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[2026] NSWSC 815
Supreme Court of NSW
2026-07-01
Emmett J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Genders bht Ian Genders v Bateman [2026] NSWSC 815
Hearing dates: 01 July 2026
Date of orders: 01 July 2026
Decision date: 01 July 2026
Jurisdiction: Common Law
Before: Emmett J
Decision: Settlement approved and orders made in accordance with proposed settlement terms.
Catchwords: CIVIL PROCEDURE — Approval of settlement under s 76(3) of the Civil Procedure Act 2005 (NSW) — where application originally made for order of an interim payment pursuant to s 82 — whether, where interim payment is made ‘voluntarily’ as contemplated by s 81, an order is necessary under s 82
CIVIL PROCEDURE — Approval of settlement under s 76(3) of the Civil Procedure Act 2005 (NSW) — where it is in plaintiff’s best interests for the dispute about interim payment to be settled — whether Court should make direction under s 77(4) that payment should be immediately made to plaintiff’s husband, who is her carer and tutor in the proceedings — whether Court has power to impose conditions on how interim payment should be spent — whether evidence demonstrates that it is in the plaintiff’s best interests for such an order to be made
Original judgment source is linked above.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 76, 77, 81, 82, 83, 84
Cases Cited: Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106
Li bht Lam v Trustees of the Sisters of Charity of Australia as Trustee of the St Vincent’s Private Hospital Sydney Trust [2026] NSWSC 583
Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336
Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451
Stewart v Chee [2018] NSWSC 263
Yu Ge by her tutor Tao Ge v River Island Clothing Proprietary Ltd and Anor [2002] NSWSC 28
Category: Principal judgment
Parties: Diana Genders bht Ian Genders (Plaintiff)
Edward Bateman (Defendant)
Representation: Counsel:
P D’Arcy-King (Plaintiff)
D Wilcox (Defendant)
Solicitors:
Brazel Moore Compensation Lawyers (Plaintiff)
Wotton Kearney (Defendant)
File Number(s): 2024/00018322
Publication restriction: Nil
This is an application for Court approval of a settlement pursuant to which the parties propose that the defendant make an interim payment pursuant to Div 5 of Part 6 of the Civil Procedure Act 2005 (NSW). It is proposed that an interim payment be paid into Court pursuant to s 77(2) and the plaintiff sought that the Court direct under s 77(4) that it be paid immediately to the plaintiff’s tutor, who is her husband and carer.
For the reasons that follow, I am satisfied that the Court should approve the settlement, although the basis for the order is not the basis proposed in the consent orders sent to my chambers in advance of the hearing. For the reasons I will explain, I do not make today the direction under s 77(4) today, but that is not intended to preclude such an order at a later date.
82 Court may order interim payments
(1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.
…
(3) The court may not make such an order unless—
(a) the defendant has admitted liability, or
(b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or
(c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.
The defendant does not, at this stage of proceedings, accept that the plaintiff “would obtain judgment for substantial damages” if the matter went to trial, or that either of the other subparagraphs to s 82(3) is engaged. That is a legitimate position for the defendant to take. I am conscious that the expression “would obtain judgment” has been interpreted by the Court of Appeal as requiring a future-looking assessment as to whether, on the current evidence, the plaintiff would obtain judgment on the balance of probabilities: Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 at [25], [32] and [42]. I am also conscious that s 83(2) provides that the making or refusal to make an order under the Division is not a finding as to liability. There is a real artificiality in expecting a defendant to agree that a plaintiff “would obtain judgment”, even on the balance of probabilities, while resisting liability. There is no strict logical inconsistency – in an appropriate case a defendant may well concede that on the current evidence it is more probable than not that a plaintiff would obtain judgment for substantial damages while maintaining that the evidence at trial (including following cross-examination) will ultimately establish that the defendant is not liable. Nevertheless, there is a degree of incoherence in expecting a defendant to agree to this proposition.
The legislation does not require a defendant to concede any of the matters in s 82(3) in order to make an interim payment. Interim payments may be made “voluntarily”, noting that “interim payment” is defined in s 81(1) as follows (emphasis added):
interim payment, in relation to proceedings for the recovery of damages, means a payment of any of those damages by a defendant before the completion of the proceedings, either voluntarily or in accordance with an order of the court under this Division.
An interim payment made voluntarily will still engage ss 83 and 84, including the Court’s power to make orders under s 84(2) in relation to the interim payment.
I am mindful of Li bht Lam v Trustees of the Sisters of Charity of Australia as Trustee of the St Vincent’s Private Hospital Sydney Trust [2026] NSWSC 583 (‘Li*’*), in which Elkaim AJ proceeded at [10] on the basis that s 82 still required the Court to be satisfied that the plaintiff would obtain judgment for substantial damages. However, that was a case where his Honour had “no difficulty in being satisfied that an order for a s 82 payment should be made”: see at [17]. It does not appear that his Honour was invited to proceed on the basis that the payment should be treated as a voluntary interim payment. In the present case, I do not think it is desirable or appropriate for me to offer a view about whether I am satisfied that the preconditions to an order under s 82 should be made. The defendant proposes that the interim payment be made “voluntarily”, on the terms otherwise proposed in the consent orders. I am satisfied that it is appropriate to proceed on the basis that any interim payment made by the defendant is made “voluntarily”, without an order being made under s 82.
Accordingly, the Court needs to consider making the following orders:
an order approving that the interim payment be made into Court, noting that payment into court requires the Court’s approval under s 76(3)(b);
a direction proposed by the parties under s 77(4) for the payment of funds, once received by the Court, to the plaintiff’s tutor and carer (ie, her husband), a matter which I address specifically below;
consequential orders under s 84(2) as to the consequences of the payment including in the event the plaintiff succeeds or fails at trial;
a notation as to another matter agreed between the plaintiff and the defendant about the payment; and
an order that the plaintiff’s notice of motion seeking an interim payment be otherwise dismissed.
While it is only the order for payment into Court that requires approval under s 76, the plaintiff’s incapacity means that I would not make the other orders unless satisfied that those orders are in the best interest of the plaintiff.
The plaintiff sustained a serious injury from a severe stroke which she suffered after being discharged from a bilateral knee surgery performed by the defendant.
The plaintiff’s claim is that the defendant was aware of her atrial fibrillation history and that the plaintiff had expert cardiac advice on how to manage this condition prior to and following her bilateral knee surgery – including the time she should cease taking anticoagulant medication before the surgery and when it should be resumed. The plaintiff claims that the defendant’s failure to implement that advice (or alternatively take reasonable steps to ensure that the advice was implemented) meant that she was off the medication for too long, and that this caused the stroke.
The defendant resists the claim, contending that the plaintiff has not demonstrated negligence, that he acted in accordance with what was widely accepted by peer professional opinion as competent professional practice, and that the plaintiff has not proved the necessary causal link between any breach of duty and the plaintiff’s injury.
The plaintiff’s claim is for the cost of past and future medical treatment and assistance, relating to those injuries, as well as for non-economic loss that she has sustained.
An interim payment of the kind proposed by the parties will engage s 76(3) of the Civil Procedure Act, being ‘money paid into Court’, in proceedings commenced by or on behalf of a person under legal incapacity: Li at [3].
Section 76 reads:
76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity
(1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons—
(a) a person under legal incapacity,
(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,
(c) a person whom the court finds, during the course of the proceedings, to be incapable of managing his or her own affairs.
…
(3) Except with the approval of the court, there may not be—
(a) any compromise or settlement of any proceedings to which this section applies, or
(b) any acceptance of money paid into court in any such proceedings,
as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).
- The jurisdiction of the Court under the Damages (Infants and Persons of Unsound Mind) Act 1929 is protective in character*.*
- Before approving an infant’s settlement the Court must be satisfied that the terms of settlement are proper in the interests of the plaintiff.
- In some cases, where the trial has proceeded to a sufficient extent, the Court will be able to make its own assessment as to the propriety of the amount of the settlement on the material which has already emerged.
- In other cases the Court will require evidence to satisfy itself as to the propriety of the amount of the settlement.
- The Court will often have to rely to a significant extent on the assessment of the parties. Such assessment should be evidenced to the Court by an appropriate affidavit from the solicitor for the plaintiff which reveals to the Court the opinion of counsel, if any, retained in the matter as well as that of the solicitor for the plaintiff. Where counsel for the plaintiff propounds the settlement to the Court a statement from the Bar table by counsel as to the adequacy of the settlement in the circumstances may be sufficient.
- If there has been a compromise, the basis on which the matter was compromised should be evidenced to the Court. This may involve the defendant revealing to the Court, but not necessarily to the legal advisers of the plaintiff, the nature and quality of the material which supports the need for the plaintiff to compromise.
- In determining whether the amount or other terms of settlement are proper in the interests of the plaintiff the Court will not substitute its own assessment for that of the parties, provided that the amount or terms agreed is or are within parameters determined by the Court to be appropriate.
- In exercising the jurisdiction the Court should act cautiously and if in doubt decline to approve the settlement.
- Where a judge declines to approve a settlement in a non-jury case such judge should not, except in special circumstances, proceed to hear the action.
The ultimate question is whether the proposed settlement is beneficial to the interests of the person under a disability or in their best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (‘Mills’) at [29].
It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29].
In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether a more advantageous award may be achieved from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on the plaintiff if the litigation were to continue”: Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 at [27]. I will observe here that the reference to the litigation and to the outcome at trial needs to be understood in this context as reference to the motion for an interim payment continuing and the risks or consequences should that be dealt with by way of a contested hearing.
While these principles are drawn from cases that deal with a final settlement or compromise, I see no reason why they should not apply equally to settlement of a dispute about whether an interim payment should be made, the result of which is payment of funds into Court.
The tutor, who brings the action on behalf of a plaintiff, should assent to the compromise. The tutor for the plaintiff before me, being the plaintiff’s husband, has confirmed by affidavit his consent to and support for the settlement.
The Court has before it the following material:
affidavit of Ryan Flippence and exhibit thereto, which includes extensive expert evidence that has been served by the parties;
affidavit of Ian Genders and exhibit thereto, which provides evidence amongst other things for the plaintiff’s need, being a matter recognised to be relevant to an application for interim payments; and
second affidavit of Ian Genders, dated 24 June 2026, in which Mr Genders confirms his support as tutor for the settlement. In this second affidavit, Mr Genders explains his understanding that this amount will need to be repaid if the plaintiff’s claim is unsuccessful and that it will be deducted from any judgment sum in the event that the plaintiff is successful. Mr Genders also confirms that the funds are to be used to ensure the plaintiff receives proper care for the treatment of her injuries and disabilities.
I have read and given careful consideration to that material.
I have also received and given careful consideration to the written opinion of senior and junior counsel for the plaintiff which was received on a confidential basis.
I am satisfied that it is in the best interests of the plaintiff to approve this payment into Court in settlement of the plaintiff’s application for an interim payment. I take into account my assessment of the risk that if there were a fully contested hearing on the plaintiff’s application for an interim payment the plaintiff could receive less than the agreed sum or could fail altogether. I offer no view about prospects or about the magnitude of that risk, save to observe that, taking into account my assessment, I am satisfied that the proposed consent orders are in the best interests of the plaintiff.
One of the other reasons why I consider the settlement to be in the best interests of the plaintiff is that it means she can immediately access the personal and domestic services.
The consequential orders form part of the terms of the settlement between the plaintiff and the defendant.
With one exception, I am satisfied that the orders should be made because it is in the plaintiff’s best interests for the dispute about interim payment to be settled, and the consequential orders are reasonable terms of settlement – indeed, they are the orders that the Court would likely make in any event, either immediately or at the end of the trial, if there were a contested hearing about the interim payment.
The exception is the proposed order that the Court, pursuant to s 77(4), direct the payment of the funds, once received into Court, immediately to the plaintiff’s husband and carer, who is her tutor in these proceedings.
I readily understand why that direction is being sought. On the material before me, the interim payment was sought because the plaintiff has immediate needs which she and her husband are either unable to meet or are struggling to meet. It is desirable that these funds become available to benefit the plaintiff with minimal delay.
I am also mindful that of authorities doubting the Court’s power to impose conditions on how an interim payments should be spent and holding that, even if there is a power to impose such conditions it will rarely be appropriate to do so: see, eg, Stewart v Chee [2018] NSWSC 263 at [10]-[20] and the cases cited there.
This in my view stands separate from whether a direction should be made for money to be paid to a particular person under s 77(4) out of funds which have been paid into court for the benefit of a person lacking capacity. In directing that funds held in court be paid out to an individual, the Court is exercising a protective function and should be satisfied that the funds will be held and used for the benefit of the plaintiff.
This does not require conditions that the funds be used for specified purposes. However, it does require the Court to be satisfied that the person to receive the funds is an appropriate person to receive funds, which will be received on trust. I have no reason to doubt the goodwill of the plaintiff’s husband, or his commitment to the care of the plaintiff. I have received two affidavits from Mr Genders in which he confirms this commitment and states his understanding or intention that the interim payment funds would be used to ensure the plaintiff receives proper care for treatment of her injuries and disabilities.
While I have no reason to doubt the sincerity of these statements, I am mindful that the Mr Genders is himself 82 years old and is physically more frail than he used to be. In making orders for the benefit of the plaintiff, I need to consider whether there is a risk of the plaintiff’s husband deteriorating. The Court would be assisted by understanding what current arrangements if any are in place in relation to the management of the plaintiff’s estate now or in the future.
I accept, as the plaintiff’s counsel submitted before me, that a discretionary consideration in favour of making a direction under s 77(4) as proposed by the plaintiff, is that payment to an independent trustee would attract additional costs and delays. It is relevant to consider that, if the plaintiff is unsuccessful and is obliged to repay the funds received, that will include an obligation to repay any amount, even if it was spent on management fees. While such payments are, as a matter of substance, expenses incurred for the benefit of the plaintiff, I accept that it is legitimate for those representing the plaintiff to propose a regime which sees the payments being made to Mr Genders for the benefit of the plaintiff, in order to avoid those costs and potential delays.
In light of my view, I do not propose to make the direction now that the funds once paid into Court should be paid to the plaintiff’s husband. However, that is not to preclude the possibility of such a direction being given later, should further evidence of the kind I have described demonstrate that it is in the best interests of the plaintiff for the direction to be made.
**********
Genders bht Ian Genders
Bateman
[2026] NSWSC 583
(2010) 77 NSWLR 495
(2007) 71 NSWLR 1