//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 885
Supreme Court of NSW
2026-07-27
Sirtes J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Fitzpatrick Investments Pty Ltd atf the Fitzpatrick Number One Trust v Boles [2026] NSWSC 885
Hearing dates: 24 July 2026
Date of orders: 27 July 2026
Decision date: 27 July 2026
Jurisdiction: Common Law
Before: Sirtes J
Decision: (1) The orders made by Registrar Hedge on 10 June 2026 are set aside pursuant to r 49.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
(2) The time provided in UCPR r 6.2(4)(a) for service of the Statement of Claim on the Defendants is extended to 27 November 2026, pursuant to UCPR r 1.12(1).
(3) The time for the Defendants to file a Defence to the Statement of Claim is extended until further order of the Court, pursuant to UCPR r 14.3(1).
(4) List the proceedings for directions before the Registrar on 8 February 2027.
(5) The Plaintiffs are to serve a copy of these orders and reasons for judgment on the Defendants when serving the Statement of Claim.
Catchwords: CIVIL PROCEDURE – Registrars – review of Registrar’s decision – where no error in Registrar’s decision – where new evidence on subsequent application – whether decision should be set aside
CIVIL PROCEDURE – originating process – expiry before service – extension of time for service – where plaintiffs seek extension of time to narrow scope of claim before service – no question of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, Div 1 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 6.2, 12.11, 14.3, 49.19
Cases Cited: In the matter of ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) [2023] NSWSC 461
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd t/as Cyndan Chemicals [2012] NSWSC 935
Weston v Publishing and Broadcasting Ltd [2009] NSWSC 321; 71 ACSR 577
Category: Procedural rulings
Parties: Fitzpatrick Investments Pty Ltd atf the Fitzpatrick Number One Trust (First Plaintiff)
Filetron Pty Ltd atf the Hunter Discretionary Trust (Second Plaintiff)
Development Management & Constructions Pty Ltd atf the Three Sisters Trust (Third Plaintiff)
Austed Fund Management Pty Ltd atf the Triple J Trust (Fourth Plaintiff)
Adam Boles and others listed in Schedule 1 (First Defendants)
Nexia Sydney Pty Ltd (Second Defendant)
Leigh Johnson (Third Defendant)
Paul Abbey and others listed in Schedule 2 (Fourth Defendants)
Representation: Counsel:
P Afshar (Plaintiffs)
Solicitors:
Johnson Winter Slattery (Plaintiffs)
File Number(s): 2025/00246440
The Plaintiffs in these proceedings are an interrelated group of trustees forming part of the Cottle family group companies. They filed a Statement of Claim (the SOC) on 27 June 2025 against four Defendants.
The First Defendants (listed in Schedule 1 to the SOC) are the partners who carried on business under the firm names Nexia Court & Co and Nexia Sydney Partnership. They operated as a firm of chartered accountants and registered tax agents.
The Second Defendant, Nexia Sydney Pty Ltd, has continued the accounting and tax advisory practice previously carried on by the First Defendants since about February 2019.
The Third Defendant, Leigh Johnson, was at all material times a chartered accountant and one of the partners of the partnership carried on by the First Defendants or, alternatively, their employee. He was also a director and employee of the Second Defendant. The Plaintiffs contend that Mr Johnson had the day-to-day responsibility for the provision of taxation and financial advisory services provided by the First and Second Defendants to the Plaintiffs.
The Fourth Defendants (listed in Schedule 2 to the SOC) are partners in a partnership known as PricewaterhouseCoopers. That firm provides, amongst other services, professional accounting and taxation advice and services.
The proceedings involve allegations of professional negligence against the Defendants, as well as misleading and deceptive conduct. In summary, the Plaintiffs claim that many of the distributions and loans they made over at least 20 years may be inconsistent with the Family Trust Elections and Interposed Entity Elections lodged with the Australian Taxation Office (the ATO) on the advice of the Defendants. The Plaintiffs contend that they will consequently be exposed to a significant liability including Family Trust Distribution Tax (FTDT), penalties and interest.
The claim is very large. When the SOC was filed, the Plaintiffs estimated that damages could well exceed $280 million.
As noted above, these proceedings were commenced on 27 June 2025. No Defendant has yet been served with the originating process. The usual rule is that an originating process is valid for service for six months after the date on which it is filed: Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 6.2(4)(a).
On 28 November 2025, the Plaintiffs filed a Notice of Motion seeking that the time for service of the SOC be extended to 26 June 2026 pursuant to UCPR r 1.12(1). That order was made by Registrar Hedge on 4 December 2025.
On 2 June 2026, the Plaintiffs filed a further Notice of Motion seeking that the time for service of the SOC be extended to 25 June 2027. That motion was heard and determined by Registrar Hedge on 10 June 2026. The Registrar refused the Plaintiffs’ application but extended the time for service of the SOC until 31 July 2026 as a practical matter, to allow time for personal service on the many defendants. The Court made the following orders:
“1. Pursuant to Rule 1.12 (1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the time provided in UCPR rule 6.2 (4)(a) for service of the Plaintiffs’ Statement of Claim on the Defendants be extended to 31 July 2026.
2. Statement of Claim listed for directions on 21 August 2026.
3. Plaintiff to serve a copy of this order and notify defendants of directions date when serving the SOC.”
By Notice of Motion filed on 8 July 2026, the Plaintiffs seek that the substantive orders made by Registrar Hedge on 10 June 2026 be set aside pursuant to UCPR r 49.19(1). In their place, they seek that the time for service of the SOC be extended until 26 February 2027.
The principles governing a review of a decision by a registrar were summarised by Hallen AsJ in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd t/as Cyndan Chemicals [2012] NSWSC 935 at [39] as follows:
“(a) The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [50], [52]; Al-Shennag v Statewide Roads Pty Limited [2009] NSWSC 210 per Hall J at [44]-[46]; it is ‘not restricted’ to a reconsideration of the primary material before the Registrar: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10].
(b) It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review. On the review, the court may exercise its powers regardless of error. However, review, in the relevant sense, involves discretionary intervention: Tomko v Palasty (No 2) at [52]; Lollback v Brakepower Pty Ltd at [13]; the discretion extends to a discretion whether, and if so, how, to intervene.
(c) The conduct of the review is at large and in the discretion of the Court. Notwithstanding the foregoing, the review is not accurately described as a hearing de novo: Perpetual Ltd v Barghachoun [2010] NSWSC 108 at [3], although it involves many of the features of a hearing de novo.
(d) There is an onus on a person seeking to have a court set aside, or vary, a registrar’s decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar.
(e) Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24]-[26]. The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47].
(f) What will be required to make out a case for intervention will vary depending upon the nature of the registrar’s decision under review: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, per Preston CJ at [12]. However, the court should inform itself of the material before the registrar at the time when he, or she, made the decision, should consider the reasons for the decision, and then should make its own decision based on the material before it after having the benefit of the submissions of each party.
(g) It is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing Court’s views for those of the registrar: Westpac Banking Corp v Abemond Pty Ltd; Westpac Banking Corp v Cameron (NSWSC, 3 November 1994, unreported).
(h) When it comes to matters of practice and procedure, there should be a natural inhibition against overturning a registrar’s decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640-641. However, where substantive error is established, then the Court would consider reviewing the registrar’s decision and would make such other order as it is authorised to make: Al-Shennag v Statewide Roads Pty Limited at [46].
(i) In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led that does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R (1936) 55 CLR 499 error is shown, again if it is satisfied that the interests of justice require this: Tomko v Palasty (No 2) at [5]-[9], [50], and [52].
(j) If fresh, or additional, evidence, is produced, it may be received by the court and taken into account (Fenwick v Wambo Coal Pty Limited [2011] NSWSC 176, per White J, at [46]), or the court may refer the matter back to the Registrar for consideration as a fresh application: Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. The court may be more inclined to intervene on a review based on fresh evidence, changed circumstances, or where error is demonstrated in the decision under review: Tomko v Palasty (No 2) at [52].
(k) The decision of the registrar stands until it is set aside: Lawteal Pty Limited v Ofo [2005] NSWSC 984, per Malpass AsJ at [19].
(l) The registrar must give sufficient reasons for his, or her, decision: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 per Malpass AsJ at [9]-[16].”
The Plaintiffs read an affidavit of Robert Guy Johnston sworn on 16 July 2026. Mr Johnston is a partner of Johnson Winter Slattery, the solicitors on the record for the Plaintiffs. He has day-to-day carriage of the matter.
The Plaintiffs request additional time for service on the basis that their dealings with the ATO are ongoing and expected to be finalised by 31 December 2026. Mr Johnston deposes that those dealings will have consequences for the scope of the claim pursued against the Defendants. Shortly stated, the Plaintiffs’ position is that, until there is clarity as to their liability to the ATO, the claim must remain an ambit claim including all distributions and loans which may attract FTDT.
Ms Colquhoun, solicitor, appeared for the Plaintiffs at the hearing before Registrar Hedge on 10 June 2026. She advised the Registrar of that position and submitted that the Plaintiffs did not want to serve the claim until their liability was more certain, so that the Defendants would not have to respond to all 91 distributions that are currently pleaded.
I have read and considered the transcript of exchanges between Registrar Hedge and Ms Colquhoun. The Registrar was not persuaded to extend time for the service of the SOC until June 2027. She approached the matter on the basis that there would be no difficulty with an order being made, once service was effected, that the Defendants be relieved of the need to file any defences for an extended period. With respect, I consider this proposal persuasive.
The overarching argument the Plaintiffs make in favour of the extension is that if the Defendants are served now, they will be required to start investigating, analysing and responding to each of the 91 pleaded distributions. Their concern is that if the claim is subsequently narrowed, the Defendants will seek costs thrown away by that amendment. This argument does not, on its face, grapple with the proposed course of relieving the Defendants of having to file a defence for a further period. I accept that it is a matter of speculation whether the Defendants would incur costs if this standstill were imposed. But this arrangement may be thought to provide the Plaintiffs with a potent argument as to why they should not bear any costs incurred until such time as the ATO negotiations are closed and the Plaintiffs, in consequence, file an amended pleading.
By their written submissions, the Plaintiffs propound four grounds to support the relief sought.
First, they contend that the extension is sought to enable the Plaintiffs to identify with precision the transactions to which their claims apply. This argument is that the present pleading is potentially inchoate and, for that reason, ought not be served in that form. That necessarily involves some degree of speculation in advance of the finalisation of the Plaintiffs’ interactions with the ATO. It may be that all transactions the subject of the present claim are pressed and there is no need for the Plaintiffs to amend them. In any event, the mere fact that a claim is potentially ambulatory is not, in my opinion, a justifiable reason to delay its service whilst future, speculative matters arise.
The second argument concerns what is described as the “balance of the prejudice” to each side, which favours the exercise of the Court’s discretion. This makes an assumption that there is some prejudice that the Defendants will suffer merely by service. That prejudice can be ameliorated easily enough by the kind of order proposed by the Registrar. Once that prejudice is reduced, the justification for the second argument loses much of its force.
The third basis is that the Plaintiffs have pursued these proceedings, including their discussions with the ATO, with diligence. Be that as it may, it is difficult to see how that is an argument that justifies a protracted delay in service.
The fourth argument is that the granting of relief will not foreclose the Defendants’ opportunity to argue that the orders extending the time for service ought to be set aside. I found this argument somewhat opaque. Having reviewed the transcript of the hearing before Registrar Hedge, I understand the Plaintiffs to be putting that, once the Defendants are ultimately served, it would be open to them to apply to set aside the orders extending time for service pursuant to UCPR r 12.11(1)(e) on the basis of any prejudice they had suffered thereby. This would leave the proceedings liable to be dismissed. That may be, but I am not persuaded that it would be in the interests of justice to burden the Defendants with that task after having extended the time for service for a period of nearly two years after the claim was filed.
I am not persuaded that the Registrar’s exercise of discretion was erroneous. The evidence before the Court on that occasion disclosed that the Plaintiffs’ discussions with the ATO were not expected to conclude “before the first quarter of 2027, at the earliest” (emphasis added). In light of that evidence, the Plaintiffs sought an order extending the time for service of the SOC to a date two years from when they filed the claim. Considering the overriding purpose and the principles of case management in Div 1 of Pt 6 of the Civil Procedure Act 2005 (NSW) by which the Court is bound, I would have come to the same conclusion as Registrar Hedge.
However, the position has changed since those orders were made. The Plaintiffs read new evidence on this application which indicated that the negotiations with the ATO are now expected to conclude by the end of this year. Consequently, they seek an order that the time for service be extended until February 2027.
To my mind, this is still too long a period. I accept that the Plaintiffs seek this relief with the goal of narrowing the issues in dispute and minimising the costs to be incurred in responding to the claim. This is commendable. But the claim has been pending in this Court for over a year now and the Defendants are entitled to be put on notice of the allegations made against them and to arrange their affairs in consequence.
I was taken to and have considered the principles expounded in Weston v Publishing and Broadcasting Ltd [2009] NSWSC 321; 71 ACSR 577 and In the matter of ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) [2023] NSWSC 461. Having done so, I consider that the approach which would best achieve the overriding purpose is to extend the time for service of the claim until the end of November 2026. This will allow the Plaintiffs to frame their claim after most, if not all, of their discussions with the ATO have concluded, while ensuring the Defendants are on notice of the claim by the end of the year.
Added to this, I will make an order that the Defendants be excused from filing a Defence until further order of the Court. The purpose of this arrangement is to minimise the costs that they will have to incur in responding to a claim which may significantly narrow. The question of the parties’ liability for those costs is for another day. But the Defendants should not expect that they will automatically be entitled to an order for costs thrown away, if there be any. I have fashioned these orders so as to minimise the need to incur those costs, and to facilitate the Plaintiffs’ intention to prosecute the most precise claim they can. The matter will be brought back for directions early in the new year so that further orders may be made once the scope of the Plaintiffs’ claim has solidified.
There was no error in the Registrar’s decision. However, the nature of the application before the Court does not require the demonstration of any error. I can have regard to the circumstances as they now stand based on the material before the Court. In light of the evidence now available, I am satisfied that the Court should exercise its discretion to extend the time for service of the claim in accordance with the above reasons.
Accordingly, the Court makes the following orders:
The orders made by Registrar Hedge on 10 June 2026 are set aside pursuant to r 49.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The time provided in UCPR r 6.2(4)(a) for service of the Statement of Claim on the Defendants is extended to 27 November 2026, pursuant to UCPR r 1.12(1).
The time for the Defendants to file a Defence to the Statement of Claim is extended until further order of the Court, pursuant to UCPR r 14.3(1).
List the proceedings for directions before the Registrar on 8 February 2027.
The Plaintiffs are to serve a copy of these orders and reasons for judgment on the Defendants when serving the Statement of Claim.
**********
Fitzpatrick Investments Pty Ltd atf the Fitzpatrick Number One Trust
Boles
(2007) 71 NSWLR 61
(2009) 168 LGERA 260
(2002) 55 NSWLR 638
(1936) 55 CLR 499