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[2026] NSWSC 738
Supreme Court of NSW
2026-06-22
Hmelnitsky J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Cameron v Holmes [2026] NSWSC 738
Hearing dates: 3 June 2026
Date of orders: 22 June 2026
Decision date: 22 June 2026
Jurisdiction: Equity - Duty List
Before: Hmelnitsky J
Decision: Order pursuant to s 99(2)(c) of the Civil Procedure Act 2005 (NSW) that the solicitor for the plaintiffs pay Ms Morales’ costs of and incidental to her notice of motion dated 27 May 2026 on the indemnity basis, as agreed or assessed.
Catchwords: COSTS — Party/Party — Orders against non-parties — Personal costs orders against lawyers — Where freezing order was made in respect of the sale proceeds of defendant’s former matrimonial home — Where the property was previously jointly owned by defendant and his former wife — Where the former wife is a stranger to these proceedings and took steps to obtain information about freezing order from plaintiffs — Where plaintiffs’ solicitor declined to provide any information about the freezing order — Whether personal costs order should be made against the plaintiffs’ solicitor for costs incurred by the defendant’s former wife to obtain information about the freezing order
Legislation Cited: Civil Procedure Act 2005 (NSW), s 99
Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278
King v Muriniti (2018) 97 NSWLR 991; [2018] NSWCA 98
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153
Texts Cited: Practice Note SC Gen 5
Category: Costs
Parties: Barry McDonald Parish (First Plaintiff)
Jane Christine Cameron (Second Plaintiff)
William Alan Holmes (Defendant)
Tatar Deyanira Morales (Interested Party)
Representation: Counsel:
G Carolan (Plaintiffs)
A Thorne (Interested Party)
Solicitors:
Benetatos White Solicitors (Plaintiffs)
Blackheath Lawyers (Defendant)
Brander Smith McKnight Lawyers (Interested Party)
File Number(s): 2023/221736
Publication restriction: Nil
On 3 June 2026, I dissolved a freezing order which had originally been made by Robb J on 12 July 2023 and which was relevantly varied on 8 January 2025. The effect of the 8 January 2025 variation was that the entire proceeds of sale of the defendant’s former matrimonial home became subject to the freezing order, with the result that his former wife – who was a joint owner of that property but who is a stranger to this litigation – became unable to access her share of those proceeds.
These reasons deal with the question of who should pay the wife’s costs of obtaining the dissolution of the freezing order. As I will explain, I consider that the solicitor for the plaintiffs should pay those costs.
As originally made, the freezing order was directed only to the defendant, Mr Holmes, but the property affected by the order was stated to include a property held jointly by Mr Holmes and his then-wife, Ms Morales. The property in question was their matrimonial home at Little Hartley, New South Wales (the Little Hartley property).
Mr Holmes and Ms Morales separated on 1 July 2023. This was immediately before these proceedings were commenced and the freezing order was made. The freezing order was in these terms:
“FREEZING OF ASSETS
- (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$353,897 (‘the Relevant Amount’).
(b) If the unencumbered value of your Australian assets exceeds the Relevant Amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the Relevant Amount.
- For the purposes of this order,
(1) your assets include:
(a) all your assets, whether or not they are in your name and whether they are solely or co-owned;
(b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and
(c) the following assets in particular, the property known as XXX Kanimbla Drive, Little Hartley, NSW, 2790.
(2) the value of your assets is the value of the interest you have individually in your assets.”
It is unnecessary to decide whether Ms Morales was a necessary respondent to the original freezing order application. The order operated in personam and very likely only prevented Mr Holmes from dealing with his interest in the matrimonial home, despite the way it was expressed: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [45]-[57]. What matters for the moment is that Ms Morales did not know that the order had been made. In fact, she did not become aware of it until after she had obtained orders for the sale of the Little Hartley property from the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) in property settlement proceedings.
The orders for the sale of the Little Hartley property were made by Judicial Registrar Boldiston on 13 August 2024. Ms Morales appointed an agent for the purpose of the sale on 10 September 2024. Ms Morales first became aware of the freezing order on 16 September 2024 when she received an email from Mr Holmes’ solicitor advising that the property could not be sold until the freezing order was varied.
A further order of the FCFCOA made on 20 December 2024 provided that the proceeds of sale of the Little Hartley property should be paid into the trust account of Mr Holmes’ solicitor.
Counsel for the plaintiffs in these proceedings, who appeared also for the solicitor in relation to the costs question, emphasised that the steps taken to amend the freezing order and to obtain an order that the proceeds of sale be paid into the trust account of Mr Holmes’ solicitor occurred with the full knowledge and consent of Ms Morales. He pointed to correspondence in which Ms Morales’ solicitor appears to have consented to this course.
There are two difficulties with this submission. First, the correspondence shows only that Ms Morales, through her solicitor, consented to the payment of the proceeds into the solicitor’s trust account, which is hardly unusual and which was what the FCFCOA had ordered to occur in any event. What she said, relevantly, was:
“Our client agrees only to the proceeds being held into [sic] trust as follows …” (my emphasis)
She then specified the trust account.
Counsel for the plaintiffs submitted that Ms Morales, through her solicitor, was thereby agreeing that her own share of the proceeds of sale of her home was not only to be paid into the trust account of her ex-husband’s solicitor, but that it was also to be ‘frozen’ in that account as security for the plaintiffs’ claim against her ex-husband. I disagree. Ms Morales’ agreement was, as her solicitor put it, ‘only’ as to the funds being paid into the trust account.
The second difficulty is that even if Ms Morales did consent to the variation of the freezing order, it was as clear as could be that she maintained her position that the plaintiffs in these proceedings had no entitlement to her share of the proceeds of sale and that that issue was one that needed to be resolved. That was the whole point of inviting the plaintiffs to be joined to the property settlement proceedings in the FCFCOA, which is what later occurred.
The actual variation to the freezing order was in these terms:
“6(a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD$353,897 (the ‘Relevant Amount’) other than to sell the property at XXX Kanimbla Drive, Little Hartley, NSW 2790 (the Property) by auction to a third party for market value and hold the net proceeds of the sale in the Defendant solicitor’s trust account being:
Mobile Legal Services Practice Trust Account
BSB XXXXXX
Acc XXXXXXXXX
until further order.
6(a) on completion of the sale of the Property, a copy of the trust account receipt for the net amount deposited to the nominated trust account is to be provided to the solicitors for the plaintiff.
6(a) For the purposes of calculating the net proceeds of sale, the following expenses are to be paid from the proceeds of the sale of the Property:
(a) the payment of the Commonwealth Bank mortgage registered on the Property, being dealing number AB460156;
(b) the payment of all costs and expenses of sale including legal costs and disbursements, agents commission, costs of sale, valuer’s fees and auction expenses; the adjustment and payment in full of any outstanding Council and Water Rates relating to the Property.”
This variation was made in chambers by Ball JA on 8 January 2025.
As a practical matter, the effect of the order was that Ms Morales became unable to access any part of the proceeds of sale, or even any information about the proceeds.
The existence of the freezing order became a significant impediment to the ability of the FCFCOA to make final orders for the proceeds of sale to be divided between Ms Morales and her ex-husband.
The situation led to a proposal for the plaintiffs in these proceedings to be joined to the property settlement proceedings in the FCFCOA. It seems that that Court hoped that the situation concerning the freezing order might be resolved by the plaintiffs in these proceedings being invited to exercise their right to be joined to the property settlement proceedings so that the FCFCOA could determine an appropriate balancing of Ms Morales’ claim to the proceeds of sale as against the plaintiffs’ claim to those proceeds to secure the debt claimed to be owing to them by the ex-husband. Orders to that effect were made on 19 February 2026.
The plaintiffs declined the invitation to participate in that way. There has been no explanation as to why they did so despite insisting on maintaining the freezing order over the whole of the proceeds.
Ms Morales, through her lawyers, made many attempts to resolve the situation by at least obtaining information about these proceedings. Apart from anything else, she wanted to know the terms of the freezing order.
Her attempts to obtain that information from the defendant were unsuccessful, principally because his solicitor had, by this point, stopped acting in the property settlement proceedings.
It was Ms Morales’ attempts to obtain this information from the plaintiffs’ solicitor that are particularly relevant. Ms Morales’ lawyers made repeated attempts to obtain even basic information about these proceedings. Her solicitor repeatedly called and emailed the plaintiffs’ solicitor to request a copy of the freezing order and to find out the nature of the plaintiffs’ claims. He was repeatedly either ignored or rebuffed. On 10 April 2026, he politely asked for a copy of the summons, orders and other documents. He called the office on that day. He called again on 13 April. On 21 April he emailed again, saying:
“We refer to our below email of 10 April 2026, our call to your office of the same day and our call to your office on 13 April 2026.
To date we have not received a response.
We request a response as a matter of urgency”.
“We refer to your email correspondence dated 10 and 13 April requesting copies of the summons, orders, and other documents relating to Supreme Court proceedings 2023/00221736 (‘proceedings’).
We note your client’s prospective involvement in the above matter. However, we also note that your firm is not on the record in these proceedings. Therefore we must draw your attention to the Harman undertaking where there is an implied common law obligation binding all legal practitioners, their clients, and any third parties who have access to information produced under court process. It prohibits the use of such information for any purpose other than that for which it was originally produced, and applies irrespective of whether the party is aware of or has agreed to the undertaking.
The rationale for this obligation is to protect the privacy and confidentiality of litigants, recognising that the production of information compelled by court order constitutes a significant invasion of those interests. Accordingly, the use of such material is strictly limited to the purposes specified in the proceedings for which it was produced. Accordingly, and noting that you are presently retained in the family law proceedings, there are concerns as to whether it is appropriate to provide any documents relating to these proceedings, particularly where those documents were originally created or obtained for the purposes of the present proceedings.
Given these obligations, we are presently considering the scope of material that may be provided in response to your request, and the appropriate safeguards to ensure compliance with the Harman undertaking. We will revert to you as soon as possible regarding the provision of documents, subject to our professional and legal obligations noting that this can be avoided if you are to file a Notice of Appearance in these proceedings.
Please let us know if you wish to discuss the matter further.”
Mr Srikanthan nevertheless declined to provide any information. The notion that he was prevented by reason of the Harman undertaking from providing a copy of the freezing order to a person affected by it was nonsense. It seems however to have supplied a sufficient reason, in his mind, to provide Ms Morales with nothing, which is what he did.
There followed further inconclusive correspondence.
Eventually, Ms Morales caused a subpoena to be issued by the FCFCOA to the defendant’s solicitor in order to obtain information about the nature of the plaintiffs’ claims, including a copy of the freezing order. Time for compliance with that subpoena had not occurred by the time the matter came to my attention. The solicitor for the plaintiffs submitted that Ms Morales’ present application was unnecessary in circumstances where it was open to her to wait until that subpoena was returnable in the FCFCOA to obtain the order. However, he conceded that the reason why the subpoena had to be issued in the first place was because of his own attitude towards providing a copy of the freezing order to Ms Morales.
His point was that if Ms Morales wanted a copy of the freezing order made by this Court, she should have sought it by way of subpoena issued by the FCFCOA in the first place.
Some of the attempts to resolve this impasse have been procedurally inappropriate. Ms Morales sought access to the Court file, which was, understandably, refused on the basis that she was a non-party. However, she then brought an application to be joined to these proceedings as a defendant, but only so as to learn the terms of the freezing order that had been made in respect of the proceeds of sale of her home.
The matter came before me as Duty Judge. It was inappropriate to make Ms Morales a defendant. However, of my own motion I listed these proceedings for hearing to determine whether the freezing order should remain in place at all, given that there had never been any suggestion that the plaintiffs had any entitlement whatsoever to Ms Morales’ share of the proceeds of sale of the Little Hartley property (or any other asset of hers) and that the proceeds were in any event held in a solicitor’s trust account pursuant to an order of the FCFCOA.
When the matter was relisted, the parties were represented. No party resisted my suggestion that the freezing order should simply be dissolved.
I informed counsel for the plaintiffs that I was considering making a personal costs order against his instructor, given his recalcitrance in dealing with what was always going to be and which was, in the end, a completely uncontroversial and administratively straightforward step in the proceedings, namely dissolving the freezing order.
The question of costs was argued later in the day, on which occasion counsel for the plaintiffs made submissions on behalf of his instructing solicitor, Mr Srikanthan.
I can see no justification whatsoever for the stance taken by Mr Srikanthan in his dealings with the solicitors for Ms Morales. It must have been obvious to him from the outset that his clients had no basis whatsoever for seeking to maintain a freezing order over Ms Morales’ share of the proceeds of sale of the Little Hartley property. It must also have been obvious to him that the existence of the freezing order was standing in the way of Ms Morales obtaining a final property settlement in the FCFCOA. He knew that the whole of the proceeds were being held in the trust account of the defendant’s solicitor and that they could not be disbursed until the freezing order was varied or discharged. Yet he refused even to provide a copy of the order. His asserted justification for doing so was totally unsound.
In the end, the plaintiffs did not offer the slightest resistance to the dissolution of the freezing order. Mr Srikanthan did not seek to justify his refusal to provide Ms Morales with any meaningful information about his clients’ position or even a copy of the freezing order, save to say that he believed she had ‘consented’ to it in the first place. He did not suggest that his clients ever had any claim whatsoever to Ms Morales’ share of the proceeds of sale of the Little Hartley property. In fact, he took the opportunity to inform the Court that the plaintiffs had no desire to continue these proceedings at all. He did not disclose when he obtained those instructions.
Mr Srikanthan also knew, because he was aware of the property settlement proceedings, that Ms Morales had very limited means and that, in order to resolve the issue concerning the freezing order, she had been required to seek assistance from Legal Aid.
The power to make a personal costs order against a solicitor should be exercised sparingly: Kelly v Jowett (2009) 76 NSWLR 405; [2009] NSWCA 278 at [60]; Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 at [92]. Occasion for making such orders typically arises in cases where a solicitor has failed without justification to comply with an order or direction of the Court or has otherwise failed to comply with the rules of the Court. However, they are not the only cases in which such orders are warranted. Section 99(1) of the Civil Procedure Act 2005 (NSW) states that a costs order may be made against a legal practitioner:
… if it appears to the court that costs have been incurred—
(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
Upon reaching the view that either s 99(1)(a) or s 99(1)(b) applies, and after giving the legal practitioner a reasonable opportunity to be heard, the Court ‘may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party’: s 99(2)(c).
In King v Muriniti (2018) 97 NSWLR 991; [2018] NSWCA 98, Basten JA described the scope of the power to order costs under s 99(2)(c) as follows at [5]:
“Paragraph (c) covers costs payable by another party, not being the lawyer’s client. Such liability could arise in a range of circumstances. Unlike par (b), par (c) provides an indemnity, and one not limited to court-ordered costs. That is not to say that it would not include court-ordered costs, usually payable to a third party to the proceedings, but possibly even to the lawyer’s own client. However, it would extend to liabilities not the subject of a court order, including a contractual liability of the other party to pay his or her own lawyer or third parties, such as expert witnesses. In the Civil Procedure Act, ‘costs’ in relation to proceedings, ‘means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration.’”
“Practitioners are reminded of their duty to the Court to ensure the efficient and expeditious conduct of proceedings. Practitioners must have regard to ‘the speedy and efficient administration of justice’ (Giannarelli v Wraith).”
Compliance with the obligation to ensure the efficient and expeditious conduct of proceedings sometimes requires a solicitor to do no more than exercise a little common sense.
Here, that was lacking. Mr Srikanthan’s decision to stonewall Ms Morales in her attempts to get access to her share of the proceeds of sale of the Little Hartley property in circumstances where he knew that his clients were never planning to make any claim for those proceeds, and to put her to the trouble and expense of seeking legal assistance to make an application before the Duty Judge to obtain a dissolution of the freezing order (which his clients did not oppose anyway) was highly regrettable. What Mr Srikanthan did admits of no reasonable explanation, and so has put Ms Morales to unnecessary legal costs in order to find out about and dissolve the freezing order. It is appropriate for the Court to make a costs order against Mr Srikanthan in such circumstances.
The order which Ms Morales sought in her notice of motion, namely joinder to these proceedings, was not made. However, the procedural untidiness of that application ultimately reflected the informational vacuum with which she was confronted. What she sought, in substance, was to be put into a position whereby she could apply to have the freezing order dissolved. The stance adopted by the solicitor for the plaintiffs was that his clients were not willing to compromise on that issue at all, even though they had no intention of trying to resist the dissolution of the freezing order.
Ms Morales’ position on the real issue in dispute has been wholly vindicated. The plaintiffs’ position on the real issue in dispute, which was mystifying to begin with, has not even sought to be defended.
**********
Cameron
Holmes
[1999] HCA 18
(1999) 198 CLR 380
(2009) 76 NSWLR 405
(2018) 97 NSWLR 991
(2005) 63 NSWLR 300