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[2026] NSWSC 751
Supreme Court of NSW
2026-06-29
Williams J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gregory George McLellan trading as Guardian Family Law v Rastogi [2026] NSWSC 751
Hearing dates: 26 June 2026
Date of orders: 29 June 2026
Decision date: 29 June 2026
Jurisdiction: Equity - Applications List
Before: Williams J
Decision: See Orders at [64].
Catchwords: PRACTICE AND PROCEDURE – Proceedings commenced urgently in Equity Duty Judge List and served on first defendant outside Australia pursuant to r 11.4 of the Uniform Civil Procedure Rules 2005 (NSW) and substituted service orders pursuant to r 10.14 of the UCPR – Applications by first defendant pursuant to r 12.11 of the UCPR to set aside the summons, to set aside service of the summons on her outside Australia, or to declare that the summons has not been duly served on her – Order made at first hearing following service of the summons at which first defendant did not appear – Plaintiff did not seek leave to proceed against first defendant pursuant to r 11.8AA of the UCPR before moving for that order – Second defendant paid money into Court rather than to first defendant pursuant to that order - Application by first defendant to set aside that order and for money to be paid out of Court to her – Application by plaintiff for interim injunction restraining the first defendant from claiming or demanding payment of the whole of the funds in Court.
Original judgment source is linked above.
Legislation Cited: Legal Profession Uniform Law (NSW), s 192
Uniform Civil Procedure Rules 2005 (NSW), r 10.14, r 11.4, r 11.8AA, r 11.8AB, r 12.11, r 36.15
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA
Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564
Trkulja v Efron [2014] VSCA 76
Waldemar Drexler v Karabay [2014] NSWSC 1863
Category: Procedural rulings
Parties: Gregory George McLellan trading as Guardian Family Law (ABN 57 633 859 231) (Plaintiff)
Anamika Rastogi (First Defendant)
Rahul Dass (Second Defendant)
Representation: Counsel:
Mr B Haines (Plaintiff)
Anamika Rastogi (Self Represented) (First Defendant)
Solicitors:
Civic Lawyers Australia (Plaintiff)
Anamika Rastogi (Self Represented) (First Defendant)
Pannu Lawyers (Second Defendant) (Submitting Appearance)
File Number(s): 2026/00154621
Publication restriction: N/A
The plaintiff in these proceedings, Mr Gregory McLellan, is a solicitor who practises under the name Guardian Family Law. During the period from January 2023 until November 2025, Mr McLellan acted for the first defendant Ms Anamika Rastogi, in family law proceedings against her former husband Mr Rahul Dass. Mr Dass is the second defendant in these proceedings.
Mr McLellan issued a costs agreement to Ms Rastogi on or about 23 January 2023, which Ms Rastogi signed indicating her acceptance of its terms. Clauses 5 and 6 of the costs agreement notified Ms Rastogi of her rights to negotiate the costs agreement, to negotiate the method of charging, to seek the assistance of the local regulatory authority in the event of a dispute about legal costs, and to request and receive itemised bills. Clause 7 set out Guardian Family Law’s policy of requiring clients either to have approved credit, to pay money into the firm’s trust account, or to provide credit card details. Clause 8 provided that the client authorised Guardian Family Law to receive directly into its trust account any judgment or settlement amount or money received from any source in respect of the work for the client and to pay its professional fees, internal expenses and disbursements in accordance with the provisions of rule 42 of the Legal Profession Uniform General Rules 2015 (NSW). Clause 12 of the costs agreement provided that, without affecting any lien to which Guardian Family Law is otherwise entitled at law over funds, papers and other property of the client, it shall be entitled to retain by way of lien any funds, property or papers of the client which are from time to time in its possession until all of its costs, disbursements, interest and other moneys due have been paid. Clause 12 provided that the lien will continue notwithstanding that it may cease to act for the client.
Mr McLellan issued invoices to Ms Rastogi on 17 January 2024 and 16 May 2024 in the amounts of $1,749 and $140 (respectively). Ms Rastogi paid those invoices.
Mr McLellan issued further invoices to Ms Rastogi on 17 September 2024 and 19 May 2025 in the amounts of $5,003.97 and $7,590 (respectively). Ms Rastogi has not paid those invoices.
Guardian Family Law departed from its policy stated in clause 7 of the costs agreement in relation to its payment terms with Ms Rastogi. In his email to Ms Rastogi attaching the invoice dated 17 September 2024, Mr McLellan wrote: “We have agreed for payment of your matter to be deferred until Settlement”. Ms Rastogi replied by email on 2 October 2024 stating: “I would like to confirm that I would adhere to the deferred payment arrangement until the settlement is reached. However, if an interim maintenance is made during the settlement process and funds become available, I would be more than happy to make payment then and clear the outstanding amount.”
On 24 September 2025, the Federal Circuit and Family Court of Australia made final orders in property settlement proceedings in which Mr McLellan had acted for Ms Rastogi. The effect of those orders insofar as they are relevant to the present proceedings is that Mr Dass was required to pay Ms Rastogi a sum of $65,000 within 60 days, failing which he was required to sell a specified property at Westmead and pay the net sale proceeds in the amount of up to $65,000 to Ms Rastogi.
There were email communications between Mr McLellan and Ms Rastogi during November 2025 in which Ms Rastogi asked whether Mr McLellan would take care of the process in the event that Mr Dass did not make the payment required by the orders, and sought Mr McLellan’s advice concerning a further application that she wished to file in “Australian Court” immediately and an application for an Australian passport for her child.
On 24 November 2025, Mr McLellan sent an email to Ms Rastogi stating:
“Thank you for your email. I understand that this a stressful time and that you are eager to progress the remaining issues.
Given that it is the end of the year and I am a sole practitioner currently preparing for a number of separate trials scheduled prior to the holiday break. Accordingly, my availability is quite restricted at the moment. I apologise if my response has been slower than usual.
In relation to your property settlement orders, as noted in the email from Pannu Lawyers [the solicitors acting for Mr Dass], though the initial 60-day period is about to lapse, the Orders also provide a further 30-day period for the property to be sold before any enforcement action can be taken. Until that 30-day period expires, Rahul remains in compliance with the Orders. I am able to assist you with this matter as required, and I will update you once the funds have been received in trust.”
“Can you please share the correspondence that you have done with Pannu Lawyers during this time and also, have you asked them to transfer the funds to your trust account without my knowledge?
Since you are not available, I would have to seek alternate legal representation and would have to update them about the payment and further process for sale of property.”
“yes, I have requested that they deposit the money into my trust account as you have outstanding fees that I have paid on your behalf and therefore I am able to exercise a lien on the settlement monies.
Attached is the email chain.
It is not without your knowledge, as I am able to exercise a lien over the settlement monies and I have further repeatedly noted that I have attended to a number of disbursements on your behalf …
[the email then listed six disbursements, including barrister’s fees of $5,900]
This is a total of $6,905.06 of expenses incurred on your behalf which I have paid from my personal savings.
You have not paid any fees to me for legal work in your matter so I am currently -$6,905.06 in addition to all of the work provided.
Noting you are beyond the jurisdiction of Australia, I have raised the concern in my whatsapp message to you that if you were to receive the settlement money and disappear, I would be out of pocket a lot of money despite having been working on your matter since January 2023.
…
Accordingly, I have no choice but to exercise a lien over the settlement money. Once the money is received, I will issue an invoice, receipt the funds, notify you, and provide notice of the amount that I will be seeking to recover before transferring the balance to you. I cannot continue to pay expenses for you from my own savings. My office Is not a charity and it is not sustainable for me to do so.
I understand that you will be seeking alternative representation. However, as noted, Rahul has not yet contravened the Orders and has 30 days from the settlement payment date to attend to the sale of the property. Regardless, I will cease working from today. Please have your new solicitor contact me and I will prepare an uplift of your file. However, the settlement money must be paid to my office as I have already notified Pannu Lawyers that I hold a lien over the settlement funds. …”
Mr McLellan issued a final invoice to Ms Rastogi on 24 November 2025 in the amount of $25,555.50. Ms Rastogi has not paid that invoice.
The total amount of the unpaid invoices issued on 17 September 2024, 19 May 2025 and 24 November 2025 is $38,149.47.
Each of the unpaid invoices contains an itemised description of the work charged for and the amount charged for each item. The invoices did not contain the notification required by s 192 of the Legal Profession Uniform Law (NSW) (the Uniform Law).
On 24 November 2025, Mr Dass’s solicitors sent an email to Ms Rastogi advising as to the steps that Mr Dass was taking to sell the Westmead property and confirming that payment of $65,000 would be made to Ms Rastogi out of the net sale proceeds in accordance with the Federal Circuit and Family Court of Australia orders. The email was copied to Mr McLellan, and sought clarification as to whether the payment was to be made to Ms Rastogi’s account or to the trust account of Guardian Family Law.
Ms Rastogi replied to Mr Dass’s solicitor by email on 25 November 2025, without copying in Mr McLellan, stating that she had not authorised and did not authorise the payment to be made into the Guardian Family Law trust account, that Mr McLellan was no longer acting for her, and requesting that Mr Dass’s solicitor communicate with her directly going forward.
Mr Dass’s solicitor forwarded Ms Rastogi’s email on to Mr McLellan, who replied requesting that the $65,000 sum be paid into Guardian Family Law’s Trust account on the basis that Mr McLellan had an equitable lien over the funds. Mr McLellan copied Ms Rastogi into that email.
By 10 December 2025, Mr Dass’s solicitors had informed Mr McLellan that they would not pay the funds to his trust account without a court order requiring them to do so. Mr McLellan then engaged Civic Lawyers Australia to act for him in relation to asserting the equitable lien and recovering his fees.
On 1 December 2025, Ms Rastogi lodged a formal costs dispute and complaint against Mr McLellan with the Office of the Legal Services Commissioner (OLSC). Without prejudice negotiations between Ms Rastogi and Mr McLellan concerning his fees occurred in the context of the OLSC process.
On 1 April 2026, the OLSC wrote to Ms Rastogi advising that they had determined to close the complaint because the amount of costs in dispute exceeded the monetary limit in respect of which the OLSC is authorised to make a binding determination, and attempts made by Ms Rastogi and Mr McLellan through the OLSC to resolve the costs dispute informally had not been successful. The OLSC stated that the costs dispute may be appropriately dealt with through the Costs Assessment Scheme, and enclosed information about that Scheme for Ms Rastogi’s consideration. In relation to Ms Rastogi’s complaints about Mr McLellan’s conduct, the OLSC advised that they had determined not to take those matters any further for the reasons set out in the letter.
Mr Dass entered into a contract for the sale of the Westmead property in about March 2026. On 6 April 2026, his solicitors sent an email to Civil Lawyers Australia advising that settlement was anticipated to occur on 20 April 2026 and stating that the caveat that Mr McLellan had lodged against the Westmead property on behalf of Ms Rastogi must be removed prior to settlement.
Ms Rastogi replied in an email sent on the same day and addressed to Mr Dass’s solicitor, Mr Dass and “Mr Sam” (which I understand to be a reference to Mr Sam Darwish of Civic Lawyers Australia). Ms Rastogi wrote: “… as you are well aware, neither Mr Sam nor his client, Mr McLellan, act on my behalf. I am not sure why your office is contacting them with regard to the Sale of Westmead property or at all in this matter despite my specific instructions. Mr McLellan has no authority, rights or instructions from me to take any steps in relation to the Westmead property, including the removal of the caveat.”
Mr McLellan commenced these proceedings by summons filed in the Equity Duty Judge List on 15 April 2026 against Ms Rastogi and Mr Dass. Mr McLellan claims a declaration that he has a lien over the proceeds of the sale of the Westmead property in the amount of $38,149.47 in respect of unpaid legal costs incurred in acting as Ms Rastogi’s solicitor in the family law proceedings. By way of final relief enforcing the lien, Mr McLellan sought an order that, upon settlement of the sale of the Westmead property, Mr Dass pay from the net sale proceeds as a deduction from the sum that he is required to pay Ms Rastogi pursuant to order 6(d) of the orders made by the Federal Circuit and Family Court of Australia on 24 September 2025, plus Mr McLellan’s costs of these Supreme Court proceedings. Alternatively, Mr McLellan sought an order that Ms Rastogi’s $65,000 share of the sale proceeds of the Westmead property be paid into Court.
The Equity Duty Judge made orders on 15 April 2026 abridging the time for service of the summons to which the Form 161 notice required by r 11.7 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) was attached, together with Mr McLellan’s affidavit affirmed on 15 April 2016 and the exhibit to that affidavit, to 7:00pm on 15 April 2026, made an order pursuant to r 10.14 of the UCPR that service be effected on Ms Rastogi by sending those documents to her by email to a gmail address and by WhatsApp message to a specified number. Mr McLellan gave evidence in an affidavit affirmed on 15 April 2026 that he had communicated with Ms Rastogi using that gmail address and by WhatsApp messages sent to and received from that number. The summons was listed for hearing in the Equity Duty List at 10:00am on 17 April 2026, being the last business day before settlement of the sale of the Westmead property was expected to occur on 20 April 2026.
In her affidavit affirmed on 15 May 2026, Ms Rastogi gave evidence that she did not receive the summons or any other documents prior to the hearing on 17 April 2026. Ms Rastogi did receive a WhatsApp message from Mr Darwish on 15 April 2026 itemising the documents referred to above and stating that the matter was listed for hearing on 17 April 2026, but the documents did not download or transmit to her and her WhatsApp account displayed the notation “waiting for this message”. The message itself did not identify the court in which the proceedings had been commenced, the case number, or the steps that she needed to take in order to appear on 17 April 2026. There is no evidence that Ms Rastogi took any step to contact Mr Darwish via WhatsApp or by telephone call to the number from which she had received the WhatsApp message to ask for those details in order to appear on 17 April 2026. Ms Rastogi also gave evidence that her gmail address was not a reliable address for service of court process on 15 April 2026 because she had been using an icloud address due to “ongoing storage issues” with her gmail account since May 2025. I note that documents exhibited to Ms Rastogi’s affidavit indicate that the problem with her gmail account as at 20 April 2026 was not inadequate storage, but rather that Google had been unable to process her payments. The exhibited documents also include numerous instances of Ms Rastogi communicating from her gmail address after May 2025, including her email to Mr McLellan on 25 November 2025 referred to at [17] above and her email to Mr Dass’ solicitor on 6 April 2026 referred to at [23] above.
On 16 April 2026, Mr McLellan re-issued the invoices dated 17 September 2024, 19 May 2025 and 24 November 2025 to include the notification of rights required by s 192 of the Uniform Law and sent the re-issued invoices to Ms Rastogi by email.
When the matter was called in the Equity Duty List on 17 April 2026, Mr McLellan relied on an affidavit affirmed by his solicitor Mr Darwish on 16 April 2026 to establish service of the summons and other documents on Ms Rastogi in accordance with the substituted service orders made on 15 April 2026. Mr Darwish deposed that he had sent an email to Ms Rastogi’s gmail address at 5:12pm on 15 April 2026 attaching the summons (including the Form 161 notice), Mr McLellan’s affidavit and exhibit, and a copy of the orders made on 15 April 2026 and that he had also sent those documents to Ms Rastogi via WhatsApp at 5:13pm on 15 April 2026.
The Duty Judge noted the evidence that Ms Rastogi had been served, noted that there was no appearance for Ms Rastogi, and noted the submitting appearance that had been filed by Mr Dass. Without seeking leave to proceed against Ms Rastogi pursuant to r 11.8AA of the UCPR, Mr McLellan moved for interlocutory orders requiring Mr Dass to pay him the amount of $38,149.47 plus his costs of these proceedings out of the net sale proceeds of the Westmead property or, alternatively, for payment of Ms Rastogi’s $65,000 share of the sale proceeds into Court.
The Duty Judge ordered that, upon settlement of the sale of the Westmead property, Mr Dass pay the sum of $65,000 out of the sale proceeds (or such lesser sum as may be available after discharge of the mortgage registered over the property) into Court to abide an application by payment out by the interested parties in the matter.
Mr Dass paid the sum of $65,000 into Court on or about 1 May 2026.
In her affidavit affirmed on 15 May 2026 in support of her notice of motion to which I refer below, Ms Rastogi gave evidence that she has been residing in India with her parents since her former husband excluded her and their young child from their marital home in Australia. Ms Rastogi deposed that she was left with no choice but to move to India to live with her parents as she had insufficient financial resources to live independently in Australia and support her child. Ms Rastogi gave evidence that she is reliant on receiving the whole of $65,000 that is presently held in Court to secure accommodation and essential facilities, to support her return to Australia with her child, to pay ongoing legal costs, to pursue further proceedings in the Federal Circuit and Family Court of Australia which I understand relate to the parenting of her child with Mr Dass, and to care for her child. Ms Rastogi gave evidence that she has no other funds available to her, having already exhausted all other savings.
On 15 May 2026, Ms Rastogi filed a notice of motion containing 14 prayers for relief, including orders pursuant to r 12.11(1)(a), (b) and (c) of the UCPR setting aside the summons, setting aside the service of the summons on her outside Australia or, alternatively, declaring that the summons has not been duly served on her.
On 1 June 2026, Mr McLellan filed a notice of motion seeking a declaration that he has a lien of $38,149.97 for unpaid legal costs incurred in acting for Ms Rastogi in the family law proceedings over the sum of $65,000 that has been paid into Court, an order that that sum be paid to him out of the funds in Court, an order that Ms Rastogi pay his costs of these proceedings, and an order that any such costs order be satisfied in whole or in part out of the funds held in Court.
In the Applications List on 26 June 2026, Ms Rastogi sought to move on her motion. I indicated, and Ms Rastogi and counsel for Mr McLellan agreed, that the following aspects of Ms Rastogi’s motion should be determined before the hearing of Mr McLellan’s motion:
Ms Rastogi’s claims for orders pursuant to r 12.11(1)(a), (b) and (c) of the UCPR setting aside the summons, setting aside the service of the summons on her outside Australia or, alternatively, declaring that the summons has not been duly served on her (prayers 1 to 3 of the notice of motion);
Ms Rastogi’s claims for an order setting aside the orders made on 17 April 2026 pursuant to r 11A.12 and r 12.11 of the UCPR or such other rule or inherent power as the Court considers appropriate, and order directing that the sum of $65,000 held in court be released immediately and paid directly to a bank account nominated by Ms Rastogi (prayers 5 and 6);
Ms Rastogi’s claim for an order that the proceedings be stayed pending determination of her service objections, enforceability of the claim, and unpaid legal costs (prayer 9);
Ms Rastogi’s claim for an order pursuant to r 11.8AB of the UCPR setting aside the service on her of Mr Darwish’s 16 April 2026 affidavit and the written submissions of counsel for Mr McLellan dated 17 April 2026, which were relied on by Mr McLellan at the hearing before the Equity Duty Judge on 17 April 2026 (prayers 10 and 11); and
Ms Rastogi’s claim for an order pursuant to r 7.36 of the UCPR referring her to the Pro Bono Legal Assistance Scheme for a determination as to the provision of legal assistance, including legal advice and representation at court hearings (prayer 12).
Counsel for Mr McLellan acknowledged that the dispute between the parties in relation to the amount of costs owing to him, and whether those costs are presently due and payable, should be determined through the costs assessment process before Mr McLellan’s summons and notice of motion are heard and determined.
There are no grounds to set aside the summons pursuant to UCPR r 12.11. Mr McLellan’s claims in the summons are clearly articulated and, on the basis of the evidence which I have summarised above, reasonably arguable.
Mr McLellan’s claim relies on the general principle that a solicitor has an equitable lien over the fruits of litigation, whether obtained by way of judgment or compromise, where those moneys have been recovered as a result of the solicitor’s exertions. The quantum for which the solicitor has the equitable lien over the relevant moneys is the amount that is properly owing by the client to the solicitor, whether that amount is ascertained by costs assessment or pursuant to a costs agreement. The solicitor need not necessarily have still been acting for the client at the time the moneys were recovered. However, the solicitor must demonstrate a sufficient causal link between the solicitor’s exertions and the recovery of the moneys. The solicitor’s equitable lien arises immediately upon the recovery of the moneys through the solicitor’s exertions, even before the Court is asked to intervene to protect the lien. [1] As counsel for Mr McLellan submitted, the solicitor is entitled to the lien even before they are entitled to recover the costs against the client, including in circumstances where they are not presently entitled to recover by reason of having failed to issue bills containing the notification of the client’s rights requirement by s 192 of Uniform Law. [2]
The Court may set aside service of the summons or dismiss or stay the proceedings if it is satisfied that: [3]
service of the summons was not authorised by the UCPR; or
the Court is an inappropriate forum for the trial of the proceeding; or
the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim.
Service of the summons without leave was authorised by UCPR r 11.4 and item (n) of Schedule 6 to the UCPR because Mr McLellan’s claim is founded on a cause of action arising in Australia, being a claim to enforce an equitable lien over the moneys payable to Ms Rastogi pursuant to the judgment in the property settlement proceedings on the basis that those monies were recovered as a result of Mr McLellan’s work as Ms Rastogi’s solicitor and are owing to him pursuant to his costs agreement with Ms Rastogi.
It was not submitted by Ms Rastogi that this Court is an inappropriate forum for the trial of the proceeding. This Court is clearly an appropriate forum given the nature of the cause of action described above.
Although not in so many words, Ms Rastogi submitted in substance that the claim has insufficient prospects of success to warrant putting her to the time, expense and trouble of defending it. Ms Rastogi submitted that the proceedings raise no serious question to be tried and were commenced unnecessarily as there is simply no dispute because she accepts that Mr McLellan is entitled to some fees for his work, and she has always agreed that she would pay. I reject that submission. It is plain from the evidence summarised above that Ms Rastogi disputes the amount of the fees to which Mr McLellan claims to be entitled, and disputes whether those fees are presently payable. Mr McLellan submits that those fees became due and payable on final determination of the property proceedings in the Federal Circuit and Family Court of Australia on 24 September 2025. Ms Rastogi submits that no fees are payable until the parenting aspects of her family law dispute have been finalised.
Ms Rastogi further submitted that the proceedings were commenced prematurely and in breach of s 194 of the Uniform Law because Mr McLellan had not issued bills complying with s 192 prior to commencing the proceedings. I reject that submission. The proceedings are to enforce the lien by securing the funds pending Mr McLellan claiming to recover the claimed fees from the funds by payment out of Court after Ms Rastogi has exercised her right to seek an assessment of the costs. Ms Rastogi has not yet taken any step to exercise that right. As I have explained above, the solicitor’s equitable lien arises immediately upon the recovery of the moneys through the solicitor’s exertions, even before the solicitor is entitled to recover the costs against the client.
Ms Rastogi further submitted that clause 12 of her costs agreement with Mr McLellan limits any lien to property already in the solicitor’s possession or control, and does not apply to the $65,000 sum that Mr Dass was ordered to pay to her by the Federal Circuit and Family Court of Australia because that was never in the possession of Mr McLellan. I reject that submission. Clause 12 establishes a contractual possessory lien, without limiting the equitable lien that I have described above.
Ms Rastogi further submitted that the $65,000 sum is “not general commercial property”, but funds allocated to her by the Federal Circuit and Family Court of Australia for her accommodation and relocation and the welfare of her child. Ms Rastogi submitted that “[p]ushing an equitable lien in a separate Supreme Court jurisdiction to intercept family law maintenance/property allocations violates the spirit of those final family orders”. I reject that submission. The general principles governing solicitors’ equitable liens to which I have referred above apply to the fruits of family law proceedings just as they apply to the fruits of other proceedings. The Equity Division of this Court is an appropriate forum for proceedings by a solicitor seeking to enforce an equitable lien.
There is no basis for the declaration sought by Ms Rastogi that the summons was not duly served on her. As I have said, it was served in accordance with the substituted service order made by the Court pursuant to r 10.14 on 15 April 2026. According to Ms Rastogi’s evidence, the summons, Form 161 notice, affidavit of Mr McLellan and the associated exhibit were not received by her until she restored her gmail account on 20 April 2026. It does not follow that those materials were not duly served.
Ms Rastogi’s claims for relief in prayers 1 to 3 of her notice of motion filed on 15 May 2026 must be dismissed for those reasons.
Ms Rastogi submitted that the orders made in her absence on 17 April 2026 should be set aside as an abuse of process by reason of material non-disclosure. Ms Rastogi alleged Mr McLellan “deliberately concealed” from the Equity Duty Judge at the hearing on 17 April 2026:
Mr McLellan’s written agreement that “payment deferred until settlement of family law matter”;
the communications between Ms Rastogi and Mr McLellan in the context of their negotiations concerning his fees through the OLSC and subsequent communications in an attempt to negotiate an agreed amount for his fees;
that Ms Rastogi had referred the costs dispute to the OLSC on 1 December 2025 and that, after they failed to reach an agreement, the “OLSC directed the parties on 1 April 2026 to proceed to an independent costs assessment”.
As to (1) above, evidence of Mr McLellan’s emails to Ms Rastogi attaching his invoices was adduced at the hearing on 17 April 2026. Copies of those emails were Annexure F to Mr Darwish’s 16 April 2026 affidavit. As stated at [6] above, Mr McLellan’s email to Ms Rastogi attaching his 17 September 2024 invoice stated: “We have agreed for payment of your matter to be deferred until Settlement”.
As to (2) above, those communications were protected by without prejudice privilege and were not admissible in evidence without Ms Rastogi’s consent, as counsel for Mr McLellan submitted. It would therefore have been inappropriate for Mr McLellan to adduce evidence of those communications at the 17 April 2026 hearing without Ms Rastogi’s consent.
As to (3) above, the referral to the OLSC which had concluded on 1 April 2026 with no action being taken is not relevant to these proceedings and was not required to be disclosed to the Equity Duty Judge at the hearing on 17 April 2026. Ms Rastogi materially misstates the outcome of the OLSC referral by asserting that the OLSC directed the parties to proceed to an independent costs assessment. The evidence to which I have referred at [20] above establishes that the OLSC merely stated that the costs dispute may be appropriately dealt with through the Costs Assessment Scheme, and enclosed information about that Scheme for Ms Rastogi’s consideration.
For those reasons, I reject Ms Rastogi’s submission that Mr McLellan concealed material matters from the Court on 17 April 2026 and that the orders made at that hearing in her absence should be set aside as an abuse of process.
However, as I raised with counsel for Mr McLellan during the hearing on 26 June 2026, Mr McLellan obtained order 6 made on 17 April 2026 for payment of the $65,000 sum into Court without applying for and being granted leave to proceed against Ms Rastogi pursuant to r 11.8AA of the UCPR. I reject the submission made on behalf of Mr McLellan that he was not proceeding against Ms Rastogi on that occasion, but against Mr Dass who was to pay the money that was ordered to be paid into Court. In my opinion, Mr McLellan was proceeding against Ms Rastogi by seeking orders that would directly affect her right to receive the funds payable to her by Mr Dass pursuant to the orders made by the Federal Circuit and Family Court of Australia. Mr McLellan’s claimed equitable lien over those funds, in aid of which he sought to have the funds paid into Court rather than to Ms Rastogi, was in direct competition with that right. The order made on 17 April 2026 requiring payment of the sum of $65,000 into Court was therefore made irregularly and should be set aside pursuant to r 36.15 of the UCPR.
Subject to what follows, the setting aside of that order would warrant an order for payment of the funds held in Court to Ms Rastogi. After I communicated my view that the order made on 17 April 2026 should be set aside pursuant to r 36.15 during the hearing on 26 June 2026, counsel for Mr McLellan applied for an order that the sum of $38,149.47 continue to be held in Court pending final determination of Mr McLellan’s claim to an equitable lien in respect of that amount of the net sale proceeds of the Westmead property which are now held in Court. In effect, such an order would operate as an interim injunction restraining Ms Rastogi from seeking payment of the whole of the funds held in Court following the setting aside of the order made on 17 April 2026 up to the amount of $38,149.47. Mr McLellan, by his counsel, offered the usual undertaking as to damages.
The purpose of an interim injunction is to preserve the status quo until the rights of the parties can be determined at a final hearing or, to adopt the language of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd to “prevent the practical destruction” of the right in respect of which the plaintiff claims final relief “before there has been an opportunity to have its existence finally established”. [4]
In determining whether to grant an interim injunction, the Court considers whether the plaintiff has established a serious question to be tried (also referred to as a prima facie case), in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. If so, the Court considers the balance of convenience. The question at that stage of the inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if the interim injunction were refused outweighs, or is outweighed by, that which the defendant would suffer if an injunction is granted. [5]
It is not necessary in order to establish a serious question to be tried (or prima facie case) that the plaintiff must show that it is more probable than not that they will succeed at trial, or that they have a better than even chance of success. It is sufficient for the plaintiff to demonstrate a sufficient likelihood of success to justify, in all the circumstances of the case, the preservation of the status quo pending the trial. [6]
On the basis of the evidence presently before the Court which I have summarised earlier in these reasons, Mr McLellan has demonstrated a strong prima facie case that he has an equitable lien over the $65,000 fund which represents the net sale proceeds of the Westmead property payable to Ms Rastogi under the Federal Circuit and Family Court of Australia orders that are now held in Court. Ms Rastogi has not submitted that those funds are not the product of Mr McLellan’s work in acting as her solicitor in the proceedings in which those orders were made. Ms Rastogi accepts that Mr McLellan is entitled to payment of fees for that work. Ms Rastogi disputes the amount of the fees to which Mr McLellan is entitled, but the evidence presently before the Court does not disclose the basis of that dispute in respect of any of the line items of work in Mr McLellan’s itemised invoices. Mr McLellan’s contention that his agreement that payment would not be due until settlement referred to settlement of the property proceedings is seriously arguable.
I acknowledge the financial hardship that Ms Rastogi has deposed that she will suffer if the whole of the $65,000 sum is not paid to her immediately. However, Ms Rastogi’s evidence was given in very general terms, and has not been tested. Ms Rastogi’s evidence did not suggest that she is at risk of losing her accommodation with her parents in India, and there is no evidence presently before the Court of any reason why Ms Rastogi is unable to secure employment in India pending her return to Australia. Ms Rastogi’s evidence of hardship nevertheless carries some weight, but it is not determinative of the interim injunction application.
Accepting at face value Ms Rastogi’s evidence of financial hardship referred to at [34] above also requires acceptance of the very high risk that any funds not retained in Court pending the determination of these proceedings will be dissipated without any payment being made to Mr McLellan, and that the very subject matter of these proceedings – the fund in respect of which Mr McLellan claims an equitable lien – will be destroyed before Mr McLellan’s claim has been heard. Damages would be a wholly inadequate remedy for Mr McLellan in circumstances where Ms Rastogi, on her own evidence, is unlikely to be good for the money, and enforcement of any money judgment against her in India if she continues to reside there may be difficult and would be costly. In those circumstances, it is my opinion that Mr McLellan has established a sufficient probability of success at trial to justify the preservation of the fund pending trial by granting the interim injunction sought in respect of the sum of $38,149.47.
There will therefore be an order setting aside order 6 made on 17 April 2026, an order that Ms Rastogi be restrained from claiming or demanding payment of the sum of $38,149.47 of the funds held in Court pending final determination of Mr McLellan’s claim in prayer 6 of the summons or earlier further order of the Court, and an order that the sum of $26,850.53 be paid out of the funds held in Court to Ms Rastogi immediately. Those orders dispose of prayers 5 and 6 of Ms Rastogi’s notice of motion.
For all of the foregoing reasons, the orders of the Court are as follows:
Order that prayers 1 to 3 and 9 to 12 of the first defendant’s notice of motion filed on 15 May 2026 are dismissed.
Order pursuant to r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) that order 6 made on 17 April 2026 be set aside.
Upon the plaintiff giving the usual undertaking as to damages, order that the first defendant is restrained from claiming or demanding payment of the sum of $38,149.47 of the funds held in Court pending final determination of the plaintiff’s claim in prayer 6 of the summons or earlier further order of the Court.
Order that the sum of $26,850.53 be paid out of the funds held in Court to the first defendant.
List the proceedings, including prayers 4, 7 and 8 of the first defendant’s notice of motion filed on 15 May 2026 and the plaintiff’s notice of motion filed on 1 June 2026, before the Equity Registrar for directions on 6 July 2026.
Order that all questions of costs are reserved.
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Firth v Centrelink (2002) 55 NSWLR 451; [2002] NSWSC 564 at [33]-[44] (Campbell J); Trkulja v Efron [2014] VSCA 76 at [33]-[34] (Warren CJ and Santamaria JA).
Waldemar Drexler v Karabay [2014] NSWSC 1863 at [32]-[37] (White J, as his Honour then was).
UCPR r 11.6 and r 12.11.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 (Lenah Game Meats) at [12] (Gleeson CJ).
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] (Gleeson CJ and Crennan J), at [65]-[72] (Gummow and Hayne JJ), citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1 at 622-623 (Kitto, Taylor, Menzies and Owen JJ).
Ibid.
Paragraph [14] - corrected typographical error 'a' 192 of the Legal Profession Uniform Law (NSW)' to read 's' 192 of the Legal Profession Uniform Law (NSW)
Gregory George McLellan trading as Guardian Family Law
Rastogi
[2001] HCA 63
[2006] HCA 46
[2014] VSCA 76
[1968] HCA 1
(2001) 208 CLR 199
(2006) 227 CLR 57
(1968) 118 CLR 618
(2002) 55 NSWLR 451