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[2026] NSWCA 31
respondent. The summons for leave to appeal and the applicants’ notice of motion filed on 16 February 2026 were dismissed with costs; no extension of time was granted.
The Court of Appeal refused the Edmonds and Murray Laws permission to appeal. The proposed appeal was late and did not meet the threshold for leave. The Court considered that the primary judge had evidence of BWG's registered mortgage and the Edmonds' failure to pay the secured sum, while the applicants had not put forward an adequately supported defence to possession. Their proposed arguments, including tenancy, bankruptcy, licensing, fraud and procedural fairness points, did not establish a reasonably clear injustice on the material described in the judgment. A separate motion was also dismissed, with costs.
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2,267 words · generated 08/10/2026
This was an application for an extension of time and leave to appeal, not a full appeal in which the Court reconsidered the merits afresh. The applicants were Sandra and David Edmonds, the registered proprietors of land at Saumarez Ponds, and Murray Laws Pty Ltd, a later mortgagee. The first respondent, Barrington Winstanley Group Pty Ltd (BWG), was the registered second mortgagee. Ecosse Bare Fund 12 Pty Ltd held a registered first mortgage. The Legal Aid Commission was a caveator.
14 cited instruments linked from this judgment.
The dispute arose from a mortgage the Edmonds executed on 30 August 2024 as part of a settlement of BWG’s creditor’s petition. It secured $650,000, due on 13 December 2024 if the petition was dismissed on or before 3 September 2024. The petition was dismissed by consent on 30 August, but the Edmonds did not pay the secured sum when due. BWG registered the mortgage on or about 13 January 2025 and began possession proceedings on 3 March 2025 [6].
The primary judge made six decisions on 19 June and 6 August 2025. They included striking out the applicants’ pleadings and cross-claim, refusing their application to dismiss BWG’s claim summarily, refusing leave to file a proposed amended cross-claim, and granting BWG summary judgment for possession [11]-[15], [18]-[27], [39]-[44], [73]-[74]. The Court of Appeal called these decisions J1 to J6.
The applicants filed their summons for leave on 17 November 2025. The Court held that leave was needed for each of the decisions, including the final possession order, and that the application was 11 days outside the three-month limit [86], [88]. McHugh JA gave the principal reasons. Ward P and Payne JA agreed [1]-[3].
The Court dismissed the summons with costs and also dismissed a separate notice of motion filed on 16 February 2026, with costs [168]. It did not grant an extension of time.
The Court began with the threshold for leave. It said leave will usually be granted only where a proposed appeal raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable [87]. Particular caution applied to interlocutory decisions concerning practice and procedure. The applicants’ submissions largely treated the matter as if it were enough to assert legal error, rather than explaining why the leave threshold was met [87]-[92].
The Court found no question of principle or public importance in the proposed grounds [100]. It then examined the grounds, grouped them by subject, and assessed whether they showed a reasonably clear injustice.
A central feature was the evidentiary record on BWG’s summary judgment application. The primary judge had evidence of the registered mortgage and title search. The applicants did not dispute that the mortgage was registered or that the $650,000 had not been paid [54]. When asked what evidence they relied on, their representative said he had none [45]-[50]. The Edmonds’ lengthy affidavit and its 628-page exhibit had been admitted for the different application to reopen their own summary dismissal application, but were not in evidence on BWG’s summary judgment application [28]-[30], [45]-[46]. The Court emphasised that BWG’s withdrawal of its objection to that material was expressly limited to the earlier application [29], [46].
The primary judge did not grant default judgment merely because the defences had been struck out. The Court described the decision as summary judgment under UCPR r 13.1, based on the primary judge’s affirmative conclusion that there was no reasonable defence. The judge had asked the applicants to identify their defence by reference to evidence, but they had not done so [49]-[52], [74]. The Court saw no basis for leave to challenge that conclusion.
The Residential Tenancies Act argument did not assist. The proposed argument depended on a tenancy between the Edmonds and Murray Laws and suggested that it restricted BWG’s mortgagee rights. The Court identified several problems: the argument was not supported by evidence at the summary judgment hearing; the amended defence did not plead the relevant provisions other than s 13; and the document relied on described a custodian role to provide husbandry for livestock, not occupation for use as a residence [103]-[105]. The Court also read the statutory provisions as not excluding possession by BWG. Section 81(4)(b) contemplated termination of a tenancy when a mortgagee became entitled to possession; s 119 concerned landlords, not BWG as mortgagee; and s 124(3) stated that non-compliance would not affect the possession order [106].
The notice and default grounds were also rejected on the record. The mortgage made the $650,000 payable when the creditor’s petition was dismissed by the specified date. The petition was dismissed on 30 August 2024 and non-payment was undisputed [110]. BWG’s director gave evidence that notice was served by email and registered post, which the Court considered service for the purposes of s 57 of the Real Property Act [111].
The bankruptcy arguments did not show a basis for leave. The mortgage was granted before the sequestration orders were made, although it was registered later. The Court considered that, if the sequestration orders were validly set aside, the brief intervening period of bankruptcy did not establish an issue undermining the mortgage. It also observed that the mortgage appeared to have created an equitable mortgage before the orders, potentially making BWG a secured creditor whose right to deal with its security survived bankruptcy under s 58(5) [120]-[121]. If the sequestration orders had not been validly set aside, the Edmonds would remain undischarged bankrupts and the Land would have vested in the trustee, so they would lack standing concerning it [122]. The Court expressly left open whether the sequestration orders had been validly set aside because either hypothesis led to refusal of leave [123].
Other proposed grounds failed for similar reasons. The licensing argument did not connect the mortgage to the Corporations Act or consumer credit licensing regimes with evidence [132]-[135]. The fraud ground was serious but lacked particulars and identified evidentiary support [136]-[138]. The procedural fairness argument failed because striking out deficient pleadings was not itself a denial of fairness, and the possession judgment was based on the evidence and arguments, not simply the absence of pleadings [139]-[144].
The judgment does not purport to change the law. Its approach to leave was based on the existing principles in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das, and the caution applied to interlocutory practice and procedure decisions reflected the authorities cited in [87]. The decision applies those principles to a particular record and a late application.
Before this decision, as stated in the authorities it cites, leave was generally reserved for cases raising a principle, public importance, or a reasonably clear injustice beyond mere arguability [87]. The judgment applied that threshold to a proposed appeal involving multiple interlocutory decisions and a final summary judgment order. It also referred to the House v The King standard for discretionary decisions, noting that some decisions were discretionary, while observing that the applicants’ submissions were not framed in those terms [86].
The decision’s practical contribution in this matter is its close attention to the procedural posture and evidence. It distinguishes between the evidence admitted for the applicants’ summary dismissal application and the evidence available when BWG sought summary judgment [28]-[30], [45]-[46]. It also makes clear that, as characterised in this case, the possession order was summary judgment rather than default judgment: the primary judge considered whether a reasonable defence existed, rather than treating the striking out of the defences as automatically decisive [74].
After the decision, the orders below remained in force because leave and an extension were refused. The judgment does not establish a general rule that any particular defence to a registered mortgage must fail. Rather, it explains why these applicants’ proposed arguments did not meet the leave threshold on the evidence and submissions before the Court.
At [87], the Court stated that leave will usually be granted only for “an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable.” In plain English, identifying a possible error is not necessarily enough. The proposed appeal must meet the additional threshold for permission.
At [100], the Court said none of the proposed grounds appeared to raise a question of principle or general importance. That narrowed the central inquiry to whether the applicants had shown a sufficiently clear injustice.
At [74], the Court explained that the possession order was not default judgment. The primary judge had considered the evidence and submissions and concluded that no reasonable defence had been disclosed. In plain English, the appeal could not succeed merely by attacking the striking out of the pleadings without also confronting the basis on which summary judgment was granted.
At [121], the Court observed that the mortgage was granted before the sequestration orders and considered that this appeared to give rise to an equitable mortgage, potentially making BWG a secured creditor. The Court treated this as part of its reasoning on why the bankruptcy argument did not show a reasonably clear injustice. It did not finally resolve every possible issue concerning the effect of the sequestration orders.
At [142], the Court rejected the procedural fairness complaint. It reasoned that striking out a pleading that does not properly disclose a defence can protect fairness to the other party, and that the primary judge had given the applicants an opportunity to articulate their case. In plain English, the Court distinguished losing the opportunity to proceed on defective pleadings from being denied a fair hearing.
At [152], the Court concluded that the applicants had identified no ground that warranted leave. That conclusion followed from its assessment of the proposed grounds and the evidentiary record.
The decision is most relevant to leave applications where an applicant challenges interlocutory procedural decisions and a summary judgment order, but does not address the established leave threshold. It illustrates that a proposed appeal may face particular difficulty where it raises no principle or matter of public importance and the asserted injustice is not clearly demonstrated [86]-[88], [100].
It is also relevant where a party relies on extensive materials that were admitted for one application but not another. The judgment stresses that the evidence admitted for the applicants’ application to reopen their own summary dismissal application was not thereby admitted for BWG’s separate summary judgment application [28]-[30], [45]-[46]. The procedural purpose for which material is admitted matters.
The case may be useful where a summary judgment applicant produces evidence of a registered mortgage and non-payment, while the opposing party does not identify evidence supporting a defence when invited to do so. Here, the Court focused on what was actually before the primary judge and what the applicants’ representative could identify from that material [45]-[52], [54].
The decision also shows how the Court assessed proposed statutory defences where the necessary factual foundation was missing. The tenancy argument depended on a residential tenancy agreement; the document relied on did not establish the statutory character alleged. The licensing argument lacked evidence connecting the mortgage to the relevant regulated activity. The fraud allegation lacked particulars and identified supporting evidence [103]-[107], [132]-[138].
The judgment does not mean that those categories of argument can never succeed. Its reasoning is tied to the specific record, pleadings and submissions before it.
The supplied judgment does not identify any later court decisions applying, distinguishing or otherwise treating Edmonds v Barrington Winstanley Group Pty Ltd (No 3). It was decided on 18 March 2026, and the document provides no subsequent treatment. Accordingly, no claim about its reception by later courts can be made from this source.
The judgment itself discusses earlier authorities. It applies Be Financial to the leave criteria [87], cites Adam P Brown Male Fashions and PPK Willoughby on caution in interlocutory practice and procedure appeals [87], and refers to Ke Qin Ren in connection with summary judgment [74]. Those citations explain the court’s own reasoning, not how later courts have treated this decision.
The judgment expressly leaves unresolved whether the sequestration orders made on 30 August 2024 were validly set aside. McHugh JA said the question did not need to be decided because either outcome left no basis for leave: if set aside, the bankruptcy argument did not establish injustice on the reasoning given; if not, the Edmonds would remain bankrupt and would lack standing concerning the Land [121]-[123].
The Court also did not determine whether the Supreme Court had jurisdiction to decide a defence relying on the Bankruptcy Act. It said that, depending on the argument’s nature, such a proceeding might be one under the Act and therefore within the exclusive jurisdiction described in s 27(1), but the point was not argued and was not decided [118]-[119].
The Court did not finally determine the licensing issues or whether the asserted conduct fell within the Corporations Act or consumer credit licensing regimes. Its conclusion was that the applicants had not sufficiently explained or evidenced the necessary connection for leave to be granted [132]-[135].
The judgment also does not determine the ultimate merits of any separate claims concerning alleged fraud, unconscionability or other dealings. It addresses whether the proposed appeal grounds, as presented and supported, met the leave threshold. It found that they did not [136]-[151].
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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: Edmonds v Barrington Winstanley Group Pty Ltd (No 3) [2026] NSWCA 31
Hearing dates: 18 February 2026
Date of orders: 18 March 2026
Decision date: 18 March 2026
Before: Ward P at [1];
Payne JA at [2];
McHugh JA at [3]
Decision: (1) The summons for leave to appeal is dismissed with costs.
(2) The applicants’ notice of motion filed on 16 February 2026 is dismissed with costs.
Catchwords: APPEAL — Application for leave to appeal — Application filed out of time — Appeal from decision granting summary judgment for possession of land — No question of general principle — No question of public importance — No error amounting to a reasonably clear injustice going beyond what is merely arguable
Legislation Cited: Bankruptcy Act 1966 (Cth), ss 5, 27, 37, 43, 58
Civil Procedure Act 2005 (NSW), ss 20, 56, 57, 58
Conveyancing Act 1919 (NSW), s 170
Corporations Act 2001 (Cth), s 911A
National Consumer Credit Protection Act 2009 (Cth), s 32
Real Property Act 1900 (NSW), ss 3D, 42, 45, 57
Residential Tenancies Act 2010 (NSW), ss 3, 13, 81, 119, 124
Supreme Court Act 1970 (NSW), s 79 (as at 17 January 2002)
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 13.4, 14.28, 16.2, 16.3, 16.4, 51.8, 51.10, 51.18
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Barrington Winstanley Group Pty Ltd v Edmonds [2025] NSWSC 1234
Barrington Winstanley Group Pty Ltd v Edmonds [2025] NSWSC 1354
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Culleton v Balwyn Nominees Pty Ltd [2025] FCA 1542
Davidson v Official Receiver [2026] FCAFC 15
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edmonds v Barrington Winstanley Group Pty Ltd [2025] NSWCA 251
Edmonds v Barrington Winstanley Group Pty Ltd (No 2) [2025] NSWCA 271
Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] NSWCA 388
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Re Roberts; Ex parte Australian Telecom Employees Credit Co-operative Ltd v Taylor (1982) 84 FLR 88; [1982] FCA 152
Texts Cited: Practice Note SC CL 6
Practice Note SC Eq 11
Practice Note SC Gen 23
Category: Principal judgment
Parties: Sandra Henri Edmonds (First Applicant)
David James Edmonds (Second Applicant)
Murray Laws Pty Ltd (Third Applicant)
Barrington Winstanley Group Pty Ltd (First Respondent)
Legal Aid Commission of New South Wales (Second Respondent)
Ecosse Bare Fund 12 Pty Ltd (Third Respondent)
Representation: Counsel:
In person (First Applicant)
M Pesman SC (First Respondent)
P Pagin (Solicitor) (Third Respondent)
Solicitors:
Ark Legal (First Respondent)
Kingston & Partners (Third Respondent)
File Number(s): 2025/00335127
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
The First and Second Applicants, Sandra and David Edmonds (the Edmonds), are the registered proprietors of land at Saumarez Ponds in NSW (the Land). The Third Applicant, Murray Laws Pty Ltd (Murray Laws), is an incorporated legal practice and a mortgagee of the Land. The First Respondent, Barrington Winstanley Group Pty Ltd (BWG), is the registered second mortgagee of the Land.
On 30 August 2024, the Edmonds executed the BWG mortgage (the Mortgage) as part of the settlement of a creditor’s petition presented by BWG against the Edmonds. The Mortgage secured payment of $650,000 due and payable on 13 December 2024 (the Secured Sum) if the creditor’s petition was dismissed on or before 3 September 2024. The creditor’s petition was dismissed by consent on the afternoon of 30 August 2024. The Edmonds failed to pay the Secured Sum by the due date of 13 December 2024.
BWG took steps to enforce the Mortgage, which was registered on or about 13 January 2025, including ultimately by commencing proceedings in the Possession List of the Supreme Court of New South Wales. The primary judge made a series of six decisions on 19 June 2025 and 6 August 2025 (the Decisions), culminating in his Honour’s giving summary judgment for BWG for possession of the Land.
On 17 November 2025, the Edmonds and Murray Laws filed a summons seeking leave to appeal (and also purporting to appeal as of right) from some or all of the Decisions. The application for leave to appeal was filed out of time.
The Court (McHugh JA, Ward P and Payne JA agreeing) held, dismissing the summons for leave to appeal**:**
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164, applied.
WARD P: I have had the opportunity of reading in draft the comprehensive reasons of McHugh JA, with which I am in complete agreement. The orders his Honour proposes should be made.
PAYNE JA: I agree with McHugh JA.
McHUGH JA: By a summons filed on 17 November 2025, the applicants seek leave to appeal (and also purport to appeal as of right) from some or all of a series of six decisions given by the primary judge, Faulkner J, on 19 June 2025 and 6 August 2025 (the Decisions). The Decisions culminated in his Honour’s giving summary judgment for the first respondent, Barrington Winstanley Group Pty Ltd (BWG), for possession of the land located at XXXX Road Saumarez Ponds NSW 2350, otherwise known as folio identifier XXXX (the Land).
The applicants require an extension of time and leave to appeal. The applicants have not shown any good reason for granting either. The proposed appeal raises no question of public importance or of general principle. The applicants have not pointed to any error amounting to a reasonably clear injustice in any of the Decisions. Leave to appeal should be refused.
The order for possession was made in proceedings commenced in the Possession List of the Supreme Court of New South Wales by BWG (as registered second mortgagee of the Land) by statement of claim filed on 3 March 2025. The five defendants to the proceedings were:
Mrs Sandra Henri Edmonds (the first applicant in this Court), as one of the registered proprietors of the Land;
Mr David James Edmonds (the second applicant in this Court), as one of the registered proprietors of the Land (together, with the first applicant, the Edmonds);
the Legal Aid Commission of NSW (the second respondent in this Court), as a caveator;
Ecosse Bare Fund 12 Pty Ltd (Ecosse, the third respondent in this Court), as holder of a registered first mortgage of the Land; and
Murray Laws Pty Ltd (Murray Laws, the third applicant in this Court), an incorporated legal practice, as a subsequent mortgagee. At various times a solicitor at Murray Laws, Mr Leonardus Gerardus Smits, has acted for the Edmonds. Mr Smits is a director of Murray Laws. It will be necessary to return to Mr Smits’ position below.
The possession proceedings were part of a long-running series of disputes between, at least, BWG and the Edmonds concerning sums the former claimed were owed to it by the latter. It will be necessary to say something below about the circumstances in which the mortgage on which BWG sued for possession (the Mortgage) was entered. It suffices for present purposes to note that the Edmonds executed the Mortgage on 30 August 2024 as part of the settlement of a creditor’s petition presented by BWG against the Edmonds, which was listed for hearing in the Federal Circuit and Family Court of Australia (Division 2) that day. It is not disputed that the Edmonds willingly executed the Mortgage before any sequestration orders were made. The Mortgage secured payment of $650,000 as due and payable on 13 December 2024 (the Secured Sum) if the creditor’s petition was dismissed on or before 3 September 2024. The creditor’s petition was ultimately dismissed by consent on the afternoon of 30 August 2024. The Edmonds failed to pay the Secured Sum by the due date. BWG took steps to enforce the Mortgage, which was registered on or about 13 January 2025, including ultimately the commencement of the possession proceedings on 3 March 2025.
The Edmonds filed a defence in the possession proceedings on 28 March 2025. Murray Laws filed a defence on 1 April 2025. On 14 May 2025, the Edmonds filed a cross-claim in which they named 16 cross-defendants, including among others BWG, a number of solicitors, and entities with little obvious connection to the issues arising in a proceeding for possession, such as the Rural Assistance Authority.
On 19 June 2025, the primary judge heard various applications in the Possession List. Mrs Edmonds appeared in person and sought to appear also for David Edmonds; there was no appearance for Murray Laws. Among other things, his Honour:
ordered that the defences of the Edmonds and of Murray Laws be struck out, each with leave to file any amended defence by 3 July 2025;
ordered that the cross-claim be struck out, with the Edmonds given leave to circulate a draft cross-claim to affected parties by 3 July 2025;
made orders for costs against the Edmonds and Murray Laws; and
listed the matter for directions on 17 July 2025.
As it will be relevant to what occurred on 6 August 2025, the following should be noted as to the primary judge’s reasons for striking out the cross-claim. His Honour described the cross-claim as a “massive document” with a number of problems. It was not filed within the time to file a defence (such that leave was required), but no leave had been sought or granted. There were 16 cross-defendants but there was “a complete lack of clarity” about what the cross-claimants’ case was in relation to each cross-defendant. The relief claimed did not distinguish among the individual cross-defendants. There was no attempt to tie any of the complaints to any particular cross-defendant and it was not possible for the cross-defendants to understand what orders were sought against them. For example, in argument, Mrs Edmonds had been unable to explain what orders she sought in relation to the Legal Aid Commission of New South Wales. The cross-claim was prolix, and had a tendency to cause prejudice, embarrassment or delay in the proceedings within the meaning of Uniform Civil Procedure Rules 2005 (NSW), r 14.28(1)(b) (UCPR). It was difficult to see how a claim against the Australian Financial Complaints Authority or the Rural Assistance Authority could be relevant to the relief claimed by BWG in the proceedings for possession. His Honour noted that a very large number of lawyers acting for the cross-defendants had been present in court, and said it was wholly unsatisfactory for the cross-claim to continue without a proper review of what it sought to achieve. His Honour said that the Edmonds could bring claims for compensation against other people in their own proceedings. He observed that while the money claimed by BWG had not been paid into court, and all that BWG sought was an order for possession, there would need to be a very good reason before the Court would permit a cross-claim as expansive as the one before the Court to delay BWG’s case.
The primary judge made similar pleading criticisms of the Edmonds’ defence, a document of some 67 paragraphs. Adopting the language of counsel for BWG, his Honour accepted that the Edmonds’ defence contained a great many allegations which were “incoherent nonsense”. As his Honour said, “[t]here is a lot of legal jargon scattered throughout the document which makes no sense”. The defence also made extensive but irrelevant allegations about a previous application for possession in connection with different and earlier security arrangements. It also made serious allegations of fraud and illegality without sufficient specificity to permit BWG to comprehend the basis upon which the allegations were made. His Honour considered that it was not possible to save the document through a selective process of surgery, and struck it out in its entirety for having a tendency to cause prejudice, embarrassment or delay in the proceedings. However, as noted above, his Honour granted leave to replead.
The matter had come on for directions on 17 July 2025, as ordered on 19 June 2025. On that day, there had been what his Honour described as “a full courtroom with representatives from parties [to] the new draft Cross-Claim that had been circulated in the meantime”. However, there had been no appearance for the Edmonds or Murray Laws.
The primary judge ordered that the matter be stood over to 6 August 2025, granting leave to any party who wished to file a notice of motion in relation to the pleadings, the proposed cross-claim or any summary judgment application, to be returnable on 6 August 2025. His Honour set aside the whole of 6 August to address a number of applications which arose out of those directions. His Honour gave five judgments sequentially that day.
The Edmonds and Murray Laws moved on a notice of motion filed on 5 August 2025 in which they sought orders, in par 1, that the whole of the statement of claim be struck out pursuant to UCPR, r 14.28(1), or dismissed under r 13.4 or in the Court’s inherent jurisdiction. They wished to rely on an affidavit of Mrs Edmonds dated 6 May 2025 and filed on 8 May 2025. The affidavit was some 173 paragraphs in length and referred to an exhibit of 628 pages. BWG objected to the affidavit on the ground that it had not been served prior to 6 August 2025, that is, the day on which the application was listed. The primary judge was not satisfied that the affidavit had been served. His Honour rejected the affidavit.
Mr Smits, the solicitor at Murray Laws who appeared personally for Murray Laws also appeared for the Edmonds. Mr Smits sought an adjournment of the application on the basis that his clients wished to rely upon what his Honour said “might fairly be described as very extensive evidence” (being the 6 May affidavit).
The primary judge refused the application for an adjournment, in summary for the following three reasons.
Summary dismissal of proceedings without a trial pursuant to UCPR, r 13.4 would be granted only in a very clear case. An application for summary dismissal which could not be proved with less than 173 paragraphs and 628 pages of documents was unlikely to succeed. Section 56 of the Civil Procedure Act 2005 (NSW) required the Court to focus on the real issues in the proceedings, namely, whether BWG as registered mortgagee ought to have possession of the Land.
The following matters were to be taken into account under s 56 of the Civil Procedure Act: the dictates of justice (s 58), the degree to which the respective parties had fulfilled their duties under s 56(2), and the objects of case management as set out in s 57. The latter was particularly important in this case, where an entire day had been set aside to deal with a number of matters, which it was not possible to address before dealing with the application for summary dismissal. There was what his Honour described as a “small army of lawyers” present in Court acting for the 16 prospective cross-defendants, and if the application to file the cross-claim were not dealt with that day the wasted costs would “border on the scandalous”.
There was prejudice to BWG and other secured lenders given that the value of the property was unclear, so it was not possible to say whether they would be out of pocket by virtue of further delay. The Possession List was intended to be conducted in an efficient way, without expense and delay.
Again, that was entirely orthodox reasoning in the exercise of a discretion. To the extent that the applicants seek leave to appeal from J2, it should be refused.
His Honour next addressed the substance of par 1 of the Edmonds’ and Murray Laws’ notice of motion, that is, their application for an order under either UCPR, r 14.28(1) (that the statement of claim be struck out) or r 13.4 (or perhaps in the Court’s inherent jurisdiction — that the proceedings be summarily dismissed). The evidence on which those parties relied consisted of two affidavits by Mrs Edmonds and documents exhibited to each affidavit.
As to the strike-out application, the primary judge rejected the two criticisms made of the statement of claim. The first was that the prayers for relief included not only an order for possession but also an order for sale. Although his Honour said that it was unusual to seek an order for sale, he reasoned that that did not mean that the pleading did not disclose a reasonable cause of action, nor that it had a tendency to cause prejudice, embarrassment or delay, nor that it meant the proceedings were an abuse of process. (In any event, the order for sale was not pressed.)
The second complaint was that the statement of claim failed to identify the source of power for an order for possession. The primary judge referred to allegations in the statement of claim relating to the Mortgage, including a Memorandum of Common Provisions. His Honour considered that whether those documents supported the power asserted by BWG was not an appropriate question for determination on an application of the present kind; the statement of claim disclosed precisely what BWG sought and the basis for the claim. His Honour dismissed the application to strike out the statement of claim.
As to the application for summary dismissal, his Honour reasoned that ordinarily proceedings will be heard on their merits. Rule 13.4 was designed for cases which were clearly untenable in the sense described by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130; [1964] HCA 69. The Edmonds and Murray Laws put forward four grounds in support of the application for summary dismissal, which his Honour addressed as follows.
The first was that the Edmonds lacked “capacity” to grant the Mortgage, in circumstances where, after the Mortgage was executed, sequestration orders were made against the Edmonds “which subsisted for just over an hour when it was then the subject of an order made by Judge Riley of the Federal Circuit and Family Court” setting the sequestration orders aside and dismissing the proceedings with no order as to costs. It was argued that “settlement” occurred during the period of the bankruptcy such that the Mortgage was “void”. His Honour said that that argument was not so obviously correct that it precluded BWG from bringing the claim, particularly where the Edmonds and Murray Laws had been unable to articulate what was meant by either the “settlement” occurring during the hour or so of the bankruptcy or the Mortgage being “void”.
The Edmonds and Murray Laws then sought an adjournment so that they could reopen their application to have the statement of claim summarily dismissed on the basis of the evidence within the affidavit of Sandra Edmonds dated 6 May 2025 referred to above. BWG then withdrew its objection to that affidavit; the affidavit and the exhibit of 628 pages were admitted into evidence, and the applicants were permitted to reopen their application under UCPR, r 13.4.
It is important to note that Senior Counsel for BWG expressly said that his client’s “lack of objection is limited to this application” — that is, the applicants’ “application [for summary dismissal of the proceeding] under UCPR 13.4”: Tcpt, 6 August 2025, 43.37-39. Given the very high bar the applicants would have to clear in order to succeed on that specific application, BWG’s forensic decision was readily understandable. As Senior Counsel submitted, “There is not the slightest possibility, even not having read it, that the affidavit will have any impact on the judgment your Honour delivered before lunch … And I’ll deal with it unseen.” (Tcpt, 6 August 2025, 43.3-23.)
Moreover, the primary judge said at J4[2] that he had made clear when that evidence was admitted that he had not had an opportunity to consider it, and indicated that it would be necessary to take him to any specific material relied on.
As to the third ground referred to above which the Edmonds and Murray Laws had advanced in support of their application — an assertion that the Mortgage did not benefit from indefeasibility of title under s 42 of the Real Property Act — his Honour said:
“Nothing was said about the third ground put forward in relation to indefeasibility of title by reference to any of the new evidence. Allusions were made to an earlier interparty transaction amongst the [Edmonds] and possibly also [Murray Laws], but that transaction predated the registration of [BWG’s] Mortgage. Whether or not there is property over which that Mortgage operates is a matter for trial and not a reason summarily to dismiss the Statement of Claim now. I was not taken to any further evidence on that issue.”
“At all times on and after 22 August 2024, the Ecosse parties had knowledge that Murray Laws holds indefeasible title, legal possession as an MIP to our property (lot 45/711855) (Lot 45) and was being defrauded of its legal title, rights and secured moneys under its RIM, Mortgage Rd. No. AT378947 (R1M) and that no written consent, release or discharge was provided as prescribed and not waived under the R1M by Murray Laws to any Ecosse party or BWG party. It follows that those parties were aware that no Ecosse Mortgage or BWG Mortgage was registrable on the title to our property. Murray Laws R1M is copied in EX. SHE-1 @ pp. 104-147”.
His Honour said that he had indicated when the paragraph was read that he would need to understand the documentation referred to in the paragraph, but that he was not taken to any such document, or to anything that added to the submissions that had been made earlier that day in relation to the fourth ground or that precluded BWG from making the claims it advanced in the proceedings.
As to pars 43 and 64, which referred to a number of documents, the primary judge said that no material submission was made as to their significance in relation to BWG’s claim. In relation to those paragraphs, his Honour said he was not taken to a single document within the 628-page exhibit or to any of the other 170 paragraphs of the affidavit.
The primary judge concluded that nothing had happened in terms of evidence or submissions since he had dismissed the application to change the conclusion that he had earlier reached. That being so, his Honour confirmed his earlier order that par 1 of the notice of motion filed on 5 August 2025 was dismissed.
No party complains about the primary judge’s decision to permit reopening.
To the extent (if any) that the applicants complain that his Honour erred in confirming the dismissal of par 1 of their notice of motion (which had sought summary dismissal of the statement of claim), the applicants are bound by the way in which their lawyer, Mr Smits, advanced the argument. The primary judge had made it abundantly clear that he had not had an opportunity to read the very large volume of evidence which the applicants adduced, much of which was plainly irrelevant. He expressly said to Mr Smits, “So you’re going to have to take me precisely to each line you rely on in it”: Tcpt, 6 August 2025, 44.12. His Honour repeatedly asked Mr Smits to take him to the evidence which supported the submissions Mr Smits was making, but Mr Smits was unable to do so. For example, as to par 34 of Mrs Edmonds’ affidavit:
“SMITS: It’s saying that Murray Laws was the R1 Holder and was in legal possession as MIP, mortgagee in possession.
HIS HONOUR: So are there any documents that show that? With all respect to Mrs Edmonds, that’s an allegation about the knowledge of someone other than the plaintiff about a conga line of facts. Can you prove, is there any documentary evidence about the exercise of the power of possession or anterior default?
SMITS: There’s a copy of the notice, was in fact sent to BWG, that I’m trying to find.
HIS HONOUR: Where’s that? Is that in the lengthy exhibit?
SMITS: It could be, your Honour. I just don’t know for a minute, and another equity--
HIS HONOUR: No, okay, so there’s no documents you want me to see in relation to the mortgagee in possession?
SMITS: Not that I can see at the moment.
HIS HONOUR: Well, now’s the time, Mr Smits.”
(Tcpt, 6 August 2025, 46.15-37.)
“HIS HONOUR: You understand the process of the court.
SMITS: Yes, your Honour.
HIS HONOUR: You understand I can’t do anything other than by the evidence.
SMITS: Of course.”
(Tcpt, 6 August 2025, 48.15-37.)
The primary judge then turned to the proposed amended cross-claim. His Honour noted that Mr Smits accepted that the document was materially the same as the cross-claim which had been struck out on 19 June 2025, and said that Mr Smits identified only three differences between the proposed amended cross-claim and the initial one. First, the claim against the fourth cross-defendant, an individual, had been removed. Secondly, the prayers for relief had been changed so that in the proposed amended cross-claim relief was sought against all the cross-defendants. Thirdly, some particulars had been added to par 89, which his Honour set out. (It might be noted that those “particulars”, recorded in the 10 paragraphs (a) to (j), were in a highly compressed, nearly telegraphic form. For example, “(b) Date: 30 August 2024 From To: Summary: Edmonds declared bankrupt. LRS advised of dishonest lodgement of non-registrable documents. Murray Laws gave no consent. Contract frustrated and breached.” The allegation of dishonesty, like the allegation in (i) of “ongoing fraudulent activities”, was serious and unsubstantiated.)
The primary judge referred to the reasons he had given on 19 June 2025 for striking out the initial cross-claim, and said:
“It is impossible to follow the proposed Cross-Claim, a fact which was graphically demonstrated today when I asked Mr Smits, who is making the application for leave to file it, to demonstrate from the pleading the claim put against one of the extraneous proposed Cross-Defendants, namely the Legal Aid Commissioner. Mr Smits stood at the lectern and leafed through the document, first forwards and then backwards, and was not able to identify from his own document the claim he wishes to make against the Legal Aid Commissioner. If Mr Smits is not able to do it, I do not know how the Legal Aid Commissioner and those advising the Legal Aid Commissioner can be expected to do it. A cursory glance at the proposed Cross-Claim shows that it is hopelessly defective. It is not a basis upon which proceedings can be prepared for trial and it is not a basis on which the Court can be asked to adjudicate any issues. In those circumstances, the application for leave to file the proposed Cross-Claim is rejected.”
The last of the Decisions addressed BWG’s notice of motion filed on 1 August 2025, which sought orders in two stages:
first, striking out the amended defences of the Edmonds and Murray Law pursuant to UCPR, r 14.28(1);
secondly, summary judgment for BWG for possession of the Land pursuant to UCPR, r 13.1.
BWG substantially succeeded on both issues. The applicants clearly challenge at least so much of J6 as granted summary judgment for possession of the Land in favour of BWG.
It is important to note the basis on which the argument was conducted, as disclosed by the transcript. The primary judge asked the parties to “make clear exactly what evidence” they relied on for the purposes of this application: Tcpt, 6 August 2025, 56.21. BWG read the two affidavits of Mr Kelwyn Barrington Hough, a director of BWG, made on 17 April and 1 August 2025 and tendered their exhibits, without objection.
The primary judge then expressly asked Mr Smits, “Do you have any evidence on that?” to which Mr Smits replied “No, your Honour.” Tcpt, 6 August 2025, 56.39-41. The lengthy affidavit of Mrs Edmonds made on 6 May 2025 was thus not in evidence; nor was the large exhibit to that affidavit. It is important to note that although BWG had withdrawn its objection to that affidavit earlier in the day in the context of a very different application (the reopening of the applicants’ application for summary dismissal of the proceeding), BWG’s Senior Counsel had explicitly said that the withdrawal of the objection was limited to that application. If (which did not occur) Mr Smits had sought to rely on Mrs Edmonds’ 6 May 2025 affidavit for the purposes of resisting BWG’s application for summary judgment pursuant to UCPR, r 31.1, it would have been open to BWG to maintain its objection.
Senior Counsel for BWG made submissions occupying some eight pages of transcript in support of the application, both as to striking out the defences and, separately, as to summary judgment. He pointed out that BWG’s application was not for default judgment, and accordingly that the application for summary judgment was not dependent upon the striking out of the defence: Tcpt, 6 August 2025, 59.16-32.
The primary judge then asked Mr Smits, “Is there anything you wish to say on this application?” Mr Smits replied, “Not specifically, your Honour.” Tcpt 6 August 2025, 62.46-48.
The primary judge then asked Mr Smits a series of questions over some seven pages of transcript, including by reference to the exhibit to Mr Hough’s affidavit of 17 April 2025. Mr Smits accepted that the $650,000 (that is, the Secured Sum) had not been paid, and confirmed that the Edmonds were not offering to pay that sum into Court. The primary judge gave Mr Smits many opportunities to explain the applicants’ defence, asking him directly, “what is the defence you say the first, second and fifth defendants have to the making of an order for possession today?” (Tcpt, 63.15) and “what is the real issue?” (Tcpt, 63.25).
Mr Smits appeared unable to answer by reference to evidence. For example:
When the primary judge asked if Mr Smits could give him the page reference to “a single piece of paper that support[ed]” one of Mr Smits’ arguments, the answer was “I haven’t got it on me. It’s referred to in the first cross-claim that your Honour struck out. …” Tcpt, 65.13-27. When his Honour pursued that submission, Mr Smits conceded: “There’s no reference to the documents in there because this is merely a pleading”: Tcpt, 65.40. His Honour pointed out that that pleading had made “a very grave allegation of dishonesty against a man” who was named (Tcpt, 65.47), and asked, “What is the evidence you have for making that allegation?” (Tcpt, 66.6). Mr Smits submitted that he had contracts and video surveillance, but did not suggest that that material was in evidence (Tcpt, 66.8).
In J6, the primary judge outlined the long history of BWG’s attempts to recover money from the Edmonds, culminating in the Edmonds’ execution of the Mortgage in favour of BWG on 30 August 2024, pursuant to which they promised to pay the Secured Sum of $650,000 by 13 December 2024. His Honour found that “the promise to pay was pursuant to the compromise of claims backwards and forwards which were extant prior to the taking of the Mortgage.”
His Honour noted that the Mortgage was subsequently registered on the Land. He referred to evidence of a copy of the registered Mortgage and a title search from the Land Registry Office, which showed that the Mortgage was registered. His Honour recorded that “there is no dispute that the Mortgage is registered”, nor any “dispute that the money was not paid”: J6[5]. His Honour also emphasised that the only relief pressed by BWG was an order for possession.
Addressing the procedural history, the primary judge first referred to the original cross-claim, which he described as having “bordered on the incomprehensible but referred to many incidents and dealings and documents and parties over the preceding one or two years and leading up to 30 August 2024 when the Mortgage was granted”: at J6[6]. His Honour pointed out that the cross-claim “contained very serious allegations against sixteen Cross-Defendants, including allegations of criminal activity, fraud, dishonesty, deceit, misrepresentation and unconscionable conduct, in some instances without discrimination among the Cross-Defendants”. His Honour stated that it had not been possible from a reading of the cross-claim to understand the complaint which the Edmonds made, much less to understand it with sufficient specificity to permit the case to proceed to trial fairly, and that he had struck the original cross-claim out on 19 June 2025. The primary judge then referred to the proposed amended cross-claim, which he noted had been relevantly the same as the document which had been struck out on 19 June 2025, and which he had refused leave to file earlier on 6 August 2025.
As to what had emerged in the course of oral argument, the primary judge said that he had asked Mr Smits to explain the basis for the Edmonds’ defence. His Honour said that having listened carefully to Mr Smits’ submissions (in which he had not referred to any documents), his Honour had not been able to understand any complaint the Edmonds wished to make which would deprive BWG of its entitlement to an order for possession. The primary judge emphasised that there was no dispute (a) that BWG was in fact registered as mortgagee or (b) that the Edmonds had not performed their promise to pay the $650,000. His Honour also noted that the Edmonds had not offered to pay the $650,000 into Court.
As to the Edmonds’ amended defence, the primary judge referred to it at J6[14] as having two parts. The first part consisted of 11 paragraphs responding to allegations in the statement of claim. However, even that purportedly responsive part of the document was unsatisfactory, both because it failed properly to traverse the allegations in the statement of claim, and because, as the primary judge pointed out, it was interwoven with allegations which were not properly pleaded (in the sense that they did not disclose the matters upon which the Edmonds relied).
“As to para 14 of SoC, the [Edmonds] deny that the BWG Mortgage was registrable or that registration of it on or about 13 January 2025 was valid or is enforceable and say that presentation of the BWG Mortgage for registration in the events which happened as pleaded herein was a fraud upon the Registrar General and respectively against the [Edmonds] and [Murray Laws].”
His Honour said that the opening words of par 10 might be read as a denial of par 14 of the statement of claim, but that the rest of par 10 could not be permitted to remain on the Court’s file “when there is no attempt to address even the minimum requirements of a pleading of fraud”: J6[16].
At J6[16], the primary judge described the second part of the Edmonds’ defence as containing “a series of statements rolled up together without any obvious relationship”, which did not adhere to minimum pleading requirements for serious allegations. He gave as an example par 16, which alleged:
“Contractually, as between BWG and the Edmonds, execution and registration of the BWG Mortgage was interdependent and conditional upon or only valid or enforceable with simultaneous satisfaction of each one of the following conditions precedent, that were agreed upon between 15 and 30 August 2024 as between BWG and the first and second defendants and did not occur as agreed upon in the events which happened on or before 30 August 2024, as to which time was made contractually as being of the strictest essence by reason of expiry of the BWG’s Creditor’s Petition on 3 September 2024 and by reason of which BWG is estopped by conduct or illegality from enforcing the BWG Mortgage: ….”
Those words were followed by 20 subparagraphs which, as the primary judge said, did not appear to inform in any clear way what was set out in the opening words. (It might be noted that those subparagraphs did not give proper particulars of the making of any alleged agreement between 15 and 30 August. Many of the subparagraphs contained allegations that are not readily understood as constituting contractual “conditions precedent”. For example, subpar (d) alleged that “at all material times BWG was acting as a finance broker and was required to and did not hold an AFSL or ACL in relation to its financial service business and credit activities. …”)
(It should also be noted that many of the allegations in the defence were highly conclusory. For example, par 17 was as follows: “By written Notice issued to BWG on 19 December 2024, the first and second defendants rescinded the alleged Settlement Agreement of 30 August 2024 for fundamental breaches and specified breaches of essential conditions by BWG.” No particulars were given. Nor is it obvious how that allegation would answer a claim for possession based on a registered mortgage.)
The primary judge concluded that on any view, pars 13-19 of the amended defence must be struck out.
His Honour had earlier said that one course open to the Court would be to strike out the amended defences and grant leave to replead. His Honour declined to exercise his discretion to do so, given that this was already the “second attempt for [the Edmonds and Murray Laws] to put forward their case”. Instead, his Honour decided that the appropriate course was to give summary judgment in favour of BWG and to make an order for possession. His Honour summarised his reasons for that conclusion as follows.
The nature of BWG’s claim was one capable of ready and definite proof and the material clearly established the right for which BWG contended. BWG had adduced evidence to prove the essential matters upon which it relied, which were all matters of ready and definite proof as the Real Property Act intends. If there were to be an issue about whether BWG was entitled to possession, it was a matter for the Edmonds or Murray Laws to articulate a position which vitiated BWG’s position.
The Edmonds had “tried twice by formal pleadings and once in Court today to articulate the ‘real issues’” but had not been able to do so: J6[20]. His Honour said that this was “not a case where, listening carefully, one can see a broad concept capable of undermining the indefeasibility of title which [BWG] has for its Mortgage under s 42 of the Real Property Act. Having read both Cross-Claims and listened to Mr Smits today, the [Edmonds’ and Murray Laws’] position remains incomprehensible”: J6[20]. His Honour considered that merely striking out the defences with leave to replead would be an exercise in futility.
There was also a risk that BWG would be prejudiced by delay. Although the application had been dealt with on the basis that the Land was worth not less than $3 million, there was a risk that the prolongation of the proceedings, particularly having regard to the extremely expensive way in which the Edmonds and Murray Laws were choosing to conduct them by bringing so many parties before the Court, would result in insufficient proceeds from the sale of the property to ensure all the secured creditors were paid.
Following the primary judge’s orders made on 6 August 2025, BWG obtained a Writ of Possession of the Land on 25 August 2025. The NSW Sheriff’s Office gave notice of eviction to the Edmonds scheduled for 15 October 2025.
On 14 October 2024, the Edmonds filed an urgent ex parte application for a stay of the Writ of Possession. Justice Cavanagh heard the application and granted a temporary stay for one week: Barrington Winstanley Group Pty Ltd v Edmonds [2025] NSWSC 1234.
On 21 October 2025, the motion was further heard by N Adams J, who did not extend the stay. However, BWG undertook not to cause the Sheriff to execute the Writ of Possession before a further hearing on 7 November 2025.
On 7 November 2025, Walton J dismissed the stay application: Barrington Winstanley Group Pty Ltd v Edmonds [2025] NSWSC 1354.
On 17 November 2025, the Edmonds filed a notice of motion in the Court of Appeal, again seeking a stay of execution of the Writ of Possession. That application was heard by Free JA on 18 November 2025. The Edmonds undertook (a) to pay $850,000 into Court within 21 days, failing which (b) they would deliver up possession of the Land to BWG. On that basis, Free JA granted a stay of execution of the Writ of Possession and the judgment for possession for 22 days: Edmonds v Barrington Winstanley Group Pty Ltd [2025] NSWCA 251 at [28]-[29].
The Edmonds failed to pay any amount into court in accordance with that undertaking.
On 10 December 2025, at a directions hearing in the Court of Appeal, the Edmonds indicated that they wished to seek an extension of the stay and to vary their undertaking. On 11 December 2025, the Edmonds filed in court a notice of motion seeking, in effect, to vary the undertaking regime so as to extend the time for payment into court (of an increased sum on $875,000) until 2 February 2026. The application was heard and dismissed by Free JA on that day: Edmonds v Barrington Winstanley Group Pty Ltd (No 2) [2025] NSWCA 271.
On 12 December 2025, BWG took possession of the Land**.** The Edmonds made an urgent application that day to the Federal Circuit and Family Court of Australia (Division 2) and obtained an ex parte injunction restraining BWG from enforcing the Mortgage over the Land. That injunction was discharged with an indemnity costs order made against the Edmonds on 18 December 2025.
On 7 January 2026, the Edmonds filed an application in the New South Wales Civil and Administrative Tribunal (NCAT) seeking a restraining order against BWG. The Edmonds withdrew that application on 27 January 2026 after a conciliation hearing.
As noted above, it is not entirely clear, either from the summons for leave to appeal or from the applicants’ submissions, which of the Decisions other than J6 is the subject of the present application for leave to appeal. Although the summons refers to the “decision below” in the singular, it also states: “The appeal … insofar as leave is required, is brought under section 101(2)(e) in respect of the interlocutory orders made on 6 August 2025, including striking out the Amended Defence, refusing leave to file the Cross-Claim, and awarding indemnity costs.”
Whichever of the six Decisions is challenged, the following points should be noted.
For the reasons explained below, the applicants need leave to appeal from each of the Decisions.
Each of J1-J5 was interlocutory in character, such that leave to appeal is required pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW).
Each of J1-J5 is fairly described as involving a matter of practice and procedure.
As to J6, orders 1 and 2 striking out various pleadings were again interlocutory decisions on matters of practice and procedure.
The only part of J6 which may not fairly be described in that way was order 3: the summary judgment in favour of BWG for possession of the Land. That was a final order, which the applicants purport to appeal as of right. But it is not open to them to do so. By s 101(2)(l) of the Supreme Court Act, leave is required to appeal from “a judgment or order of the Court in a Division on an application for summary judgment under the rules”. That includes an order for summary judgment made pursuant to UCPR, r 13.1: see Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [13].
Important aspects of the Decisions, such as the decisions to refuse an adjournment and to refuse a party whose pleading has been struck out leave to replead, were discretionary in character. That being so, the applicable standard of review of those decisions is that in House v The King (1936) 55 CLR 499; [1936] HCA 40. But the submissions are not cast in those terms. Moreover, some of the applicants’ submissions in this Court refer to their pleadings as though they remained on foot.
The Court will usually grant leave to appeal only where the proposed appeal concerns a matter that involves an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable: see, for example, Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38] per Basten JA (Tobias AJA agreeing). Particular caution is called for in granting leave to appeal from an interlocutory decision concerning a matter of practice and procedure: see, for example, (1981) 148 CLR 170 at 177; [1981] HCA 39 per Gibbs CJ, Aickin, Wilson and Brennan JJ; [2019] NSWCA 48 at [3].
“GROUND 5: FAILURE OF THE PJ TO FIND THE ESSENTIAL CONDITION OF PREDICATE LIABILITY TO GROUND ANY RIGHT TO IMMEDIATE POSSESSION: J1 [18]; T 19 June p 1 @ ll 11–19 & p 3 @ ll 59–71; J2 [30]; T 6 August p 2 @ ll 53–95
5. The PJ erred in assuming jurisdiction and in law by granting final possession to the plaintiff prior to making any finding of monetary default or any related jurisdictional fact establishing predicate liability. It was a term of the said Mortgage that any right to possession would only arise when the requirements imposed under s. 57 of the RPA were fulfilled, which did not occur as stated under Ground 3. By treating the matter purely as one of mere procedural strike-out or dismissal of an amalgam of defences or cross claims under UCPR rr 13.4 or 14.28 (1), without any finding of predicate liability despite non consideration of any justiciable defences or cross-claims as sufficient to ground a substantive entitlement to an order for possession, the PJ committed a jurisdictional error on the face of the record (Kirk v Industrial Court (2010) 239 CLR 531 @ [55]–[60]; Craig v South Australia (1995) 184 CLR 163 at 179–180). A procedural order cannot be substituted for a necessary determination of the jurisdictional fact of default or predicate liability. These omissions constituted a constructive failure to exercise jurisdiction (Plaintiff S157/2002 v CWA (2003) 211 CLR 476 [76]).
Result: These deficiencies meant that one or more essential jurisdictional fact/s was/were not found to exist for enlivenment or exercise of the Court’s power to grant a possession order. An Order made without a necessary predicate finding of default or liability is void for jurisdictional error (Isuzu v Directed Electronics [2025] FCAFC 150 (24 Oct 2025). The jurisdictional error and error of law were also evident on the face of the record. The Possession Order and Writ for Possession are invalid for absence of jurisdictional fact and predicate liability.”
The applicants’ written and oral submissions do not improve matters.
At the hearing of the summons for leave to appeal, which was conducted concurrently with the argument on the appeal if leave were granted, Mrs Edmonds appeared remotely by audio link. She made submissions on the notice of motion seeking to vacate the hearing date referred to below — both on her own behalf and (without objection) on behalf of Mr Edmonds. However, as to the argument on the summons for leave to appeal, Mrs Edmonds made no oral submissions other than briefly in reply to those for BWG. Instead, she relied on written submissions, being (a) the initial written submissions dated 5 November 2025 filed with the white folders, which were apparently prepared by Mr Smits; and (b) a document of some 31 pages headed “Pro Forma Submissions in Reply of Applicants”, filed on 17 February 2026, which were signed by Mrs Edmonds.
Both documents were seriously deficient. Neither made submissions in terms of the criteria for leave to appeal. Instead, to the extent that the applicants’ submissions are comprehensible at all, they largely proceed as if the only question is the identification of legal error. That approach is mistaken on an application for leave to appeal, which is governed by the principles discussed above.
The applicants’ initial written submissions dated 5 November are structured in part by reference to the grounds of appeal, but do little to illuminate them. Indeed, the submissions on some of the grounds were shorter than the statement of the ground itself. More concerningly, as was pointed out by BWG in its submissions, several authorities cited in the applicants’ initial written submissions appear to have been the product of artificial intelligence “hallucinations”. For example, at par 5 of the applicants’ initial submissions dated 5 November 2025, the applicants refer to “Re Pollack; Ex parte Official Receiver (1962) 107 CLR 76”. This is put forward as authority for the proposition that registration does not validate a mortgage transaction made while a party to it is subject to sequestration orders. There appears to be no case in the High Court by that name, and the citation (1962) 107 CLR 76 in fact directs the reader to the fourth page of Carroll v Purcell (1962) 107 CLR 73; [1961] HCA 61, a case about damages in an action by a widow under the Compensation to Relatives Act 1897 (NSW).
Mr Smits, who appears to have signed these initial written submissions on behalf of the Edmonds and Murray Laws, is a legal practitioner. He did not appear at the hearing of the summons for leave to appeal (in circumstances discussed below in connection with the applicants’ notice of motion seeking to vacate the hearing date). Mr Smits was, accordingly, not asked to explain the apparent hallucinations. That being so, it is not appropriate to say more than that the use of artificial intelligence in that way in the preparation of the submissions would be contrary to SC Gen 23*,* pars 16-18, and a matter of grave concern.
“The applicants pleaded and provided extensive evidence before the HH of fraud, dishonesty and unlawful conduct of BWG in relation to the creation, uploading, execution, lodgement and purported registration of Mortgage Dealings AU379624-AU379627, including: the uploading of a non-existent mortgage (AU379627), inconsistent data and entries in RPA instruments, lodgements for registration during the said bankruptcy period, unauthorized redirection of the $500,000 in trust settlement funds through Ark Legal, serious attestation and authorization irregularities under the RPA, ss 56C, 107-108, and presentation of unregistrable, interdependent dealings for registration by Summer Lawyers without designated legal authorisations and consents. Despite being ex facie exceptions to indefeasibility, HH refused to allow, consider or determine any statutory fraud issues, stating that fraud issues were 'outside the scope of the Possession List' or subject to strike-out or dismissal under r 13.4 or r 14.28 and not capable of being pleaded as a cross claim under ss 221-22 of the CPA.”
Those are serious allegations. No references are given to the “extensive evidence” said to establish the fraud and dishonesty. To the extent that the reply submissions refer to the applicants’ pleadings, the amended defences were struck out on a pleading basis. The applicants’ submissions do not attempt to challenge the Decisions which struck out those defences by reference to the applicable principles of pleading and the provisions of the Civil Procedure Act to which the primary judge referred.
Ultimately, the applicants’ submissions fail to engage with the primary task at hand: to make out a proper basis for a grant of leave to appeal.
In the circumstances, the appropriate way to proceed is to address the question of leave to appeal by grouping the proposed grounds of appeal together in as coherent a manner as the nature of the draft notice of appeal allows, as proposed by BWG.
One point should be noted at the outset. None of the proposed grounds appears to raise a question of principle or a matter of general importance. The real question is whether the applicants can show that any of the grounds raises a reasonably clear injustice going beyond what is merely arguable, particularly in circumstances in which they did not adduce any evidence below.
These proposed grounds proceed on the footing that, extraordinarily, although the Edmonds at all relevant times were and remain the registered proprietors of the Land, they were not in possession in that capacity. Rather, so the argument appears to run:
the Edmonds had granted a mortgage to Murray Laws (ranking after BWG’s);
the Edmonds had defaulted under the mortgage, and Murray Laws had validly exercised a right to take possession;
Murray Laws as mortgagee in possession had entered into a residential tenancy agreement within the meaning of s 13 of the Residential Tenancies Act 2010 (NSW) with the Edmonds on 28 August 2023;
the Edmonds were in possession as tenants of Murray Laws;
the Edmonds had the benefit of certain protections under the Residential Tenancies Act, in particular those in ss 81, 119 and 124, which somehow precluded the exercise by BWG of its rights as (an earlier ranking) mortgagee.
There are several reasons why leave should not be granted to appeal on these proposed grounds.
First, there was no evidence in support of the argument on BWG’s application for summary judgment. Indeed, the argument does not appear to have been advanced to the primary judge in answer to BWG’s application. (The proposition that Murray Laws was “in possession by virtue of being a mortgagee in possession under some other mortgage” had been the subject of the point his Honour made at J4[4]-[5], when refusing the applicants’ own application for summary dismissal of the statement of claim. That is, that his Honour had told the parties he would need some assistance with the documentation said to be relevant to that proposition; yet he had not been taken to any such document.)
Secondly, the Edmonds’ amended defence (which had been struck out) had not pleaded any of the provisions of the Residential Tenancies Act identified above, other than s 13. Instead, the amended defence pleaded (incoherently) at par 15 that the alleged residential tenancy agreement between the Edmonds and Murray Laws somehow estopped BWG from obtaining possession of the Land.
Thirdly, s 13 defines a residential tenancy agreement as “an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence”. If, contrary to what occurred at the hearing before the primary judge, the applicants had adduced the evidence on which they now seek to rely to establish the supposed s 13 agreement on which this proposed ground depends, the ground would still fail. The material to which the applicants wish to point does not establish a s 13 agreement. Instead, the document on which the applicants wish to rely is expressed in the following terms: “we hereby authorise Sandra Henri Edmonds to act and be a of the property , unless or until …” (emphasis supplied).
124 Notice of proposed recovery of premises by person with superior title
(1) This section applies if proceedings for the recovery of possession of residential premises are commenced before a court or the Tribunal (whether under this Act or otherwise) by a person (the plaintiff) who is not the landlord or former landlord under the agreement.
(2) The court or Tribunal must not give judgment or make an order for possession, unless it is satisfied—
(a) as to whether or not there is a person in possession of the residential premises as a tenant under a residential tenancy agreement or a former tenant holding over after termination of a residential tenancy agreement, and
(b) that any such person has had reasonable notice of the proceedings brought by the plaintiff.
(3) Failure to comply with this section does not invalidate or otherwise affect the judgment or order.
The Edmonds were fully on notice of the proceedings: they were defendants. In any event, a failure to comply with s 124 does not affect the order for possession: subs (3).
Fifthly, viewing the argument in the context of the larger legal relationship between BWG, the Edmonds and Murray Laws, it is not in dispute that the Edmonds granted the Mortgage on which BWG relies to BWG, or that the Mortgage ranks ahead of any mortgage granted to Murray Laws. It would be, to say the least, surprising if the Residential Tenancies Act operated so that an agreement reached between BWG’s mortgagors (the Edmonds) and a lower ranking mortgagee (Murray Laws) could defeat BWG’s rights as mortgagee.
These proposed grounds do not raise a reasonably clear injustice going beyond what is merely arguable.
These proposed grounds are without substance. Together, they complain that “no monetary default had occurred under the terms of the said Mortgage” and that there was “no proof of service” of the notice under s 57(2)(b) of the Real Property Act.
As to the first point, the only condition in the Mortgage was that the creditor’s petition be dismissed on or before 3 September 2024. That occurred on 30 August 2024. The Secured Sum of $650,000 thus fell due and payable on 13 December 2024. It is not in dispute that the Edmonds have failed to pay any money in discharge of that liability. The primary judge made a finding to that effect at J6[5].
Mr Hough, a director of BWG, gave evidence that the notice was served by way of email and by prepaid registered post. That was service for the purposes of s 57: see s 3D of the Real Property Act (as to giving notice “in the approved way”) and s 170(1) of the Conveyancing Act 1919 (NSW). (It might be noted that the order made was for possession. BWG has not yet sought to exercise any power of sale.)
This proposed ground of appeal is again without substance. It complains that the primary judge treated the proceeding as governed by the former s 79 of the Supreme Court Act 1970 (NSW), rather than s 20 of the Civil Procedure Act, which provides: “A claim for judgment for possession of land takes the place of a claim in an action for ejectment that could have been brought under the practice of the Supreme Court as it was immediately before 1 July 1972.” There is no basis for that complaint. None of the Decisions relies on the former s 79, and the primary judge was referred to s 20 in the course of argument.
To the extent that proposed Ground 4 complains that the primary judge refused or failed to consider “issues of licensing, bankruptcy and fraud”, the ground misapprehends the basis upon which his Honour made the order for possession, namely, that he was satisfied that the applicants had no defence to the claim. Contrary to the applicants’ contention, the practice note governing the Possession List (which is CL6, not EQ11 as claimed) does not require “that where questions of title, equity, or illegality arise, the proceeding must be transferred out of the List”.
The sequence of events when the creditor’s petition came on for hearing on 30 August 2024 in the Federal Circuit and Family Court of Australia (Division 2) is important. (It should be noted that most of the matters referred to below were the subject of Mr Hough’s evidence. Some other matters were common ground in this Court, despite the absence of evidence. The parties also agreed that this Court should have regard to the transcript of the proceedings on 30 August 2024, notwithstanding that it had not been in evidence before the primary judge.)
On the morning of Friday 30 August 2024, the parties reached a settlement in principle which would involve the dismissal of the creditor’s petition if certain steps were taken in the course of the day.
Shortly after 10:01 am, the Court was informed that the proceedings had settled in principle, subject to certain steps being taken. The matter was stood down until 3:30 pm.
One of the steps was that the Edmonds would execute a mortgage in favour of BWG securing the payment of $650,000 payable on 13 December 2024, and Murray Laws would consent to its mortgage being postponed. That occurred by about 1:51 pm, when a copy of the executed Mortgage was emailed to the solicitors for BWG. It is common ground that the Edmonds voluntarily executed the Mortgage before any sequestration orders were made.
Another step in the settlement was that Ecosse pay $500,000 to BWG by 3:00 pm. That had not occurred when the matter resumed at 3:41 pm, and so it was stood down to 4:15 pm.
When the matter resumed at 4:17 pm, Ecosse had still not made the payment to BWG. Senior Counsel for BWG proposed that sequestration orders be made but stayed until the following Monday, in the hope that if the payment was made over the weekend the orders could be discharged on the Monday. Judge Riley expressed concern that it might not be possible to stay sequestration orders, but said “I suppose the order could be set aside by consent on Monday”. It is common ground that the sequestration orders were made by consent, apparently no later than about 4:22 pm on 30 August.
Ecosse apparently made the payment later that afternoon, and (apparently no later than about 5:33 pm) Judge Riley made orders, expressed to have been made by consent, as follows:
“1. The sequestration orders made on 30 August 2024 be set aside.
- The proceeding be dismissed.”
In light of that background, the nub of the applicants’ argument appears to be that the Mortgage is unenforceable because the Edmonds were undischarged bankrupts at the time the Mortgage was lodged for registration (Ground 6), such that they lacked capacity with respect to the Mortgage (Ground 7), and any pre-bankruptcy debts owed to BWG became merely provable in the bankruptcy (Ground 8).
There are several reasons why the applicants should not be granted leave to appeal to prosecute these proposed grounds.
First, the argument was not clearly made to the primary judge as an answer to BWG’s application for summary judgment. It is true that, in the course of submissions on a different application (the applicants’ notice of motion seeking summary dismissal, which had led to J3 and J4 given earlier on the same day), Mr Smits had submitted that the effect of certain sections of the Bankruptcy Act 1966 (Cth) (in particular, ss 43, 58 and 116) was to render the Mortgage “void”. But even on that earlier application, Mr Smits had been unable to articulate why that was so:
“HIS HONOUR: Is it any words in particular in those provisions which you think demonstrate that the mortgage was void, please draw my attention to them. I’m going to look to see if I can find them.
SMITS: I can’t draw your attention to them at the moment.”
Tcpt, 6 August 2025, 27.23-27
Secondly, although the point does not appear to have been taken before the primary judge and was not argued in this Court, to the extent that the applicants wished to raise provisions of the Bankruptcy Act by way of defence to BWG’s claim for possession, it is far from clear that the Supreme Court had jurisdiction to decide those issues.
Section 5(1) of the Bankruptcy Act provides that “bankruptcy, in relation to jurisdiction or proceedings, means any jurisdiction or proceedings under or by virtue of this Act”.
Interpolating the s 5 definition, s 27(1) provides: “The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent jurisdiction in [any proceedings under or by virtue of this Act], and that jurisdiction is exclusive of the jurisdiction of all courts other than” two exceptions, which do not include the Supreme Court of New South Wales.
Where a defendant raises provisions of the Bankruptcy Act in order to defeat the “title” on which the plaintiff’s claim depends, and depending on the nature of the argument advanced, the proceeding would at least arguably be one “under” that Act: cf Felton v Mulligan (1971) 124 CLR 367 at 403-4 per Walsh J (Barwick CJ agreeing at 373-4); [1971] HCA 39. If so, it would be within the exclusive jurisdiction referred to in s 27(1).
Particularly in the absence of argument, those are strong reasons to refuse leave to appeal on this ground.
Thirdly, the Edmonds had granted the Mortgage before the sequestration orders were made. The Mortgage was then registered on 13 January 2025, long after the one and a half hours or so on 30 August 2024 between the making of the sequestration orders and the order setting those orders aside. There are two possibilities: the sequestration orders were validly set aside on 30 August 2024 or they were not.
If, as appears to have been the applicants’ original position, the order setting aside the sequestration orders was valid, it is difficult to see how the brief period of bankruptcy could affect the enforceability of the registered Mortgage.
As BWG points out, Grounds 6 to 8 assume that the relevant event is the lodgement of the Mortgage for registration, rather than the position when the Mortgage was granted (or, indeed, when it was registered). That assumption is mistaken. Nothing happened during the brief period of the Edmonds’ bankruptcy which would bear on the enforceability of the Mortgage.
Approaching the matter at a high level of generality, it is undoubtedly the case that, by s 58(1) of the Bankruptcy Act, where a debtor becomes a bankrupt, the property of the bankrupt vests in the trustee in bankruptcy (and is divisible amongst the creditors of the bankrupt in accordance with s 116); and that by s 58(3), a creditor may not enforce any remedy against the person or the property of the bankrupt in respect of a provable debt. However, by s 58(5), “Nothing in this section affects the right of a secured creditor to realise or otherwise deal with his or her security.” By s 5(1), “secured creditor, in relation to a debtor, means” relevantly “a person holding a mortgage, charge or lien on property of the debtor as a security for a debt due to him or her from the debtor”. Here, the Mortgage was granted (although not registered) before any sequestration orders were made. That would appear to have given rise to an equitable mortgage, such that BWG was a “secured creditor” within the meaning of the : see (1982) 84 FLR 88; [1982] FCA 152. The right of BWG to realise or otherwise deal with its security thus survived the bankruptcy.
“We write to respectfully bring to the Court’s attention a judgment of the Full Court of the Federal Court of Australia which was handed down on 3 March 2026 Davidson v Official Receiver [2026] FCAFC 15.
We simply draw the Court’s attention to the decision as it appears to be relevant to the issues arising in the above proceedings.”
It was not suggested that the email was sent with the prior consent of the other parties, or even that such consent had been sought. That being so, the email was not appropriate.
Davidson, a case of some 118 paragraphs, was concerned with s 139ZQ of the Bankruptcy Act. The Edmonds’ email did not identify in what respect the decision might be relevant to the present appeal. Upon review, the relevance of the decision is wholly obscure. In this respect, too, the email was not appropriate. The parties are engaged in adversarial litigation. In such litigation it is not for a party, whether or not formally represented, to require the Court to trawl through material (whether in the nature of evidence or authority) for the purpose of speculating as to its potential relevance. Not only would that impose an unjustifiable burden on the resources of the Court. It would also require the Court to engage in the partisan task of identifying and formulating arguments on behalf of one of the litigants, contrary to the essential judicial function of impartial adjudication.
To the extent that proposed Ground 9 should be understood as complaining that there was no evidence that the Mortgage was executed by the Edmonds, it is incorrect. Both the Mortgage and a title search demonstrating its registration were in evidence.
To the extent that the applicants wish to complain under proposed Ground 16 about the primary judge’s reliance on the evidence given by a director of BWG, Mr Hough, concerning “loan and settlement transactions which he was not competent to prove”, the relevant affidavit was dated 17 April 2025. That affidavit was read on 19 June 2025 without objection (Tcpt, 17.5). It was read again on 6 August 2025, with objection only to par 17 (Tcpt, 19.7). That paragraph gave evidence that on 30 August 2024:
“Soon as the Settlement Documents were lodged for registration and the PEXA workspace was locked and moved to ‘settling’ status, BWG and the Edmonds through Ark Legal and Murray Laws provided signed consent orders to the Court and Judge Riley made those orders on 30 August 2024 and dismissed the Creditor’s Petition. Appearing at pages 33-34 of Exhibit KBH-1 is a copy of the Orders made by Judge Riley on 30 August 2024.”
The primary judge admitted the evidence. To the extent that the paragraph was evidence of a sequence of events, it was plainly admissible in circumstances where Mr Hough had deposed at par 4 that he made the affidavit based on his personal knowledge. To the extent that the paragraph gave evidence of the operation of the PEXA platform, it might well have required a more secure foundation before it was properly admitted at a final hearing. But nothing turns on that aspect of par 17, and the rest of the affidavit was not the subject of objection.
To the extent that proposed Ground 9 otherwise complains that the Mortgage was not lawful (i.e., valid), it does not appear to add anything to the arguments made elsewhere.
The premise of this proposed ground appears to be that the Mortgage is “tainted by illegality” because BWG took it in the course of conducting a consumer credit (or perhaps a financial services) business. But the primary judge expressly found at J6[4] that BWG sued as a creditor not as a lender. That is consistent with the fact that the Mortgage secured the sum of $650,000 which was payable as part of the settlement of the creditor’s petition. (Indeed, it appears that the creditor’s petition, which led to the giving of the Mortgage, was itself based on a judgment debt: see Tcpt, 6 August 2025, 30.1.)
While BWG carried a heavy onus to establish that the applicants had no defence to its claim for possession, BWG succeeded on this issue before the primary judge. That occurred in circumstances where the Edmonds’ cross-claim had been struck out, with leave refused to file any amended cross-claim; and where the applicants’ amended defences were also struck out without leave to replead. Importantly, there does not appear to have been any evidence at first instance specifically directed to the applicability of the licensing regimes — in particular, connecting the Mortgage to the operation of either regime.
In order to obtain a grant of leave to appeal, the applicants need to establish that his Honour’s decision gave rise to a reasonably clear injustice. But the applicants’ submissions on appeal, both in chief and in reply, simply assert without explanation (1) that BWG was subject to the two statutory licensing regimes (implicitly, in respect of taking the Mortgage), and (2) that it followed from the fact that BWG was not licensed that the Mortgage was rendered “illegal, void or unenforceable”. That is insufficient. The applicants have not articulated their argument based on the licensing regimes with sufficient clarity to show that it is fairly arguable. Nor do they point to any evidence in support of it. They are thus unable to point to any reasonably clear injustice.
Leave to appeal with respect to this proposed ground should be refused.
This proposed ground begins with the following: “His Honour erred in law by failing to consider or apply the fraud or any other exception under s 42 or s 45 of the [Real Property Act], despite clear admitted evidence that BWG procured registration of Mortgage No. AU379626 from direct participation in and with knowledge of illegalities or frauds upon the Registrar General and the appellants.”
There does not appear to be any proper basis for this serious allegation of fraud. Neither the draft notice of appeal nor the applicants’ submissions on the appeal particularised the fraud or identified evidence to justify the allegation.
Leave to appeal with respect to this proposed ground should be refused.
The basis of this proposed ground, as explained in submissions, is that the primary judge denied the applicants procedural fairness by striking out the amended defences and refusing leave to file the cross-claim.
There is no basis to that complaint. The primary judge applied orthodox principles of pleading, the application of which is not the subject of specific challenge in this Court. The applicants instead cavil with the result and complain that they were denied the opportunity to run their case. There are two answers to that complaint.
First, to strike out a pleading for failure properly to plead a defence is not to deny procedural fairness — to the contrary, it ensures procedural fairness to the other party.
Secondly, the operative decision here was the granting of summary judgment for possession in J6. Unless the applicants can succeed in setting aside the order for possession, the pleading question is moot. And the pleading question was not determinative of the summary judgment issue. As noted above, the primary judge was not granting a default judgment, but rather summary judgment. His Honour did so on the basis of the arguments and evidence before him, not merely the absence of pleadings. The primary judge gave Mr Smits, appearing for all three applicants, every opportunity to articulate what their defence was to BWG’s claim for possession. They failed to do so. There was no denial of procedural fairness.
For the same reasons (and to the extent that it was pressed), there is no basis for any suggestion of a reasonable apprehension of bias on the part of the primary judge: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Leave to appeal with respect to this proposed ground should be refused.
“His Honour erred in fact and law by finding that A1 and A2 received a benefit of $500 000 (during the bankruptcies) when no such payment was proved. The PJ failed to find that under ss 58 and 116 of the CBA, any post-sequestration payment vested in the Bankruptcy Trustee. A party who never receives funds obtained no ‘benefit’.”
The heading to this proposed ground gives references to “J2 [42]” and “T 6 August p 38 @ ll 5-24”. Those references are obscure. None of the primary judge’s Decisions has a paragraph or page numbered 42. Page 38 of the transcript makes no reference to any $500,000 payment. It is difficult to see what relevance any $500,000 payment could have by way of defence to BWG’s claim for possession.
Leave to appeal with respect to this proposed ground should be refused.
These proposed grounds attempt to raise issues that were not articulated to the primary judge clearly (if at all), for which there was no evidence before the primary judge, that are often serious (e.g., allegations of fraud in Grounds 10 and 12), that are not properly particularised, that are difficult to follow, and that do not appear to raise what could amount to a substantial injustice arising out of any of the Decisions. They appear to depend, to at least some extent, on the applicants’ establishing one or more anterior propositions which are the subject of other proposed grounds.
To take one example, the subject of proposed Ground 10 is a so-called notice of rescission dated 19 December 2024 which was not in evidence on BWG’s application for summary judgment (it was included in the exhibit to Mrs Edmonds’ 6 May 2025 affidavit, which was not read on the application). That alone is enough to dispose of the proposed ground.
The notice is in any event an incoherent document. It amounts to a catalogue of complaints, including among many others complaints in relation to the Bankruptcy Act and the National Consumer Credit legislation, which are said to be “grounds for rescission of the contract for fundamental breach, breaches of essential conditions and otherwise”. It is wholly unclear how those matters could amount to breaches of any contract; or how those breaches would give rise to a right to “rescind” any such contract; or how such rescission (apparently in fact termination of future performance) could have any effect on the validity of the registered Mortgage. The “contract” is itself obscure: it is defined simply as “contract of 30 August 2024 made between the Edmonds and BWG”.
The applicants have failed to advance any case warranting a grant of leave in relation to these proposed grounds.
“The Hearing listed for 18 February 2026 at 10.15 am be vacated on the papers.”
So far as Murray Laws’ application to vacate is concerned, it is an incorporated legal practice. In what amounted to a brief submission Mr Smits made by way of email late on the day before the hearing as to why the listing should be vacated, he indicated that he has some 50 years’ experience in legal practice. If so, he should well have known that in order to obtain an adjournment of a concurrent hearing listed before three judges of this Court, particularly one that is contested, it is necessary to establish the matters relied upon by evidence. In this case, where the principal ground relied on was medical in nature, it would have been appropriate to provide evidence from a medical practitioner as to the nature of the difficulty, its practical ramifications for Mr Smits’ ability to conduct the argument, and when the difficulty might be expected to be resolved. But that would have been only the start of the necessary evidence. It would be one thing to explain why Mr Smits personally could not conduct the argument. It would also be necessary to explain why Murray Laws, as an incorporated legal practice, was unable to retain another solicitor and/or counsel to appear for it. In the absence of any evidentiary basis, Murray Laws’ application to vacate the hearing date could not succeed.
So far as the Edmonds’ application to vacate is concerned, they made the following submissions.
Mr Smits had been undergoing ongoing dental surgery which was “seriously affecting his capacity to function in relation to the appeal”. The Edmonds, in written submissions in support of vacating the hearing, asserted that Mr Smits was “medically unfit and under heavy sedation”. There was, however, no medical evidence in support of this submission.
Mr Smits’ “incapacity” due to his medical state had “materially impair[ed] the applicants’ ability to prepare, respond to late material, and structure oral argument”. In some tension with that submission, the applicants also referred to being self-represented.
The Edmonds had been denied access to “appeal books, transcripts, electronic devices and legal materials” and had “no realistic opportunity to review or respond” to BWG’s affidavit of 16 February 2026, which responded to the Edmonds’ notice of motion of 16 February 2026. This submission was answered by BWG in the manner discussed below.
There was no urgency to the hearing, and in particular, there was no evidence of “security erosion or financial prejudice arising from short vacation”, and no “dissipation risk” as BWG already had possession of the property. Again, this submission was answered by BWG in the manner discussed below.
There were overlapping proceedings in NCAT concerning the Land such that proceeding in this Court before NCAT made its determination risked fragmented adjudication and inconsistent findings. There are several answers to this submission. First, the NCAT proceedings appear to have been discontinued. Secondly, the fact that the Edmonds may have chosen to commence proceedings in NCAT while simultaneously prosecuting their summons for leave to appeal is a problem, if at all, of their own making. Thirdly, the primary judge gave judgment for possession adverse to the Edmonds. Whether or not the NCAT proceedings risk inconsistent findings with that judgment, it remains on foot. It is not obvious how the proceeding in this Court risks other or further inconsistent findings, when the issue in this Court is whether the primary judge erred in the exercise of a summary jurisdiction. Fourthly, the practical consequence of the Edmonds’ submission would appear to amount to staying the proceedings in this Court pending NCAT’s determination. A powerful reason would have to be shown to justify such a stay, on the Edmonds’ application, in the context of proceedings concerning a judgment for possession. None has been shown.
“Pursuant to the inherent or implied jurisdiction of the Court, Section 23 of the Supreme Court Act (1970) (NSW), NSW or under UCPR Division 7 Part 7, an Order restraining each Respondent, in person or by any partner, firm, agent, servant or otherwise as applicable, from engaging the Fourth Respondent, Fifth Respondent or the Sixth Respondent, and from acting for or representing [f]or the First Respondent [i]n these Proceedings upon the grounds set out in the affidavit intended to be sworn by the First Applicant in support of this Notice of Motion.”
The references to the fourth, fifth and sixth respondents were to persons the applicants sought to join, being respectively two solicitors and BWG’s Senior Counsel.
Insofar as the order concerned BWG’s Senior Counsel, it was advanced on the bases:
that Senior Counsel was a “co-offender” in the conduct that resulted in Murray Laws’ first mortgage, that defrauded the applicants of some $750,000: Tcpt, 1 February 2026, 4.29-31; and
that he had “a personal interest in the matter”, because he had “participated” in the 30 August 2024 settlement, “taking an undue preference” (being some part of the sum of $500,000): Tcpt, 1 February 2026, 5.3-10; 13.25-34.
There was no basis in the evidence for these arguments, which raised serious allegations. They should not have been advanced.
No submission was advanced in support of the order sought with respect to the two solicitors.
On that basis, prayer 6 was dismissed.
The applicants have failed on all issues. No extension of time should be granted. The orders I propose are as follows.
The summons for leave to appeal is dismissed with costs.
The applicants’ notice of motion filed on 16 February 2026 is dismissed with costs.
**********
Paragraph 72 - Moved apostrophe.
Edmonds
Barrington Winstanley Group Pty Ltd
(1981) 148 CLR 170
(2000) 205 CLR 337
(1971) 124 CLR 367
(1964) 112 CLR 125
(1936) 55 CLR 499
(1982) 84 FLR 88
(2010) 239 CLR 531
(1995) 184 CLR 163
(2003) 211 CLR 476
(1962) 107 CLR 76
(1962) 107 CLR 73
The summons for leave to appeal and the applicants’ notice of motion filed on 16 February 2026 were dismissed with costs; no extension of time was granted.
Although it is not entirely clear from the applicants’ notice of appeal in this Court, they challenge some or all of the six Decisions given by the primary judge, which for convenience will be numbered J1 to J6 as follows.
It is also to be noted that Mr Smits acted for each of the Edmonds and for Murray Laws at the hearing of the arguments that resulted in J1 to J6.
To understand what this application for leave to appeal is about, it is necessary to explain in a little detail the subject matter and evidence led in relation to each of J1 to J6.
Murray Laws’ defence was also found to be wholly deficient. It contained statements in the nature of submissions or hopes rather than pleadings and was generally unresponsive to the statement of claim. Again, it was struck out with leave to replead.
It should be noted that those were all orthodox criticisms arising out of the fundamental purpose of pleadings. Those deficiencies fully justified the orders the primary judge made with respect to the defences and cross-claim. The applicants do not attempt to engage with that aspect of the reasoning; indeed, it is not clear whether they challenge J1 at all. To the extent that they seek leave to do so, it should be refused.
The second ground was that BWG held neither an Australian Financial Services Licence nor a credit licence such that, by virtue of s 911A of the Corporations Act 2001 (Cth) and s 32 of the National Consumer Credit Protection Act 2009 (Cth), there was a prohibition on recovering money. His Honour considered that in order to test that ground it would be necessary to explore the facts concerning whether or not BWG was in the business of providing financial services and the purpose of the Mortgage, as well as questions of construction of the relevant provisions. This was another matter where BWG would be entitled to a full hearing.
The third ground was an assertion that the Mortgage did not benefit from indefeasibility of title under s 42 of the Real Property Act 1900 (NSW), “but there is no evidence put forward in relation to that”.
The fourth ground was that the Edmonds, who were the registered proprietors of the Land, were not in possession; instead, Murray Laws was a mortgagee in possession by virtue of exercising rights as mortgagee under another mortgage. The primary judge noted that Murray Laws was joined as the fifth defendant, and that in any event the circumstances in which it came to have a mortgage would be a factual matter and not one to be decided on a summary dismissal application.
The primary judge dismissed par 1 of the notice of motion and ordered costs against the Edmonds and Murray Laws, including the costs of all prospective cross-defendants who had been in attendance while the application had been made.
It is not clear to what extent the applicants challenge J3. To the extent that the primary judge refused the application to strike out the statement of claim on pleading grounds, the arguments made on behalf of the applicants are not directed to that reasoning, which was in any event orthodox. To the extent that the primary judge refused the application for summary dismissal, the applicants’ challenge (if any) turns on the more substantive matters discussed below.
When the primary judge asked, in relation to another proposition, “Is there any evidence of that?” the answer was “Well, there is, not here”. Tcpt, 68.1-3.
When his Honour asked whether Mr Smits had a copy of an affidavit to which he had referred, the answer was, “I don’t have it here, but, yes, we do have it.” Tcpt, 68.30-36.
Putting to one side the absence of evidence, another feature of the way the applicants advanced their case was that a significant part of Mr Smits’ argument turned on events in 2023 (see Tcpt, 67.22-24), that is, many months before the Mortgage was granted and the liability to pay the $650,000 fell due in December 2024. It is difficult to see how such matters could have any bearing on the enforceability of the Mortgage.
Despite multiple opportunities, Mr Smits had been unable to articulate any defence to the claim for possession by reference to evidence before the Court. In those circumstances, it was hardly surprising that the primary judge concluded that the applicants had no triable defence to the claim for summary judgment. His Honour granted summary judgment in favour of BWG.
His Honour gave as an example par 10 of the Edmonds’ amended defence. Paragraph 14 of the statement of claim had alleged: “On or about 13 January 2025, the Mortgage was registered on the Property.” Paragraph 10 of the amended defence was then as follows:
Section 56(1) of the Civil Procedure Act required that attention be directed to the “real issues” in the proceedings. The primary judge stated that he had not been able to identify any real issues in the proceedings which would deprive BWG of the limited relief which it sought: J6[23].
Although mindful that in the ordinary course all proceedings should proceed to trial, his Honour considered that this was one of those special cases for which the rules made provision: J6[24]. He was satisfied that no reasonable defence had been disclosed and, having regard to the objects of case management in s 57 and the dictates of justice in s 58, it was appropriate to make orders as follows.
By order 1, his Honour struck out certain non-responsive aspects of the first part of the Edmonds’ amended defence, together with the whole of the second part (i.e., pars 13-19).
By order 2, his Honour struck out the whole of Murray Laws’ amended defence.
Although his Honour did not separately address Murray Laws’ amended defence in his reasons, he appears to have considered that it stood or fell with the Edmonds’ defence, to which it cross-referred. For example, par 3 of Murray Laws’ amended defence, which responded to the allegation in par 7 of the statement of claim (that the Edmonds had executed the Mortgage on 30 August 2024 as a result of settlement of the creditor’s petition), included the following at (b): Murray Laws “denies that the BWG Mortgage had any legal force or effect except upon and subject to fulfilment of each specific condition specified in paragraph 16 of the Amended Defence of the [Edmonds] filed 3 July 2025, none of which were satisfied or fulfilled”. Similar responses were given elsewhere in Murray Laws’ amended defence.
By order 3, his Honour gave judgment for BWG for possession of the Land.
It should be noted that this was not default judgment pursuant to UCPR, rr 16.2-16.4 (i.e., on the basis that the amended defences had been struck out). His Honour’s consideration was not confined to the pleadings. Instead, his Honour gave summary judgment on the basis of what he had concluded at J6[24], namely, that he was affirmatively satisfied that there was no reasonable defence to BWG’s claim for possession. The primary judge had reached that conclusion after pressing the defendants’ legal representative Mr Smits to articulate a defence to the claim for possession, which his Honour considered he had been unable to do. Although his Honour did not refer to any, his approach was in accordance with authority: see, e.g., Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] NSWCA 388 at [49] and [55]. His Honour mistakenly referred at J6[24] to UCPR, r 13.4 (summary dismissal), but plainly enough that was intended to be a reference to r 13.1 (summary judgment), which was the rule on which BWG had expressly relied: Tcpt, 6 August 2025, 62.18.
By orders 4 and 5, his Honour awarded costs against the Edmonds and Murray Laws.
The applicants’ submissions appear to proceed on the assumption that it is sufficient to establish legal error. They made no substantial attempt to address the criteria for leave as such. Moreover, the applicants need an extension of time. They filed a notice of intention to appeal on 1 September 2025, being within 28 days of the material date of 6 August 2025 (in compliance with UCPR, r 51.8). But they did not file their summons seeking leave to appeal until 17 November 2025, 11 days after the 3-month time limit provided by UCPR, r 51.10(1). The application for leave to appeal is therefore out of time.
The applicants’ reply submissions filed on 17 February 2026 were not structured by reference to the grounds of appeal. Instead, after eight introductory pages, the document is organised by reference to a series of nine “Contentions”. As BWG submitted, these reply submissions do not appear to refer to any particular aspect either (a) of the Decisions below, or (b) of the contents of the white folders — save in one respect.
That is par 55, which illustrates the unsatisfactory nature of the reply submissions. The paragraph purports to give white folder references to evidence of SMS messages, which the paragraph then quotes. However, the cited page of the white folders appears to be an email — part of the exhibit to Mrs Edmonds’ affidavit of 6 May 2025 which was not in evidence on the relevant application below — which purports to quote the SMS messages. The significance of those messages, which post-date the central events of 30 August 2024, is in any event obscure. One of them is an assertion by Mr Smits that Murray Laws was misled, apparently by Ecosse, into giving its “consent” — apparently, to the registration of a mortgage. Not only does that assertion not prove itself; its relevance to the case is not obvious. However, par 56 then explains:
Fourthly, even assuming the existence of a residential tenancy agreement, the applicants’ reliance on the provisions they identify in the Residential Tenancies Act is misplaced.
Section 81(1) provides: “A residential tenancy agreement terminates only in the circumstances set out in this Act.” But subs (4)(b) provides: “A residential tenancy agreement terminates if any of the following occurs— … (b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant”. Rather than excluding the possibility that BWG could be entitled to possession, the section not only contemplates that that might occur, but also provides that any tenancy terminated when BWG became entitled to possession.
Section 119 provides: “A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement.” But BWG is not a landlord as defined in s 3 of the Act (relevantly, “the person who grants the right to occupy residential premises under a residential tenancy agreement”). BWG is a mortgagee. Section 119 says nothing about a mortgagee.
Section 124 provides:
To the extent that the applicants rely on s 122(1) of the Bankruptcy Act, the provision does not assist the applicants in the present circumstances. It provides that a “transfer of property by a person who is insolvent (the debtor) in favour of a creditor is void as against the trustee in the debtor’s bankruptcy” (emphasis supplied) in certain circumstances. On what appears to have been the applicants’ original case, there was no trustee in bankruptcy on 6 August 2025 because the sequestration orders had been set aside a little more than an hour after they were made, a year earlier.
All that being so, there could be no reasonably clear injustice arising out of a decision to make an order for possession which depends on the validity or enforceability of the Mortgage.
If, on the other hand, as the applicants now appear to contend, the order purporting to set aside the sequestration orders was of no effect, it must follow on the evidence before the primary judge that the Edmonds remain undischarged bankrupts. By s 58(1)(a), where a debtor becomes bankrupt, “the property of the bankrupt … vests forthwith in the Official Trustee or … in [the] registered trustee”. The Land was undoubtedly property of the Edmonds. The Edmonds would thus have no standing to pursue the appeal with respect to that Land. Leave to appeal would be refused.
(Since, on either hypothesis, leave to appeal would be refused, it is unnecessary for present purposes to resolve the question whether the sequestration orders were validly set aside on 30 August 2024. There may be reasons to doubt that Judge Riley had power to make the order in question, even by consent: see ss 37(2) and 43(2) of the Bankruptcy Act. See, however, Culleton v Balwyn Nominees Pty Ltd [2025] FCA 1542 at [65], where Horan J appeared to contemplate that a sequestration order could be set aside pursuant to a rule of court permitting the setting aside of a perfected order where the party in whose favour it was made consents.)
Fourthly, there is an air of unreality about these proposed grounds of appeal. The Edmonds and Murray Laws all consented, in fact, to every step in the sequence of events above, as part of the settlement of the creditors’ petition presented by BWG against the Edmonds, to which they agreed before the sequestration orders were made. The applicants’ voluntary acts included the granting of the Mortgage on the basis that it was to be registered. The applicants now say that only their trustee in bankruptcy could consent to “settlement” (apparently in the sense of registration) of the Mortgage. The applicants thus seek to escape the consequences of their own voluntary acts, on which BWG plainly relied in consenting both to the dismissal of the creditor’s petition and to the setting aside of the sequestration orders. Those would be powerful reasons in support of the proposition that the applicants would be estopped from denying the validity of the Mortgage now that it is registered. They are also powerful reasons for doubting that there was any injustice in a decision which turned on the validity of that same Mortgage.
By way of answer to the Edmonds’ application to vacate, BWG submitted as follows.
There was no evidence that there was any impediment to the Edmonds in preparing for the matter in circumstances where the Edmonds were in possession of the Land from 12 December 2025 to 13 January 2026, as they had returned to the property (as trespassers), such that the Edmonds had access to their possessions as needed to prepare for the hearing. This is evident from the fact that Mrs Edmonds prepared a very substantial affidavit on 26 January 2026 in relation to the NCAT proceedings, at a time when she claimed to have had no access to the materials required to prepare such a document.
On 10 December 2025, the Registrar had ordered, by consent, that the applicants amend their Notice of Appeal and White Book by 24 December 2025. There was no explanation as to why that did not occur, especially in circumstances where the Edmonds were then represented by experienced counsel.
For most of the life of these proceedings, and certainly when they were commenced, Mr Smits had acted for the Edmonds, who, as their solicitor, would have had all the necessary material the Edmonds needed to prepare for the hearing. There is no explanation as to why the Edmonds could not access this material from Mr Smits. Moreover, par 5 of the Edmonds’ written submissions in support of the motion to vacate acknowledged that Mr Smits had “assisted with preparation of documents”.
BWG was incurring very substantial costs in the management of the Land while the proceedings were on foot. One such cost was in relation to hiring security guards for the Land 24 hours a day in order to prevent any further attempts by the Edmonds to re-take possession.
The alleged residential tenancy agreement suggested that Mr Smits or Murray Laws was owed $550,000, and contained an interest provision of 4% per month compounding monthly. In circumstances where that document was entered into in 2022, there would be a risk of real prejudice to BWG and all other respondents if the hearing were vacated.
Those submissions should be accepted.
To the extent that the Edmonds’ application to vacate depended on Mr Smits’ medical condition, it failed for want of evidence. The Edmonds otherwise failed to demonstrate a sufficient reason to justify vacating the hearing date.
That being so, prayer 1 in the notice of motion was dismissed.