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[2026] NSWSC 153
Supreme Court of NSW
2026-03-05
Williams J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kchevetskaia v Korlevic [2026] NSWSC 153
Hearing dates: 27 February 2026
Date of orders: 5 March 2026
Decision date: 05 March 2026
Jurisdiction: Equity - Applications List
Before: Williams J
Decision: See orders at [73]
Catchwords: JUDGMENTS AND ORDERS – slip rule – inherent power to set aside or vary judgments and orders - where the Court made orders under s 73 of the Civil Procedure Act 2005 (NSW) on 29 November 2024 dismissing these proceedings with costs by way of enforcement of a settlement deed between the parties, but stayed the dismissal order until 7 February 2025 to afford the plaintiff an opportunity to file a notice of motion to set aside the settlement deed – where that notice of motion filed and the Court made directions on 7 February 2025 to facilitate the hearing of the motion but omitted to make an order extending the stay of the dismissal order – where plaintiff now seeks hearing of the motion to set aside the settlement deed and other claims made in various notices of motion and points of claim filed by the plaintiff since 7 February 2025 – where the plaintiff has failed to articulate those claims in a manner that complies with the requirements for pleadings and puts the other parties on notice of the case they must meet - whether Court should exercise its inherent power or power under the slip rule to vary the orders made on 7 February 2025 by making an additional order extending the stay of the dismissal order
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 73, 91
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(4), 36.17
Cases Cited: Aurora Australia Pty Ltd v Hunt Prosperity Pty Ltd (No 2) [2025] NSWCA 62
J Aron Corporation v Newmont Yandal Operations Pty Ltd (2006) 202 FLR 359; [2006] NSWSC 849.
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114
Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11
Category: Procedural rulings
Parties: Svetlana Kchevetskaia (Plaintiff)
Andrew Jason Korlevic (First Defendant)
Ian Sheriff (Second Defendant)
O’Hearn Lawyers Pty Limited (Respondent)
Representation: Counsel: Ms S Kchevetskaia (Litigant in Person) (Plaintiff)
Mr J Doyle (First Defendant)
N/A (Second Defendant)
Ms M Hall (Respondent)
Solicitors: Ms S Kchevetskaia (Litigant in Person) (Plaintiff)
Connor & Co Lawyers (First Defendant)
Sheriff Lawyers (Second Defendant – Submitting Appearance)
K&L Gates (Respondent)
File Number(s): 2023/255656
Publication restriction: N/A
These proceedings have a regrettable history.
These reasons relate to a hearing in the Applications List on 27 February 2026 concerning whether the Court has jurisdiction to entertain claims made by the plaintiff in various notices of motion filed in these proceedings throughout 2025 in circumstances where the Court made orders on 29 November 2024 dismissing the proceedings to give effect to a Deed of Release and Indemnity entered into by the parties on 30 July 2024, and that dismissal order had been stayed for a limited period of time which had not been extended.
Svetlana Kchevetskaia and her husband Evgueni Nalivaiko commenced the proceedings by statement of claim filed on 11 August 2023 against the first defendant (Mr Andrew Korlevic) and the second defendant (Mr Ian Sheriff).
The plaintiffs claimed to have entered into a joint venture agreement with Mr Korlevic and Andrix Homes & Constructions Pty Ltd (Andrix Homes) in or about March 2018 for the construction of two townhouses on land owned by the plaintiffs at 20A Hillview Crescent, The Hill in New South Wales. The joint venture agreement was said to comprise a development deed and a building contract between the plaintiffs, Mr Korlevic and Andrix Homes. Andrix Homes had gone into liquidation in February 2023 and has never been a party to the proceedings.
The plaintiffs pleaded that the terms of the development deed included that the plaintiffs would transfer a one third interest in the Hillview Crescent property to Mr Korlevic, and that the plaintiffs and Mr Korlevic would then sign the building contract and draw on a loan facility to be secured against the property in order to fund the construction of the townhouses. The plaintiffs pleaded that they did transfer a one-third interest in the property to Mr Korlevic in April 2019. The plaintiffs remained the registered proprietors of the remaining two-thirds interest.
The plaintiffs pleaded that the terms of the development deed provided that, on completion of the construction and registration of the plan of subdivision and strata plan for the townhouses, the parties would cause one of the two lots in the registered strata plan to be transferred to the plaintiffs and the other lot to be transferred to Mr Korlevic, and that Mr Korlevic was to repay the construction loan facility and discharge the mortgage over the property (or refinance the construction loan facility with a loan secured by mortgage over his lot only) and reimburse the plaintiffs for any construction loan facility repayments that they had made during the term of the development deed.
The plaintiffs pleaded that the joint venture gave rise to certain fiduciary obligations owed by Mr Korlevic to the plaintiffs, including an obligation to hold his one-third interest in the Hillview Crescent property subject to an obligation to transfer it back to the plaintiffs if they asked him to do so, or otherwise in accordance with the provisions of the development deed.
The plaintiffs pleaded that they and Mr Korlevic entered into a construction loan facility which was secured by mortgage against the property and in respect of which each of them gave personal guarantees.
The plaintiffs pleaded that Andrix Homes commenced construction work in July 2019, but ceased work in about December 2019 when the local council issued a direction to cease work as a result of alleged non-compliance with the terms of the development consent. The plaintiffs alleged that, in breach of the development deed and the building contract, Andrix Homes failed or refused to rectify the non-compliant work and failed or refused to complete the construction in accordance with the building contract and development deed, or at all. The plaintiffs pleaded that Mr Korlevic was liable for these breaches on the basis that Andrix Homes was his alter ego. The plaintiffs also pleaded that the conduct constituting the alleged breaches of the building contract and development deed also constituted a breach of Mr Korlevic's fiduciary duties owed to them.
“I think it’s very important that you get some legal advice if at all possible about you’re proposing to do. In the meantime, what I am minded to do is I will make the orders sought in the notice of motion. That is to say, I will order the proceedings to be dismissed but I will stay it, that is to say the order will have no effect, until the end of the first week of the new term. So that will be in the first week of February.
By then, if you want the proceedings to not be dismissed and you want to run your case, you will have had to have filed a notice of motion, and also what I’m calling points of claim, which is like a statement of claim setting out the facts upon which you rely in your application to set aside the settlement. …”
"(1) The proceedings are dismissed with no order as to costs.
(2) The costs of the defendant's notice of motion filed 21 November 2024 are reserved.
(3) Stay orders 1 and 2 up to and including 7 February 2025.
(4) Orders O'Hearn Lawyers to pay the settlement sum together with any interest accrued thereon into Court no later than 6 December 2024.
(5) The second plaintiff is referred to the prothonotary pursuant to rule 7.36 and rule 7.41 of the UCPR for referral to the pro bono panel for a barrister on the pro bono panel in relation to her proposed application to set aside the settlement of these proceedings.
(6) The second plaintiff is to file and serve any notice of motion to set aside the settlement together with points of claim on or before 3 February 2025.
(7) The proceedings are listed before Kunc J for directions on 7 February 2025 at 9:30am."
Those orders were entered on that day.
After paying the settlement sum (being the surplus funds) into court in accordance with his Honour's orders, O'Hearn Lawyers filed a notice of motion on 20 January 2025 seeking orders that the sum of $141,329.62 of those moneys be paid out to them. O'Hearn Lawyers claims a lien over the settlement sum in respect of that amount.
On 4 February 2025, Ms Kchevetskaia filed a notice of motion seeking:
a declaration that Mr Korlevic has no legal or equitable interest in the surplus funds after the sale of the Hillview Crescent property (prayer 1);
the release of the funds paid into court to Ms Kchevetskaia (prayer 2);
a declaration that Mr Korlevic's refusal to release surplus funds to both plaintiffs constitutes unconscionable conduct (prayer 3);
a declaration that Mr Korlevic has breached his fiduciary duty to Ms Kchevetskaia (prayer 4);
an order that Mr Korlevic pay equitable compensation to Ms Kchevetskaia for unconscionable conduct, breach of trust and breach of fiduciary duty (prayer 5);
an order that the Settlement Deed be set aside on the grounds it was executed under long-term duress and financial hardship and procured by Mr Korlevic's unconscionable conduct (prayer 6); and
orders defining the professional responsibilities of O'Hearn Lawyers to Ms Kchevetskaia, orders determining whether Ms Kchevetskaia was in a position of vulnerability when she entered into the Deed, orders identifying what (if any) actions were taken to protect her rights during the negotiation process, and orders directing O'Hearn Lawyers' to adjust their legal fees "to reflect their conduct in the matter" and to compensate Ms Kchevetskaia for "emotional distress and the substantial setback caused in the course of the court proceedings following the execution of the Deed" (prayers 7-8).
O'Hearn Lawyers, although not a party to the proceedings, was named as a respondent to the motion.
Contrary to the orders made on 29 November 2024, Ms Kchevetskaia’s notice of motion was not accompanied by points of claim.
At a further hearing in the Applications List on 7 February 2025, Kunc J noted the notices of motion that had been filed by Ms Kchevetskaia and O’Hearn Lawyers and indicated that Ms Kchevetskaia’s motion would be case managed in the Applications List to facilitate it being specially fixed for hearing. His Honour then said:
“Presently, the dismissal of the proceedings which I ordered on the last occasion is stayed. I think I will simply have to extend that stay until further order while these matters are heard.”
After being informed that Ms Kchevetskaia had been unable to obtain legal advice despite the referral of her case to the pro bono panel, his Honour effectively excused Ms Kchevetskaia from the requirement to file points of claim, and there followed a lengthy exchange about the need for her to identify precisely what evidence she was relying on in support of the motion so that Mr Korlevic and O’Hearn Lawyers could understand the basis of her claims and prepare their evidence accordingly. During the course of this exchange between his Honour, Ms Kchevetskaia and the legal representatives for Mr Korlevic and O’Hearn Lawyers, his Honour said that Mr Korlevic and O’Hearn Lawyers could take comfort in the fact that “the plaintiff is nailing her colours to the mast as to the evidence that she proposes to rely on”.
Kunc J then made the following orders designed to achieve that object:
"(1) No later than 14 February 2025, the applicant Ms Kchevetskaia to notify the respondents to her motion filed 4 February 2025 of the affidavits and any other evidence upon which she proposes to rely in addition to her affidavit of 31 January 2025.
(2) The respondents to her motion are to file and serve any evidence upon which they propose to rely on or before 7 March 2025.
(3) The applicant Ms Kchevetskaia is to file and serve any evidence in reply on or before 21 March 2025.
(4) The applicant Ms Kchevetskaia is to file and serve her written submissions on or before 4 April 2025.”
“(5) Note that Ms Kchevetskaia has been informed by the Court that should her application be unsuccessful, any costs of other parties which she may be ordered to pay are likely (subject to any further argument) to be payable from the monies to which she is otherwise currently entitled and which have been paid into Court.
(6) Note the Court has indicated to the parties that Ms Kchevetskaia's motion will be listed for hearing with the motion of O'Hearn Lawyers filed on 20 January 2025 in relation to their claim for $141,329.62 to be paid out of the monies held in Court.
(7) Note the Court has informed Ms Kchevetskaia that by pressing her notice of motion she is putting at risk her present entitlement to the funds paid into Court (subject to the claims of O'Hearn Lawyers and the defendant in relation to costs) to which she is currently entitled under the settlement agreement which she wishes to set aside."
Despite having indicated at the outset of the hearing that he would do so, his Honour did not make an order on 7 February 2025 extending until further order the stay of the order made on 29 November 2024 dismissing the proceedings. No party drew this omission to his Honour's attention at the time.
On 14 February 2025, Ms Kchevetskaia sent an email to the solicitors acting for Mr Korlevic and O’Hearn Lawyers stating that she would be relying on “the following sources”: the statement of claim and an affidavit filed on 11 August 2023, her affidavit of 20 March 2024, and her affidavit of 4 February 2025. There is no record on the court file of any affidavit filed on 11 August 2023 (other than the plaintiffs’ affidavits verifying the statement of claim). The solicitors of Mr Korlevic and O’Hearn Lawyers raised this with Ms Kchevetskaia at the time, and it was raised with her again during the hearing before me on 27 February 2026. Ms Kchevetskaia maintains that she affirmed a substantive affidavit on that date, that it should be in the possession of O’Hearn Lawyers who were acting for her at that time, and that they should produce it. O’Hearn Lawyers informed the Court that they are not aware of any such affidavit. There would have been no need for the plaintiffs to file a substantive affidavit accompanying the statement of claim. Ms Kchevetskaia has rejected suggestions that she may have been intending to refer to her first substantive affidavit in the proceedings which was filed on 24 November 2023.
The end date for the filing and service of the parties' evidence and submissions in relation to Ms Kchevetskaia's notice of motion was ultimately extended until 20 June 2025 pursuant to directions made during April and May 2025. Those directions were made in circumstances where counsel for Mr Korlevic had informed the Court at a case management hearing in the Applications List on 2 May 2025 that, on the hearing of Ms Kchevetskaia's motion, his client would contend that the motion should be summarily dismissed because the proceedings stood dismissed by reason order 1 made on 29 November 2024, the absence of any order extending the stay of dismissal order beyond 7 February 2025, and Ms Kchevetskaia’s failure to apply to set aside the dismissal order. Brereton J specifically drew that matter to Ms Kchevetskaia's attention during the case management hearing as an issue that she would need to consider. His Honour made an order that the funds in court be held as security for Mr Korlevic’s costs of his notice of motion filed on 21 November 2024 and Ms Kchevetskaia’s notice of motion filed on 4 February 2025.
On 9 and 10 June 2025, Ms Kchevetskaia filed two identical documents entitled "Amendment to Notice of Motion filed 4/02/2025" seeking orders:
that the time for Ms Kchevetskaia to take further steps in the proceedings be extended until the final determination of her notice of motion filed 4 February 2025 (prayer 1); and
“39. During the settlement conference leading to the Deed, the Defendant’s representatives asserted that the Defendant was impecunious and unable to fund ongoing litigation, creating the impression that he required access to the Surplus Funds for legal expenses.
- Notwithstanding those representations, following the Plaintiff’s refusal to accept the Deed, the Defendant engaged new solicitors, funded enforcement proceedings, and responded to the Plaintiff’s application to set aside the Deed for more than a year, including issuing notices to produce materials held by his former solicitors.
- O’Hearn Lawyers did not verify the representations in paragraph 36 [sic – paragraph 39].
42.The Plaintiff accepted the Deed under the impression that the First Defendant lacked assets and alternatives.
- The First Defendant’s representation of impecuniosity was inconsistent with information later revealed, including that he had, prior to 30 July 2024, received and benefited from substantial funds arising from family property transactions, insurance proceeds and intra-family transfers. None of these matters were disclosed during the negotiations leading to the Deed.
- The First Defendant also failed to disclose that several of his financial arrangements with family members were informal, retrospective, non-commercial, involved no repayments, and could not properly be treated as genuine liabilities affecting his capacity to satisfy the Plaintiff’s claims.”
In paragraphs 50 to 52 of the points of claim, Ms Kchevetskaia states that she lacked understanding about certain matters relevant to the substantive issues in these proceedings and states that each motion that she has filed in these proceedings reflects her increasing understanding over time.
In paragraphs 53 to 65 of the points of claim, entitled “Grounds to Set Aside the Deed”, Ms Kchevetskaia states:
“53. The Plaintiff signed the Deed under:
(a) financial and psychological distress accumulated over six years;
(b) false impressions of impecuniosity;
(c) procedural disadvantage;
(d) lack of material disclosure;
(e) duress and absence of informed consent.
- The Plaintiff received no consideration under the Deed.
- In early 2022, following the collapse of the joint venture and the loss of the Property, the Plaintiff and her late husband were compelled to relocate overseas due to financial hardship.
- In June 2024, the Plaintiff’s husband passed away. The Plaintiff signed the Deed on 30 July 2024, only month after his death and during a period of significant emotional and financial vulnerability.
- At the time of signing the Deed the Plaintiff was living overseas, financially vulnerable, and without legal assistance or access to information that had been withheld from her regarding the First Defendant’s financial position. These circumstances increased the Plaintiff’s procedural disadvantage.
- The prolonged freezing of the Surplus Funds placed the Plaintiff in a position of acute financial and procedural vulnerability. She lacked the means to obtain specialist legal assistance, to investigate the First Defendant’s financial circumstances, or to challenge his asset movements in collateral proceedings. The First Defendant was aware of the Plaintiff’s reliance on the Surplus Funds and used the unresolved status of those funds to maintain procedural dominance.
- The withholding of the Surplus Funds directly contributed to the inequality in bargaining power between the parties that rendered the Deed unconscionable.
- The First Defendant’s refusal to release the Surplus Funds, coupled with assertions of impecuniosity later contradicted by evidence of substantial financial resources, demonstrates that his conduct was calculated to obstruct the Plaintiff’s ability to pursue her claims and to pressure her into accepting the Deed.
- The First Defendant’s failure to disclose his access to financial resources arising from family property dealings, gifted or under-value transfers, and insurance proceeds constituted material non-disclosure and deprived the Plaintiff of informed consent.
- Further, in or about May 2023, the First Defendant borrowed approximately $615,000 against his previously unencumbered family residence significantly increasing his available financial resources. During this period the First Defendant was selling or attempting to sell personal and business assets, closing companies and engaging in substantial expenditure inconsistent with his later claim of impecuniosity.
- The Defendant’s ability to finance sustained litigation after the Deed, despite having allegedly been unable to do so during the settlement conference, is inconsistent with the earlier assertions of impecuniosity on which the Plaintiff relied.
- The First Defendant’s presentation of manufactured family debts as genuine liabilities, despite the absence of repayments or commercial terms over multiple years, rendered his claims of impecuniosity misleading and contributed to the unconscionable circumstances in which the Deed was procured.
- The Deed should be set aside for:
(a) unconscionable conduct;
(b) misrepresentation;
(c) material non-disclosure;
(d) absence of consideration;
(e) procedural unfairness.”
In paragraphs 67 to 69 of the points of claim, Ms Kchevetskaia states that she will not rely in these proceedings on any material from the family law proceedings unless and until she is granted leave to do so by the Federal Circuit and Family Court of Australia.
In paragraphs 71 to 75 of the points of claim, Ms Kchevetskaia states that O’Hearn Lawyers owed her “duties of skill, care, diligence, loyalty, and independence” and asserts that a competent solicitor, acting with reasonable diligence, “would have investigated the First Defendant’s asserted impecuniosity” and that such an investigation “would have revealed substantial undisclosed financial benefits that contradicted the Defendant’s claims”. Ms Kchevetskaia also claims that O’Hearn Lawyers “breached their duties to the Plaintiff” in several respects, including by allegedly failing to “challenge” Mr Korlevic’s claim to own a third-interest in the property prior to the commencement of these proceedings, failing to “act to protect the Surplus Funds”, failing to “take any step to caution the Plaintiff regarding the dangers of the Deed”, failing to explain certain matters to Ms Kchevetskaia, declining to apply for Ms Kchevetskaia to intervene in the Korlevic family law proceedings without charging additional fees, failing to take steps to join Ms Kchevetskaia to the Korlevic family law proceedings before the settlement conference, and ceasing to act for Ms Kchevetskaia in the present proceedings in November 2024 on account of a conflict of interest.
In paragraph 76 of the points of claim, Ms Kchevetskaia seeks the following relief:
"A. An order granting leave to file these Points of Claim out of time.
B. An order setting aside the dismissal order of 29 November 2024.
C. A declaration that the Deed of 30 July 2024 is voidable and is set aside.
D. A declaration that the First Defendant has no entitlement to the Surplus Funds.
E. Damages or equitable compensation as against the First Defendant and/or O'Hearn Lawyers.
F. Costs.
H. Such further orders as the Court considers appropriate."
On 14 January 2026 the Federal Circuit and Family Court of Australia dismissed Ms Kchevetskaia's application for leave to rely in these proceedings on evidence filed in the Korlevic family law proceedings and made an order restraining Ms Kchevetskaia from using, publishing, or otherwise disseminating any document filed in those proceedings that she had obtained the Federal Circuit and Family Court of Australia portal.
On 13 February 2026 the matter was listed in the Applications List for directions for the first time since the Federal Circuit and Family Court of Australia’s dismissal of Ms Kchevetskaia's application. The parties made various submissions about the history of the matter and what should happen next. I expressed a concern about whether the Court had jurisdiction to entertain all of Ms Kchevetskaia's claims for relief in her various notices of motion. It was submitted on behalf of Mr Korlevic that the proceedings stand dismissed, as no order was ever made extending the stay of the dismissal order beyond 7 February 2025. Directions were made to facilitate a hearing on 27 February 2026 for the purpose of the Court determining which of Ms Kchevetskaia's claims in her various notices of motion the Court has jurisdiction to hear in light of the orders that were made on 29 November 2024, and making directions to facilitate the hearing of any such claims.
The Court’s inherent power to set aside or vary a judgment or order is expressly preserved by r 36.16(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The scope of that inherent power is not at large but is commensurate with what is necessary for the administration of justice in New South Wales. The inherent power is not confined to defined categories of cases, but has been held to extend to setting aside or varying orders that do not truly represent what the Court intended to pronounce, or that have consequences that were not intended by the Court at the time the orders were made. [1]
The slip rule in r 36.17 of the UCPR confers power on the Court to vary an order in a way that carries into effect the actual intention of the judge making the order and ensures that the order does not have a consequence that the judge intended to avoid at the time, provided that both the error or omission and the nature of the correction or variation required to put it right are clear. [2] The rule must be construed in a manner that gives effect to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW). [3] The power of “correction” conferred by the rule extends to the making of an additional order so as to correct the omission of an order from a suite of orders made in respect of a particular matter or application, in circumstances where the omission results in the suite of orders having a consequence that the judge making the orders intended to avoid at the time the orders were made. [4]
It is plain from the terms of the orders made by Kunc J on 29 November 2024 that the order dismissing the proceedings was not intended to take effect if Ms Kchevetskaia made an application to set aside the Deed, unless and until that application was dismissed. That is objectively clear from the terms of orders 1, 2 and 6, particularly having regard to the context in which those orders were made. Mr Korlevic had acknowledged that Ms Kchevetskaia was entitled to oppose his application for an order dismissing the proceedings by way of enforcement of the Deed by applying to set the Deed aside, and Kunc J had determined that this should be facilitated by making an order dismissing the proceedings subject to a stay of that order for a period of time allow Ms Kchevetskaia to file a notice of motion to set aside the Deed together with points of claim. [5]
It is clear from the transcript of the hearing on 7 February 2025 and from the orders made on that date that Kunc J did not intend that the dismissal order made on 29 November 2024 would take effect while Ms Kchevetskaia’s notice of motion filed on 4 February 2025 remained extant. The orders made on 7 February 2025 for the parties to file and serve evidence in relation to Ms Kchevetskaia’s motion and the notation that it would be listed for hearing together with O’Hearn Lawyers’ motion would otherwise have been otiose. At the outset of the directions hearing, his Honour had expressly stated his intention to extend the stay of the dismissal order until further order pending the determination of Ms Kchevetskaia’s motion and O’Hearn Lawyers’ application for payment of funds out the monies in court. There is no indication in the transcript that his omission to do so when making orders at the conclusion of the directions hearing reflected any change of intention. Viewed objectively, that omission was an error which, if any party had drawn it to his attention at the time, his Honour would have immediately corrected by making an order extending the stay until further order.
For all of the foregoing reasons, the orders and notations of the Court are as follows:
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) and/or the Court's inherent jurisdiction, order that the stay of order 1 made on 29 November 2024 is extended until further order of the Court nunc pro tunc from 7 February 2025.
Order that:
(a) the plaintiff’s notice of motion filed on 4 February 2025; (b) the plaintiff’s notice of motion filed on 9 and 10 June 2025; (c) the plaintiff’s notice of motion filed on 2 July 2025; and (d) the plaintiff’s notice of motion filed on 29 October 2025;
are summarily dismissed as an abuse of process.
(a) the plaintiff’s application for leave to file her document dated 23 June 2025 entitled "Amendment to Notice of Motion filed 4/02/2025" that was served on or about 23 June 2025 but not filed; and (b) the plaintiff’s application for leave to file the points of claim filed on 19 November 2025,
are dismissed.
(a) determining all questions of costs referred to in order 4 above; and (b) making directions to facilitate the hearing the notice of motion filed by O'Hearn Lawyers on 20 January 2025.
**********
Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195 (Newmont Yandal) at [31]-[83] (Spigelman CJ, Santow JA and Handley AJA agreeing).
Newmont Yandal at [111]-[145] (Spigelman CJ, Santow JA and Handley AJA agreeing); Aurora Australia Pty Ltd v Hunt Prosperity Pty Ltd (No 2) [2025] NSWCA 62 at [27]-[32] (Ward P, Stern JA and Griffiths AJA).
Newmont Yandal at [26] (Spigelman CJ, Santow JA and Handley AJA agreeing).
Newmont Yandal. The correction made by White J at first instance involved the vacation of one order previously made by Austin J and substituting three declarations and orders made by White J: see J Aron Corporation v Newmont Yandal Operations Pty Ltd (2006) 202 FLR 359; [2006] NSWSC 849.
See [22]-[25] above.
Civil Procedure Act 2005 (NSW), s 91.
See [28] and [65] above.
Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 especially at [22] and [45]-[49], (Leeming JA, Beazley P and Sackville AJA agreeing).
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [18]-[22] (Kiefel CJ, Gageler, Keane and Gordon JJ).
Typographical error in order 73(2)(c) from 2005 to 2025
Kchevetskaia
Korlevic [2026] NSWSC 153
(2006) 202 FLR 359
(2017) 94 NSWLR 518
(2007) 70 NSWLR 411
(2021) 271 CLR 132
The plaintiffs pleaded that they terminated the development deed and building contract in August 2021 on account of the alleged breaches of Andrix Homes and Mr Korlevic.
In circumstances where they were in default under the construction loan facility, the plaintiffs and Mr Korlevic sold the Hillview Crescent property to a third party in April 2022 for the price of $1,820,000. On settlement in August 2022, the sale proceeds were applied to repay the construction loan facility and discharge the mortgage over the property ($802,658). The balance of the sale proceeds of $1,004,654 (referred to by the plaintiffs as the surplus funds) were deposited into a trust account of Sheriff Lawyers. It appears that the second defendant is the principal of that law firm and that he was named as a defendant to the proceedings solely because the firm was continuing to hold the surplus funds in trust at the time of the commencement of the proceedings in circumstances where Mr Korlevic was claiming an entitlement to be paid one third of the surplus funds.
The plaintiffs claimed to be entitled to the whole of the surplus funds on the basis that they had a proprietary claim to two-thirds of the surplus funds and Mr Korlevic was indebted to them for the remaining one-third, alternatively on the basis that the surplus funds were held on express, implied, resulting or constructive trust for them, and in the further alternative on the basis that Mr Korlevic would be unjustly enriched at their expense if he were to retain a one-third interest in the surplus funds.
The plaintiffs further claimed damages or compensation for the alleged breaches of contract, breaches of fiduciary duties and breaches of trust.
Mr Sheriff filed a submitting appearance, save in relation to costs, on 4 September 2023.
Mr Korlevic filed a defence on 29 September 2023.
Mr Nalivaiko passed away, and was removed as a party to these proceedings on 3 July 2024. Ms Kchevetskaia has been the sole plaintiff in the proceedings thereafter.
On 30 July 2024, Ms Kchevetskaia and Mr Korlevic and their respective solicitors participated in an informal settlement conference. O’Hearn Lawyers were the solicitors acting for Ms Kchevetskaia. The settlement conference concluded with the parties executing a Deed of Release and Indemnity on 30 July 2024 (the Deed).
In accordance with the Deed and with the authority of Ms Kchevetskaia and Mr Korlevic, Sheriff Lawyers paid the surplus funds to the trust account of O’Hearn Lawyers.
Mr Korlevic's solicitors then sought the cooperation of Ms Kchevetskaia's solicitors to approach the Court to have orders made by consent dismissing the proceedings with no order as to costs in accordance with the Deed.
That cooperation was not forthcoming. Ms Kchevetskaia contended that the Deed should be set aside.
O'Hearn Lawyers filed a notice of ceasing to act for Ms Kchevetskaia on 15 November 2024.
On 21 November 2024, Mr Korlevic invoked the Court's powers under s 73 of the Civil Procedure Act 2005 (NSW) by filing a notice of motion seeking orders dismissing the proceedings with no order as to costs by way of enforcement of the Deed.
At the hearing of that motion before Kunc J as the Applications List Judge on 29 November 2024, Ms Kchevetskaia appeared by audio-visual link from Spain, where she now resides. Counsel appearing for Mr Korlevic very properly drew to the Court's attention Ms Kchevetskaia's contention that the Deed should be set aside, although Ms Kchevetskaia had not commenced proceedings or filed any process in these proceedings applying for orders setting aside the Deed. Counsel for Mr Korlevic suggested that it would be open to Ms Kchevetskaia to rely on a claim to set aside the Deed as a ground of opposition to Mr Korlevic’s motion for orders dismissing the proceedings but submitted that Mr Korlevic would require particularisation of the grounds of that claim. Kunc J stated that he had given some consideration to the question whether any application by Ms Kchevetskaia to set aside the Deed should be the subject of separate proceedings, or should be made by notice of motion filed in these proceedings supported by points of claim. Counsel for Mr Korlevic indicated that he would raise no objection with the latter course.
Kunc J then addressed Ms Kchevetskaia, who confirmed that it was her intention to apply to set aside the Deed, that she understood that she would be entitled to the surplus funds that had been paid into O’Hearn Lawyers’ trust account if the Deed was not set aside, and that she understood that she would be liable to pay the other parties’ costs if her application to set aside the Deed was unsuccessful. His Honour raised with Ms Kchevetskaia the desirability of her receiving legal advice, and his intention to refer her to the Registrar for referral to a solicitor or barrister under the pro bono legal assistance scheme. His Honour then said:
that Ms Kchevetskaia be granted leave to appear from outside Australia by AVL in these proceedings (prayer 2).
On 23 June 2005, Ms Kchevetskaia served a document on the other parties which is also entitled "Amendment to Notice of Motion filed 4/02/2025" seeking orders:
that the order dismissing the proceedings be set aside pursuant to UCPR r 36.16(1) or r 12.11 (prayer 1);
that any part of the plaintiff's claim struck out or dismissed by that order be reinstated for hearing (prayer 2);
that the plaintiff be granted leave to appear from outside Australia by AVL for all future hearings, by reason of overseas residence and financial hardship (prayer 3);
that orders made prior to 7 February 2025 "be varied to reflect the reinstated pleadings and the continuation of the proceedings" (prayer 4); and
that the costs of the motion be reserved (prayer 5).
That document has not been filed. In correspondence sent to my Associate on 18 February 2026, Ms Kchevetskaia indicated that she would seek to rely on it as replacing the 9 and 10 June 2005 documents as it "refines the relief sought in the original Notice of Motion filed on 4 February 2025, including the application to set aside the dismissal order".
At a directions hearing before McGrath J in the Applications List on 27 June 2025, his Honour sought to make directions programming for hearing Ms Kchevetskaia's motion filed 4 February 2025 to set aside the Deed. His Honour made it clear to Ms Kchevetskaia that she would not be permitted to run the original case within the hearing of that motion, and that what the Court would deal with was limited to whether the Deed should be set aside.
The parties then raised with his Honour an issue concerning Ms Kchevetskaia's intention to use for the purpose of that motion material that had been filed in family law proceedings between Mr Korlevic and his former wife in the Federal Circuit and Family Court of Australia (the Korlevic family law proceedings). His Honour considered that Ms Kchevetskaia would need to file an application for leave to use that material, and that this would need to be determined before her application to set aside the Deed could be heard and determined.
His Honour therefore made directions for the filing and service of such an application by 1 July 2025 to be returnable in the Applications List on 4 July 2025.
On 2 July 2025, Ms Kchevetskaia filed a notice of motion seeking the following relief:
leave to rely in these proceedings on an affidavit of Olga Korlevic filed in the Korlevic family law proceedings (and any annexures), with the use of that evidence limited to Ms Kchevetskaia's contentions concerning the defendant's "financial conduct, conceal of assets and the context of the Deed of Settlement" and her claims against O'Hearn Lawyers (prayers 1 to 4 and 6);
a declaration that O'Hearn Lawyers breached its duties to Ms Kchevetskaia in respect of the Deed (prayer 5);
an order granting leave to Ms Kchevetskaia to leave to amend her relief sought against the second defendant Mr Sherriff in light of new evidence (prayer 7); and
that no adverse costs order be made against Ms Kchevetskaia in relation to this motion (prayer 8).
During a further hearing in the Applications List on 4 July 2025, McGrath J made orders requiring Ms Kchevetskaia to make her application to rely on the evidence of Olga Korlevic to the Federal Circuit and Family Court of Australia by Friday 11 July 2025. His Honour also ordered Ms Kchevetskaia to pay Mr Korlevic’s costs of the hearing on 4 July 2025.
Ms Kchevetskaia filed her application with the Federal Circuit and Family Court of Australia on 10 July 2005. These proceedings were adjourned on several occasions thereafter pending that Court’s determination of that application.
During that period, Ms Kchevetskaia filed a further notice of motion on 29 October 2025 seeking wide-ranging orders for disclosure by Mr Korlevic. Ms Kchevetskaia subsequently wrote to the parties on 11 February 2026 reframing her application for disclosure by reference to four categories of documents:
"documents relied upon to assert entitlement to the Surplus Funds";
"documents relied upon to dispute the 2021 termination of contracts";
"project-related financial documents concerning Andrix Homes, Rok Homes, and related entities (limited to project dealings)"; and
"documents evidencing the First Defendant's financial position at the time of the July 2024 settlement and during subsequent litigation, including documents relevant to prior assertions of impecuniosity and current litigation expenses documents."
On 19 November 2025, Ms Kchevetskaia filed points of claim. As I have already mentioned, Ms Kchevetskaia had not complied with the order made by the Court on 29 November 2024 requiring points of claim to be filed together with her notice of motion seeking to set aside the Deed. The leave of the Court was neither sought nor granted before Ms Kchevetskaia filed her points of claim almost one year later on 19 November 2025.
In paragraphs 1 to 38 of the points of claim, Ms Kchevetskaia essentially repeats the substance of the plaintiffs' statement of claim filed on 11 August 2023 and introduces complaints about the conduct of O'Hearn Lawyers during the period prior to the commencement of these proceedings in which the plaintiffs were demanding that the whole of the surplus funds be paid to them.
In paragraphs 39 to 49 of the points of claim, Ms Kchevetskaia sets out allegations of misrepresentation and non-disclosure during the settlement conference that culminated in the execution of the Deed on 30 July 2024 and certain allegations concerning Mr Korlevic’s financial position and the Korlevic family law proceedings.
It is convenient to set out paragraphs 39 to 44 in full:
As Mr Korlevic and O’Hearn Lawyers now accept, the Court’s inherent power preserved by r 36.16(4) and its power under r 36.17 extend to correcting that omission now by making an order extending the stay of the dismissal order nunc pro tunc with effect from 7 February 2025. The question is whether the Court should exercise that power, or whether the Court should decline to exercise the power so that the proceedings stand dismissed by reason of the stay of the dismissal order made on 29 November 2024 having expired on 7 February 2025.
Mr Korlevic and O’Hearn Lawyers urge the Court not to exercise the power to extend the stay of the dismissal order in all the circumstances of this case. They submit that, in that event, the proceedings will stand dismissed without any determination of the merits. Accordingly, it will be open to Ms Kchevetskaia to commence fresh proceedings claiming orders setting aside the Deed in addition to claiming the same relief as was claimed against Mr Korlevic in the statement of claim filed in the present proceedings on 11 August 2023 and including the various claims against Mr Korlevic and O’Hearn Lawyers that she has sought to articulate in her notices of motion filed in the proceedings and in her points of claim filed without leave (subject to those claims being properly pleaded). [6] Mr Korlevic and O’Hearn Lawyers submit that, in this scenario, Ms Kchevetskaia will be entitled to be paid the surplus funds (being the settlement monies) presently held in court, subject to the Court first determining O’Hearn Lawyers’ notice of motion filed on 20 January 2025 claiming a lien over part of those funds and payment of any costs that may be ordered in favour of Mr Korlevic in these proceedings in respect of his notice of motion filed on 21 November 2024 and in respect of the period from and including 29 November 2024. Mr Korlevic and O’Hearn Lawyers therefore submit that Ms Kchevetskaia will suffer no prejudice if the Court declines to exercise its discretion to extend the stay of the dismissal order. On the other hand, if the stay is extended and the Court hears Ms Kchevetskaia’s notices of motion, O’Hearn Lawyers will continue to be bound up in this ongoing litigation in which serious allegations have been made but not properly pleaded against it, and Mr Korlevic will have to defend Ms Kchevetskaia’s application to set aside the Deed on the grounds now articulated in her points of claim which extend beyond the grounds that were known when the Court made the orders that facilitated that claim being made by way of notice of motion rather than by the commencement of fresh proceedings. Mr Korlevic complains that Ms Kchevetskaia relies on those expanded grounds as supporting her application for extensive financial disclosure orders against him.
Ms Kchevetskaia submits that she is entitled to pursue all of her claims in her 4 February 2025 notice of motion within these proceedings - her application for payment of the surplus funds to her on the basis that Mr Korlevic was never entitled to any of those surplus funds; her claim for equitable compensation for alleged unconscionable conduct or breach of fiduciary duty by Mr Korlevic; an order setting aside the Deed on the grounds of alleged duress, financial hardship, and unconscionable conduct (to which Ms Kchevetskaia’s points of claim filed without leave now add grounds of alleged misrepresentation and non-disclosure); and her claims against O’Hearn Lawyers.
During the hearing on 27 February 2026, I explored with the parties whether, if the stay of the dismissal order were extended nunc pro tunc, orders and directions could be made to facilitate a hearing of Ms Kchevetskaia’s application to set aside the Deed only. I did so because I was troubled by the procedural unfairness to O’Hearn Lawyers if Ms Kchevetskaia was permitted to prosecute her claims against it, which have not been articulated in the points of claim in a way that discloses a reasonable cause of action and puts O’Hearn Lawyers on notice of the substance of the legal claims that they must meet. The points of claim do not articulate the alleged scope of O’Hearn Lawyers’ retainer, which would be relevant to the scope of content of the various duties allegedly owed by the firm to Ms Kchevetskaia which she contends that O’Hearn Lawyers breached. The points of claim do not plead the alleged facts relied on by Ms Kchevetskaia in support of her allegations that O’Hearn Lawyers breached those duties in a manner that puts O’Hearn Lawyers on notice of the case they must meet. For example, the allegation that O’Hearn Lawyers breached their duties by failing to “utilise” the termination of the building contract and development deed in negotiating with Mr Korlevic in relation to the sale of the property does not articular what O’Hearn Lawyers allegedly should have done by way of utilising those matters, and when they allegedly should have done it. Those examples suffice to demonstrate that O’Hearn Lawyers is left to guess the substance of the case put against it.
At the hearing on 27 February 2026, Ms Kchevetskaia rejected as “unjust” any separation of her claim to set aside the Deed from her other claims in her 4 February 2025 notice of motion and points of claim. Ms Kchevetskaia submitted that her claims against O’Hearn Lawyers concern “causation directly connected to settlement validity”.
It occurred to me on reflection after the hearing on 27 February 2026 that, if the Court took the course that I had explored with the parties, the Court and the parties would have to grapple with the consequences of the significant overlap between the grounds now articulated in Ms Kchevetskaia’s points of claim for setting aside the Deed, and her substantive claims in these proceedings which do not arise for determination unless and until the Deed is set aside. If the Deed were to be set aside, that overlap would be likely to produce disputes about the extent to which matters in issue in respect of the substantive claims had been determined in a manner binding on Ms Kchevetskaia and Mr Korlevic in the decision to set aside the Deed.
More importantly, Ms Kchevetskaia’s expanded grounds for setting aside the Deed set out in her points of claim include allegations of fraud on the part of Mr Korlevic. [7] Paragraphs 39 to 44, 53, and 60 to 65 of the points of claim, read as a whole, allege that Mr Korlevic knowingly made a false representation about his financial position at the settlement conference, and that she entered into the Deed in reliance on that false representation. That allegation of fraud which must be pleaded specifically and particularised. In this case, that would require Ms Kchevetskaia to (at least) plead what Mr Korlevic is alleged to have intended to convey by the alleged representation that he was impecunious (said to have been made by his legal representatives), plead the specific facts relied on in support of the contention that the alleged representation was false, and plead whether Mr Korlevic is alleged to have known at the time that the matter conveyed was false or was recklessly indifferent as to its truth. It is not sufficient for Ms Kchevetskaia to merely plead the “impression” that she gleaned from the alleged representation, obfuscating whether or not Mr Korlevic is alleged to have intended to convey that impression. Nor is it sufficient for Ms Kchevetskaia to allege the falsity of the representation (or the impression) by reference to a combination of generalised assertions about the state of Mr Korlevic’s financial affairs at the time and subsequent events, without identifying the specific alleged factual matters relied upon as demonstrating the falsity of the representation and Mr Korlevic’s alleged knowledge or its falsity or reckless indifference as to its truth or falsity at the time it the representation is said to have been made. [8] Mr Korlevic would therefore be denied procedural fairness if the Court were to hear and determine Ms Kchevetskaia’s application to set aside the Deed on the grounds now set out in her points of claim and the affidavits that she has filed throughout 2025 in addition to the affidavits that she notified to the parties on 14 February 2025. Contrary to Ms Kchevetskaia’s submissions, the fact that she is without legal representation does not give her a licence to file serial notices of motion and points of claim expanding her contentions as and when she sees fit according to her evolving thinking about her case. I reject her submission that she has refined, rather than expanded, her claim to set aside the Deed since 4 February 2025.
Nonetheless, I am not persuaded that the Court should decline to exercise its power to extend the stay of the dismissal order beyond 7 February 2025. To do so would be contrary to the clear intention of the Court when making the orders that were made on 7 February 2025, and would ignore the reality that all parties have proceeded since 7 February 2025 on the basis that the Court retained jurisdiction in these proceedings to hear and determine in due course the notice of motion filed by O’Hearn Lawyers on 20 January 2025, and to make orders in respect of the costs of Mr Korlevic’s notice of motion filed on 21 November 2024 and the costs of the various steps taken by the parties in the proceedings from 29 November 2024. For example, as I have already noted in the procedural history above, an adverse costs order was made against Ms Kchevetskaia on 4 July 2025 in respect of the hearing that occurred on that date. In my view, the Court should exercise its power to extend the stay of the dismissal order nunc pro tunc with effect from 7 February 2025 until further order of the Court.
However, it does not follow that Ms Kchevetskaia is entitled to pursue in these proceedings her claims for relief made in her notices of motion and points of claim. To pursue those claims within these proceedings without having pleaded and particularised the apparent fraud claim against Mr Korlevic, and without having given sufficient notice to O’Hearn Lawyers of the case which it must meet, would be to utilise the notice of motion process in a manner that would cause injustice to Mr Korlevic and O’Hearn Lawyers. Given the manner in which Ms Kchevetskaia has conducted these proceedings since 29 November 2024, I do not consider that this injustice can be avoided by any means short of summarily dismissing her notices of motion as an abuse of process and refusing leave for the filing of her points of claim. [9] This will not cause injustice to Ms Kchevetskaia because, as Mr Korlevic and O’Hearn Lawyers have candidly and properly accepted, it will be open to her to commence fresh proceedings seeking the relief that is sought in her various notices of motion and points of claim. In any such new proceedings, Ms Kchevetskaia will be subject to the rules of pleading that apply to all litigants in all proceedings in this Court.
Following the extension of the stay of the order dismissing the proceedings and the summary dismissal of Ms Kchevetskaia’s notices of motion as an abuse of process, it will remain for the Court to determine any questions concerning the costs of those notices of motion and the costs of Mr Korlevic’s notice of motion filed on 21 November 2024 (including any application for costs to be paid out of the funds in court), and to hear and determine O’Hearn Lawyers’ motion to enforce a lien claimed over part of the funds in court. Once those matters have been determined, the stay of the dismissal order will be discharged, and Ms Kchevetskaia will be entitled to an order for the payment of the balance of the funds in court to her. The judge hearing O’Hearn Lawyers’ motion may or may not consider it appropriate to stay any judgment in favour of O’Hearn Lawyers and direct that any such judgment sum continue to be held in court for a period of time to allow Ms Kchevetskaia an opportunity to commence fresh proceedings in respect of her claims against O’Hearn Lawyers.