in this Court.
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Aslan
Ficarra [2026] NSWCA 33
(2022) 108 NSWLR 342
(2015) 256 CLR 104
Time for filing the summons seeking leave to appeal was extended to 18 December 2025; the application for leave to appeal was dismissed; and the applicant was ordered to pay the first respondent’s costs.
However, the application for leave to appeal should be refused with costs. We first set out the relevant background to the application before considering the merits of the application for leave.
The applicant has explained in affidavit evidence that she never moved into the property, nor paid any amounts by way of rent, and that is so even though the respondents’ accounts record that rent was paid by her. She has explained that she and the first defendant agreed to “cancel” the RTA, as the first defendant said his father had changed his mind about moving out.
The relief claimed in the ASOC relevantly includes damages of some $490,000, being the amount she loaned to the first defendant; judgment for a sum of $8200 which the applicant alleges she deposited into a bank account which was then misappropriated by the first defendant; interest on those sums; and aggravated and exemplary damages for participation in the conspiracy.
The applicant accepted in submissions to this Court that she had had no interactions with the respondents prior to her transferring the identified sums at the instigation of the first defendant. She voluntarily signed an RTA. Whether or not that was done under some kind of undue influence or pressure, as she alleges, her signing the RTA was not caused by anything done by the respondents. The fact that the first respondent altered the name of the landlord on the front page of the RTA had no causal significance.
Insofar as her complaint is about identity theft involving an RTA, the only alleged use made by the Pucci parties of any RTA in dealings with third parties was to assist one or more of them in obtaining a loan from Orde Financial. She accepted that she had no connection with Orde Financial. There is no suggestion it is making any claim against her. If Orde Financial was misled, as the applicant has alleged, that is a matter for it to complain about, not her. That such a loan was made caused her no loss. Further, as noted, she has paid no rent. Put simply, the RTAs lead nowhere in terms of the claimed loss.
In her written reply submissions in this Court the applicant sought to address the issue as follows (emphasis in original):
Fourth, the applicant complains that the primary judge failed to resolve certain conflicts in the evidence. There was no reason for his Honour to do so.