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[2026] NSWSC 753
Supreme Court of NSW
2026-06-29
McGrath J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Howell v Kelly (No 2) [2026] NSWSC 753
Hearing dates: On the papers
Date of orders: 29 June 2026
Decision date: 29 June 2026
Jurisdiction: Equity
Before: McGrath J
Decision: See [96]
Catchwords: JUDGMENT AND ORDERS – parties ordered to attempt to agree on orders to reflect reasons in principal judgment, failing which parties to provide competing submissions and any material relied on in support of their proposed short minutes of order – whether the orders sought by each party reflect the reasons and considerations raised in the principal judgment – HELD – orders made to reflect reasons
COSTS – offer of compromise – where the first defendant rejected the plaintiffs’ offer of compromise before the second defendant became a party to proceedings – where no offer of compromise ever made to the second defendant – where the offer of compromise was in respect of a claim against the first defendant upon which no determination was made – HELD – no indemnity costs awarded
COSTS – exception to the general rule that costs follow the event – amendments to the plaintiffs’ case made at the hearing – whether the defendants are entitled to a 10% discount on costs – where the defendants accepted they were not prejudiced by the amendment – HELD – defendants to pay the plaintiffs’ costs on the ordinary basis
Original judgment source is linked above.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.1, 42.2, 42.4, 42.5, 42.14, 42.15, 42.15A
Cases Cited: Abdi v Abdi (No 2) [2022] NSWSC 582
Beck v Henley [2014] NSWCA 201
Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Commonwealth of Australia v Gretton [2008] NSWCA 117
Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Howell v Kelly [2026] NSWSC 400
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194
Wang v Yu (No 2) [2024] NSWSC 4
Wheatley v Lakshmanan (No 2) [2022] NSWSC 851
Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188
Ye v Chen [2022] NSWSC 494
Category: Consequential orders
Parties: Harry Howell (First Plaintiff)
Jeremy Howell (Second Plaintiff)
Rosemary Kelly (First Defendant)
Sunglade Pty Ltd (Second Defendant)
Representation: Counsel:
S Chapple SC (First and Second Plaintiffs)
A Kaufmann (First and Second Defendants)
Solicitor:
Armstrong Legal (First and Second Plaintiffs)
MWK Lawyers (First and Second Defendants)
File Number(s): 2022/00321288
Publication restriction: Nil
This judgment determines the appropriate form of orders to give effect to the reasons in my judgment Howell v Kelly [2026] NSWSC 400 (Principal Judgment). This judgment assumes familiarity with, and adopts the shorthand expressions and defined terms used in, the Principal Judgment.
In reaching the Principal Judgment, I heard two claims brought by the plaintiffs, who are brothers, Harry Richard Howell and Jeremy Robert Howell, as beneficiaries under the will of their late father, Harry Edmund Hector Howell, against Rosemary Edythe Kelly (the first defendant) and Sunglade Pty Ltd (the second defendant) (together, the defendants).
For the reasons set out in the Principal Judgment, I determined that Sunglade holds one half of the value of the Naremburn Property on trust for the estate of Harry, with the recovery of that equitable interest postponed to allow Rosemary to continue living at the Naremburn Property for the remainder of her life or until it is agreed that it be sold. In the Principal Judgment, I found that if it had been necessary to determine the alternative claim against Rosemary, I would have ordered Rosemary to pay equitable compensation to Harry’s estate.
As to costs, I determined that, subject to any submissions to the contrary, the defendants are to pay the plaintiffs’ costs of the proceedings.
The relevant facts underlying this dispute are set out in full in the Principal Judgment at [17]–[268]. Set out below are additional facts, including those which have arisen since 22 April 2026, which inform the resolution of this dispute.
On 22 April 2026, on delivering the Principal Judgment, I made an order requiring the parties to provide agreed proposed short minutes of order to give effect to the Principal Judgment to my Associate by 4pm on 6 May 2026, failing which they were to provide competing submissions and any material on which they relied by 20 May 2026.
At 4:34pm on 6 May 2026, the plaintiffs’ solicitor emailed my Associate and attached proposed short minutes of order, stating:
Dear Associate,
I act for the plaintiffs in the above proceedings.
At this point in time, the parties have not agreed to the form of short minutes reflecting the reasons set out in his Honour’s judgment.
I attach Short Minutes proposed by the plaintiffs.
We respectfully suggest that the parties be given until 20 May 2026 to provide his Honour with short submissions, of no more than two pages, in support of the orders which they seek.
In reply, I caused my Associate to email the parties at 4:48pm on 6 May 2026, advising them that I had noted that the parties were unable to agree to a set of short minutes of order and reminding the parties of the terms of the order made on 22 April 2026.
At 1:09pm on 19 May 2026, the plaintiffs’ solicitor emailed my Associate and attached an updated version of proposed short minutes of order (Plaintiffs’ P****SMO), submissions in support of the Plaintiffs’ PSMO and an offer of compromise they had sent to Rosemary on 3 May 2024 (Offer of Compromise).
At 5:22pm on 20 May 2026, the defendants’ solicitor emailed my Associate and attached proposed short minutes of order (Defendants’ PSMO), submissions in support of the Defendants’ PSMO and several documents referred to in those submissions.
The Plaintiffs offer to settle these proceedings on the following terms:
1 Order that the Deceased pay to the estate of the late Harry Edmund Hector Howell (the “deceased”) a lump sum of $300,000, on the basis that such sum is then to be distributed to the beneficiaries identified in clause 3.2(b) of the will of the deceased dated 25 November 2016.
2 The defendant pay to the plaintiffs’ costs of the proceedings as agreed or assessed, calculated on the ordinary basis.
3 The plaintiffs’ Statement of Claim filed 27 October 2022 otherwise be dismissed.
Note:
(a) This offer is made pursuant to Rule 20.26 of the Uniform Civil Procedure Rules 2005;
(b) This offer will remain open for acceptance by the defendant for 28 days from the date that the offer is served;
(c) In the event that the offer contained herein is either rejected or not accepted and lapses, it will be relied upon by the plaintiff with respect to the issue of costs;
(d) In the event that the offer set out above is found to have not been made in accordance with Rule 20.26 of the Uniform Civil Procedure Rules 2005, or is otherwise found not to comply, then the same offer is made pursuant to the principle set forth in the decision of Calderbank v Calderbank and will be relied upon with respect to an application for costs on the indemnity basis in these proceedings.
1 NOTES that the Court has found that the Second Defendant holds ½ of the value of the property located at 49 Waters Road, Naremburn (Folio 2/597130) (the “Naremburn Property”) on trust for the First Defendant in her capacity as executor of the estate of Harry Edmund Hector Howell (“Harry”).
2 NOTES that Harry’s estate has been fully administered and that the residuary beneficiaries of Harry’s estate are the Plaintiffs and Susan Jane Turnbull (as to one half) and the First Defendant (as to one half).
3 NOTES that the Plaintiffs and Susan Jane Turnbull have called upon the First Defendant to distribute their interest in Harry’s estate to them.
4 DECLARES that, subject to paragraph 6 below, the Second Defendant holds a ¼ interest in the Naremburn Property on trust for Harry Richard Howell, Jeremy Robert Howell, and Susan Jane Turnbull, as tenants in common in equal shares, being the distributed portion of the property to which they are entitled under clause 3.2(b) the will of the late Harry Edmund Hector Howell dated 25 November 2016.
5 DECLARES that, subject to paragraph 6 below, the Second Defendant holds a ¼ interest in the Naremburn Property on trust for the First Defendant, being the distributed portion of the property to which she is entitled under clause 3.2(a) the will of the late Harry Edmund Hector Howell dated 25 November 2016.
6 DECLARES that, notwithstanding any equitable interest that has been declared in paragraphs 4 and 5 above, the First Defendant is entitled to exclusive possession of the Naremburn Property so as to allow her to reside at the property for the remainder of her life on the basis that she pays rates and outgoings associated with her possession, and that she may authorise such other persons as she may wish to reside at the Property during her lifetime
7 Orders that the First and Second Defendants pay the costs of the Plaintiffs, calculated on the ordinary basis up to and including 3 May 2024, and on the indemnity basis from 4 May 2024.
8 Orders that the sum $50,000, which was paid into court on 22 May 2023 by the plaintiffs on account of and as security for the defendants’ costs, be paid into the trust account of the plaintiffs' solicitors, Armstrong Legal, or as directed by them.
1 DECLARES that the Second Defendant holds ½ of the value of the property located at 49 Waters Road, Naremburn (Folio 2/597130) (the “Naremburn Property”) on trust for the First Defendant in her capacity as executor of the estate of Harry Edmund Hector Howell (“Harry”).
2 DECLARES that, notwithstanding the equitable interest that has been declared in paragraph 1 above, the First Defendant is entitled to exclusive possession of the Naremburn Property so as to allow her to reside at the property for the remainder of her life, and she may authorise such other persons as she may wish to reside at the Property during her lifetime.
3 ORDER that no step shall be taken to recover the equitable interest that has been declared in paragraph 1 above until the earlier of:
(a) the death of the First Defendant; or
(b) agreement being reached between the Second Defendant and the First Defendant in her capacity as executor of the estate of Harry that the Naremburn Property is to be sold.
4 Order that the First Defendant is to pay 90% [of] the Plaintiffs[’] costs of the proceedings to the extent that they relate to the claims made against her on the ordinary basis as agreed or assessed.
5 Order that the Second Defendant is to pay the Plaintiffs costs of the proceedings from 23 September 2024 to the extent they relate to the claims made against it on the ordinary basis as agreed or assessed.
6 Orders that the sum $50,000, which was paid into court on 22 May 2023 by the [P]laintiffs on account of and as security for the [D]efendants’ costs, be paid into the trust account of the [P]laintiffs' solicitors, Armstrong Legal, or as directed by them.
Given the discrepancies between the two competing versions of the PSMO, the following issues arise for determination:
The proper form of orders and notations giving effect to the determination that Harry’s estate should receive an equitable interest in the Naremburn Property equal to one-half of the value of the Naremburn Property, including whether there should be notations about the full administration of Harry’s estate and declarations about Sunglade holding one-quarter of the Naremburn Property on trust for Richard, Jeremy and Susan and one-quarter of the Naremburn Property on trust for Rosemary in accordance with their respective entitlements under Harry’s Will (Trust Order****s).
Whether the orders ought to impose a condition on Rosemary’s right to reside in the Naremburn Property that she must pay all rates and outgoings (Condition on Right to Reside Order).
Whether the defendants must pay the plaintiffs’ costs of the proceedings on an ordinary or indemnity basis (Indemnity Costs).
Whether Rosemary is entitled to a reduction in the amount owed to pay the plaintiffs’ costs of the proceedings to reflect the parts of the plaintiffs’ claims that were abandoned or varied (Costs Discount).
1 NOTES that the Court has found that the Second Defendant holds ½ of the value of the property located at 49 Waters Road, Naremburn (Folio 2/597130) (the “Naremburn Property”) on trust for the First Defendant in her capacity as executor of the estate of Harry Edmund Hector Howell (“Harry”).
2 NOTES that Harry’s estate has been fully administered and that the residuary beneficiaries of Harry’s estate are the Plaintiffs and Susan Jane Turnbull (as to one half) and the First Defendant (as to one half).
3 NOTES that the Plaintiffs and Susan Jane Turnbull have called upon the First Defendant to distribute their interest in Harry’s estate to them.
4 DECLARES that, subject to paragraph 6 below, the Second Defendant holds a ¼ interest in the Naremburn Property on trust for Harry Richard Howell, Jeremy Robert Howell, and Susan Jane Turnbull, as tenants in common in equal shares, being the distributed portion of the property to which they are entitled under clause 3.2(b) the will of the late Harry Edmund Hector Howell dated 25 November 2016.
5 DECLARES that, subject to paragraph 6 below, the Second Defendant holds a ¼ interest in the Naremburn Property on trust for the First Defendant, being the distributed portion of the property to which she is entitled under clause 3.2(a) the will of the late Harry Edmund Hector Howell dated 25 November 2016.
The plaintiffs say that in Harry’s Will, Harry appointed Rosemary as executor and trustee and that, apart from the $2,000 legacy to Hash, he left one-half of the residue of the estate to Rosemary and the other half of the residue of the estate to be divided equally between Richard, Jeremy and Susan. Probate of Harry’s Will was granted on 25 July 2019. The plaintiffs assert that, other than the interest that Harry’s estate has in the Naremburn Property because of the determination in the Principal Judgment, the estate has been fully administered.
The plaintiffs argue that without the notations that the estate has been fully administered and that Richard, Jeremy and Susan have called upon Rosemary to distribute their interest in the estate to them, and without declarations that Rosemary holds that interest on trust as to one-half for herself and as to the other half for Richard, Jeremy and Susan, two practical difficulties will arise:
Richard, Jeremy and Susan do not have any interest in the Naremburn Property that can support a caveat on the title of the Naremburn Property; and
Richard, Jeremy and Susan can only realise their interest in the Naremburn Property through Harry’s estate, of which Rosemary is the executor. Rosemary has the right to reside in the Naremburn Property for the remainder of her life. Consequently, Richard, Jeremy and Susan will have to enforce their rights against the executor of Rosemary’s estate (who will, presumably, step into the role of Harry’s executor by chain of representation).
Ultimately, the plaintiffs contend that Rosemary holds the estate’s interest in the Naremburn Property on bare trust for the beneficiaries of the estate. They argue that, pursuant to the rule in Saunders v Vautier (1841) 4 Beav 115; 49 ER 282, Richard, Jeremy and Susan (as beneficiaries of Harry’s estate) are entitled to call for Rosemary (as the executor of Harry’s estate) to distribute their interest in Harry’s estate to them. In such circumstances, the plaintiffs contend that Rosemary would hold the other half of the estate’s interest in the Naremburn Property on trust for herself, thus uniting the legal and beneficial title and collapsing the testamentary trust.
Further, the plaintiffs submit that, consistent with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) (CPA), it is appropriate for the court to make orders that bring the administration of Harry’s estate to an end and vest the whole of the estate’s interest in the Naremburn Property in the beneficiaries of the estate (subject to the right of Rosemary to reside in the Naremburn Property).
The defendants say that the notations and orders contained in the Plaintiffs’ PSMO go beyond proposing orders that reflect the reasons set out in the Principal Judgment and raise matters and issues beyond the scope of the Principal Judgment. The defendants say that the declaration which they propose in the Defendants’ PSMO complies with the requirement reflected in the Principal Judgment at [340]. The defendants also submit that the declaration sought in the Defendants’ PSMO reflects the relief claimed by the plaintiffs in prayer 3A of the ASOC.
The defendants identify the alleged overreach of the Plaintiffs’ PSMO by striking through the parts of the Plaintiffs’ PSMO which contain the notations regarding the estate having been fully administered and Richard, Jeremy and Susan having called for the distribution of their interest in the estate to them, as well as the orders that Sunglade holds the respective interest of Rosemary and the interests of Richard, Jeremy and Susan on trust for them, as extracted below:
1 Notes that the Court has found that DECLARES that the Second Defendant holds ½ of the value of the property located at 49 Waters Road, Naremburn (Folio 2/597130) (the “Naremburn Property”) on trust for the First Defendant in her capacity as executor of the estate of Harry Edmund Hector Howell (“Harry”)
2 NOTES that Harry’s estate has been fully administered and that the residuary beneficiaries of Harry’s estate are the Plaintiffs and Susan Jane Turnbull (as to one half) and the First Defendant (as to one half).
3 NOTES that the Plaintiffs and Susan Jane Turnbull have called upon the First Defendant to distribute their interest in Harry’s estate to them.
4 DECLARES that, subject to paragraph 6 below, the Second Defendant holds a ¼ interest in the Naremburn Property on trust for Harry Richard Howell, Jeremy Robert Howell, and Susan Jane Turnbull, as tenants in common in equal shares, being the distributed portion of the property to which they are entitled under clause 3.2(b) the will of the late Harry Edmund Hector Howell dated 25 November 2016.
5 DECLARES that, subject to paragraph 6 below, the Second Defendant holds a ¼ interest in the Naremburn Property on trust for the First Defendant, being the distributed portion of the property to which she is entitled under clause 3.2(a) the will of the late Harry Edmund Hector Howell dated 25 November 2016.
The defendants dispute the inclusion of these notations and declarations on four further grounds:
There is no proper basis upon which the plaintiffs seek notations 2 and 3. Relevantly, contrary to notation 2, Harry’s estate has not been “fully administered”; his estate could not be fully administered until the dispute as to his interest in the Naremburn Property was resolved. The “overriding purpose” does not justify the notations. Further, the purported call by Richard, Harry and Susan (who is not a party to the proceedings) to distribute their interest is not a matter raised or considered in the Principal Judgment.
Richard, Jeremy and Susan are not entitled to call for their interest insofar as the Principal Judgment expressly postpones recovery of the estate’s interest in the Naremburn Property, and the rule in Saunders v Vautier does not displace that position because the beneficiaries are not unanimous in their call for the estate to be distributed to them (Rosemary does not do so), and it is land which has been determined to be held on trust: see Beck v Henley [2014] NSWCA 201 at [32]–[44] (Leeming JA, Beazley P and Sackville AJA agreeing).
The fact that Richard, Jeremy and Susan do not have an interest in the Naremburn Property capable of supporting a caveat is not a matter which ought to inform the orders, which are a function of the relief that the plaintiffs sought and the court’s determination in the Principal Judgment at [16(1)]. In any event, there is no suggestion of any intention by Sunglade to deal with the Naremburn Property improperly or contrary to the court’s determination.
The fact that Richard, Jeremy and Susan may ultimately have to enforce their rights against the executor of Rosemary’s estate does not justify the orders sought by them. Rather, that is merely the consequence of the relief that the plaintiffs sought in the proceedings and the court’s determination in the Principal Judgment at [16(1)].
The order made on 22 April 2026 on the delivery of the Principal Judgment required the parties to attempt to agree on orders reflecting the reasons in the Principal Judgment or, failing that, to provide competing submissions and any material on which they relied. It was not an invitation for either party to ventilate new issues or request relief that had not been sought at the hearing, and which was not considered in the Principal Judgment.
Whether the estate has been fully administered and the capacity of the plaintiffs to collapse the trust were not questions the subject of the proceedings before me, nor were they addressed in written or oral submissions. Susan was not, and is not currently, a party to these proceedings. Consequently, it is not a matter that was considered, let alone raised, in the Principal Judgment. Accordingly, notations 2 and 3 in the Plaintiffs’ PSMO do not reflect the reasons in the Principal Judgment. It is also both unnecessary and inappropriate to make declarations 4 and 5 sought in the Plaintiffs’ PSMO.
I did not grant the parties the opportunity to raise new issues or to seek orders consequential to the findings made in the Principal Judgment. If the plaintiffs (and Susan) wish to seek a declaration that they are entitled to terminate the trust pursuant to the rule in Saunder v Vautier, they may bring an application to do so. Such application should be brought with supporting materials and address the operation of the rule in circumstances where Rosemary as a beneficiary is not seeking such an order. However, on this occasion, it is not necessary, nor appropriate, to resolve that dispute. This is especially so in the absence of the evidence necessary to determine the applicability of the rule in Saunder**s v Vautier.
It is clear that the estate is not fully administered at the present time because of the half-interest it holds in the Naremburn Property, the recovery of which is subject to Rosemary’s right to reside there (the terms of which I have addressed below). If the plaintiffs wish to make an application regarding the administration of the estate by Rosemary, then they will have to do so with supporting material.
Whether a caveat can be supported is not a reason for collapsing a trust and s 56 of the CPA does not provide any substantive right to Richard, Jeremy or Susan (individually or collectively) to do so.
The only declaration which is appropriate for me to make, and which reflects the reasons that I gave in the Principal Judgment, is the redrafted form of declaration 1 in the Defendants’ PSMO. I will make that declaration.
6 DECLARES that, notwithstanding any equitable interest that has been declared in paragraphs 4 and 5 above, the First Defendant is entitled to exclusive possession of the Naremburn Property so as to allow her to reside at the property for the remainder of her life on the basis that she pays rates and outgoings associated with her possession, and that she may authorise such other persons as she may wish to reside at the Property during her lifetime.
6 DECLARES that, notwithstanding any equitable interest that has been declared in paragraphs 4 and 5 1 above, the First Defendant is entitled to exclusive possession of the Naremburn Property so as to allow her to reside at the property for the remainder of her life on the basis that she pays rates and outgoings associated with her possession, and that she may authorise such other persons as she may wish to reside at the [Naremburn] Property during her lifetime.
I agree with the defendants’ submissions that the condition sought was not raised at the hearing, it was not the subject of any oral or written submissions, and it did not form part of my consideration in the Principal Judgment. There is no basis on which to impose such a qualification on Rosemary’s right to reside in the Naremburn Property. Rather, Sunglade, as the registered proprietor of the Naremburn Property, is currently liable, and will continue to be liable, for any rates and outgoings.
I will make the form of declaration that is sought in the Defendants’ PSMO.
(4) Subject to any submissions to the contrary, the defendants must pay the plaintiffs’ costs of the proceedings.
… Subject to any contrary submission, I consider that those orders should include an order that the defendants are to pay the plaintiffs’ costs of the proceedings.
42.1 General rule that costs follow the event
Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
42.2 General rule as to assessment of costs
Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.
…
42.4 Power to order maximum costs
(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.
…
42.5 Indemnity costs
If the court determines that costs are to be paid on an indemnity basis—
(a) in the case of costs payable out of property held or controlled by a person who is a party to the proceedings—
(i) in the capacity of trustee, executor, administrator or legal representative of a deceased estate, or
(ii) in any other fiduciary capacity,
all costs (other than those that have been incurred in breach of the person’s duty in that capacity) are to be allowed, and
(b) in any other case, all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed.
The “general rule” is that costs follow the event, and are calculated on the ordinary basis unless it is apparent that some other order should be made as to the whole or any part of the costs of the proceedings: rr 42.1 and 42.2 of the UCPR. The general rule “embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour”: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, McHugh J at [67].
When the court exercises its discretion to award costs, a number of observations made by McHugh J in Oshlack at [67]–[68] should be kept in mind, as summarised below:
An award of costs rests on fairness between the parties, with the unsuccessful party generally bearing the liability for the costs of the proceedings.
The primary purpose of an award of costs is to indemnify the successful party, not to punish the unsuccessful party because, had the proceedings not been brought, the successful party would not have incurred the expense of them.
As a matter of policy, one beneficial by-product of the compensatory purpose may well be to instil, in a party contemplating the commencement of proceedings, a sober realisation of the potential financial expense involved.
The circumstances in which the court may, in the exercise of its broad discretion as to costs, depart from the general rule are not closed but relevantly include:
where there has been some relevant conduct on the part of the party against whom cost are sought which involves some “special or unusual feature” or “relevant delinquency” that justifies an award of costs on the indemnity basis: Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109, Mitchelmore JA (with whom Meagher JA and Simpson AJA agreed) at [47]; and
where there has been an unaccepted offer of compromise between the parties made either in the form of:
(a) that contemplated by r 20.26 of the UCPR, which can result in automatic costs consequences unless the court orders otherwise: see, for example, rr 42.14, 42.15, 42.15A of the UCPR; or (b) a Calderbank offer, the making of which is a matter that the court may have regard to when deciding the issue of costs, but it “does not automatically bring a different order as to costs”: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323, Giles JA at [37].
As stated above, costs will generally follow the event and be assessed on the ordinary basis unless the court orders otherwise, or the UCPR otherwise provides: rr 42.1 and 42.2 of the UCPR.
The UCPR otherwise provides under Part 42, Division 3, which is headed ‘Offers of compromise’. Pursuant to r 42.13 of the UCPR, that division applies to proceedings in respect of which an offer of compromise is made under r 20.26 with respect to a plaintiff’s claim.
Rule 20.26 of the UCPR provides as follows:
20.26 Making of offer
(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.
(2) An offer under this rule—
(a) must identify—
(i) the claim or part of the claim to which it relates, and
(ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment, and
(b) if the offer relates only to part of a claim in the proceedings, must include a statement—
(i) in the case of an offer by the plaintiff, as to whether the balance of the proceedings is to be abandoned or pursued, or
(ii) in the case of an offer by a defendant, as to whether the balance of the proceedings will be defended or conceded, and
(c) must not include an amount for costs and must not be expressed to be inclusive of costs, and
(d) must bear a statement to the effect that the offer is made in accordance with these rules, and
(e) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to that interim payment, and
(f) must specify the period of time within which the offer is open for acceptance.
…
42.14 Where offer not accepted and judgment no less favourable to plaintiff
(1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer.
(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim—
(a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and
(b) assessed on an indemnity basis—
(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and
(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
The effect of these provisions is that where:
an offer of compromise is made by a plaintiff before the commencement of a trial; and
that offer complies with r 20.26 of the UCPR; and
that offer is not accepted by the defendant; and
the plaintiff later obtains an order no less favourable to it than the terms of the offer,
then, unless the court orders otherwise, the plaintiff is entitled to an order for its costs on an indemnity basis from the day after the offer was made and on the ordinary basis for its costs incurred before that time: r 42.14(2) of the UCPR.
In order for an offer of compromise to be compliant with r 20.26 of the UCPR, among other things, that offer must:
not include an amount as to costs and must not be expressed to be inclusive of costs: r 20.26(2)(c) of the UCPR; and
identify the proposed orders for disposal of the claim or relevant part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment: r 20.26(2)(a)(ii) of the UCPR.
Additionally, the proposed orders must be in a form that could be made in response to the relevant claim such that it is an offer that could be accepted with judgment entered accordingly: r 20.27(3) of the UCPR; Oates v Oates (No 2) [2025] NSWSC 929, Brereton J at [17]–[20].
… The making of an offer of compromise in the form of a Calderbank letter (from Calderbank v Calderbank (1976) Fam 93), where the offeree does not accept the offer but ends up worse off than if the offer had been accepted, is a matter to which the court may have regard when deciding whether to otherwise order, but it does not automatically bring a different order as to costs. All the circumstances must be considered, and while the policy informing the regard had to a Calderbank letter is promotion of settlement of disputes an offeree can reasonably fail to accept an offer without suffering in costs. In the end the question is whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs, and that the offeree ends up worse off than if the offer had been accepted does not of itself warrant departure …
[44] Two general ‘rules’ have emerged relating to Calderbank offers, namely, that to justify the making of an order for costs on an indemnity basis, the offer must be a genuine offer of compromise, which it is unreasonable for the appellant not to accept: Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 at [4]-[5]; Leichhardt Municipal Council v Green at [21]-[24], [36]. However, as this Court (Santow, Bryson JJA, Stein AJA) pointed out in Leichhardt Municipal Council v Green at [8], the ‘common law principles’ that have been developed in relation to costs “operate merely as guides to how the discretion might appropriately be exercised”. The principles or rules to which I have just referred fall within that category.
[45] The discretion is to be exercised having regard to all the relevant circumstances in the case. The question that had been raised in Leichhardt Municipal Council v Green was whether there had been a genuine offer of compromise. As the Court said at [21]:
“There is little appreciable difference between saying that an offer should not in the court’s discretion attract costs sanctions in the circumstances and saying that an offer is not a genuine offer of compromise in the circumstances. Both depend upon a value judgment of the offer and the conduct of the parties in the circumstances of the claim.”
To warrant an order of costs on an indemnity basis, a Calderbank offer must embody a genuine compromise and the party seeking to rely on it must show that it was unreasonable for the unsuccessful party not to accept it. That is an evaluative judgment to be made by reference to the terms of the offer and all the relevant circumstances at the time the offer was made: Abdi v Abdi (No 2) [2022] NSWSC 582, Ward P at [28], citing King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204, Young JA (with whom Campbell and Hodgson JJA agreed) at [11]; Wheatley v Lakshmanan (No 2) [2022] NSWSC 851, Ward CJ in Eq at [97]–[99].
The relevant reasonableness or otherwise is not to be determined with hindsight. The merits and weaknesses of the relevant claim are to be considered prospectively as at the time of the offer: Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285, Giles, Macfarlan and Young JJA at [11]; Gretton, Beazley JA (with whom Mason P agreed and Hodgson JA substantially agreed) at [78].
In Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188, Bathurst CJ (with whom Beazley P and McColl JA agreed) at [42] concluded that the essence of a Calderbank offer is an intention that the offer (or the circumstances in which it was conveyed) indicated that it would be relied on in relation to costs, should a verdict more favourable than the offer be achieved, stating:
In the present case all that there was, were the offers of compromise, the second seeking a greater amount by way of settlement than the former. There was nothing in either of the offers to indicate that they were intended to have effect other than as offers under r 20.26. Further, there was nothing in the correspondence with which the offers were enclosed or in the surrounding circumstance to indicate they would be relied on in relation to the question of costs should a verdict more favourable than the offer be achieved. Such an indication, in my opinion, is the essence of a Calderbank offer.
A finding that rejection or non-acceptance of a Calderbank offer was unreasonable should not be made other than on clear grounds: Abdi, Ward P at [28], citing Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, Basten JA (with whom Giles JA and Young CJ in Eq agreed) at [113].
In Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298, Warren CJ, Maxwell P and Harper AJA at [25] summarised the relevant factors in determining whether the rejection or non-acceptance of a Calderbank offer was unreasonable, including:
the stage of the proceeding at which the offer was received;
the time allowed for the offeree to consider the offer;
the extent of the compromise offered;
the offeree's prospects of success, assessed at the date of the offer;
the clarity with which the terms of the offer were expressed; and
whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
These factors were cited with approval in Abdi, Ward P at [29] and Wheatley, Ward CJ in Eq at [98].
In Abdi, Ward P at [27]–[30] provided the following comprehensive statement of the principles relating to an award of indemnity costs following the rejection or non-acceptance of a Calderbank offer:
[27] The party seeking the special costs order bears the onus of demonstrating that the rejection of the offer was “unreasonable” in all the circumstances of the case (see Leichhardt Municipal Council at [19]; Evans Shire Council v Richardson (No 2) [2006] NSWCA 61 at [26] per Giles, Ipp and Tobias JJA).
[28] Whether rejection of a Calderbank offer (or other offer of settlement) was unreasonable is an evaluative judgment to be made by reference to the terms of the offer and all the relevant surrounding circumstances (King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 at [11] per Young JA with whom Campbell and Hodgson JJA agreed). It has been said that a finding of unreasonableness should not be made other than on clear grounds (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [113] per Basten JA with whom Giles JA and Young CJ in Eq agreed).
[29] The factors to be taken into regard when considering whether the rejection or non-acceptance of the offer was unreasonable (summarised in Favotto at [20]-[30]) include: the stage of the proceeding at which the offer was received; the time allowed to the offeree to consider the offer; the extent of the compromise offered; the offeree’s prospects of success assessed as at the date of the offer; the clarity with which the terms of the offer were expressed; and whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it (see Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298 at [25] per Warren CJ, Maxwell P and Harper AJA; Commissioner of State Revenue v Challenger Listed Investments Ltd (No 2) [2011] VSCA 398 at [8] per Buchanan and Tate JJA and Sifris AJA; Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [12] per Basten JA with whom McColl and Campbell JJA agreed).
[30] Factors that have been found to be relevant in determining whether the rejection of a Calderbank offer was not unreasonable, and tending against such finding, have included: all relevant evidence not having been served at the time of the offer (Vale v Eggins (No 2) [2007] NSWCA 12 at [22] per Beazley JA); the full parameters of the dispute remaining uncertain at the time of the offer (Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [192] per Allsop P with whom Beazley and McColl JJA agreed); the offeror’s case changing after the making of the offer (South Eastern Sydney Area Health Service at [85] per Hunt AJA); the inclusion of conditions in the offer (Magenta Nominees Pty Ltd v Richard Ellis (WA) Pty Ltd (unreported, FCAFC, Spender, French and Lee JJ, 29 August 1995); and the issues in dispute in the proceedings being complex (MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 at 242D per Lindgren J). …
7 ORDERS that the First and Second Defendants pay the costs of the Plaintiffs, calculated on the ordinary basis up to and including 3 May 2024, and on an indemnity basis from 4 May 2024.
The ground on which the plaintiffs seek indemnity costs is that the defendants unreasonably refused the Offer of Compromise.
Relevantly, in the Offer of Compromise, the plaintiffs proposed that Rosemary pay to the beneficiaries of Harry’s estate an amount of $300,000 on the basis that it be distributed to Richard, Jeremy and Susan, that Rosemary pay the plaintiffs’ costs on the ordinary basis and that the statement of claim otherwise be dismissed. The plaintiffs submit that the Offer of Compromise was equivalent to a payment of $600,000 to the estate (because Rosemary is a beneficiary of half of the estate) and that accepting the Offer of Compromise would have been reasonable, and indeed more favourable, to the defendants insofar as the Principal Judgment granted the beneficiaries a quarter interest in the Naremburn Property, which is valued in excess of $300,000. Further, the plaintiffs say that the Principal Judgment held, in the alternative, that Rosemary would be liable to pay equitable compensation in the sum of $1,002,110.35, which would confer on Richard, Jeremy and Susan a sum in excess of $500,000.
In making these submissions, the plaintiffs accepted that the Offer of Compromise was served before the statement of claim was amended to join Sunglade as the second defendant. The plaintiffs submit that this is not an insurmountable obstacle to indemnity costs because Sunglade took no active role in the proceedings and instead it was Rosemary who actively defended the trust claim.
The defendants’ primary submission is that the Offer of Compromise was not a valid offer under r 20.26 of the UCPR insofar as the order included an amount for costs, contrary to r 20.26(2)(c) of the UCPR.
The defendants submit that the plaintiffs are not entitled to indemnity costs, assuming that the Offer of Compromise constituted a valid Calderbank offer, for two reasons:
In respect of Sunglade, no offer was made to Sunglade as it was only joined to the proceedings on 23 September 2024, more than three months after the Offer of Compromise was made to Rosemary.
In respect of Rosemary, she did not act unreasonably in refusing the Offer of Compromise because the plaintiffs substantially altered the way in which they framed their case and issued several subpoenas and notices to produce between 3 May 2024 and 22 April 2026.
In the Principal Judgment, the findings made were in favour of the plaintiffs as against Sunglade. Had the plaintiffs been unsuccessful in their claims against Sunglade, it would have been necessary to decide their claim against Rosemary. In that alternative, I concluded that I would have allowed the claim against Rosemary and that is why an adverse costs order was made against her.
In circumstances where it was not necessary for me to determine the claim against Rosemary, it cannot be said that the outcome was no more or no less favourable to her.
Rule 42.14(1) of the UCPR provides that:
(1) This rule applies if the offer is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim no less favourable to the plaintiff than the terms of the offer.
The Offer of Compromise refers only to the claim brought by the plaintiffs as against Rosemary. In the Principal Judgment, I considered it was not necessary to determine the plaintiffs’ claim against Rosemary (except in the alternative). Accordingly, the plaintiffs have not obtained an order or judgment on “the claim” as referred to in the Offer of Compromise and, consequently, r 42.14(1) of the UCPR is not engaged.
Similarly, pursuant to the principles in Calderbank, it cannot be said that Rosemary has ended up “worse off than if the offer had been accepted” because there has been no judicial determination of the claim the plaintiffs brought against her and which was the subject of the Offer of Compromise: SMEC Testing , Giles JA at [37].
In any event, I considered there to be several further obstacles to an award of indemnity costs arising from Rosemary’s refusal of the Offer of Compromise. Given that not much of the submissions from either side addressed these issues, I have considered and explained those further obstacles below.
Contrary to the defendants’ submissions, the 3 May 2024 Offer of Compromise does not contravene r 20.26(2)(c) of the UCPR. The 3 May 2024 Offer of Compromise does not “include an amount for costs” nor is it “expressed to be inclusive of costs”, rather it requires that “[t]he defendant pay… the plaintiffs’ costs of the proceedings as agreed or assessed, calculated on the ordinary basis”.
In Whitney at [19]–[28], the Court of Appeal held that an offer which included a provision for payment of costs as agreed or assessed did not comply with r 20.26 of the UCPR because it was not exclusive of costs.
Rule 20.26 of the UCPR was amended following Whitney such that offers made after 7 June 2013 pursuant to r 20.26(2)(c) of the UCPR must not include an amount for costs and must not be expressed to be inclusive of costs: see the observations in Ye v Chen [2022] NSWSC 494, Adamson J at [104]–[105].
In Wang v Yu (No 2) [2024] NSWSC 4, Meek J at [101]–[102] observed that this amendment had the effect of reversing the decision in Whitney:
[101] The change in the text of r 20.26 was adverted to by Bathurst CJ in Curtis v Harden Shire Council (No 2) [2015] NWCA 45 in which his Honour considered the then amended form of r 20.26. His Honour’s decision in that regard in that case involved an offer including relevantly “plus costs as agreed or assessed”, which was regarded as being a compliant offer: at [19]–[25].
[102] That purpose of the rule as amended was referred to in Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 (Jojeni). In Horn v Horn (No 2), I stated:
[97] The purpose of the rule is clear. It is directed to the mischief of a monetary offer in a lump sum which does not differentiate between the plaintiff’s claim on one hand and the plaintiff’s costs on the other: Jojeni Investments Pty Ltd v Mosman Municipal Council (No 2) [2015] NSWCA 208 (Jojeni) at [11] per Macfarlan, Gleeson and Leeming JJA.
[98] Generally, a recipient of an offer will have some basis (whether it be pleadings, particulars and evidence) for making an assessment of a plaintiff’s claim but without some particular prior disclosure, will not have an informed basis for making assessment of the plaintiff’s costs: Jojeni at [11].
[99] The prohibition in r 20.26(2)(c) avoids the difficulty that it may not be possible to determine whether the default position of indemnity costs applies until the costs have been assessed: Jojeni at [11].
[100] Thus, an offer that there be no order as to costs with the intention that each party bear their own legal costs with respect to the proceedings does not fall within that which is precluded under r 20.26(2)(c) and, accordingly, is not invalid for that reason: Jojeni at [10]–[15].
[104] In the circumstances of this case, the provisions for costs in Mr Yu’s offer of compromise dated 15 September 2022 in my opinion does not fall foul of the provisions of rule 20.26(2)(c) in that neither of the cost provisions contain an amount for costs nor are expressed to be inclusive of costs.
[105] Having regard to that, I consider that the offer of compromise was a compliant offer.
I accept that as a matter of practicality the Principal Judgment was no less favourable to the plaintiffs than the terms of the Offer of Compromise insofar as the plaintiffs received a value of approximately $200,000 more than that contemplated by the Offer of Compromise. I agree with the plaintiffs’ submission that this outcome was considerably more favourable than the terms of the Offer of Compromise.
However, as explained above, the relevant inquiry in r 42.14 of the UCPR is whether the plaintiffs obtained an order or judgment “on the claim” referred to in the Offer of Compromise that was “no less favourable” to the plaintiffs. In the Principal Judgment, it was ultimately unnecessary for me to decide, other than in the alternative, the outcome of the plaintiffs’ claim against Rosemary. Insofar as no order or judgment has been entered on the claim brought by the plaintiffs as against Rosemary, the plaintiffs are not entitled to the benefit conferred by r 42.14 of the UCPR in respect of their costs.
In the alternative, it is well-established that an offer that does not comply with the UCPR may nonetheless be considered as a Calderbank offer: Whitney, Bathurst CJ (with whom Beazley P, McColl, Barrett and Emmett JJA agreed) at [43].
The Offer of Compromise expressly indicates that the offer, if found to be non-compliance with r 20.26 of the UCPR, takes effect as a Calderbank offer: see Trustee for the Salvation Army (NSW) Property Trust t/as Salvation Army v Becker (No 2) [2007] NSWCA 194, Ipp JA (with whom Mason P and McColl JA agreed) at [24].
However, as explained above, the Principal Judgment did not determine the claim brought by the plaintiffs against Rosemary. In those circumstances, it cannot be said that Rosemary has ended up “worse off than if the offer had been accepted” with respect to the claim brought against her: SMEC Testing, Giles JA at [37].
(1) Subject to rules of court and to this or any other Act—
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.
(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to—
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.
The discretion to award costs under s 98 of the CPA is broad and the section itself is to be construed liberally: Oshlack, Gaudron and Gummow JJ at [21].
The discretion is, however, subject to the rules of court, including the UCPR, and must be exercised judicially and with regard to the principle that an award of costs is compensatory in nature, not punitive: Oshlack, Gaudron and Gummow JJ at [44].
[10] In opening and closing submissions, the plaintiffs indicated that for the Account Claim they did not assert that Rosemary held the funds in the joint bank account on bare trust for Harry but instead put their allegations on the basis that there was a resulting trust in favour of Harry in circumstances where there was no presumption of advancement (T142–144). The defendants accepted that they were not prejudiced by that change in the basis for the plaintiffs’ case (T8–9).
[11] The various causes of action on which the Account Claim and the Trust Claim are based also took on a very different emphasis and sequence in closing submissions from the plaintiffs. The plaintiffs’ case in closing submissions appeared to be put in the following way:
(1) Harry had the beneficial interest in the funds contained in the joint bank accounts of Harry and Rosemary;
(2) Harry’s contributions from the joint bank accounts to develop and construct a new house at the Naremburn Property gave rise to a common interest constructive trust or a joint endeavour constructive trust over the Naremburn Property in favour of Harry; and
(3) in the alternative, if the contributions of Harry from the joint bank accounts to develop and construct a new house at the Naremburn Property did not give rise to a constructive trust over the Naremburn Property in favour of Harry, then Harry derived no benefit from those payments and they were made unconscionably by Rosemary.
[12] In closing submissions, the plaintiffs no longer asserted that Rosemary converted the funds in the joint bank accounts for her own use, is liable for a fraudulent breach of trust or breached her fiduciary duties as bases for the Account Claim. Instead, the plaintiffs only asserted, as an alternative, that Rosemary unconscientiously took advantage of Harry when he was in a position of special disadvantage in relation to her.
In circumstances such as these, where the defendants accepted that they were not affected by the change in the basis for the plaintiffs’ case (T8–9), there is no basis on which to depart from the general rule that costs follow the event: Oshlack at [67], [134]; Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25, Kiefel CJ, Bell, Gageler, Keane and Nettle JJ at [23].
Further, it cannot be said that the defendants were in any way prejudiced by the plaintiffs’ abandonment of the following pleaded causes of action:
that Rosemary held the funds in the joint bank accounts on bare trust for Harry and converted them for her own use or alternatively is liable for a fraudulent breach of trust (ASOC at [19]–[21]); and
that Rosemary breached the fiduciary duties she owed to Harry as his attorney in authorising or transferring the funds from the joint bank accounts to confer a benefit on herself (ASOC at [22]–[25]).
In any event, no point was taken by the defendants that the narrowing of the plaintiffs’ case at the trial caused them any prejudice that would warrant any discount to Rosemary’s costs: see the Principal Judgment at [13].
I make the following orders:
A declaration that the second defendant holds half of the value of the property located at XX Waters Road, Naremburn (Folio X/XXXXXX) (Naremburn Property) on trust for the first defendant in her capacity as executor of the estate of Harry Edmund Hector Howell (Estate).
A declaration that, notwithstanding the equitable interest that has been declared in order 1 above, the first defendant is entitled to exclusive possession of the Naremburn Property so as to allow her to reside at the Naremburn Property for the remainder of her life and authorise such other persons as she may wish to reside at the Naremburn Property during her lifetime.
Order that no step shall be taken to recover the equitable interest that has been declared in order (1) above until the earlier of:
(a) the death of the first defendant; or (b) agreement being reached between the second defendant and the first defendant in her capacity as executor of the Estate that the Naremburn Property is to be sold.
**********
Howell
Kelly (No 2)
[2026] NSWSC 400
[1998] HCA 11
[2011] VSCA 398
(2005) 13 VR 435
(1998) 193 CLR 72
(2019) 265 CLR 164
(2013) 84 NSWLR 311
(2008) 74 NSWLR 102
(1996) 70 FCR 236