Lewis v Mayhew as executor of the estate of the late Peter Stewart

Catchwords: CIVIL PROCEDURE – Pleadings – Strike-out or summary dismissal – Whether leave to replead should be granted
CIVIL PROCEDURE – Transfers to other courts – Local Court
ESTOPPEL – Res judicata – Whether claim barred by cause of action estoppel – Whether exception for special circumstances
JUDGMENTS AND ORDERS – Amending, varying and setting aside – Whether orders made or entered irregularly

Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Carl Zeiss Stiftung v Rayner v Keeler Ltd (No 2) [1967] 1 AC 853
Charafeddine v Morgan [2014] NSWCA 74
Federal Treasury Enterprise (FKP) v Spirits International B.V. [2021] FCAFC 77
Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384
Lewis v Mayhew as executor of the estate of the late Peter Stewart [2020] NSWSC 1215
Lewis v Stewart [2018] NSWSC 1186
Lewis v Stewart [2019] NSWSC 841

Texts Cited: Ritchie’s Uniform Civil Procedure New South Wales
Patrick Keane, Spencer Bower and Handley: Res Judicata (6th Ed, 2024, Lexis Nexis)

Category: Procedural rulings

Parties: Kevin John Lewis (Plaintiff)
Peggy Lillian Mayhew as executor of the estate of the late Peter William Stewart (Defendant)

Representation: Counsel:
J Capsanis (Plaintiff)
M Pringle (Defendant)
Solicitors:
J P Capsanis & Co Lawyers (Plaintiff)
Glass Goodwin (Defendant)

File Number(s): 2025/00362134

JUDGMENT – EX TEMPORE

1. By notice of motion dated 23 October 2025, the defendant seeks:

1. an order pursuant to section 61 of the Civil Procedure Act 2005 and Part 13.4 of the Uniform Civil Procedure Rules 2005 that the statement of claim filed on 20 September 2025 be dismissed; or, in the alternative

2. an order pursuant section 61 of the Civil Procedure Act 2005 and Part 14.28 of the Uniform Civil Procedure Rules 2005 that the statement of claim filed on 20 September 2026 be struck out*.*

2. The plaintiff, by statement of claim filed 20 September 2025, seeks the following relief:

1. A declaration that in the Judgment and Orders of his Honour Robb J, the method of calculation of the amount to be paid to the plaintiff does not express the true value of the plaintiff’s interest in Lot 1 in the Folio Identifier 1/521955 [known as 214 Yarramundi Lane, Agnes Banks] (Lot 1) and was a mistake or error in the circumstances, and that the calculation of the 90% interest of the plaintiff should be rectified so as to express a true valuation of the property.

2. Further to Order 1, an order and all necessary and proper other orders and declarations be made that the plaintiff be paid compensation by the defendant representing the true value of the plaintiff’s 90% interest, less that which has been paid, together with interest on the amount found to be due.

3. An order that the plaintiff be paid $69,000.00 or according to valuation or replacement cost, whichever is the greater, for his missing equipment from Lot 1 and on the adjacent Lot 2 arising from the conduct of the defendant and the act or acts or omissions of the defendant in respect of the plaintiff’s equipment situated on Lot 1 or on the adjacent Lot 2, less the amount of $10,269.72 received by the plaintiff for alleged scrap, together with interest on the amount found to be due.

4. An order the defendant pay the plaintiff’s costs.

5. Further and other relief as the court may consider appropriate including equitable damages.

3. The reference to the judgment and orders of Robb J is a reference to orders made in this Court in proceedings 2016/00002731*.*

4. Those proceedings concerned a claim by the plaintiff against Mr Peter Stewart (who at the time lacked capacity and was represented in the proceedings by a tutor Ms Peggy Mayhew, being the defendant in these proceedings) for an equitable interest in Lot 1 by reason of an equitable estoppel. Lot 1 is contiguous with Lot 2 in the same Deposited Plan which is also the subject of the earlier litigation.

5. In those proceedings, Robb J delivered three relevant judgments:

6. Lewis v Stewart [2018] NSWSC 1186, handed down on 2 August 2018 (the 2018 Judgment), in which his Honour:

(a) held at [248] that the defendant in those proceedings, Mr Stewart was estopped from denying that the plaintiff was entitled to a beneficial interest in Lot 1; (b) held at [249] that the remedy required in equity did not extend to Mr Stewart having full beneficial ownership of Lot 1; (c) indicated at [253] that the Court would receive submissions as to the orders the Court should make.

2. Lewis v Stewart [2019] NSWSC 841, handed down on 5 July 2019 (the 2019 Judgment), in which his Honour:

(a) noted at [13] that the plaintiff sought equitable compensation in an amount of 50% of the probable value of Lot 1 together with a substantial adjustment for the work the plaintiff said he did on the property, the submission being based on a market appraisal tendered by the plaintiff which indicated that Lot 1 had a value of $640,000.00 to $700,000.00; (b) noted at [13]-[14] that the appraisal was said to reflect the property’s value with the benefit of a particular development approval, despite there being no evidence that the local council would give that development approval, and that the plaintiff had also obtained an alternative appraisal assigning Lot 1 a value of $300,000.00 on the basis that the appraiser was unaware if the council would allow building on the land given the flooding risk; (c) noted at [16] that “[u]ltimately” the plaintiff submitted he should be paid equitable compensation in the sum of $350,000.00; (d) noted at [17]-[19] Mr Stewart’s evidence as to value of Lot 1, being:

(i) an appraisal dated 11 September 2018 at $120,000.00 to $140,000.00; (ii) an appraisal dated 14 September 2018 at $60,000.00; (iii) a formal valuation dated 21 February 2019 valuing the two lots together, plus water rights, at $2,450,000.00, assigning a value of $129,500.00 to Lot 1 (reflecting a value of $160,000.00 per hectare for Lot 1) and $210,000.00 per hectare for Lot 2;

(e) noted at [20] Mr Stewart’s final position that the plaintiff should be awarded equitable compensation reflecting half the value of Lot 1, such that the plaintiff should receive half of $129,500.00, being $64,750.00; (f) noted at [22] the plaintiff’s reply that he had no practical means of challenging the formal valuation report (which had not been tendered at the hearing) and contending that a smaller parcel of land adjoining a larger parcel, in basically the same condition, has a higher value per square metre; (g) accepted at [26] that the best course was for Lot 1 and Lot 2 to be sold in one line; (h) held at [27]-[28] (having noted the considerable unexplained range in the value of the appraisals) that he was not satisfied that it would be appropriate to assess equitable compensation by first determining a separate value for Lot 1, and that instead the best and fairest course was for the value of Lot 1 to be determined by the market on the basis that its value is the proportion of the net sale price that represents the area of Lot 1 compared to Lot 2; (i) held at [31] that Mr Stewart should be ordered to pay equitable compensation equal to 90% of the value of Lot 1 determined by its sale with Lot 2 in one line, and on the basis that the value of each lot per square metre will be assumed to be equal; and (j) at [32] invited the parties to discuss appropriate short minutes to implement the judgment in the most cost-efficient manner possible.

3. Lewis v Mayhew as executor of the estate of the late Peter Stewart [2020] NSWSC 1215 (the 2020 Judgment), handed down on 8 September 2020, in which his Honour:

(a) noted at [12] that it had taken considerable time for the parties to put the Court in the position where it could make final orders, and that although the outstanding questions had not been entirely resolved, his Honour had decided that the point had been reached where the Court must make the most appropriate final orders that could at that time be made; (b) noted at [13] that Mr Stewart had died since the 2019 Judgment and that Ms Mayhew had obtained a grant of probate; (c) at [50] refused the plaintiff’s application to reconsider the nature of the relief that should be granted to the plaintiff, as determined in the 2019 Judgment; (d) made orders at [53] requiring the sale of Lots 1 and 2 as one aggregation, and the proceeds to be applied first to selling expenses, second in payment of any capital gains tax and third in payment of 90% of the value of Lot 1, calculated by reference to the total sale price and the proportion of the area of Lot 1 to the combined area of the two lots; (e) reserved to the parties liberty to apply for orders in respect of the reserve price; (f) ordered that the plaintiff be given access to Lot 1 (and if necessary access over Lot 2) to remove his personal belongings, including machinery and vehicles.

6. The orders made on 8 September 2020 were:

(1) That, subject to order 4 hereof, and unless otherwise agreed between the parties, the executor of the estate of the late defendant forthwith do all acts and things, give all instructions and authorisations necessary to cause the whole of the land comprised in Folio Identifiers DP 1/521955 and DP 2/521955 to be sold as one aggregation (“Lots 1 and 2”) by public auction on or before the date twelve (12) weeks from the date of these orders, at a reserve price agreed in writing by the executor and the solicitor for the plaintiff not less than 14 days before the auction date and cause the proceeds of sale of Lots 1 and 2 to be applied:

(a) in payment of reasonable agent’s commission, reasonable conveyancing legal fees and reasonable selling expenses;

(b) in payment of any capital gains tax which may be assessed on the sale of the Lots;

(c) in payment to the plaintiff, or such person as the plaintiff nominates in writing, a sum equivalent to 90% of Lot 1, calculated by reference to the aggregate sale price obtained for Lots 1 and 2 and the proportion of the area of Lot 1 to the combined area of the two Lots;

(d) in payment to the executor on behalf of the estate of the defendant of the balance of proceeds of sale of Lots 1 and 2 then remaining.

(2) That before the executor of the estate of the late defendant pays any capital gains tax which may be assessed on the sale of the Lots, the executor shall obtain appropriate accounting advice so that all reasonable and lawful steps are taken to minimise the capital gains tax which is payable, and shall provide that advice to the solicitor for the plaintiff at least two weeks before any tax return is lodged relevant to the payment of the capital gains tax.

(3) That the plaintiff and the executor of the estate of the late defendant have liberty to apply for further orders in respect of the reserve price in order 1 on two days’ notice, by arrangement with the Associate to Robb J.

(4) That, provided that the agreement of the solicitor for the plaintiff has first been obtained, the executor of the estate of the late defendant shall be entitled, at any time prior to the sale of Lots 1 and 2 pursuant to order 1 hereof to sell the said lots by private treaty, in which event, the executor shall cause the proceeds of sale of the lots to be applied in the manner and order provided by order 1 hereof.

(5) That, subject to order 6, the executor of the estate of the late defendant forthwith do all acts and things, give all instructions and authorisations necessary to provide the plaintiff with access to Lot 1, including access over Lot 2 if necessary, to remove his personal belongings, including but not limited to machinery and vehicles, that remain on Lot 1, such access to commence within two weeks of date of these orders and continue for such reasonable period as may be necessary for such purposes. Access may further extend on the plaintiff’s request to permit the plaintiff for a reasonable time to tidy up Lot 1 and carry out such repairs thereon as may be reasonably necessary to enable a more favourable presentation of Lots 1 and 2 for sale.

(6) The access granted to the plaintiff to Lot 1 and Lot 2 by order 5 shall not be exercised by the plaintiff in a manner that unreasonably interferes with the process of the sale of the two Lots required by order 1 at the best price achievable.

(7) That the defendant pays the plaintiff’s costs on the ordinary basis as agreed or assessed.

(8) That the executor for the defendant keep the solicitor for the plaintiff reasonably informed upon request of the said solicitor as to progress of the sale of the Lots and that either party have liberty to apply for further orders to implement these orders on three days’ notice, by arrangement with the Associate to Robb J.

7. Further substantive orders and notations were made in the proceedings on 27 November 2020:

(1) Defendant to provide information on the expenses claimed in relation to the sales marketing and the auction of Lots 1 and 2 held on 31 October 2020, including the real estate agent’s and auctioneer’s claims for commission and marketing expenses, and the relevant supporting documents.

(2) Defendant to allow plaintiff initial supervised access to Lot 1 to carry out an inspection and make an assessment of the preparations necessary overall for removal of his equipment and belongings.

(3) The plaintiff’s supervised inspection of Lot 1 be carried out on Saturday, 28 November 2020 between 6.00am to 6.00pm being the plaintiff’s estimate of necessary time.

(4) In the course of the inspection on 28 November 2020, the plaintiff is to update the existing list of equipment and belongings he is to remove and provide the updated list to the solicitor for the defendant within 48 hours of completion of inspection together with his written proposal for the removal of the equipment and belongings, including all shipping containers.

(5) The plaintiff to have supervised access to Lot 1 commencing Monday, 7 December 2020 for a period of not less than five days from 6.00am to 6.00pm to remove all equipment and belongings, including any shipping containers, on Lot 1.

Notations:

(6) The plaintiff is booked into Gosford Hospital on Monday 30 November 2020 for a septoplasty procedure following which it is anticipated he will need to convalesce for an estimated period of one week. However, in the event of an earlier recovery, the solicitor for the plaintiff to communicate such fact to the solicitor for the defendant with a view to agreeing to an earlier date for the plaintiff to commence removal of the subject equipment and belongings.

(7) The settlement date for the contract for sale of Lots 1 and 2 is 14 December 2020.

(8) Lot 2 is tenanted and the tenant’s crop is ready to be harvested.

(9) The plaintiff undertakes not to permit any part of his equipment, vehicles or belongings brought onto Lot 1 to trespass in any way upon the crops on Lot 2.

(10) The plaintiff’s access to Lot 1 will be supervised by private licenced security personnel provided by the defendant and at her expense who may remain present during the course of access.

(11) The plaintiff has provided the defendant with proof of his personal insurance cover for any work he undertakes on Lot 1.

(12) The plaintiff undertakes to provide the solicitor for the defendant with reasonable proof of insurance for any person or contractor he retains to undertake work on Lot 1 at his direction.

(13) The plaintiff intends to bring 2 shipping containers onto Lot 1 to facilitate the packing and removal of the plaintiff’s equipment and belongings from Lot 1.

(14) The plaintiff is to provide not less than 48 hours’ notice to the solicitor for the defendant of:

(a) the date and time of the delivery of the shipping containers referred to above; and

(b) the date and time of the removal of all shipping containers located on Lot 1.

(15) In the event the plaintiff ascertains from his access that any item of equipment or belongings of his is located on Lot 2, the defendant will agree to the plaintiff having access to Lot 2 to remove same onto Lot 1 for further removal.

(16) Further to 16 above, the plaintiff is aware that his tractor is presently located on Lot 2 and therefore the defendant agrees to the plaintiff relocating it onto Lot 1 upon first access.

(17) In relation to the access arrangements, this may include coming and going on a given day during the agreed time between 6.00am and 6.00pm as might be required on a reasonable needs basis to which the defendant will not object.

8. It will be seen that, apart from order 1 made on 27 November 2020, which related to the provision of information about expenses for sale of the two lots, those orders (ie, dated 27 November 2020) concerned the plaintiff’s equipment or other chattels, and access to the lots for the purpose of the plaintiff obtaining those chattels.

9. It is common ground that Lots 1 and 2 were sold at public auction on 31 October 2020 for $2,501,000.00, and that settlement occurred on 21 January 2021.

10. By his statement of claim in these proceedings, the plaintiff raises two issues. First, he contends that the calculation of the amount to be paid to him pursuant to Justice Robb’s orders in the 2020 Judgment does not reflect the “true value” of his 90% interest and seeks an order that he be paid an amount “representing the true value of the plaintiff’s 90% interest”. Second, he claims $69,000.00 for missing equipment from Lot 1 “less the amount of $10,269.72 received by the plaintiff for alleged scrap”.

Plaintiff’s first claim: revisiting orders of Robb J

11. According to the statement of claim at paragraphs 6 to 7, the basis for the first claim is:

(6) The quantum was decided on the then information and submissions available to the parties and the court and other issues such as related to capital gains. The court did not have the benefit of valuation for the reserve price prepared by Valuer Lynette Savage as at 30 September 2020 being $350,000.00 for Lot 1 and$ 1,695,000.00 for Lot 2. The Valuer’s Valuation­Retrospective for Lot 1 as at 31 October 2020 was $595,000.00. This evidence wasn’t available to the trial Judge.

(7) It can be presumed that the trial Judge’s conclusion as to a valuation of Lot 1 will have altered if the above fresh evidence was available to his Honour. The trial Judge’s assessment was absent the surer indicator of the truth based on the said new valuation evidence which came to light.

12. The plaintiff, through his solicitor, accepted during oral argument that prayers 1 and 2 for the relief were, in form and substance, an application to vary or amend the orders made by Justice Robb.

13. The defendant contends that there is a cause of action estoppel in respect of the relief sought by the plaintiff, or in the alternative an issue estoppel preventing the plaintiff from relitigating the issues determined by Justice Robb. The defendant also contended that no power had been identified which this Court has, sitting at first instance, to vary or amend the final orders made by Justice Robb.

14. The plaintiff, in submissions in response to the defendant’s notice of motion before me, seeks to rely on Carl Zeis**s Stiftung v Rayner v Keeler Ltd (No 2) [1967] 1 AC 853 at 947 for a contention that there is an exception to issue estoppel to avoid its inflexible operation, where special circumstances arise. I will return to that exception in the context of issue estoppel.

15. The bar created by a cause of action estoppel is absolute with no exception for special circumstances or otherwise: Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 at [26] per Handley JA, Beazley and Santow JJA agreeing; see the cases cited there and Patrick Keane, Spencer Bower and Handley: Res Judicata (6th Ed, 2024, LexisNexis) at [7.04].

16. The plaintiff had asserted a 100% equitable interest in Lot 1. He claimed that he had that interest by reason of a proprietary or equitable estoppel: 2018 Judgment at [12] and [15]. The relief he sought was a declaration that he had an interest in Lot 1 on the basis of proprietary and/or equitable estoppel: 2018 Judgment at [15]. That was the cause of action that was finally determined by the orders made on 8 September 2020.

17. In the 2018 Judgment, his Honour was not persuaded to declare that the plaintiff had 100% interest in the value of Lot 1. In the 2019 Judgment, his Honour did not determine that the plaintiff had a 90% interest in the value of Lot 1. Indeed, the plaintiff himself, in submissions on relief before the 2019 Judgment, claimed compensation of 50% of the probable value of Lot 1 plus an adjustment for work done on the property. Instead of that relief, his Honour determined in the 2019 Judgment that Lots 1 and 2 should be sold, and that the plaintiff should receive an amount that reflected 90% of the value of Lot 1, on the specific basis that the value of Lot 1 would be determined on the basis that each lot per square metre was equal.

18. In the 2020 Judgment, his Honour expressly declined to declare that the plaintiff had a 90% interest in Lot 1, or to vary the approach to calculating equitable compensation that had been determined in the 2019 Judgment. His Honour made final orders accordingly.

19. The plaintiff’s claim for an equitable interest in Lot 1 was finally determined by Robb J by the orders made in the 2020 Judgment. I accept the defendant’s submission that there is a cause of action estoppel in relation to that matter. The Court determined the plaintiff’s claim not by awarding him a 90% equitable interest in Lot 1, nor by ordering that he be paid equitable compensation in an amount of 90% of the “true value” of Lot 1, but by ordering that he be paid 90% of the value of Lot 1 determined in the manner described in Order 1(c) made on 8 September 2020. I accept that a cause of action estoppel has arisen in respect of the plaintiff’s claim for an equitable interest in Lot 1 on the basis of the equitable estoppel established in the 2018 Judgment.

20. Furthermore, as the solicitor for the plaintiff candidly accepted, the relief sought in prayers 1 and 2 of the statement of claim amounts to an application to vary the orders made on 8 September 2020. While the asserted basis for this is a “mistake or error”, that is not a basis on which this Court has power to vary final orders made and entered.

21. The plaintiff does not articulate in the statement of claim any of the Court’s powers to vary or revisit a final order once it has been entered.

22. In oral argument, the plaintiff’s solicitor advanced for the first time two grounds on which it was said the Court has this power. The first was said to be “in equity, due to unconscionability on the basis that the calculation based on area is significantly less than the true value”. The Court was taken to no authority suggesting that the Court has this power. Furthermore, I am not persuaded that the matters asserted by the plaintiff provide an arguable basis for finding any unconscionability. Justice Robb was persuaded that the appropriate relief was to order equitable compensation in an amount to be calculated in the manner set out in order 1(c) of the orders made on 8 September 2020. The Court determined in the 2020 Judgment at [12] that the point had been reached where the Court must make the appropriate final orders that could be made at that time. I infer that his Honour’s view was informed by the importance of finality and the need for there to be an end to litigation. Whether or not that informed his Honour’s view, I am satisfied that the matters alleged in the statement of claim in these proceedings before me could not provide a basis for finding any unconscionability, even if that were a basis on which the Court had power to revisit final orders.

23. I note for completeness that although Justice Robb reserved (in order 3 of the orders made on 8 September 2020) liberty to the parties to apply for further orders in respect of the reserve price, it is common ground that neither party exercised that liberty.

24. The second ground which the plaintiff’s solicitor advanced during oral argument was the Court’s power in rule 36.15 of the Uniform Civil Procedure Rules to set aside an order that was made, or a judgment that was entered, irregularly. The plaintiff’s solicitor accepted in argument that it could not be contended that the orders were made or entered, at the time of making or entering them, against good faith (and there was no suggestion of illegality). In relation to whether orders were made or entered irregularly, the plaintiff was given a short adjournment to draw the Court’s attention to any authority on which the plaintiff relied suggesting that orders might have been made or entered irregularly in the circumstances that are the subject of the plaintiff’s allegations.

25. Following that adjournment, the plaintiff’s solicitor drew the Court’s attention to Ritchie*’*s Uniform Civil Procedure New South Wales at [36.15.12], and in particular, the section on excessive judgments. I am satisfied no basis has been articulated on which it could be concluded that the order was entered irregularly by reason of being excessive or by reason of being entered for more than, or indeed for less than, the amount that was due. It does not arise in the present circumstances because his Honour clearly determined in the 2019 Judgment at [27] to [28] and [31] that the amount due by way of equitable compensation was the amount calculated in accordance with order 1(c) that was ultimately made. His Honour considered and refused an application to revisit that conclusion in the 2020 Judgment.

26. That being the case, I am satisfied that the plaintiff has articulated no basis on which it might be contended that Justice Robb’s orders were made or entered irregularly.

27. There is no suggestion of a judgment obtained by fraud – indeed, the essence of the plaintiff’s case in relation to Justice Robb’s orders is that the 2020 Judgment might have appeared correct having regard to the evidence then before the Court, but that the subsequent valuation evidence allegedly provided a basis for seeking different orders.

28. Fresh evidence can in certain circumstances provide a basis for an appeal, but these proceedings are not appeal proceedings.

29. For these reasons, I am satisfied not only that the statement of claim should be struck out with regards to the plaintiff’s first claim, but that the plaintiff should not have leave to replead in relation to that part of the plaintiff’s claim, that is, the claim in respect of Justice Robb’s orders of 8 September 2020.

30. For completeness, I advert to the argument advanced in respect of issue estoppel.

31. Even if there were no cause of action estoppel, I would be satisfied that there is an issue estoppel that the remedy required in equity to avoid unconscionable conduct by the late Mr Stewart is an award of equitable compensation to be calculated in the manner described in Order 1 made on 8 September 2020 on the basis of the conclusion reached in the 2019 Judgment and the 2020 Judgment, and not an equitable interest in 90% of the “true value” of Lot 1.

32. There is some question about whether an exception to issue estoppel for special circumstances exists in Australian law. I draw attention in that regard to Federal Treasury Enterprise (FKP) v Spirits International B.V. [2021] FCAFC 77 at [339]; Charafeddine v Morgan [2014] NSWCA 74 at [25].

33. It is not necessary to decide this, as the statement of claim does not plead any matter that could provide a basis for the exception of special circumstances. In this regard, I refer to my reasoning above in relation to unconscionability and the question whether the orders were entered irregularly. The facts were not articulated during argument that might provide a basis for a finding of special circumstances.

Plaintiff’s second claim regarding equipment and other chattels

34. I turn to the plaintiff’s second claim, that is the claim in relation to chattels and other equipment. I am satisfied that this part of the statement of claim should also be struck out, as the statement of claim does not articulate adequately the basis of the plaintiff’s asserted cause of action. The statement of claim asserts that it was an “implied condition” that the defendant take proper care of the plaintiff’s equipment, but it does not articulate the contract or other obligation in respect of which this alleged “implied condition” arose. Such an obligation my arise by bailment, or on some other basis, and that basis should be articulated.

35. Furthermore, the statement of claim does not articulate the basis on which it is alleged that the defendant breached any obligation to take proper care.

36. However, while I am satisfied that this part of the statement of claim should also be struck out, I am not satisfied that the plaintiff’s claim in relation to equipment or other chattels is unarguable. I am satisfied leave to replead should be granted, such leave to be limited to those matters that were the subject of the plaintiff’s second claim.

37. It was common ground that if this was the view I reached, the proceedings should be transferred to the Local Court, given that the claim in respect of equipment is below the jurisdictional limit of the Local Court.

Costs

38. As to costs, the defendant contended, and I accept, that costs should follow the event, and there will be an order for costs in the defendant’s favour. The defendant sought that order on an indemnity basis, in part on the basis that the claim was hopeless, and in part on the basis that the defendant is an executor.

39. There is some force in the proposition that a significant part of the plaintiff’s claim was hopeless. Nevertheless, I am not persuaded to order indemnity costs, having regard to the fact that the claim in relation to the equipment or other chattels is one in respect of which leave to re-plead has been given, and there was some significant evidence from both parties in relation to that matter which was prepared on the motion, but which ultimately did not bear on my reasons. In saying this, I make no criticism of either party for preparing that evidence, which was dealt with expeditiously by the parties, but I take that into account in considering whether or not indemnity costs is appropriate. Having regard to the fact that part of the plaintiff’s claim has survived and those other matters, I am satisfied that an order on the ordinary basis is appropriate.

40. The defendant’s counsel also raised the fact that the defendant is the executor of the estate of the late Mr Stewart, and that she would seek an order that any costs that she does not recover from the plaintiff be payable from the estate on a solicitor/client basis. I make no order about that, only because I do not have the whole of the estate before me. In saying that, I should not be understood to be suggesting for a moment that the defendant is not entitled to that indemnity, which is the usual position in relation to an executor. I simply say I am not in a position to make an order of the Court in relation to it because I am not seized of the whole estate.

41. Accordingly, in declining to make an order for indemnity costs, that should not be understood as expressing any view about whether the defendant is entitled to indemnity on a solicitor/client or any other basis from the estate in respect of her costs.

42. The order of the Court will be that the plaintiff pay the defendant’s costs of this motion.

43. The court makes the following orders:

44. Pursuant to s 61 of the Civil Procedure Act 2005 (NSW) and r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Statement of Claim filed on 20 September 2025 be struck out;

45. Grant leave to the plaintiff to replead by filing an Amended Statement of Claim, such leave to be limited to the relief sought in prayer 3 of the Statement of Claim (which the Court has struck out), being in substance the matters alleged in that Statement of Claim at paragraphs [14]-[18]; and

46. Direct that the revised amended statement of claim be filed and served within 28 days;

47. Pursuant to s 146 of the Civil Procedure Act transfer the matter to the Local Court at the Downing Centre;

48. The plaintiff to pay the defendant’s costs of the Notice of Motion on the ordinary basis.

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