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[2026] NSWCA 195
procedural. The notice of motion filed on 7 September 2026 was dismissed. The costs of the motion were ordered to be costs in the cause. [26]
7 cited instruments linked from this judgment.
CharterLaw wanted the Court of Appeal to hear its appeal before a Federal Court bankruptcy hearing and also sought a stay relating to costs that the District Court had not yet ordered. Price AJA refused both forms of relief. The Court considered that the primary judge should determine costs and that CharterLaw could still pursue the practical consequences of a successful appeal later. The motion was dismissed, with its costs to be dealt with in the cause.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,053 words · generated 08/10/2026
CharterLaw Legal Pty Ltd had provided legal services to Diane Maloney and companies associated with her. It sought assessment of 12 unpaid invoices. Costs certificates issued on 13 February 2026 totalled $121,748.58. When CharterLaw lodged them in the District Court, they were taken to be a judgment of that court under s 70(5) of the Legal Profession Uniform Law Application Act 2014 (NSW). The judgment was entered on 23 February 2026. [3]
CharterLaw relied on that judgment as the foundation for a bankruptcy notice served on Maloney on 9 March 2026. Maloney began Federal Court proceedings on 25 March 2026 to set aside the notice. Those proceedings were listed for hearing before Perram J on 28 September 2026. [4]
There were also challenges to the assessment and judgment in New South Wales. Maloney's application for review of the costs assessment was filed out of time, but an extension was granted; the review panel had not yet decided it. [5] Separately, she applied to set aside the District Court judgment. On 12 August 2026, the primary judge set it aside as having been entered irregularly under r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW). The primary judge reserved the costs question for written submissions. [6]-[7]
CharterLaw's appeal challenged that substantive decision. Its 7 September 2026 motion sought a stay concerning future costs orders and expedition of the appeal. Crucially, CharterLaw did not seek a stay of the substantive order that had set aside its District Court judgment. [1], [8]-[9] The Court dismissed the motion on 14 September 2026. Its order was procedural: it did not determine the merits of the appeal or the outstanding costs question. The motion's costs were to be costs in the cause. [26]
The stay request was narrowly framed. CharterLaw sought to stay costs orders that had not yet been made. The primary judge had asked the parties to submit on costs and would decide the issue afterwards. [7], [9] Price AJA noted that costs are primarily for the primary judge to determine and found no proper basis for a stay of this limited kind. In the circumstances, the balance of convenience favoured letting the primary judge hear the parties and make a costs order. [13]
The judgment set out the familiar stay framework by quoting the explanation in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5]. The framework calls for serious issues for determination and a real risk of prejudice or damage if a stay is refused. If those matters are established, the court considers the balance of convenience and competing rights. [12] The ruling did not need to determine whether CharterLaw's substantive appeal met that framework: the limited stay request concerned future costs orders, while the substantive order remained unstayed. [9], [13]
Expedition was the central issue. CharterLaw argued that the Federal Court hearing created urgency. It said that, without the District Court judgment, the bankruptcy notice might be set aside, potentially leading to an adverse costs order. It also relied on the asserted six-month statutory period for a creditor's petition under s 44(1)(c) of the Bankruptcy Act 1966 (Cth), which it said would expire on 30 September 2026. CharterLaw submitted that the appeal raised discrete issues and could be heard within half a day. [16]
Maloney disputed that expedition was workable. She said that preparing a response and any cross-appeal or notice of contention in the short period would be difficult, particularly while she was also preparing for the Federal Court hearing. She also argued that the appeal involved factual and jurisdictional issues and was more complex than CharterLaw suggested. [17] The Court did not resolve that disagreement by deciding the appeal's scope. Instead, it applied the demanding approach to expedition set out in Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 at 400-401, and described the listed circumstances as non-exhaustive. [18]-[19]
The institutional consequences mattered. Convening three Court of Appeal judges and delivering a judgment before 28 September was described as no small matter. Expedition could also displace other litigants who had been waiting for their appeals to be heard. [19] The Court weighed those concerns against the applicant's claimed urgency under s 58 of the Civil Procedure Act 2005 (NSW), which requires the Court to act in accordance with the dictates of justice. [20]
The decisive point was that the appeal would not necessarily lose its practical value if it was heard later. The Court reasoned that, if the appeal succeeded after the bankruptcy proceedings had been dealt with, CharterLaw could issue a bankruptcy notice based on the appeal judgment. It therefore found no real risk that CharterLaw would be prevented from pursuing its appeal and ultimately seeking relief in the Federal Court. [21], [25]
The Court also considered the bankruptcy context. It referred to Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 148, which it described as stating that bankruptcy proceedings generally should not proceed to sequestration where a genuine and arguable appeal is pending against the judgment relied on. Price AJA considered that principle could apply where the foundation of the judgment debt was subject to appeal. [23]-[24] The Court was not persuaded that the Federal Court would refuse an adjournment if a further application were made in the circumstances. [22] Those considerations supported the conclusion that an expedited Court of Appeal hearing was not necessary to preserve practical relief.
The judgment presents the stay and expedition principles as established, not as new rules. For stays, it adopted the two-stage approach summarised in Michael Hill: the applicant must first show serious issues and a real risk of prejudice or damage; if it does so, the court then considers convenience and the parties' competing rights. [12] On these facts, the Court's treatment of the unmade costs orders turned on the narrow relief sought and the role of the primary judge, rather than any reformulation of the stay test. [13]
For expedition, the ruling applied Elders and its recognition that the circumstances favouring expedition are non-exhaustive. It emphasised the heavy burden on an applicant and the consequences for the Court and other litigants. [18]-[20] The decision therefore illustrates how expedition can be refused even where there is a nearby hearing in another court and an asserted statutory time limit, if the applicant has not shown that later appellate relief would be practically ineffective. [16], [19]-[25]
The decision also links that analysis to bankruptcy proceedings. It considered Ahern's discussion of a pending appeal against the judgment debt relied on in bankruptcy proceedings and said there was no good reason the principle would not apply where the judgment debt's foundation was under appeal. [23]-[24] That is an application of the principle to the circumstances considered, not a general determination of every interaction between an appeal, a bankruptcy notice, and a creditor's petition.
The supplied judgment contains no later judgments applying or distinguishing CharterLaw Legal Pty Ltd v Maloney. Accordingly, its subsequent treatment cannot be assessed from this source. The text also does not decide the substantive appeal, the costs of the underlying District Court proceedings, the Federal Court challenge, or the eventual costs assessment review. Those matters remained unresolved in the account provided. [5], [7], [26]
At [13], Price AJA said the applicant had not demonstrated “a proper basis for the stay” because the stay related only to costs orders “which ha[d] not been made”. In plain English, the Court would not freeze a costs decision that was still for the primary judge to make, particularly when CharterLaw had not asked to suspend the substantive order setting aside the judgment.
At [19], the Court said an expedition applicant bears “a heavy burden”. This indicates that urgency asserted by a party is not, on its own, enough. The Court must assess the effect of rearranging its work, including potential displacement of other appeals and the practical demands on the parties.
At [21], the Court said there was “no real risk” that CharterLaw would be prevented from pursuing its appeal and ultimately obtaining relief in the Federal Court. The reasoning was that a successful appeal could provide a basis for a later bankruptcy notice. The ruling therefore treated the possible loss of timing advantage as different from losing the ability to pursue the underlying claim.
At [25], the Court concluded that “the dictates of justice favour the dismissal” of expedition. In context, this conclusion followed the assessment of alternative later relief, the Court's workload, the respondent's preparation burden, and the interests of other litigants. It was not a ruling on whether the appeal itself would succeed.
The decision is most directly relevant to a motion seeking expedited appellate consideration because another court is due to hear related proceedings shortly. Its reasoning is particularly pertinent where the applicant says an appeal will become pointless if it is not heard first, but the court can identify a potential route to practical relief after the other proceedings. [15]-[25]
It is also relevant where expedition would require a short-notice appellate hearing before a multi-judge bench. The judgment treats the burden on the court and the possibility of displacing other litigants as part of the justice assessment, rather than viewing the applicant's urgency in isolation. [19]-[20]
For stay applications, the ruling concerns a request directed at costs orders that have not yet been made, while the substantive order remains in effect. It supports careful attention to what the proposed stay would actually suspend, whether the primary judge is still dealing with the issue, and how the balance of convenience is affected. [9], [13] It does not decide the outcome of a stay application directed at a substantive judgment or an existing costs order.
In a bankruptcy setting, the decision may be relevant where the debt relied on in bankruptcy proceedings is affected by a pending appeal. Its discussion of Ahern indicates that the status of an appeal against the underlying judgment can matter to whether bankruptcy proceedings should proceed. The judgment's application was limited to the expedition motion before it. [23]-[25]
No post-decision treatment is contained in the supplied judgment. It therefore does not provide a basis to say that later courts have followed, distinguished, applied, or otherwise treated this decision. A reliable account of later treatment would require later judgments or a case-law source beyond the supplied text.
The authorities this judgment itself discusses are earlier authorities. It refers to Elders for expedition principles, to Michael Hill for stay principles, and to Ahern for the bankruptcy context. It also identifies NSW Smallbore, Hannaford, and Daracon as authorities relevant to expedition, and refers to Unilever as the source of guidance discussed in Elders. [12], [18] These citations show the foundations on which Price AJA relied; they are not evidence of later treatment of CharterLaw.
The substantive appeal remained unresolved. The judgment does not determine whether the District Court judgment was irregularly entered under r 36.15(1), nor does it decide the merits of any appeal grounds. [7]-[9]
The costs issue in the District Court was also outstanding. The primary judge had invited submissions and was to decide costs later. The Court's refusal to stay future costs orders left that issue for the primary judge. [7], [10]-[13]
The Federal Court proceedings were still listed for 28 September 2026. The judgment records the Court's view that an adjournment might be granted if sought, but does not record any later application or the Federal Court's decision. [4], [22] Nor does it determine whether the bankruptcy notice would ultimately be set aside, whether a creditor's petition would proceed, or what effect any later Court of Appeal judgment would have.
Finally, the judgment's comments about Ahern are expressed as the Court's assessment of how the principle might apply in the situation before it. The decision does not elaborate the limits of that principle or resolve every procedural consequence of a pending appeal in bankruptcy proceedings. [23]-[25]
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: CharterLaw Legal Pty Ltd v Maloney [2026] NSWCA 195
Hearing dates: 14 September 2026
Date of orders: 14 September 2026
Decision date: 14 September 2026
Before: Price AJA
Decision: (1) Dismiss the notice of motion filed on 7 September 2026.
(2) The costs of this motion be costs in the cause.
Catchwords: CIVIL PROCEDURE – stay of costs orders pending appeal – where applicant obtained judgment from filing costs certificates in the District Court – where primary judge set aside judgment – where primary judge has not yet made costs orders – whether balance of convenience favours the applicant
CIVIL PROCEDURE – application for expedition of appeal – whether circumstances appropriate for grant of expedition – where bankruptcy proceedings commenced in the Federal Court – where Federal Court hearing forthcoming – heavy burden to justify convening a Court of Appeal bench – whether dictates of justice favour expedition
Legislation Cited: Bankruptcy Act 1966 (Cth), s 44
Civil Procedure Act 2005 (NSW), s 58
Legal Profession Uniform Law Application Act 2014 (NSW), s 70
Supreme Court Act 1970 (NSW), s 48
Uniform Civil Procedure Rules 2005 (NSW), r 36.15
Cases Cited: Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 153
Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395
Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260; (2008) 176 IR 426
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
NSW Smallbore and Air Rifle Association v Commonwealth of Australia [1996] NSWCA 405
Unilever plc v Chefaro Proprietaries Ltd [1995] 1 All ER 587
Category: Procedural rulings
Parties: CharterLaw Legal Pty Ltd ABN 48 607 097 329 (Applicant)
Diane Marie Maloney (Respondent)
Representation: Counsel:
N Simpson (Applicant)
N Franco (Respondent)
Solicitors:
HFK Lawyers (Applicant)
ITC Law (Respondent)
File Number(s): 2026/371032
Publication restriction: Nil
“1. An order pursuant to section 67 of the Civil Procedure Act 2005 (NSW) or the Court’s inherent jurisdiction staying order 5 made by the District Court of New South Wales on 12 August 2026 pending determination of the Summons Seeking Leave to Appeal.
- In addition to order [1] an order that the hearing of the Summons Seeking Leave and the Summons (Supervisory Jurisdiction) be granted expedition.
...”
The underlying proceedings relate to a number of unpaid invoices by the respondent, Ms Diane Maloney, for legal services provided by the applicant to her and various companies with which she was involved when they acted as her lawyers. In February 2025, the applicant filed an application for a cost assessment of 12 unpaid invoices. The cost assessor issued various costs certificates which were sent to the parties on 13 February 2026 and totalled the sum of $121,748.58 to be paid by the respondent. The applicant subsequently lodged those costs certificates in the District Court with the effect that the costs certificates were taken to be a judgment of that court against the respondent in the unpaid amount of $121,748.58: s 70(5) of the Legal Profession Uniform Law Application Act 2014 (NSW). That judgment was entered on 23 February 2026. The respondent did not pay the judgment amount.
The applicant’s judgment formed the foundation of a bankruptcy notice served on the respondent on 9 March 2026. The respondent commenced proceedings in the Federal Court on 25 March 2026 seeking to set aside the applicant’s bankruptcy notice. The Federal Court proceedings are still on foot and I have been advised by the parties today that it is currently listed for hearing before Perram J on 28 September 2026.
On 5 June 2026, the respondent filed an application to review the costs assessment. Although that application was filed out of time an extension of time was granted. At present, there has not been a decision by the review panel in relation to the costs assessor’s determination.
On 15 June 2026, the respondent filed a motion seeking to set aside the applicant’s judgment in the District Court. That motion came before Tsavdaridis ADCJ (“the primary judge”) on 11 August 2026.
The applicant’s appeal concerns the ex tempore judgment delivered by the primary judge on 12 August 2026, in which his Honour set aside the applicant’s judgment. The primary judge’s decision to set aside the applicant’s judgment was based on the judgment being entered irregularly pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The primary judge also made orders as to costs relevantly being:
“(5) As to the issue of costs flowing from Order (1), the parties are to file and serve any written submissions (Max: 3 pages each), by 9 September 2026, following which a decision as to costs will be made.”
The applicant’s motion seeks to stay the future costs orders to be made by the primary judge and more significantly, to expedite its appeal to be heard by three Judges of this Court before the Federal Court hearing on 28 September 2026. The applicant does not seek to stay the substantive order made by the primary judge setting aside the judgment.
Before today’s hearing, it appeared to me that there was no material relating to costs orders. Accordingly, on 11 September 2026, I directed my Associate to email the parties to determine whether any such orders had been made. In response, the applicant’s solicitor, Jarryd Willson, stated in his email that the primary judge had proposed to make the following orders which would effectively stay his Honour’s orders pending my decision today:
“1. His Honour Acting Judge T Tsavdaridis on 10 September 2026 indicated he was minded to make the following orders with respect to the parties’ submissions on costs in the NSW District Court proceedings (under appeal) –
a. A temporary stay of the costs timetable directions made on 12 August 2026, pending the outcome of the Notice of Motion for expedition in the Court of Appeal and for a stay of the District Court’s substantive orders and costs timetable directions listed in that Court on 14 September 2026.
b. The plaintiff’s solicitor will advise the District Court Judicial Support team … of the orders made in the Court of Appeal, after the hearing of the Notice of Motion on 14 September 2026.”
Attached to Mr Willson’s email was correspondence that demonstrated the applicant had consented to the primary judge’s proposed orders but that the respondent did not.
The applicable principles in relation to a stay pending appeal are well-known and were recently explained by Payne JA in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5]:
“The principles governing the grant of a stay pending an appeal are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: A**lexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.”
As the application for the stay relates solely to a costs judgment which has not been made and there is no application for a stay of the substantive judgment, the applicant has not demonstrated a proper basis for the stay which is so narrowly confined and the balance of convenience lies in allowing the primary judge to hear the parties on the issue of costs and to make a costs order. A costs order is primarily the province of the primary judge.
The real issue in the motion is the order seeking expedition of a concurrent hearing in the Court of Appeal against the substantive judgment.
The applicant points to the proceedings in the Federal Court in relation to setting aside the bankruptcy notice which was founded on the District Court judgment that has been set aside by the primary judge.
The applicant argues that if the bankruptcy notice is not supported by the District Court judgment the bankruptcy notice will be set aside and the applicant will be exposed to an adverse costs order. The applicant submits that if expedition is not granted and the appeal not determined before the Federal Court hearing, the applicant’s appeal in this Court will be rendered nugatory so as to affect the bankruptcy proceedings. The applicant places emphasis on the creditor’s petition expiring on 30 September 2026, being the 6 month statutory period after the respondent is asserted to have committed an act of bankruptcy: s 44(1)(c) of the Bankruptcy Act 1966 (Cth). Furthermore, the applicant contends that the issues on appeal are discrete; there being no factual issues to be determined and the white folder has been completed. The applicant submits that grounds 1 and 2 of its draft notice of appeal are confined to irregularity within the meaning of r 36.15(1) of the UCPR. Given the short compass of the issues in the appeal the applicant submits the appeal could be heard within half a day.
The respondent contends that if the appeal is expedited that would place an unrealistic burden on this Court and the respondent. The respondent refers to the difficulties in preparing her response to the summons and notice of cross-appeal and/or notice of contention during the same short period and the simultaneous need to prepare for the Federal Court hearing. The respondent submits that there are a number of factual and jurisdictional issues that will arise on the appeal and that the appeal has some complexity.
The applicable principles when determining whether to grant expedition were conveniently set out by this Court in Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 at 400-401 (Kirby P, Priestley and Clarke JJA) (“Elders”), by reference to the relevant guidance stated by the English Court of Appeal in Unilever plc v Chefaro Proprietaries Ltd [1995] 1 All ER 587: see also NSW Smallbore and Air Rifle Association v Commonwealth of Australia [1996] NSWCA 405; [2008] NSWCA 260; (2008) 176 IR 426 at [12] (McColl JA); [2025] NSWCA 153 at [6]-[7] (Price AJA).
“It is also well established that in general a court exercising jurisdiction in bankruptcy should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings provided that the appeal is based on genuine and arguable grounds: Re Rhodes; Ex parte Heyworth (1884) 14 QBD 49; Bayne v Baillieu (1907) 5 CLR 64 and Re Verma; Ex parte DCT (1985) 4 FCR 181.
These cases rest on the broad principle that before a person can be made bankrupt the court must be satisfied that the debt on which the petitioning creditor relies is due by the debtor and that if any genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before he is made bankrupt. Bankruptcy is not mere inter partes litigation. It involves change of status and has quasi-penal consequences.” (emphasis in original)
Although the principles enunciated in Ahern concerned the estate of a debtor, it appears to me there is no good reason why those principles would not apply to the present case where the foundation of the judgment debt is subject to appeal.
I am not persuaded that the applicant’s appeal to this Court will be rendered nugatory if expedition is not granted. The dictates of justice favour the dismissal of the application for expedition.
Accordingly, I make the following orders:
Dismiss the notice of motion filed on 7 September 2026.
The costs of this motion be costs in the cause.
**********
CharterLaw Legal Pty Ltd
Maloney
(1987) 76 ALR 137
(1995) 38 NSWLR 395
(2008) 176 IR 426
(1985) 2 NSWLR 685
(2002) 55 NSWLR 737
(1907) 5 CLR 64
(1985) 4 FCR 181
The notice of motion filed on 7 September 2026 was dismissed. The costs of the motion were ordered to be costs in the cause. [26]
Whilst the circumstances set out in Elders are non-exhaustive they demonstrate that a party seeking expedition bears a heavy burden to justify the granting of such an order. It is no small matter to assemble a bench of three Judges of this Court and for a judgment to be delivered prior to 28 September 2026. The Court also takes into consideration the unfairness to other litigants who have been waiting patiently for their appeal to be heard and may be displaced if expedition is granted.
The applicant’s submissions fall short of the circumstances identified in Elders that would justify the proceedings being appropriate for expedition. However, the Court must seek to act in accordance with the dictates of justice: s 58 of the Civil Procedure Act 2005 (NSW).
Should the appeal not be heard before the disposition of the bankruptcy proceedings and the applicant’s appeal is subsequently successful in this Court, the applicant will be able to issue a bankruptcy notice founded on the appeal judgment at that time. There is no real risk that the applicant will be prevented from pursuing its appeal in this Court and ultimately obtaining the relief that it seeks in the Federal Court.
Furthermore, I am not persuaded that the Federal Court would not grant an adjournment if a further application were made to Perram J in the circumstances where the applicant has now filed its appeal.
While the hearing before Perram J is in relation to setting aside the bankruptcy notice, it is apparent that the applicant wishes to be in a position to proceed with its creditor’s petition and it is my understanding that the practice of the Federal Court in relation to the adjournment of a petition pending an appeal on a judgment debt has been set out by Davies, Lockhart and Neaves JJ in Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 148 (“Ahern”):