In the matter of Ausslaw Pty Ltd; Stuart Garrett Pty Ltd v Carter

Medium Neutral Citation: In the matter of Ausslaw Pty Ltd; Stuart Garrett Pty Ltd v Carter [2026] NSWSC 739

Hearing dates: 25-26 February 2026

Date of orders: 22 June 2026

Decision date: 22 June 2026

Jurisdiction: Equity

Before: Bennett J

Decision: See [218] and [219]
Orders made to pay out the money retained in court and to dismiss the Stuart Garrett Pty Ltd v Murray John Carter proceedings.

Catchwords: CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Lawyer suing former client for unpaid legal fees — Where costs assessment ongoing — Former client disputes adequacy of costs disclosure — Former client disputes whether claim is made within limitation period — Former client disputes whether claim is otherwise statute barred under Legal Profession Act 2004 — Whether costs disclosures can be determined as non-compliant with statute summarily — Whether potential expiry of a limitation period can be determined summarily — Statutory interpretation of “commence and maintain proceedings” under s 355 of the Legal Profession Act 2004 — Whether pleadings disclose a reasonable cause of action
CIVIL PROCEDURE — Pleadings — Amendment — Whether estoppel proceedings are “proceedings to recover the legal costs” under s 355 of Legal Profession Act 2004 — Whether amendment should otherwise be disallowed for having no reasonable cause of action
CIVIL PROCEDURE — Funds paid into Court under Trustee Act Part 4 — Application for payment out of court — Whether all interested parties identified and notified — Characterisation of nature of claim to fund — Whether proposed apportionment of fund is appropriate

Legislation Cited: Civil Procedure Act 2005 (NSW) s 66(1)
Legal Profession Act 2004 (NSW) ss 309, 311, 317, 319, 322, 355
Legal Profession Uniform Law 2014 (NSW) sch 4 cl 18(1).
Limitation Act 1969 (NSW) ss 14(1), 54, 63
Trustee Act 1925 (NSW), ss 95, 98
Uniform Civil Procedure Rules 2005 (NSW) rr 14.28, 55.11

Cases Cited: Amirbeaggi v Business in Focus (Australia) Pty Ltd [2008] NSWSC 421
Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) [2012] NSWSC 170
Carter v Mehmet [2021] NSWCA 286
Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661
Coshott v Barry [2012] NSWSC 850
Ghosh v Newton [2026] NSWSC 571
Ghosh v Scott Newton t/as Shaw Gidley (No 6) [2023] NSWSC 1393
Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264; [1991] HCA 51
In the matter of Bitar Pty Ltd [2015] NSWSC 2158
In the matter of Brianine Pty Ltd [2022] NSWSC 203
JKB Holdings Pty Limited v de la Vega [2013] NSWSC 501
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Liosatos v Liosatos [2025] NSWSC 44
Marshan v Steele [2011] NSWLC 41
Mehmet v Carter [2017] NSWSC 1067
Mehmet v Carter [2018] NSWCA 305
Mehmet v Carter [2020] NSWSC 413
Mutukoyi v Public Trustee of Queensland [2024] NSWSC 1005
National Australia Bank v Holcim (Australia) Pty Ltd [2016] NSWSC 1902
O’Connor v Soul [2015] NSWDC 294
Re Concrete Injector Bolts Pty Ltd [2012] NSWSC 820
Re Perpetual Trustees Company Ltd; Application of Chen (2010) 15 BPR 28,845; [2010] NSWSC 808
Robert Lindsay Steele v Maurice Robert Marshan [2012] NSWSC 32
Samadi v WKA Legal Pty Ltd [2018] NSWSC 1159
Slattery v Fordyce; Fordyce v Slattery [2019] NSWSC 173
Smith v Young [2016] NSWCA 281
Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535 at 565; [1981] HCA 71
Steele v Marshan [2012] NSWCA 141
Transport for NSW v Boensch (No 2) [2023] NSWSC 1354
Waldemar Drexler t/as Drexler & Partners Litigation Lawyers v Karabay [2014] NSWSC 1863
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Westwood v Gulliver [2024] NSWSC 1323

Texts Cited: Keane, Estoppel by Conduct and Election (3rd ed, 2023) at [16-013]

Category: Procedural rulings

Parties: Proceeding 2024/00066133
Ausslaw Pty Ltd trading as Australian Law Group/ Heydons Lawyers (Plaintiff)
Cinta Carter (Interested Party 1)
Stuart Garrett Pty Ltd (Interested Party 2)
Proceeding 2025/00183235
Stuart Garrett Pty Ltd (Plaintiff)
Murray John Carter (Defendant)

Representation: Counsel:
M Southwick (Ausslaw Pty Ltd trading as Australian Law Group/Heydons Lawyers and Murray John Carter)
A Bailey (Stuart Garrett Pty Ltd)
Solicitors:
Australian Law Group (Ausslaw Pty Ltd trading as Australian Law Group/Heydons Lawyers and Murray John Carter)
CJM Lawyers (Stuart Garrett Pty Ltd)
Somerville Laundry Lomax Solicitors (Cinta Carter)

File Number(s): 2024/00066133; 2025/00183235

Publication restriction: Nil

JUDGMENT

Introduction and the essential issues

1. This judgment concerns four separate Notice of Motions across two sets of proceedings. On the surface, the four Notices of Motion concern:

2. in one set of proceedings, whether monies paid into court should now be paid out and whether any should be retained; and

3. in the other set of proceedings, a dispute about whether a claim for relief should be summarily dismissed or should proceed with amended pleadings.

4. However, as will become apparent, the main issues canvassed by these four Notices of Motion are:

5. in relation to all applications before the Court, the right of a law practice (albeit, in now superseded legislation) to commence and maintain proceedings in respect of monies purportedly owed to it by a former client where the necessary costs disclosures have not been made by the law practice; and

6. in relation to only the application to pay monies out of court, who in fact are the appropriate claimants on the fund (which overlaps with the first identified main issue to the extent that the law practice referred to might be one of those claimants).

It is for this reason that despite being put in the form of purely procedural questions, these reasons for judgment are lengthy and have taken some time to be prepared. I will start by outlining, at a formal level, what is before the Court.

3. There are two proceedings before the Court. The first is proceedings 2024/00066133 (the 2024 Proceeding****s). In these proceedings commenced by a Summons filed on 20 February 2024, the plaintiff, an incorporated legal practice known as Ausslaw Pty Ltd, trading under the names “Australian Law Group” and “Heydons Lawyers” (Ausslaw) paid into Court $852,195.44 less their costs, pursuant to s 95 of the Trustee Act 1925 (NSW) (Trustee Act). That money is the fruits of the litigation which I will refer to as the Mehmet v Carter litigation. Further details of that litigation are set out at [20] below.

4. The second is proceedings 2025/00183235 (the 2025 Proceeding****s, or SGL**’s Proceedings**). In these proceedings commenced by a Statement of Claim filed on 13 May 2025, Stuart Garrett Pty Ltd, an incorporated legal practice who trade as “Stuart Garrett Lawyers” (SGL), makes a claim in debt for the recovery of professional costs and disbursements. The defendant to that proceeding is Murray John Carter (Mr Carter), who is a former client of SGL.

5. In the 2024 Proceedings, there are two applications before me:

6. By Notice of Motion filed on 3 July 2025, the plaintiff in the 2024 Proceedings, Ausslaw, applied for monies to be paid out of court pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 55.11.

7. By Notice of Motion filed on 31 July 2025, SGL in their capacity as the interested party in the 2024 Proceedings, applied for an order that sums up to a maximum of $180,000 be retained in court until further order pending a costs assessment being completed (specifically, a costs assessment with file number 2025/00183235), a consequential order that any sums found to be payable to SGL upon completion of the extant costs assessment be paid out of the funds in court to SGL.

8. In the 2025 Proceedings, there are also two applications before me:

9. By Notice of Motion filed on 24 October 2025, Mr Carter sought an order that the Statement of Claim in those proceedings be struck out.

10. By Notice of Motion filed on 29 October 2025, SGL, in their capacity as plaintiff in the 2025 Proceedings, sought leave to file an amended Statement of Claim.

Background

7. The following is a summary of the background to this dispute. This background is largely adopted from the Revised Report to the Beneficiaries and Shareholders dated 23 April 2025 (the Heydon Report), the significance of which will be discussed below. Nothing of what is summarised below appears to be in dispute. There were multiple versions of the Heydon Report as that report was revised – I will only make reference to this latest version. The Court records its gratitude for to Mr Brad Heydon, solicitor, the author of the Heydon Report.

General background

The Rainforest Resort

8. Catherine O’Reilly (later Carter) (Mrs Carter), Mr Carter’s late wife, was associated with (including, at times, director of) two companies: Cathscompany Pty Ltd (Cathscompany), and The Wheel Resort Pty Ltd (The Wheel Resort).

9. On 2 November 1990, Mrs Carter acquired a half interest in Lot 1 in DP 558240, known as 39-51 Broken Head Road, Byron Bay NSW (Lot 1), as tenant in common with Phillippa Lesley Nichol. On 20 October 1995, Ms Nichol transferred her half interest in Lot 1 to Cathscompany in its capacity as the corporate trustee for a trust styled “Cathy’s Investment Trust”.

10. In 1996, Lot 10 in DP 708338, known as 61-75 Broken Head Road, Byron Bay NSW (Lot 10), was acquired by The Wheel Resort. Lot 1 and Lot 10 together comprise The Rainforest Resort. The Wheel Resort was the trading entity operating the business conducted at and known as The Rainforest Resort.

Mrs Carter’s engagement of SGL, her death, and Mr Carter’s continued engagement of SGL

11. SGL received instructions from Mrs Carter from about 12 September 2011 until her death. There is little evidence of what work SGL did for Mrs Carter prior to her death.

12. Mrs Carter died on 20 January 2013.

13. Interposing into the chronology here, there were two sets of proceedings in this Court in relation to Mrs Carter’s estate, including family provision proceedings. Those proceedings were resolved by consent, with Hallen J making orders and notations of agreements on 15 April 2015 in respect of both proceedings. The effect of those orders and the agreements noted in Hallen J’s orders were as follows:

14. if the lots comprising the Rainforest Resort were sold together (at the time of the proceedings, the sale of the property being considered), the net proceeds of that sale after discharging the mortgage debt secured over that real property and the payment of conveyancing costs and disbursements (but not agent’s commission) would be apportioned 76% to Lot 1 and 24% to Lot 10;

15. Mr Carter was granted probate in solemn form in Mrs Carter’s estate of a will dated 1 April 2010 and a codicil dated 18 January 2023;

16. family provision orders were made increasing the provision made for Mr Carter from Mrs Carter’s estate, with the effect that Mrs Carter’s estate was now to be distributed as follows (noting s 72 of the Succession Act 2006 (NSW)):

(a) 40% of the residuary estate would go to Mr Carter; (b) 40% of the residuary estate would go to the daughter of Mr Carter and Mrs Carter, Cinta Carter (who was a minor at the time of the proceedings); and (c) 20% of the residuary estate would go to other beneficiaries named in the codicil.

14. Returning to the chronology, from Mrs Carter’s death until around April 2016, SGL received instructions from:

15. initially, Mr Carter and Mr Owen Mace, the co-executors named under the codicil of the last will of Mrs Carter; and

16. after Mr Mace renounced probate on 6 January 2014, just from Mr Carter.

(I note for completeness that the codicil and will named Mr Garrett as executor in the event that either Mr Carter and Mr Mace were unwilling or unable to act. Mr Garrett renounced probate on 4 January 2014).

15. Amongst other matters, these instructions and the consequent work done by SGL relevantly concerned:

16. the proposed sale of The Rainforest Resort;

17. other matters regarding The Wheel Resort and Cathscompany specifically; and

18. matters pertaining to the administration of the estate of Mrs Carter (the Estate), including an application for probate.

19. It is important to recognise that from the time Mr Carter gave instructions to SGL, whether solely or not, he is doing so in various capacities. In particular, Mr Carter was giving instructions in his capacity as, variously:

20. the executor of Mrs Carter’s estate (again, noting that it is not apparent whether Mr Carter had obtained any grant of probate in common form prior to the grant of solemn form in April 2015);

21. the sole director of The Wheel Resort; and

22. the sole director of Cathscompany.

The sale of The Rainforest Resort, and the Mehmet v Carter litigation

17. A contract for the sale of land comprising The Rainforest Resort was exchanged on 6 July 2015. As the Heydon Report described them, the vendors were:

18. Mr Carter in his capacity as executor of the Estate (I infer that at some point Mr Carter would have become a registered proprietor in place of Mrs Carter, following her death);

19. Cathscompany, as trustee for Cathy’s Investment Trust; and

20. The Wheel Resort (together, the Vendors).

21. SGL acted for both the Vendors and the purchasers named in the contract.

22. A dispute arose in relation to the sale of Lot 1 and Lot 10. SGL subsequently ceased to act for either party in relation to the sale of The Rainforest Resort. The Vendors were referred to, and subsequently engaged, Mr Heydon in relation to the dispute. Mr Heydon at the time practised under the name “Heydon’s Lawyers”. I note that in 2019, Mr Heydon’s practice was sold to Ausslaw on 1 June 2019 and since that time, Mr Heydon has been a solicitor employed by Ausslaw. Whether under his own name or under the auspices of Ausslaw, Mr Heydon had carriage of the disputes concerning the sale of The Rainforest Resort on behalf of the Vendors following the referral of them to him.

23. The contract for sale entered into on 6 July 2015 was terminated by the purchasers named in that contract. I note the Vendors did subsequently sell the land comprising The Rainforest Resort to another purchaser for a lesser sum than that agreed with the original purchasers of the land under the 6 July 2015 contract. Nothing further needs to be said with respect to the subsequent sale of the land.

24. It is not necessary to go into the detail of the dispute that the Vendors had with the purchasers under the contract for sale entered into on 6 July 2015. It suffices to say that the sale of The Rainforest Resort was the subject of extensive litigation, which generated numerous first instance and appellate judgments in the Supreme Court: Mehmet v Carter [2017] NSWSC 1067, Mehmet v Carter [2018] NSWCA 305, Mehmet v Carter [2020] NSWSC 413, Carter v Mehmet [2021] NSWCA 286. Ultimately, the Court of Appeal in Carter v Mehmet [2021] NSWCA 286 awarded damages to the Vendors concerning the aborted sale of The Rainforest Resort and ordered the purchasers under the 6 July 2015 contract to pay the Vendors’ costs of the 2021 appeal and the proceedings generally. The Vendors collectively were thus the parties entitled to the damages. I will refer to this litigation generally as the Mehmet v Carter litigation.

Events after the Mehmet v Carter litigation

22. A total of $1,747,226.05 was paid into Ausslaw’s trust account, being the damages and interest payable to the Vendors ($629,818.09) and an agreed sum in satisfaction of the costs order in the Vendors’ favour ($1,117,407.96).

23. The damages and interest payable to the Vendors was paid into Ausslaw’s Trust Account on 21 December 2021. The money in satisfaction of the costs order was paid on 15 February 2023.

24. Once Ausslaw’s costs and disbursements were paid out (in relation to both the Mehmet v Carter litigation and subsequent administration of the files), Ausslaw had, as of 13 February 2024, $855,695.44 remaining in its trust account, which it held on trust for the Vendors.

25. Ausslaw was of the view that, given:

26. the Mehmet v Carter litigation required representation of each of Mr Carter (as executor of the Estate), Cathscompany (as trustee for Cathy’s Investment Trust), and The Wheel Resort;

27. the award of damages (including interest) and the costs order was made in favour of all three of the Vendors; and

28. there was a claim being made by SGL that money was due and payable to SGL from the Vendors;

there was no way to separate the trust money it held without an extensive assessment and adjustment process. As both the Heydon Report and these reasons for judgment should show, Ausslaw’s prudent approach was a justified one. There was also a secondary concern about paying out any monies it held in trust in light of the Estate not having yet been distributed.

26. Consequently, Ausslaw paid the funds, less the filing fee, into Court on 20 February 2024 under s 95 of the Trustee Act.

27. Ausslaw was still required to undertake the extensive assessment and adjustment processes to oversee the distribution of this fund. Mr Heydon provided the Heydon Report to explain issues that needed to be resolved prior to the distribution of funds, including his estimate of the amounts to be distributed. Ausslaw relies on the findings of the Heydon Report to determine how the funds should be apportioned between interested parties.

28. It was not disputed by any parties that the issues to be resolved and calculations completed in the Heydon Report were complicated. I had the benefit of being walked through many of these complexities, which I will elaborate upon below.

29. Having prepared the Heydon Report and making attempts to circulate it to the beneficiaries of the Estate and the shareholders of The Wheel Resort and Cathscompany, Ausslaw filed their Notice of Motion for payment out of Court on 3 July 2025.

SGL’s claim to payment

30. How SGL fits into the picture of these proceedings is best explained separately from the more general chronology of events I have set out above. I have already explained earlier, albeit at a high level, how SGL came to have a client relationship with Mr Carter (and Cathscompany and The Wheel Resort).

31. The first step that SGL concretely took to claim a debt was owed to them in relation to the legal work they did relevant to these proceedings was taken on 9 April 2016, when SGL issued the following eight invoices to Mr Carter:

32. Invoice 3167, addressed to “The Wheel Resort” concerning “Your Proposed Sales Property: 39-51 & 61-75 Broken Head Road, Byron Bay”, for $13,524.68;

33. Invoice 3168, addressed to “Mr MJ Carter” concerning “The Estate of the Late Catherine Carter – Proposed Probate Application”, for $8,870.76;

34. Invoice 3169, addressed to “Mr MJ Carter” concerning “The Estate of the Late Catherine Carter – Estate Advice (Current)”, for $33,219.89;

35. Invoice 3170, addressed to “Mr MJ Carter” concerning “Advice to Wheel Resort The Rainforest Lot [sic] (Real Estate)”, for $1,411.71;

36. Invoice 3171, addressed to “Mr MJ Carter” concerning “The Wheel Resort Pty Limited – General Advice”, for $907.55;

37. Invoice 3172, addressed to “Mr MJ Carter” concerning “Caths Company [sic] Pty Limited – Advice and Efforts to Locate Trust Deed”, for $7,942.54;

38. Invoice 3173, addressed to “Mr MJ Carter” concerning “Your Sale to Kirra Beach Developments Pty Ltd Property: 39-51 & 61-75 Broken Head Road, Suffolk Park”, for $9,732.18; and

39. Invoice 3174, addressed to “Mr MJ Carter” concerning “Your Sale to Mehmet, Mehmet, Mehmet and Cheers Aviation Property: 39-51 & 61-75 Broken Head Road, Byron Bay”, for $1,685.74.

40. On 29 June 2016, SGL issued a further, ninth, Invoice 3469, addressed to “Mr MJ Carter” concerning “Estate Administration”, for $22,623.40.

41. On 21 May 2019, Mr Carter signed a document titled Irrevocable Authority. The Irrevocable Authority was directed to Heydon’s Lawyers. Given the critical nature of this document to SGL’s claims, it is appropriate to set out the whole of the document (save for the execution block):

“TO: Heydons Lawyers 1/9 Fletcher Street, Byron Bay NSW

1. This irrevocable authority is subject and conditional upon the following conditions precedent being fully satisfied:

a. There are funds in the Heydons Trust Account at the relevant time of the irrevocable authority becoming active.

b. All litigation with Mehmet and Ors (the Plaintiffs) in the Supreme Court of NSW proceedings number 2015/00360420 against Murray Carter, CathsCompany Pty Ltd and The Wheel Resort Pty Ltd (the Defendants) including all payments of costs have been concluded and all relevant judgments delivered (Court Proceedings).

c. All appeals have been heard and judgments delivered or no appeals from the Court Proceedings in b. above are active nor pending and all time for appeals have expired (Appeals).

d. All legal costs and disbursements due to Heydons Lawyers and their Counsels and all experts and lay witnesses with respect to the Court Proceedings and Appeals have been met in full.

2. Upon all the above conditions precedent being fully satisfied then and only then the irrevocable authorities·below becomes operative.

a. I Murray Carter hereby irrevocably authorise and direct Heydons Lawyers to pay all outstanding monies owed to Stuart Garrett Lawyers S+P (as particularised in the table attached) from the proceeds of the Heydons Lawyers Trust Account held on behalf of CathsCompany Pty Ltd, The Wheel Resort Pty Ltd and myself as Executor and beneficiary of the Estate of Catherine Carter, as and when those funds are available for distribution, subject to the conditions precedent above; and

3. I acknowledge that this authority is irrevocable.

4. I instruct Heydons Lawyers to notify Stuart Garrett Lawyers by email of:

a. The Judgments in all Court Proceedings and any Appeals, within 7 days of those Judgments being delivered;

b. When proceeds of such Judgments have been received and disbursed pursuant to paragraph 1(d); and

c. When the disbursable proceeds pursuant to paragraph 1 is being effected.”

34. Attached to the Irrevocable Authority was a table of the nine invoices raised by SGL, being those invoices listed at [31]-[32] above.

35. On 14 December 2020, after Ausslaw had purchased Mr Heydon’s firm, the managing director of Ausslaw “acknowledged and confirmed” the Irrevocable Authority and “advised that it undertook to remain bound by” the Irrevocable Authority [Statement of Claim [22] CB 16].

36. In August, September and October 2023, Ausslaw and the solicitors for SGL entered into correspondence in relation to SGL’s claim that Mr Carter is liable to them for the debts. The detail of that correspondence is not necessary to recount. The salient points of the correspondence for the purpose of background are these:

37. SGL, through its solicitors, asserted that the conditions precedent in cl 1 of the Irrevocable Authority had been fulfilled, with the effect that SGL was now entitled to the monies owed under the invoices particularised in the table attached to the Irrevocable Authority.

38. Ausslaw, on behalf of their clients the Vendors, contended that Mr Carter, or the Vendors more broadly, were not liable to pay the sums invoiced for various reasons notwithstanding the entry into the Irrevocable Authority, including by reason of alleged failures to comply with the Legal Profession Act 2004 (NSW) (LPA).

39. Thus, when Ausslaw paid money into court, it did so against the backdrop of SGL having clearly demanded payment for sums referable to the nine invoices issued by SGL in 2016.

40. It is not otherwise necessary to set out the correspondence which passed between Ausslaw and SGL’s solicitors.

41. On 13 May 2025, SGL commenced the 2025 Proceedings for the recovery of their professional costs pursuant to the nine invoices detailed above. It is common ground that SGL now only sues Mr Carter in his capacity as the executor of the Estate (TR2 P15 L33-38).

42. On 11 July 2025, a costs assessment application under proceedings 2025/00284466 was made by SGL. The costs assessment application was in evidence. In the particulars of the application, in answer to a question asking the applicant to identify the costs assessed, SGL (as applicant) identifies the nine invoices listed at [31]-[32] above. SGL also says it claims a total of $99,918.45 for the costs it wants assessed.

43. One noteworthy feature of the 2025 Proceedings is that SGL have candidly said that they do not intend to prosecute the 2025 Proceedings. SGL’s evidence is that it intends to “simply complete the costs assessment and seek the payment in the amount determined” (TR1 P39 L35), and that the 2025 Proceeding is “only intend[ed] to be utilised so as to preserve SGL’s limitation period”.

44. Aside from the filing of a Defence and the two Notices of Motion, it appears that no other procedural steps have been taken in the 2025 Proceedings.

Hearing details and evidence

43. The hearing of the Notices of Motion was listed on 25 February 2026, on an estimate of 2 days. The hearing ran into the second day. On the first day of the hearing of these motions, I made an order that evidence in one motion is evidence in all other motions.

44. Mr M Southwick of counsel appeared for both Ausslaw, in the 2024 Proceedings, and Mr Carter, in the 2025 Proceedings. There was no meaningful distinction drawn in either the oral submissions or the various written submissions provided on behalf of Ausslaw and Mr Carter prior to the hearing as to which party submissions were made on behalf of. Furthermore, there is obvious overlap between the issues across all motions in both proceedings, and the interests of Ausslaw and Mr Carter do not conflict. Therefore, unless it is necessary to do so, I will not differentiate between submissions made on Ausslaw’s behalf or Mr Carter’s behalf. Accordingly, for consistency, I will refer mainly to submissions made by Mr Southwick on behalf of both parties as submissions made by Ausslaw, except where it may otherwise be necessary to differentiate between them.

45. Mr A Bailey of counsel appeared for SGL in both proceedings.

46. In the usual way, each of the parties made oral submissions, which were extensive in this case, in support of their positions. I was also furnished with many sets of written submissions with respect to these motions.

47. I had my Tipstaff prepare a table outlining, for my benefit, the relationship between each set of written submissions provided by the parties and the Notices of Motion. I provided the table to the parties in Court and, after going through it with the parties, no one indicated that a set of submissions was otherwise left off. I record my gratitude to my Tipstaff for having prepared that table.

48. I have set out below a revised version of the table my Tipstaff prepared. It will be apparent that, in some cases one “set” of submissions were intended to be relied upon in support of multiple Notices of Motion.

| Notice of Motion (subject matter) | Relevant Proceedings | Submissions addressing this Notice of Motion | | Title | Whose submissions? | Date filed | | Ausslaw’s Notice of Motion filed on 3 July 2025 (Directions as to payment out of court) | The 2024 Proceedings | “Plaintiffs [sic] Submissions” – “Payment out of court” (AWS Payment Out) | Ausslaw | 18 February 2026 | | “Submissions on behalf of beneficiary – Cinta Carter” | Cinta Carter | 18 February 2026 | | SGL’s Notice of Motion filed on 31 July 2025 (Order that sums are retained in court for money to SGL) | The 2024 Proceedings | “Submissions of Stuart Garrett Pty Ltd – Application Filed 31 July 2025” (SGL WS Payment Out) | SGL | 16 October 2025 | | “Submissions” | SGL | 11 February 2026 | | “Plaintiffs [sic] Submissions” – “Stuart Garrett Limited claim” (AWS SGL) | Ausslaw | 18 February 2026 | | Mr Carter’s Notice of Motion filed on 24 October 2025 (Application to Strike Out the Statement of Claim) | The 2025 Proceedings | “Submissions: Application for Leave to Amend” (SGL WS Leave to Amend) | SGL | 7 November 2025 | | AWS SGL | Ausslaw | 18 February 2026 | | “Plaintiffs [sic] Submissions” – “Leave to Amend” (AWS Leave to Amend) | Murray John Carter | 24 February 2026 | | SGL’s Notice of Motion filed on 29 October 2025 (Application for leave to amend Statement of Claim) | The 2025 Proceedings | “Submissions” | SGL | 11 February 2026 | | “Submissions: Application for Leave to Amend” | SGL | 7 November 2025 | | AWS Leave to Amend | Murray John Carter | 24 February 2026 | | All Notices of Motion (Background information) | The 2024 Proceedings and the 2025 Proceedings | Joint letter to judge | Both parties | Not dated | | Parties & Chronology | Ausslaw | 15 October 2025 |

49. Following correspondence with my Associate, Ausslaw and SGL each also provided further written submissions on the ultimate consequence in the 2025 proceedings. As requested, Ausslaw provided submissions on 5 June 2026 (AWS consequences) and SGL provided submissions on 12 June 2026 (SGL WS consequences). I discuss what prompted these submissions at [145]-[149].

50. Due to the 10 sets of submissions covering overlapping issues, I will largely not be providing references for where submissions were made by parties, noting that I have had regard to all of these written submissions as well as the oral submissions made.

Issues

51. Procedurally speaking, there are four issues to be addressed.

52. In the 2024 Proceedings, the issues raised by the two Notices of Motion in that proceeding are:

53. should some of the money currently in court be retained on account of SGL’s claim for payment from Mr Carter; and

54. should all (or some, if SGL succeeds on the issue identified immediately above) the money in court be paid out to Ausslaw, to be further paid out to the Vendors in the proportions specified in the relevant Notice of Motion; and

55. In the 2025 Proceedings, the issues raised by the two Notices of Motion in that proceeding are:

56. should the Statement of Claim be struck out; and

57. should SGL have leave to amend their Statement of Claim (noting the obvious overlap between these two issues).

58. However, having regard to the procedural and factual background set out above, together with the relevant legal principles and submissions made by the parties (see below), there is effectively a common question to be answered in by SGL’s Notice of Motion in the 2024 Proceedings, and the Notices of Motion in the 2025 Proceedings. Ausslaw and Mr Carter maintain that SGL has no claim against Mr Carter because of, variously, provisions of the LPA and the Limitation Act 1969 (NSW) (Limitation Act) – that is the centre of why those parties say SGL’s Statement of Claim in the 2025 Proceedings is liable to be struck out and why SGL has no right to the monies in court. SGL’s application to retain monies in court and its resistance to Mr Carter’s application to strike out the Statement of Claim appears to me to rest on the premise that SGL can properly pursue Mr Carter for costs they say are payable to SGL.

59. Additionally, SGL’s application for leave to amend its Statement of Claim in the 2025 Proceedings only “becomes live” if I find against SGL that SGL currently has a right to pursue Mr Carter for the repayment of a debt. Whether or not SGL should be permitted to amend their pleading is also dependent on the scope of the provisions of the LPA which Mr Carter and Ausslaw use to impugn SGL’s current claim in debt.

60. Consequently, I consider the following issues arise for consideration:

61. Do the costs agreements and disclosures issued by SGL trigger the operation of ss 317 and 355 of the LPA on SGL’s Proceedings?

62. What is the effect of the Irrevocable Authority? In particular, can it qualify as a confirmation of SGL’s cause in action in debt per the Limitation Act?

63. If ss 317 or 355 are operative, was SGL barred from commencing, or is SGL barred from maintaining, proceedings to recover the costs they say are payable to them by Mr Carter?

I consider that it is this list of issues, which will lead to the disposal of all issues before the Court raised in the four Notices of Motion.

57. In summary, and for the reasons set out below, I have decided the following:

58. Section 355 of the LPA is operative because a costs assessment regarding SGL’s costs is underway. It is not for this Court to decide on a summary basis whether s 317 of the LPA is operative.

59. The Irrevocable Authority may qualify as an acknowledgement of a SGL’s cause of action in debt against Mr Carter.

60. The 2025 Proceedings, whether one looks at the Statement of Claim currently on foot or the proposed Amended Statement of Claim, qualify as proceedings commenced or maintained for the recovery of legal costs contrary to s 355 of the LPA. Accordingly, the Statement of Claim should be struck out and leave to amend the pleading should be refused.

61. The Court is satisfied with all aspects Ausslaw’s proposal for payment out of court.

62. SGL does not have an interest in the funds in Court and cannot oppose their payment out.

SGL’s claim against Mr Carter and the motions in the 2025 Proceedings

Preliminary issue – do I need to determine the adequacy of the costs agreements and disclosures?

58. As SGL was first instructed in or around September 2011, that is, prior to 1 July 2015, the costs agreement and disclosure requirements are governed by the LPA, as according to the Legal Profession Uniform Law 2014 (NSW) sch 4 cl 18(1). It is common ground between the parties that this Act is what governs costs agreements and disclosure requirements on the dates of this case (TR1 P12 L34-36). I also observe that the LPA was amended by the Legal Profession Amendment Act 2006, an amendment in place when SGL was first instructed in 2011.

59. Only four costs agreements and disclosures issued by SGL were before the Court. Each costs agreement and disclosure document included both a costs agreement and a costs disclosure. The four issued costs agreements and disclosures were titled and dated as follows:

60. 20110856 Proposed sale of Rainforest Resort, issued to Murray and Catherine Carter, dated 21 October 2011;

61. RE: THE ESTATE OF THE LATE CATHERINE CARTER – PROBATE, issued to Murray John Carter and Owen Mace, dated 29 November 2013;

62. RE: ADMINISTRATION OF THE ESTATE OF THE LATE CATHERINE CARTER, issued to Murray John Carter and Owen Mace, dated 29 November 2013; and

63. 150189 Carter Estate Administration, issued to Murray John Carter, dated 16 June 2015.

64. Ausslaw repeatedly contend that the costs agreements and disclosures issued by SGL were not made in compliance with Part 3.2 of the LPA. The complaints that Ausslaw made in Court (for instance, TR1 P22-24) and in their written submissions appear to me to be mostly about the adequacy of SGL’s costs disclosures – they repeatedly reference Division 3 of Part 3.2, in particular ss 309 and 311 of the LPA, which is the part of the LPA dealing with costs disclosures. Ausslaw does submit that the costs agreements also have “problems”, in the sense that they are non-compliant with the LPA (TR1 P22 L3-13). But there is no complaint that s 322 or any other provisions relating to costs agreements under Division 5 of Part 3.2 of the LPA are not complied with; the only substantive complaints made are to do with non-compliance with costs disclosure requirements. Consequently, I take Ausslaw’s complaint as being that the costs agreements and disclosures issued are potentially non-compliant with the costs disclosure requirements of Division 3 of Part 3.2 of the LPA. Where there is ambiguity in Ausslaw’s submissions, this judgment will understand the submissions to be in relation to costs disclosures, though where this judgment makes reference to costs agreements (see, in particular, [90]-[92]) it is because submissions were made directly on costs agreements.

65. Ausslaw contends that non-compliance with the cost disclosure requirements of the LPA “infects” all claims SGL is attempting to make in these proceedings (TR1 P52 L18-20). Ausslaw’s contention centres on s 317 of the , which relevantly provided as follows:

317 Effect of failure to disclose

(1) Postponement of payment of legal costs until assessed If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been assessed under Division 11.

Note—

Under section 369, the costs of an assessment in these circumstances are generally payable by the law practice.

(2) Bar on recovering proceedings until legal costs assessed A law practice that does not disclose to a client or an associated third party payer anything required by this Division to be disclosed may not maintain proceedings against the client or associated third party payer (as the case may be) for the recovery of legal costs unless the costs have been assessed under Division 11.

62. If SGL, the law practice, did not disclose to Mr Carter, the client, anything as required by Division 3 of Part 3.2 of the LPA (concerning costs disclosure), in particular, anything requirements of ss 309 or 311, Mr Carter “need not pay the legal costs unless they have been assessed under Division 11”.

63. However, I do not consider it proper or necessary, in this interlocutory application, to determine whether the costs disclosures were made in accordance with the regime provided for in Division 3 of Part 3.2 of the LPA. To the extent arguments were also made about the costs agreements (noting again these were not the basis of Ausslaw’s argument), I also do not consider it proper or necessary to determine whether costs agreements were made in accordance with Division 5 of Part 3.2 of the LPA.

64. In relation to the invoices themselves, two of the nine invoices which are relevant to the dispute were not addressed to Mr Carter. Additionally, the titles of some of the invoices suggest those invoices may relate to matters of The Wheel Resort and Cathscompany and not the management of the estate. There may be questions as to who the clients might be for the purposes of the costs disclosure regime of the LPA. I note Ausslaw submitted that SGL has claimed it is entitled to be paid in relation to some invoices to Mr Carter that Ausslaw says relate to entities other than just the Estate and so are not relevant to a claim against Mr Carter in his capacity as the executor the Estate. To the extent there are issues as to who is responsible for payment of the invoices, which may or may not have flow on effects for the way the costs assessment application progresses, I accept SGL’s submission that this issue is something the costs assessor can address (TR1 P41 L38-44).

65. More fundamentally, I also do not think it is necessary to decide the adequacy of any costs disclosures in the context of this particular case. Section 317 of the LPA is not completely irrelevant to the issues in dispute here; some further reference will be made to that provision in due course. However, to the extent arguments are founded on s 317, that provision is only relevant where a law practice fails to make relevant costs disclosures. To determine whether s 317 applies, it would seem necessary to determine and make findings about what disclosures might have been made by SGL, who were they made to, when were they made, and whether any disclosures complied with the legislative regime.

66. It would seem necessary then to consider and perhaps make factual findings about what was disclosed to who (even assuming I could proceed on the basis that the only relevant client is Mr Carter) and to see if ss 317, 322 (which navigates costs agreements), or any other provisions of Part 3.2 apply. But this is not a final hearing. For that reason alone, I do not consider it appropriate to make binding factual findings unnecessary to resolve the issues in dispute in the motions in the 2025 Proceedings.

355 Consequences of application

If an application for a costs assessment is made in accordance with this Division:

(a) the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application, and

(b) the law practice must not commence or maintain any proceedings to recover the legal costs until the costs assessment has been completed.

68. While I acknowledge that the prohibitions in s 317(2) and s 355(b) relating to proceedings to recover costs are not in precisely the same terms, Ausslaw frequently did not differentiate between these provisions and referred to both when submitting that SGL’s ability to commence proceedings were barred by those provisions. SGL submitted that there is a difference in the language of the two provisions in that s 317(2) does not refer to the commencement of proceedings, whereas s 355 does (though they are different “in that respect only”) (TR2 P14 L33-35).

69. Regardless of whether a costs assessment was necessary before SGL could commence proceedings against Mr Carter by reason of s 317(2), once the costs assessment process commenced, as it now has, we are plainly in the territory covered by s 355 of the LPA. Whether in fact the proceedings are being “maintained” is an issue of itself. However, what is apparent to me is that in so far as motions in the 2025 Proceedings are concerned, it is preferable to apply s 355 given there is an undisputed factual basis from which to apply that provision to the extent it is applicable here, namely that there is a costs assessment process in progress.

70. The motions in the 2024 Proceedings are in a slightly different position to the motions in the 2025 Proceedings. What claim SGL might have to justify retaining monies in court would seem to require some adjudication on SGL’s right to make a claim in relation to those monies. However, it was not clearly put to me that it was necessary to decide, one way or another, whether the adequacy of any required costs disclosures were themselves necessary to be adjudicated by the Court for the purposes of the 2024 Proceedings. To the extent that Ausslaw resists SGL’s motion in the 2024 Proceedings on the basis that SGL does not have a valid claim, again I think that consideration of that dispute can be done sufficiently by reference to s 355. If the motions in the 2024 Proceeding were being heard in isolation, I may have been less concerned about applying s 317(2), in that making findings and determining whether the prerequisites to the application of that provision (namely, a failure to make the required costs disclosures) were satisfied would not necessarily have been inappropriate. However, given the overlap between the 2024 Proceedings and the 2025 Proceedings both as a matter of substance and in relation to the parties, including that SGL relied on submissions that certain matters should not be decided on a summary basis, and given I do not think any binding final adjudication in relation to the adequacy of SGL’s costs disclosures should be done in the 2025 Proceedings motions, I will refrain from saying anything on that topic in relation to the motions in the 2024 Proceedings.

71. Additionally, given the costs assessment is ongoing, I do not want to make any findings that might be inconsistent with what the costs assessor may or may not determine on the question of the adequacy of any necessary costs disclosures.

Mr Carter’s strike out application and SGL’s amendment application in the 2025 Proceedings

72. Rule 14.28 of the UCPR provides the Court the power to strike out pleadings. That rule provides as follows:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

73. Mr Carter’s Notice of Motion in the 2025 Proceedings does not identify which subrule is being relied upon to strike out SGL’s claims. I was also not given a relevant summary of principles which might have allowed me to infer which subrule was being relied upon. However, at the very start of the oral submissions, in response to a question from me, Mr Carter’s counsel responded as follows (emphasis added):

“HER HONOUR: We’ll just go to the fourth one now, which is over the page, and that’s a strike‑out application. What I’ve got on the strike‑out application, the primary submissions on the strike‑out application are, in fact, from 18/2, aren’t they?

SOUTHWICK: That’s correct. Effectively, it’s the conclusion of the Stuart Garrett Ltd claim submissions. We say there’s no claim. Therefore, it should be struck out.”

That appears to be effectively a submission that the Statement of Claim is liable to be struck out on the basis of r 14.28(1)(a), being that there is no reasonable cause of action. I will proceed on that basis. It was not suggested before me that r 14.28(1)(b) was relevant.

74. Ausslaw also submitted that the present proceedings “are an abuse and the court ought of its own motion to strike out the proceedings”, suggesting the Court should act “by analogy with” what Adamson J said in Samadi v WKA Legal Pty Ltd [2018] NSWSC 1159 at [49]-[51] (AWS SGL dated 18 February 2026 page 13). However, no further submissions as to abuse of process were developed. In particular, neither Ausslaw nor SGL presented any authority on the meaning of abuse of process (noting that the paragraphs referenced of Samadi v WKA Legal are not authority on abuse of process). Given the seriousness of an allegation of abuse of process, I do not consider it appropriate or necessary to address whether SGL’s claim is an abuse of process any further.

75. In Westwood v Gulliver [2024] NSWSC 1323 (Westwood) at [70]-[74], Faulkner J set out the principles in relation to when proceedings may be summarily dismissed for failing to disclose a reasonable cause of action. I note these principles are applicable as an application to strike out a pleading on the ground it discloses no reasonable cause of action is essentially a summary dismissal application (In the matter of Brianine Pty Ltd [2022] NSWSC 203 at [39] (Williams J); Westwood at [79]). I also recently applied these principles in Ghosh v Newton [2026] NSWSC 571 in the context of another strike-out application under r 14.28(1)(a) of the UCPR. I again gratefully adopt what Faulkner J said in Westwood and set it out below, noting that it is really what is said at [70] which is most relevant here:

“[70] The power to dismiss proceedings under this rule will only be exercised where the claim is so obviously untenable that it cannot possibly succeed: General Steels [sic] Industries v Commissioner of Railways NSW (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ). In Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ said the proceedings may be dismissed where there is a high degree of certainty about the ultimate outcome of the proceedings if they were allowed to go to trial in the ordinary way.

[71] In *O’*Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3], Macfarlan JA, with whom Beazley P agreed, identified the following relevant principles:

1. the real issue is whether there is an underlying cause of action, not simply whether one is pleaded;

2. demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and

3. the power summarily to terminate proceedings must be exercised with exceptional caution.

[72] In considering whether the General Steels [sic] test is met, the Court is to have regard to the fact that the plaintiff is self-represented and must satisfy itself that there is no viable course of action of which the plaintiff will be deprived if the case is dismissed: Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 at 536 (Kirby P, with whom Hope and Samuels JJA agreed).

[73] The Court may find that a pleading discloses no reasonable cause of action merely by reference to the pleading itself and without regard to any evidence. If so, the Court must assume the truth of all the allegations made in the pleading: Agius v State of New South Wales [2001] NSWCA 371 at [24] (Priestley, Powell and Giles JJA).

[74] The Court may alternatively, determine the application having regard to evidence adduced by the parties: r 13.4(2). However, if the Court receives evidence on an application like this it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those ‘facts’: Bass v Permanent Trustee Co Limited [1999] HCA 9; 198 CLR 334 at [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).”

Should the pleadings be struck out as being time-barred?

76. In relation to the 2025 Proceedings, Ausslaw contends these proceedings are liable to be struck out irrespective of whether a costs assessor had finished the assessment of legal costs because the claims of SGL have been barred by the operation of the Limitation Act.

77. Sections 14(1) and 63 of the Limitation Act provide as follows:

14 General

(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims—

(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,

…

63 Debt, damages etc

(1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person’s successors, extinguished.

(2) Where, before the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to the debt damages or other money—

(a) for the purposes of the action, or

(b) so far as the right or title is established in the action.

78. In Coshott v Barry [2012] NSWSC 850 (Coshott v Barry) at [10], McCallum J proceeded on the basis that a solicitor’s right to recover fees was a cause of action founded in contract for the purposes of s 14(1)(a) of the Limitation Act 1969 (NSW). Accordingly, the limitation period of six years applies to a solicitor’s right to recover their fees.

79. The latest it appears SGL’s right to payment from Mr Carter might have accrued, would appear to be 9 April 2016, being the day on which eight of the nine invoices were issued to Mr Carter. Perhaps the latest that the right to payment may have accrued would be the due date for payment of those invoices. For the purposes of these proceedings, it does not matter precisely when.

80. Unless the bar to maintaining proceedings in the Limitation Act is postponed, then the limitation period to commence an action against Mr Carter in debt would have expired in 2022. That is three years before the Statement of Claim was in fact filed in the 2025 Proceedings.

81. The only relevant provision of the Limitation Act that has been raised to suggest the limitation period was “extended” was s 54 of the Limitation Act. That provision provides as follows (subsection (7) is omitted as it is not relevant) (emphasis added):

54 Confirmation

(1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.

(2) For the purposes of this section—

(a) a person confirms a cause of action if, but only if, the person—

(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or

(ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made,

(b) a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money, and

(c) a confirmation of a cause of action to recover income falling due at any time operates also as a confirmation of a cause of action to recover income falling due at a later time on the same account.

(3) Where a person has (either solely or with other persons) a cause of action to foreclose the equity of redemption of mortgaged property or to recover possession of mortgaged property, a payment to the person of principal or interest secured by the mortgage or a payment to the person otherwise in respect of the person’s right or title to the mortgage is a confirmation by the payer of the cause of action.

(4) An acknowledgment for the purposes of this section must be in writing and signed by the maker.

(5) For the purposes of this section a person has the benefit of a confirmation if, but only if, the confirmation is made to the person or to a person through whom the person claims.

(6) For the purposes of this section a person is bound by a confirmation if, but only if—

(a) the person is a maker of the confirmation,

(b) the person is, in relation to the cause of action, a successor of a maker under a devolution from the maker occurring after the making of the confirmation,

(c) where the maker is, at the time when the person makes the confirmation, (either solely or with other persons) a trustee of the will or of the estate of a deceased person—the firstmentioned person is at the date of the confirmation or afterwards becomes a trustee of the will or of the estate,

(d) where the maker is, at the time when the person makes the confirmation (either solely or with other persons) a trustee (other than a trustee of the will or of the estate of a deceased person)—the firstmentioned person is at the date of the confirmation or afterwards becomes a trustee of the trust of which the maker is a trustee, or

(e) the person is bound under subsection (7).

82. The confirmation sought to be relied upon was the Irrevocable Authority.

83. I am of the view the Statement of Claim should not be struck out solely on the basis of the limitation point raised by Ausslaw.

84. SGL first submitted that the limitation issues raised by Ausslaw, which were principally directed to whether the Irrevocable Authority constituted a confirmation, should be a question for final hearing as there are questions of fact and law (TR2 P10 L33-36). As will follow, I accept this submission.

85. It must not be forgotten that the strike-out application is an interlocutory application in which I am to proceed in a manner akin to an application for summary dismissal. To the extent a limitation point is relied on, for Ausslaw to succeed I must be satisfied that the proceedings are so obviously untenable because of a Limitation Act defence that the pleadings should not be permitted to proceed further (see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55; Smith v Young [2016] NSWCA 281 at [23]; Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 [25]-[26]).

86. While I touched on the issue briefly a few paragraphs ago, there appears to me to be a real issue of fact as to when exactly SGL’s cause of action in debt against Mr Carter might have arisen. However, to the extent a cause of action to recover any debts owed to SGL arose prior to the April 2016 invoices, that actually would weigh in favour of Ausslaw. To take SGL’s case at its highest, as I should, the latest possible date for the cause of action to have accrued would have been in or around April 2016.

87. If SGL’s cause of action accrued in April 2016, then, according to them, the Irrevocable Authority was a confirmation of SGL’s cause of action within the meaning of s 54 of the Limitation Act. As I understand s 54, the effect of accepting SGL’s submissions would be to effectively restart the clock from the time the Irrevocable Authority was executed (this being the date the acknowledgement would take effect: Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535 at 565; [1981] HCA 71 (Stage Club) (Wilson J, Murphy J agreeing)). The Irrevocable Authority was signed on 21 May 2019. The 2025 Proceedings were commenced on 13 May 2025. If SGL’s analysis is accepted, then their proceedings would not be barred solely by reason of limitation issues. That is, regarding the timeline of when a cause of action accrued or was extended, there appears to be a real triable issue for which Ausslaw has not discharged the onus of demonstrating that any argument is so obviously untenable.

88. However, Ausslaw submitted a further problem that at the time of the Irrevocable Authority, SGL’s failure to comply with the costs disclosure regime meant, by reason of s 317(1) and (2) of the , SGL had “no present entitlement” to the payment of their legal costs (TR1 P51 L46-48). Consequently, the Irrevocable Authority could not effectively extend the limitation period because there was no debt outstanding and unpaid (reference was made to the dissenting reasons of Gibbs CJ in at 544). Ausslaw submits that the Irrevocable Authority could not extend any limitation period because at no time were the funds payable (TR1 P12 L11-15, TR1 P53 L48-P54 L5).

Are the 2025 Proceedings “proceedings commenced or maintained for the recovery of costs?”

97. Ausslaw otherwise submitted that SGL has no reasonable cause of action because their cause of action is barred by ss 317(2) and 355(b) of the LPA.

98. SGL’s key contention in response is that they have not commenced or are not maintaining the 2025 Proceedings in a manner prohibited by ss 317 or 355.

99. At the outset, I note that I will confine myself to discussion of s 355 of the LPA given my earlier hesitancy in applying s 317.

100. In the alternative and as a fallback position, SGL submits that its proposed amendments to the Statement of Claim would change the character of the proceedings to not be proceedings “for the recovery of costs” contrary to the statutory prohibitions (TR1 P33 L16-18). Ausslaw contends, albeit not clearly, that even with the proposed amendments, the proceedings are still proceedings being maintained in contravention of s 317 (TR1 P52 L18-20).

What is in the Statement of Claim and what amendments to it are proposed?

101. It is useful at this stage to consider what it is that is currently pleaded against Mr Carter by SGL, and what the proposed amendments are.

102. Currently in the Statement of Claim, SGL pleads, in summary, that:

103. there was a retainer between them and Mr Carter;

104. various works and legal services were provided by them to Mr Carter;

105. there were invoices issued to Mr Carter (the nine invoices referred to earlier);

106. Mr Carter has not paid those invoices;

107. by the Irrevocable Authority (which is specifically pleaded as a confirmation for the purposes of s 54 of the Limitation Act), Mr Carter represented he would pay the pleaded invoices upon the fulfilment of certain conditions;

108. the preconditions to payment in the Irrevocable Authority have been fulfilled and yet Mr Carter has not paid the invoices; and

109. SGL is entitled to a sum of money as repayment of the debt owed by Mr Carter.

110. What the proposed amended pleading does is add to the factual pleadings summarised above, under the heading “Estoppel”, and contend additionally that:

111. the Irrevocable Authority was a representation, subject to conditions precedent, that Mr Carter would cause Heydon’s Lawyers to pay SGL the money they were owed, from the proceeds from the Mehmet v Carter litigation held in their trust account;

112. SGL relied upon that representation to its detriment by not commencing proceedings or a process of costs assessment to recover the legal costs now sought to be recovered; and

113. therefore, Mr Carter should make good his representation which has hitherto not been fulfilled.

Do the 2025 Proceedings currently constitute the maintaining of proceedings for the recovery of legal costs within the meaning of LPA s 355(b)?

104. SGL did not seem to oppose the submission that as presently constituted, the 2025 Proceedings were proceedings for the recovery of legal costs. Rather, their submissions were that the proceedings were not being maintained.

105. To any extent that SGL’s submission that the proceedings were “only intend[ed] to be utilised so as to preserve SGL’s limitation period” is a submission that the 2025 Proceedings are not proceedings for the recovery of legal costs, I reject that submission. Prayer 1 of the statement of claim is a claim in debt. Recovery of legal costs is plainly all the proceedings are currently about. I am of the view that law practice’s subjective purpose is not relevant (see [119]). Regardless, such submissions were made to me.

106. SGL submitted that they did not commence proceedings whilst a costs assessment is underway. So much is factually true. Of course, Ausslaw complains that even the commencement of the proceedings was wrong by reason of s 317(2). But again, I do not think it is necessary to deal with whether the formal commencement of the proceedings was unjustified, for the purposes of the motions before me.

107. SGL submitted it was not maintaining proceedings because SGL has no intention to prosecute the proceedings. In Mr Garrett’s affidavit at [19] he noted:

“SGL does not intend to prosecute both Matter No. 2025/00183235 and the costs assessment. It intends to simply complete the costs assessment and seek the payment of the amount determined, subject to any reviews and appeals taken against the costs assessor’s determination, from the fund held in Court in this proceeding. At this point in time, the Statement of claim is only intending to be utilised so as to preserve SGL’s limitation period.”

108. SGL’s intention not to prosecute the 2025 Proceedings was confirmed by counsel for SGL in Court (TR1 P39 L25-28). Without any intention to prosecute the proceedings, SGL thus argues they are not maintaining the proceedings. They fixed on the fact that the sole reason the proceedings were even commenced in the first place was to stop time running on the limitation period (TR1 P48 L31-34, P49 L29-L49).

109. I do not accept SGL’s contention that they are not maintaining proceedings for the recovery of legal costs.

110. To maintain something ordinarily encompasses the continuation of that thing or the keeping of that thing in existence. An understanding that maintaining includes continuing is consistent with a plain reading of the word “maintain”. As a matter of statutory interpretation, there was nothing to suggest that “maintain” had some more nuanced meaning as compared to what might be described as its plain meaning.

111. The question SGL poses is, in effect, whether a proceeding not being prosecuted means it is not being “maintained” within the meaning of the LPA.

112. I could accept on face value that SGL will not, as it says, “prosecute” the 2025 Proceedings and that its intention is for the proceedings to be held “in abeyance” while the costs assessments are completed.

113. However, I do not accept that simply doing nothing in proceedings means the proceedings are not being maintained. At a formal level, the proceedings are still in existence. Unless the proceedings were stayed, the Court would still need to adjourn the proceedings to a fixed date (Civil Procedure Act 2005 (NSW) s 66(1)). Applications could still be made in the proceedings. Steps could still be taken in connection with the proceedings.

114. Section 355(b) includes a prohibition against even commencing proceedings once a costs assessment process has started. The provision’s apparent purpose is to stop proceedings at the outset. If the purpose of s 355(b) was merely to stop a law practice litigating a claim to recover costs in parallel with a costs assessment process, it might have omitted the word “commence” from s 355(b), an omission which might have permitted a law practice to act in the way SGL proposes to act here. However, once a costs assessment has been commenced, the provision does not even countenance parallel proceedings being commenced. If a court file should not even be opened by the commencement of proceedings, it seems to thwart the intention of the provision to also permit a court file to remain open, even if nothing is being done within it.

115. Additionally, even if a law practice does nothing in a given set of proceedings there would necessarily be a defendant from whom legal costs are being claimed. That defendant might fairly raise ss 317 and 355 in an interlocutory application, like Mr Carter did here. At least as far as s 355 is concerned, the issues which have arisen in this application, namely the risk of potentially treading into the territory of the costs assessor who is addressing issues in parallel with this Court, provide a justification for why the legislature has prohibited proceedings being “maintained” in parallel with an ongoing costs assessment. To take the circumstances of this case as an example, while it is the defendant, Mr Carter, who has opened up the risk of this Court proceeding in a manner inconsistent with what a costs assessor might determine, that risk was made possible by the very act of SGL informally keeping the proceedings on foot whilst the costs assessment was ongoing, even while they have done nothing else to decide the proceedings.

“[17] The issue, in my view, is not whether ‘maintain’ means ‘commence’, rather it is whether a proceeding which has been commenced can remain on foot while the condition remains outstanding. In other words, the real question is whether there is a consequence of not being able to maintain proceedings rather than whether or not they can be filed in the first place. I think this interpretation is consistent with the definition provided by the plaintiff from the Macquarie Dictionary in that proceedings cannot be kept “in existence” as long as there is a contravention of Section 317(2).

[18] The fact that the proceedings might be stayed after commencement does not assist the plaintiff. Stayed proceedings still exist. Even if stayed indefinitely the proceedings remain maintained, albeit not progressed.”

117. I am not bound by his Honour’s decision, which in any event is considering s 317 not s 355 of the LPA. There is perhaps some room to argue that stayed proceedings, in which no steps can be taken, are not proceedings which are being maintained for the purposes of the LPA. However, unless a stay is permanent, then there is a theoretical possibility that the stay might be lifted such that all the problems sought to be prevented by having proceedings running concurrently with a costs assessment come to the fore again. His Honour’s conclusion that even a stayed proceeding is still one which exists and therefore one which is maintained seems to be sound. If one accepts stayed proceedings still exist, then certainly proceedings which are “started but paused” whilst assessments are continuing (TR1 P49 L29-30), which SGL characterised the 2025 Proceedings as, still exist and are thus being maintained.

118. Regardless though of whether stayed proceedings are proceedings which are being “maintained”, the 2025 Proceedings are not stayed. Whilst SGL characterises their proceedings “started but paused” there is nothing to stop SGL from “unpausing” the 2025 Proceedings at any time. Therefore, there is, in my opinion, even less reason to suggest that SGL is not maintaining proceedings here.

119. I do not accept that whether the law practice is seeking to commence proceedings before a limitation period is relevant to whether or not proceedings are being “maintained”. I can accept that the purpose of the 2025 Proceedings being filed is to protect a limitation period. But I do not understand how the subjective purpose of a law practice acting as a plaintiff means that they are suddenly not “maintaining” proceedings contrary to what is provided for in s 355(b). It was not clearly explained to me why the content of the statutory concept of “maintain[ing] proceedings to recover legal costs” in the LPA would be affected by the plaintiff law practice’s subjective desire to preserve its right to recover its legal costs. I was given no reason why, as a matter of statutory construction, the content of the word “maintain” could vary with the subjective purpose of a plaintiff law practice.

120. In circumstances where a law practice fails to make adequate costs disclosures and is prohibited by s 317 from taking steps to recover its costs prior to a costs assessment, or if the law practice’s costs agreement is void and a costs assessment may be necessary to quantify the fair and reasonable value of legal services, it does not appear especially just to let proceedings be maintained solely to preserve a limitation period. If it is permissible to maintain proceedings merely to preserve a limitation period before a costs assessment completes, so as to then permit the costs assessment certificate to be registered as a judgment to be recovered against the client, then this effectively allows the law practice to extend a limitation period in circumstances where a law practice was initially prevented from recovering costs due to its own actions which were contrary to the .

“In the circumstances, I accept the submission for the first defendant that the provisions of s 355(b) do not oust the jurisdiction of the Local Court, where engaged, or properly result in the extinguishment of proceedings by the terms of that provision alone, but provide a proper basis by which the proceedings may be stayed (see [In the matter of Bitar Pty Ltd [2015] NSWSC 2158] at [8]) or defended. The maintenance of proceedings, contrary to the provisions of s 355(b), may in appropriate circumstances result in the proceedings being struck out.”

126. For those reasons, I reject SGL’s contention that it is not presently maintaining proceedings for the recovery of legal costs. In short:

127. the proceedings as constituted by the Statement of Claim are proceedings for the recovery of legal costs; and

128. the proceedings are being “maintained” whilst they remain on foot, even if SGL takes no substantive steps to progress the proceedings before the costs assessment completes.

Would the proposed amended 2025 proceedings be proceedings commenced or maintained for the recovery of costs?

127. Given I have concluded the 2025 Proceedings as currently constituted are being maintained contrary to s 355(b) of the LPA, it then becomes relevant to consider whether SGL’s application to amend its pleadings may transform the character of the proceedings.

128. SGL did not dispute that if the 2025 Proceedings as constituted by the current Statement of Claim were considered to be commenced or maintained, then merely amending the Statement of Claim would not solve that problem. Instead, SGL submitted that the estoppel issue sought to be raised in their proposed amended pleading would make these proceedings “something other than recovery of legal costs” (TR1 P33 L19-21). In SGL WS Leave to Amend, SGL characterised the amended proceedings as proceedings for “declaratory relief and consequential orders” (SGL WS Leave to Amend [11(d)]).

129. I reject this characterisation.

130. SGL seeks to estop Mr Carter “from denying liability for professional costs and disbursements charged by the Plaintiff to the Defendant, or from denying liability for fair and reasonable costs determined by a costs assessor to be payable by the Defendant to the Plaintiff”. Whilst SGL frames the proposed amended pleadings as being about an estoppel, and not the recovery of costs, the final paragraph of the new pleading contends SGL is “entitled to appropriate orders and other relief to make good the representation by [Mr Carter]”. In the “relief claimed” section, prayer 1 is still a claim a debt is owed to SGL. Proposed prayer 2A seeks a declaration that by reason of the Irrevocable Authority, Mr Carter is estopped from denying liability for professional costs. Proposed prayer 2B seeks “further or other orders in aide of the declaratory relief sought”.

131. If the only relief being sought was declaratory in nature, perhaps the proceedings are more likely to be characterised as not being for the recovery of legal costs. In In the matter of Bitar Pty Ltd [2015] NSWSC 2158 at [8], Brereton J was dealing with a winding up application where the application related to a company’s unpaid debt for legal costs which the company had applied to have assessed. His Honour rejected an argument that by reason of s 355, the winding up application could not proceed. His Honour opined that in a winding up application, there would be no judgment for the plaintiff to pay the legal costs claimed – the order would be for the winding up of the company in question. There would be no “judgment for or in respect of the legal costs in question”, which meant the proceedings before Brereton J fell outside the scope of s 355 of the LPA.

132. However, it is not apparent how else one could “make good” the alleged representation without an order for money to be paid to SGL to make good the promise they alleged was made by Mr Carter. The promise alleged by SGL in the proposed amended pleading is ultimately tied back to the debt they claim is owed by Mr Carter, based on the contract for legal services between Mr Carter and SGL. The alleged promise was that Mr Carter would pay those outstanding monies. Substantively, a judgment for compensation would evidently be a matter in respect of the legal costs the subject of SGL’s proposed amended pleadings.

“[12] If the Court were minded to not permit the amendment due to the statement of claim falling well outside the limitation period, consistently with considered dicta, that is a question left for final hearing that should only be determined in the clearest of cases: Wardley Australia Ltd v Western Australia (1992) 172 CLR 514 per Mason CJ, Dawson, Gaudron & McHugh JJ at 533.

[13] If the Court considers the dismissal of the application for leave to amend is not foreclosed by the expiration of a limitation period, Mr Carter invites a determination of the effect of an estoppel summarily at the point of an application for leave to amend where the Court does not have the benefit of full evidence and the cross-examination of witnesses in order to determine that issue conclusively.”

140. The submission in [12] is consistent with what SGL submitted in Court (see TR2 P10 L25-46), that the question of limitation issues and the effect of the irrevocable authority is one that should be decided on a final basis. So much I have already accepted.

141. The submission in [13] as I understand it is a submission that the merits of an estoppel case should only be determined on a final basis (see also TR2 P11 L36-50). I also accept that, for the reasons provided at [136]-[138], the estoppel case before me is not so obviously untenable, in either fact or law, that it has no chance of succeeding.

142. However, these are not the basis on which I have come to the view that the estoppel is so obviously untenable. Instead, I have come to the view that allowing the amendment would be untenable given the current prohibition on maintaining proceedings provided by s 355 of the LPA. It is for that reason SGL’s application for leave to amend its Statement of Claim should be refused.

What should happen from here?

143. I have determined that:

144. The 2025 Proceedings are proceedings being maintained by SGL in a manner contrary to s 355(b); and

145. the proposed amendments to the pleadings do not sufficiently change the character of the proceedings such that the proposed amendments are also contrary to s 355(b).

146. In light of my second conclusion, as I have already stated, I consider it appropriate to refuse SGL leave to amend its Statement of Claim and will dismiss its Notice of Motion in the 2025 Proceedings.

147. However, it is less clear what I should do in light of my first conclusion. Ausslaw’s Notice of Motion in the 2025 Proceedings sought the proceedings be struck out on the basis they had been commenced and maintained in breach of s 355 of the LPA (or s 317, if it was made out, an issue again which is I have chosen not to decide on a summary basis). As of now, the costs assessment process is extant. Therefore, the LPA prohibits the 2025 Proceedings from being maintained while the costs assessment is ongoing. To permit the 2025 Proceedings to proceed further, at the moment, would be acting in a manner contrary to s 355(b) of the LPA. I therefore consider that the Statement of Claim therefore ought to be struck out as there is no reasonable cause of action, because the cause of action pleaded is one that is barred by the LPA.

148. I note strike out is not a final form of relief. Where the whole of proceedings are struck out, it is typical for leave to replead or leave to amend to be granted, or the proceedings be dismissed (see, for example, Wentworth v Rogers (No 5*)* (1986) 6 NSWLR 534; Transport for NSW v Boensch (No 2) [2023] NSWSC 1354; Ghosh v Scott Newton t/as Shaw Gidley (No 6) [2023] NSWSC 1393).

149. However, Ausslaw presented no prayer for relief that the 2025 proceedings be dismissed. SGL made a brief suggestion that the Court could be empowered to “stay the proceedings until the costs assessment is completed, with the Plaintiff able to obtain an order for the amount of the costs determined by a Costs Assessor: Marshan v Steele [2011] NSWLC 41”, but did not elaborate on this submission or the underlying principles further.

150. Accordingly, on 29 May 2026, in preparation for this judgment, I caused my associate to send the following email:

“Dear Practitioners,

Justice Bennett has instructed me to send this email on her Honour’s behalf.

In the course of preparing her Honour’s reasons for judgment in this matter, her Honour has become concerned about a matter relevant to this application which her Honour considers, as a matter of procedural fairness, should be raised with the parties for them to address.

With respect to the Notice of Motion filed 24 October 2025 in proceedings 2025/00183235, the defendant (Mr Carter) has made an application that the Statement of Claim be struck out. There is no prayer for relief that the proceedings be dismissed. The plaintiff (SGL) has filed a Notice of Motion on 29 October in these proceedings, being the application for leave to amend. SGL contended this application only becomes live if Mr Carter’s application for strike out is (at least in part) successful (see TR (Transcript) Day 1 P33 L4-14). Her Honour considers that she has been adequately addressed as two of the procedural possibilities in dealing with these Notices of Motion, namely:

1. what should happen if the Court was minded to dismiss Mr Carter’s Notice of Motion; and

2. what should happen if the Court was minded to accept so much of Mr Carter’s arguments in relation to his Notice of Motion to make SGL’s Notice of Motion “become live”, but was then minded to allow SGL’s application for leave to amend.

However, her Honour does not consider she has been adequately addressed as to what the consequence would be if the Court was minded to find in Mr Carter’s favour with respect to both Notices of Motion. That is, it is not clear to her Honour what should happen if the Court was minded to:

1. strike out the Statement of Claim in proceedings 2025/00183235; and

2. refuse SGL leave to amend its Statement of Claim in the manner proposed.

Her Honour wishes to be assisted in relation to this third procedural possibility.

Firstly, her Honour requests to be addressed in writing by Mr Carter on what should happen if her Honour was minded to strike out the Statement of Claim and refuse SGL’s application for leave to amend. Her Honour requests that those submissions be provided by no later than 4pm on Friday, 5 June 2026, being one week from today.

Secondly, her Honour invites submissions in reply on this topic only from SGL no later than 4pm on Friday, 12 June 2026. Her Honour notes that, at TR Day 2 P10 L25-27, Mr Bailey stated “Your Honour is being invited to summarily dismiss proceedings for reasons articulated by my friend as to, primarily as to a limitation point and the effectiveness of the irrevocable authority”. In light of what was said by Mr Bailey at the hearing, her Honour requests that SGL’s submissions address this statement and indicate specifically to the Court what SGL understood the consequence of the pleadings being struck out to be during the course of the hearing.

If there will be a substantial issue with complying with her Honour’s request for further submissions, then please indicate that to me as soon as possible so that the appropriate adjustments to her Honour’s timetable can be made. Otherwise, I would be grateful if you could please confirm the suitability of this timetable.

Yours sincerely,

[Signature]”

149. By 12 June 2026, I had received submissions and reply submissions from Ausslaw and SGL respectively.

150. Ausslaw submitted that the relevant legal test for whether leave to replead or amend should be granted is whether there is a viable cause of action which, with appropriate amendment of the pleading, could be put into proper form (Wentworth v Rogers (No 5*)* (1986) 6 NSWLR 534 at 536-537), or whether a pleading amendment could cure the defect (Ghosh v Scott Newton t/as Shaw Gidley (No 6) [2023] NSWSC 1393 at [62]) (AWS consequence [5]-[7]). Ausslaw submitted that SGL cannot overcome the effects of ss 317 and 355 by amendment, so no leave should be granted and the Statement of Claim should be struck out. I infer that, where the Statement of Claim is struck out and no leave to replead or amend is granted, the proceedings should be dismissed.

151. SGL submitted that the proceedings in their existing form “are within the control of the Court” (SGL WS consequence [8]). SGL proposes that the proceedings could be stayed until the point in time the costs assessment is completed, as consistent with the process undertaken in Marshan v Steele [2011] NSWLC 41 (Marshan v Steele), as upheld in Robert Lindsay Steele v Maurice Robert Marshan [2012] NSWSC 32 and Steele v Marshan [2012] NSWCA 141.

152. I consider that the only sensible course would be, in the circumstances, to strike out the Statement of Claim, deny leave to replead, and thus dismiss the 2025 proceedings.

153. I accept the submission of Ausslaw that no amended Statement of Claim would be able to overcome the prohibition on commencing or maintaining proceedings for the recovery of costs under s 355. I have already given my reasons why the 2025 Proceedings and the proposed amendment are proceedings commenced or maintained for the recovery of costs. SGL did not present to me, beyond those pleadings, an amended pleading that could be characterised as something other than a proceeding for the recovery of costs. In the absence of such evidence, I cannot see how any other pleading amendment would be able to cure the s 355 default. I also note this is consistent with the approach of Brereton J in Amirbeaggi, where his Honour summarily dismissed the proceedings once his Honour was satisfied that s 355(b) applied to the proceedings before his Honour.

154. I reject SGL’s submission that the approach in Marshan v Steele, supposedly being to stay the proceedings until the costs assessment is completed, is an appropriate alternative to dismissal. Firstly, SGL’s characterisation of a “Marshan v Steele basis” for staying proceedings (SGL WS consequence [8]) is unsubstantiated. In the first appeal proceedings, Robert Lindsay Steele v Maurice Robert Marshan [2012] NSWSC 32, the procedural background discloses that proceedings for the recovery of costs were brought against the plaintiff. The plaintiff defended the proceedings on the basis, amongst others, that there was no costs disclosure. After the defendant had his costs assessed, he brought proceedings for the recovery of costs ( [2012] NSWSC 32, [6]-[7]). The judgment does not describe what happened procedurally after the plaintiff defended the proceedings on the basis that there was no costs disclosure; there is no mention of the proceedings being stayed. Secondly, even if they were stayed, does not provide justification for why this approach should be taken rather than strike out or dismissal. That is, I am of the view that cannot be used as an authority for staying proceedings in the face of strike out or dismissal when such contention was not a point of argument. This is particularly important where the significance of staying proceedings as compared to dismissing them would have (likely, on the limited procedural summary in evidence) made no difference to how the proceedings advanced in , but has great practical significance in the proceedings before this Court.

The motions in the 2024 Proceedings – how should the money in court be paid out or retained?

Legal Principles

156. Funds that have been paid into court may only be paid out of court pursuant to the directions of the Supreme Court: UCPR r 55.11.

157. My attention is drawn also to s 98 of the Trustee Act, which relevantly provides that:

98 Money or securities

…

(3) Money or securities paid into court shall, subject to rules of court, be dealt with according to the orders of the Court.

(4) The Court may make such order as it thinks fit as to the investment payment or distribution of money or securities paid into court, or the dividends or income thereof.

“Court” is defined to mean the Supreme Court (s 5 of the Trustee Act).

158. In Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661 (CBA v Estate of Slieman), Slattery J set out the principles which govern applications for payment out of funds held in court. I gratefully reproduce and respectfully adopt his Honour’s summary below (emphasis added):

“[6] Once moneys are paid into court under Part 4 and specifically s 98 of the Trustee Act, those moneys become subject to the Uniform Civil Procedure Rules 2005 (UCPR) of the Court. The applicable provisions of the rules of the Court are rr 55.8, 55.9, 55.10, and 55.11. Most relevantly, r 55.11 provides that:

‘55.11 Proceedings for directions as to payment out of court

(1) Funds that have been paid into court may only be paid out of court pursuant to the directions of the Supreme Court.

(2) An application for such directions is to be made by filing a notice of motion in the proceedings in which the funds were paid into court.’

[7] Ms Ferizis, who appears on behalf of Ms Swift, advanced the present application for payment of the funds out of Court pursuant to UCPR r 55.11(2).

[8] An applicant under UCPR r 55.11 must establish three matters to justify an order for the payment of money out of Court. The first is to identify the person who is primarily entitled to any funds paid into Court and the basis of that entitlement. It is fundamental that the person be identified from the best evidence available, so that the Court can be sure that the person has been given appropriate notice of the application and can if necessary contest it.

[9] The second matter that needs to be proved by a claimant is that he or she is not merely an unsecured creditor against the person primarily entitled to the fund but is a person who has an beneficial interest in the very fund that has been paid into Court. The same evidence that demonstrates a person’s primary entitlement to the funds in Court often establishes this second matter.

[10] Thirdly, it is necessary for an applicant to identify the other potential claimants to the fund in Court and to prove that those persons were notified of its claim. Those persons may consent to the claim. Alternatively, the applicant may prove that those persons either do not have valid claims against the fund or that their claims do not have priority over the applicant’s claims.

[11] The Court requires strict proof as to who has the entitlement to the funds in Court. There is a heavy burden placed on a party seeking payment of money out of court under Trustee Act s 98 and UCPR r 55.11. It is necessary for that party not only to prove his or her entitlement to the funds but also to prove that all other potential claimants to the funds in Court have been properly notified. Otherwise there is a risk of incorrect payments being made.”

159. For more on the three criteria for directions for payment out of court, see also Re Perpetual Trustees Company Ltd; Application of Chen (2010) 15 BPR 28,845; [2010] NSWSC 808 (Hallen AsJ); Re Concrete Injector Bolts Pty Ltd [2012] NSWSC 820 (Slattery J) (claim to surplus proceeds of mortgagee sale); National Australia Bank v Holcim (Australia) Pty Ltd [2016] NSWSC 1902 (Campbell J).

Identification and notification of all potential claimants

160. The persons entitled to any funds paid into Court are the Vendors, as the funds are the net proceeds of the judgments in their favour in the Mehmet v Carter litigation. It is clear that the Vendors each have a beneficial interest in the fund as the successful parties to the litigation.

161. Ausslaw took a wide approach to determining who could be potential claimants to the fund in Court and therefore who needs to be notified. Ausslaw attempted to notify all beneficiaries of the Estate, all shareholders of The Wheel Resort and Cathscompany, and any potential creditors such as SGL. Irrespective of whether all these parties are in fact potential claimants to the fund in Court, I commend Ausslaw for their far-reaching and diligent approach to interpreting who may be a potential claimant, which has assisted in the just, quick and cheap resolution of this matter.

162. A characterisation issue arises with respect to whether there are other potential claimants and whether they have been notified. Ausslaw submits in writing that the potential claimants include anyone who potentially had a claim against or interest in the Estate. Similarly, in Mr Heydon’s affidavit dated 14 August 2025, which details the steps taken to notify potential claimants, Mr Heydon outlines his attempts to identify and notify shareholders of The Wheel Resort and Cathscompany, other than Mr Carter. Despite their best efforts, Ausslaw acknowledges that only most, not all, of the potential claimants were actually notified of the application for payment out of court. Ausslaw did point me to what Meek J said in Liosatos v Liosatos [2025] NSWSC 44 at [215] and following as authority for a “practical approach” for dealing with notification requirements. I note that his Honour there was dealing with the service of a notice of claim in the context of family provision proceedings, where there are other statutory considerations at play.

163. I consider that Ausslaw has discharged its obligation to identify other potential claimants to the fund in Court and prove notice has been given to them, as outlined in CBA v Estate of Slieman at [10]. I am not satisfied that those persons who have not been able to be notified necessarily have a “valid claim” on the funds in court. To be clear, I am not reaching this conclusion simply because Ausslaw positively submitted I should. In what might still be considered a “practical approach”, I consider that the just, quick and cheap resolution of the question of payment out in this case would be advanced by a consideration as to whether the rights of those identified persons who have not received notice would be detrimentally affected so as to warrant not proceeding with Ausslaw’s application to have money paid out to court.

164. I consider the Vendors have each been notified of Ausslaw’s application for payment out of Court. Evidently, Mr Carter has been notified in his capacity as executor of the Estate. As for the two companies themselves, the Wheel Resort and Cathscompany, they also have been given notice. Mr Carter is presently the sole director of The Wheel Resort, and sole director of Cathscompany. Evidently, Mr Carter knows about the 2024 Proceedings, and I would be content enough to proceed on the basis that notice to Mr Carter is, in these circumstances, notice to the two companies: their controlling mind knows about the 2024 Proceedings. Additionally, although I am not sure it was strictly necessary to do so, Mr Heydon deposes that the two shareholders in the Wheel Resort who are not Mr Carter or Cathscompany have been notified of the proceedings.

“In the present case the evidence, which establishes Mr Slieman’s entitlement as registered proprietor also, establishes that his estate is entitled to a beneficial interest in those funds. Ms Swift has demonstrated that there are no other known claimants upon the funds in court and that there are unlikely to be any other claimants. As the administrator of the estate Ms Swift is now the person primarily entitled to stand in Mr Slieman’s place to claim these funds in court and to have them paid to her.”

168. That is similar to this case. But for her death, Mrs Carter would appear to have an entitlement to the funds in court. Ignoring her interests in the two companies, Mrs Carter was also a registered proprietor of some of the land comprising The Rainforest Resort. Once she died, her interest in the land fell into the Estate. Accordingly, the entitlement of the Estate to any proceeds of sale would have been vindicated by Mr Carter standing in the shoes of Mrs Carter. Like for Ms Swift in the case before Slattery J, it is Mr Carter who would be entitled, in his capacity as executor, to have the Estate’s share of the fund paid to him.

169. Even if the beneficiaries might have some right to make claim on the funds in court through Mr Carter’s entitlement as executor, it is not apparent that any beneficiary of the Estate would have priority to payment of the funds in court over Mr Carter in his capacity as executor.

170. Additionally, I take comfort in the knowledge that to the extent Mr Carter is holding money in his capacity as executor of the Estate, he has a duty to act in the best interests of the beneficiaries of that estate. I do not see any reason to doubt that Mr Carter would otherwise pay to the beneficiaries their respective entitlements to the funds paid to him on account of the Estate’s interests. The very fact that Mr Carter (through and with Mr Heydon) has gone to such lengths to attempt to notify all the beneficiaries of the Estate is demonstrative to me of his regard for the interests of the beneficiaries.

171. What further steps Mr Carter may need to take in the course of the administration of the estate in relation to how money may be paid to beneficiaries who he has not yet been able to locate or contact will be a matter for him that is separate to this application for payment out.

172. I also accept that it would facilitate the just, quick and cheap resolution of proceedings to proceed with Ausslaw’s application in the 2024 Proceedings for payment out of monies held in Court given the “other potential claimants” (ie, those beneficiaries to whom notice of the proceedings was not able to be given) only have small claims, estimated at $8,107.64, and sufficient enquiries have been made as to their whereabouts, such that incurring further costs to conduct further searches does not appear to be warranted. In this, I emphasise what I have said in the preceding paragraphs about the unnotified beneficiaries having their potential interests in the fund being vindicated by the process of the administration of the Estate.

173. There is necessarily a question as to how the funds in court should be divided between the three Vendors. Ausslaw’s Notice of Motion divides the funds up between the Vendors in percentages which have been derived from various calculations contained in the Heydon Report. Suffice to say, no one has come forward to contest the distributions as between the three Vendors. One of the beneficiaries, Cinta Carter, raises some concerns in relation to the Heydon Report, which are briefly addressed below, but those concerns do not otherwise relate to how, as between the Vendors, the funds in Court should be apportioned.

What is the nature of SGL’s claim against the fund?

179. SGL identified s 23 of the Supreme Court Act, which provides that “[t]he Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”, as providing jurisdiction for an order to retain a portion of funds held in court. It appears to me that r 55.11 of the UCPR and s 98 of the Trustee Act also leave the Court with a broad discretion in dealing with money paid into Court.

180. As earlier stated, any potential claimant to a fund in Court would have to hold a valid claim against the fund and have priority over the applicant’s claim to have money paid out to them (CBA v Estate of Slieman at [10]). I accordingly consider that funds should only be retained in court here if SGL might have a valid claim to those funds in Court. The end goal is, effectively, for the funds to be paid out from Court. If SGL would not otherwise be entitled to payment out, then it would be illogical that SGL ought to succeed in keeping money in.

181. I note that the Notice of Motion for retaining funds in Court was filed on 31 July 2025, after the limitation period for SGL’s cause in action in debt may have expired. No submissions were made to me by Ausslaw as to whether that has any impact on SGL’s entitlement to retain funds in Court. Of course, I have already considered in relation to the motions in the 2025 Proceedings that it would be inappropriate to determine any limitation points.

182. For the reasons which follow, I do not accept that SGL has a valid claim against the fund held in Court.

183. SGL might have a valid claim against Mr Carter, in his capacity as Executor of the Estate, pursuant to a cause of action in debt. To determine whether SGL has a valid claim against Mr Carter, however, would require deciding the issues raised with respect to the 2025 Proceedings, in particular, matters regarding the LPA and the Limitation Act, on a final basis. For reasons outlined at [70], I have considered it would be likely inappropriate in relation to both the 2024 Proceedings and the 2025 Proceedings, to determine on an interlocutory basis whether s 317 of the LPA is enlivened on the facts before me, or whether SGL has a cause of action that has not expired under s 14 of the Limitation Act. I therefore do not need to consider whether s 317(1) of the LPA might have some impact on SGL’s claim to the funds in court currently.

184. However, how SGL has a claim specifically to the funds in court was not ultimately apparent to me.

185. Mr Garrett stated in his affidavit:

“Upon the exact quantification of SGL’s claim being determined, SGL shall intend to rely upon the IA [Irrevocable Authority] to seek payment of its claim from the funds held in Court.”

186. However, no submissions were made to me either orally or in writing relying upon the terms of the Irrevocable Authority as the basis of SGL’s claim being against the funds in Court, rather than a claim against Mr Carter. Having regard to what was observed by Ward J in Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) [2012] NSWSC 170 at [155], dealing with a similar document, I am doubtful that the terms of the Irrevocable Authority could convert SGL into anything more than an unsecured creditor against Mr Carter; certainly, the terms of the document do not on their face grant any security interest. Where no submissions were made on this point, it is not appropriate or necessary to say much further.

187. SGL directed my attention to four authorities regarding holding a sum in court whilst a costs assessment proceeds: JKB Holdings Pty Limited v de la Vega [2013] NSWSC 501 (JKB Holdings); Waldemar Drexler t/as Drexler & Partners Litigation Lawyers v Karabay [2014] NSWSC 1863; Mutukoyi v Public Trustee of Queensland [2024] NSWSC 1005; and Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement) (Deed Administrators Appointed) [2012] NSWSC 170.

188. The latter three matters can be distinguished. As acknowledged by SGL in their submissions, these judgments concerned proceedings where the Court accepted that the relevant solicitor had a lien over the funds held in Court, namely a “fruits of the action” lien over judgment sums. SGL makes no claim that it has such a lien here and nor could it: SGL was not the solicitor for the Mehmet v Carter litigation.

189. JKB Holdings can also be distinguished. In this case, it was the plaintiff itself, not its solicitor, that was asserting an interest in the relevant fund in court. The plaintiffs were seeking to hold the funds in court while its entitlement to costs under favourable costs orders made by the Court was being assessed and worked out. In that case, Lindsay J acceded to the plaintiffs’ request. His Honour had relevantly characterised the funds being paid into court as being paid to abide the orders of the Court including costs orders. His Honour did say, at [125], that the funds in court could be available as security for satisfaction of the costs entitlements of the plaintiffs. However, that must be understood against how his Honour characterised the funds in court, as summarised at the beginning of [125] and at [130]. The very purpose of the funds being paid in court in that case was to secure any monetary liability that might be established, and that purpose continued to govern the funds in court, including in relation to whether the funds should be paid out. The funds in court in this case were not paid into court to secure any liability in pending proceedings.

“The funds paid into court remain subject to any pre-existing trust notwithstanding the payment in. If some person or persons were presently entitled to the corpus or income before payment in, the fact of payment in to await the orders of the court will not, of itself, displace that present entitlement. If entitlement is disputed, the function of the court will be to identify existing interests in the money paid into court rather than to create new ones.”

In respect of funds paid into court that are not the subject of a pre-existing trust, Lindsay J observed in JKB Holdings that “competing claimants have an interest in the funds in the sense that they are entitled to insist that the funds be properly administered and applied for the purposes for which they were paid in”.

192. The quoted passage of Harmer, what Lindsay J says in JKB Holdings, and Slattery J’s second requirement outline in CBA v Estate of Slieman all speak to the same core principle: an applicant moving the Court to pay money in court out to them must demonstrate an interest in the money paid in court. Unless the applicant for payment out has an interest in the money paid in, then it is not for the Court to create one.

193. At best, SGL is an unsecured creditor against Mr Carter in his capacity as executor of the Estate. The interest of an unsecured creditor to one beneficiary does not appear to have any priority over the interests of the Vendors, who are the beneficiaries to the sums held by Ausslaw in its trust account.

194. I therefore consider that SGL does not have a valid claim against the funds in Court as their claim is against Mr Carter in his capacity as executor of the Estate. SGL would have no entitlement to payment out, whatever the outcome of the costs assessment process, and so they should fail in their attempt to retain the sums in Court as well.

195. SGL made further submissions that SGL would be prejudiced if a sum of $180,000 was not retained in Court (SGL WS Payment Out [5(d)]). In their oral submissions, SGL elaborated on this prejudice, submitting that “[i]f a sum is not retained in terms, really, putting it at its highest, once the proceedings disburse, because of the relationship between Mr Carter and the former solicitor, it will be difficult to get paid. That is the articulation of the prejudice.” (TR1 P50 L10-14).

196. SGL has not identified how potential prejudice to them permits them to rank in priority over the Vendors in circumstances where they, at best, are an unsecured creditor who do not seem to have a specific entitlement to the funds in court.

197. Notwithstanding this, I also accept the submission from Ausslaw that “there is nothing to support the suspicion that Mr Carter will somehow do the wrong thing” (TR1 P51 L13-14). No evidence has been provided why, if SGL were entitled to repayment of debts said to be owed by Mr Carter, it would be difficult for them to get paid, given that Mr Carter has acted thoroughly and diligently in the administration of the estate in the evidence before me.

198. Ausslaw also submitted in writing that s 355 (presumably, s 355(a)) of the LPA means that SGL has no right to move the Court to continue to hold funds in Court. However, there is no further elaboration of that submission. SGL says that s 355(a) has no work to do in these proceedings as the relevant money was paid into court, under the auspices of the Summons filed in the 2024 Proceedings, well before the costs assessment application was commenced in this case. SGL similarly provided no elaboration or authority on this point.

199. Section 355(a) of the provides as follows:

355 Consequences of application

If an application for a costs assessment is made in accordance with this Division:

(a) the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application, …

200. SGL may be correct in submitting that, strictly, because no more money is being paid in, s 355(a) is not being directly thwarted given that s 355(a) appears to be directed at what happens after the costs assessment application is made. In JKB Holdings and Drexler, I note neither an ongoing costs assessment application nor a foreshadowed costs assessment application, respectively, were viewed as impediments to sums being retained in court while the costs assessment process played out. However, neither of these cases mention s 355. Additionally, the circumstances giving rise to the retention of money in court in each of those two cases are different to the circumstances here.

201. I am of the view that retaining money for legal costs from a fund paid into court on a different account (being, here, the fruits of litigation), is effectively the same malady as paying money into court on account of legal costs directly. This is particularly true here, where the rest of the proceeds being held in court are being paid out of court, and the only money held in court would be that held for legal costs that are not themselves referable to the litigation which caused the sum to be paid in.

202. The apparent policy of s 355(a) is that, for whatever reason, money for legal costs which are subject to a costs assessment application should not be held in Court. Given the costs assessment application is pending, I am additionally inclined against making the order SGL seeks to retain a sum of money, as this would appear to run directly against the policy embodied by s 355(a) of the LPA, for the reasons stated.

203. For those reasons, SGL’s Notice of Motion in the 2024 Proceedings should be dismissed.

Concerns of Ms Cinta Carter

204. In an email to my Chambers on 23 February 2026, that is, two days before the hearing of the motions, the solicitors on behalf of Ms Cinta Carter, in her capacity as a residuary beneficiary of the Estate, provided to myself and Ausslaw a set of written submissions to be received and considered by the Court. Ms Cinta Carter did not otherwise seek to be heard and did not appear during the proceedings.

205. Ms Cinta Carter made two objections to the Heydon Report:

206. firstly, that a sum of $93,000 already paid to Mr Carter, which is brought to account in the Heydon Report, should be accounted for when Cathy’s Investment Trust distributes the funds made available to them; and

207. secondly, that the net funds available for Cathy’s Investment Trust for distribution should not be divided equally between the Estate and Mr Carter, in light of historical financial statements of Cathy’s Investment Trust.

208. Ausslaw submitted that the application before the Court is for the apportionment of funds as between the Vendors, and that it is for Cathscompany as trustee of Cathy’s Investment Trust to make its decisions as to where and how it seeks to apportion the funds it receives to the beneficiaries of Cathy’s Investment Trust.

209. I accept Ausslaw’s submission. It is not necessary for me to deal here with Ms Cinta Carter’s submissions as to the proper manner in which Cathscompany Pty Ltd as trustee for Cathy’s Investment Trust is to apportion any funds it receives.

210. To be clear, I make no comment as to the validity of Ms Cinta Carter’s objections. Rather, I consider it inappropriate to meaningfully address her objections to the Heydon Report where those objections do not impact any potential orders I would make as to how the funds in Court would be paid out to the Vendors in the proportions specified.

Conclusion

209. I reiterate that no objections were made by any interested parties as to the funds available to be distributed, nor the numbers arrived at for apportioning the funds.

210. I have read the evidence before me, including the Heydon Report and affidavits of Mr Heydon, as it relates to respective entitlement to proportions of the fund. I have been taken to potential issues during the oral submissions of Ausslaw, such as that Cathscompany Pty Ltd was possibly a trustee with no trust deed, and I am satisfied the Heydon Report addresses these issues in its accounting. Further considering that no objections were made by any party on the issues before me, I am satisfied with the suggested apportionment of the funds in Court as proposed by Ausslaw per the Heydon Report. The Heydon Report identifies particular sums of money that should be paid to the Vendors. These sums are then used to derive the percentage of the money in Court to which each payee is entitled. It is these percentage figures which Ausslaw has relied on in formulating its prayers for relief in its Notice of Motion in the 2024 Proceedings.

211. The orders sought appear to have a minor typographical error such that the proposed percentage figures only apportion 99.9934% of the funds in Court. Converting the sums of money from the Heydon Report to percentage entitlements myself, I have corrected that typographical error in the final orders I will make.

212. Thus, as I am satisfied as to who has the entitlement to the funds in Court, and what proportion that entitlement should be in, I am content to make the corrected orders for the payment of the funds out of Court as sought by Ausslaw in its Notice of Motion in the 2024 Proceedings.

Orders sought and conclusion

213. In summary, I am satisfied of the following:

214. The Statement of Claim in the 2025 Proceedings should be struck out;

215. Leave to amend the 2025 Proceedings should not be granted;

216. SGL does not have an interest in the funds in Court and cannot oppose their payment out; and

217. Ausslaw’s proposal for payment out of court should be given effect to.

218. Accordingly, it follows that in both the 2024 Proceedings and the 2025 Proceedings:

219. SGL’s Notices of Motions should be dismissed.

220. Ausslaw and Mr Carter, as relevant, should be granted the relief they sought.

221. I was not addressed on costs. However, in both cases, I consider that it would be appropriate that costs follow the event. In relation the 2024 Proceedings, the proceedings are now concluded by effect of the orders I will make. SGL has failed in its attempt retain a sum of monies in court. Costs should follow that event in circumstances where there is no further “cause” between the parties. Ausslaw’s own costs in relation to its Notice of Motion for payment out are already accounted for in the relief sought. In relation to the 2025 Proceedings, it is more straight forward: the proceedings are being dismissed, and so costs should follow that event in the usual way, which will also include within it the costs of both Notices of Motion which Mr Carter has substantively succeeded in. There does not seem to be any reason that costs ought not follow the event.

222. Given I was not addressed on costs, I propose to make an order that SGL pay Ausslaw and Mr Carter’s costs on the ordinary basis, allowing for the possibility that the parties may wish to be heard on this issue. I will reserve to both parties the right to make further submissions on costs, if there is any further matter as to costs that ought to be brought to my attention.

Orders

217. For the reasons set out above, I make the following orders:

218. In the 2024 Proceedings:

219. In respect of the moneys paid into Court under s 95 of the Trustee Act 1925 (NSW) by the Plaintiff in proceedings 2024/00066133, Ausslaw Pty Ltd (ACN 125 972 607), (the Fund), pursuant to UCPR r 55.11, the Fund be partially paid out, forthwith, as to:

(a) That 51.1185 percent of the balance of the Fund be paid to Ausslaw Pty Ltd trading as Australian Law Group Trust Account for the purpose of distribution to Cathscompany Pty Ltd (ABN 29 601 551 169); (b) That 21.4080 percent of the balance of the Fund be paid to Ausslaw Pty Ltd trading as Australian Law Group Trust Account for the purpose of the administration of the Estate and distribution to Murray John Carter as Executor of the Estate of the Late Catherine Carter; and (c) That 27.4735 percent of the balance of the Fund be paid to Ausslaw Pty Ltd trading as Australian Law Group Trust Account for the purpose of distribution to The Wheel Resort Pty Ltd (ACN 050 057 013).

2. Payment of the Plaintiff’s costs of the application for payment into court in the percentages listed above for each of the parties in the total sum of $8,755.90.

3. Stuart Garrett Pty Ltd’s Notice of Motion filed on 31 July 2025 is dismissed.

4. Subject to order 5 below, Stuart Garrett Pty Ltd is to pay the Plaintiff’s costs of its Notice of Motion filed on 31 July 2025 on the ordinary basis.

5. Within 14 days of the publication of this judgment, the parties may make an application by email to my Associate to vary order (4). Further orders will be made for the filing and serving of submissions by the parties in relation to any such application, with any further issue as to costs to be determined on the papers.

6. The exhibits are to be returned, and they are to be retained intact by the producing party until the expiry of the time to file an appeal or until any appeal is determined.

7. In the 2025 Proceedings:

8. The Statement of Claim is struck out.

9. Leave to replead is refused.

10. The Notice of Motion of the Plaintiff, Stuart Garrett Pty Ltd, filed on 29 October 2025, is dismissed.

11. Subject to order 5 below, the Plaintiff is to pay the costs of the defendant in these proceedings, Mr Murray John Carter, on the ordinary basis.

12. Within 14 days of the publication of this judgment, the parties may make an application by email to my Associate to vary order (4). Further orders will be made for the filing and serving of submissions by the parties in relation to any such application, with any further issue as to costs to be determined on the papers.

13. The exhibits are to be returned, and they are to be retained intact by the producing party until the expiry of the time to file an appeal or until any appeal is determined.

**********