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[2026] NSWSC 583
Supreme Court of NSW
2026-05-26
Elkaim AJ
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: Li bht Lam v Trustees of the Sisters of Charity of Australia as Trustee of the St Vincent's Private Hospital Sydney Trust [2026] NSWSC 583
Hearing dates: 26 May 2026
Date of orders: 26 May 2026
Decision date: 26 May 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1 Leave to file the Notice of Motion dated 26 May 2026 in Court.
2. Pursuant to s 82 of the Civil Procedure Act 2005 (NSW), the defendant is to make an interim payment to the first plaintiff of $612,083.76.
3. Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), the interim payment of $612,083.76 is approved.
4. The payment referred to in Order (3) is to be paid within 28 days.
5. Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the interim payment of $612,083.76 is to be paid to TPT Wealth Ltd, to be held and applied for the maintenance, advancement or benefit of the first plaintiff.
6. The defendant is to have credit for the interim payment on any final settlement or verdict in favour of the first plaintiff.
7. The first plaintiff's entitlement (if any) to interest on damages shall be reduced to take into account receipt of the interim payment.
8. Costs of the Notice of Motion are to be costs in the proceedings.
9. The Court notes:
a. The interim payment is made with no admission by the defendant as to whether the first plaintiff has any entitlement to the various items forming the interim payment and the defendant reserves its right to argue that entitlement at the trial.
b. The Court is satisfied that if the proceedings went to trial the first plaintiff would obtain judgment for substantial damages from the defendant in an amount in excess of the interim payment.
Catchwords: CIVIL PROCEDURE — application for interim payment under s 82 of the Civil Procedure Act 2005 (NSW) — whether the plaintiff would obtain judgment for substantial damages if the proceedings went to trial — where defendant consents to interim payment — approval of settlement under s 76 of the Civil Procedure Act 2005 (NSW)
Category: Procedural rulings
Parties: Pak Hung Raymond Li bht Rebekah Fong Lam (First Plaintiff)
Rebekah Fong Lam (Second Plaintiff)
Phaik Ling (Nell) Oh (Third Plaintiff)
Trustees of the Sisters of Charity of Australia as Trustee of the St Vincent's Private Hospital Sydney Trust (Defendant)
Representation: Counsel:
J Downing SC (Plaintiffs)
I Li (Defendants)
Solicitors:
Maurice Blackburn Lawyers (Plaintiffs)
Minter Ellison (Defendants)
File Number(s): 2025/221383
Publication restriction: No
The first plaintiff, by a tutor, commenced proceedings with the filing of a statement of claim on 10 June 2025. He is claiming damages from the defendant, a private hospital, alleging that he fell on 20 October 2024, while a patient in the hospital, and suffered a significant head injury.
On 28 August 2025, a notice of motion was filed on behalf of the plaintiff seeking an interim payment from the defendant pursuant to s 82 of the Civil Procedure Act 2005 (NSW) (CPA). The amount sought is $612,083.76.
Section 76 of the same Act is also relevant because it requires approval of any settlement made in respect of a person under a legal incapacity. That is the case here.
The motion as filed requested that the interim payment be made into court. An amended motion was filed in court changing the recipient of the payment to TPT Wealth Ltd (TPT) which is a statutory trustee company.
The following affidavits have been filed in support of the motion:
(a) Ms Elizabeth Brookes dated 28 August 2025, 7 May 2026, and 8 May 2026. (b) Ms Phaik Ling Oh (the third plaintiff) dated 26 August 2025, and 7 May 2026. (c) Ms Rebekah Fong Lam (the second plaintiff) dated 26 August 2025, 7 May 2026, and 12 May 2026. (d) Ms Naomi Spigelman dated 1 September 2025. (e) Mr Matt Pearson dated 8 May 2026.
Ms Brookes is a Principal Lawyer in the firm acting for the plaintiffs. Ms Spigelman is an Associate Lawyer in the same firm. Mr Pearson is the General Manager of TPT.
No affidavits were relied upon by the defendant.
The defendant consents to the interim payment both as to its amount and the payment being made to TPT.
In addition to the injured plaintiff (the first plaintiff) there are two other plaintiffs who are the stepdaughter and wife respectively of the first plaintiff and have claims for psychiatric injury arising from the first plaintiff’s fall. The application for an interim payment is made only on behalf of the first plaintiff. I will now refer to the first plaintiff as the plaintiff.
Notwithstanding the defendant’s consent to the interim payment, s 82 of the CPA still requires, as relevant to this matter, that “the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.” The defendant’s consent is however a significant factor in reaching the satisfaction required of the court.
The qualifications preventing the making of an order, set out in s 82(4), do not apply to this case.
In respect of liability, or breach of duty of care, I note the following:
The plaintiff was born in 1951.
In 2022 the plaintiff began to have some problems with mobility and cognition. During 2022 he was diagnosed with an intraventricular craniopharyngioma (a brain tumour). He was treated with a partial surgical resection, radiotherapy and the insertion of a shunt to ease hydrocephalus.
During 2023 and 2024 the plaintiff had occasional falls at home. On 17 October 2024 he was admitted to the defendant hospital for a revision of his shunt. Following surgery, and then a return to the ward, a ‘falls risk’ assessment showed the plaintiff to have a high risk of falling. The plaintiff had another fall after the assessment.
On 20 October 2024, the plaintiff had a third fall which included a head strike and was probably most responsible for his head injury. A CT brain scan after the third fall demonstrated an acute haemorrhage in the right temporal lobe. The plaintiff was transferred to the Intensive Care Unit.
On 25 October 2024 the plaintiff was discharged to the Eastern Suburbs Private Hospital, and then five days later, to the Sacred Heart Health Service.
In January 2025, the plaintiff went to a nursing home for respite care for five weeks. Since 21 February 2025 the plaintiff has lived at home under the principal care of the second and third plaintiffs.
The plaintiff now has very high care needs essentially requiring 24-hour care. He is incontinent, not very mobile and struggles with all the activities of daily life. The plaintiff’s future care requirements, according to the Statement of Particulars, have been costed at over $10 million.
In addition to future care, the plaintiff’s damages will include non-economic loss, past gratuitous care, and past and future medical expenses. The latter will include the cost of equipment such as a wheelchair and a power lifter. There is also a claim for periodic travel expenses and a claim for funds management.
It is difficult to discern the strength of the defence to the plaintiff’s claim. No doubt the plaintiff will make much of his third fall occurring after a falls risk assessment. For quantum, the plaintiff has substantial medical support, in particular from Dr Obeid, a geriatrician. Dr Obeid attributes about three quarters of the plaintiff’s deficits to the fall on 20 October 2024.
The defendant’s medical evidence may well suggest that many of the plaintiff’s problems would have occurred in any event. The plaintiff did have a brain tumour and according to the defendant’s medical evidence the contribution of the fall does not extend beyond about one quarter of his current disabilities.
Allowing for the plaintiff’s particulars putting his case at its highest, on the plaintiff’s case, he is likely to receive very substantial damages, measured in the millions of dollars.
If the defendant’s assessment is correct, but liability is established, the damages will remain substantial.
Having regard to the plaintiff’s needs, an interim payment in this matter is eminently appropriate. I have no difficulty in being satisfied that an order for a s 82 payment should be made. I think it also follows that the payment, to the degree that it is a settlement, should also be approved under s 76 of the CPA on the basis that the settlement is in the best interests of the plaintiff.
In relation to the payment to TPT, Mr Pearson describes the company as a long existing trustee company which has all of the relevant licences to enable it to carry on business as a trustee.
Mr Pearson describes the functions that TPT would perform and says that “No fees will be charged by TPT Wealth Ltd on the interim payment held on Trust for Raymond.”
The second plaintiff, who is the plaintiff’s tutor, is a lawyer and is the stepdaughter of the plaintiff. In her affidavit of 7 May 2026, the second plaintiff, who personally provides a good deal of care to the plaintiff, says that she is required to work from home “as often as possible” and to defer travel related work. She feels the latitude so far granted by her employer is waning.
The third plaintiff is the second plaintiff’s mother and is undergoing cancer treatment. As the two principal carers for the plaintiff, the second and third plaintiffs are concerned about their capacity to continue the level of care they have been providing.
The second plaintiff says that she has investigated a number of private trustee companies and also “considered the option of having the NSW Trustee and Guardian hold the interim payment on trust for Raymond.” In her opinion TPT offers the best option for management of the interim payment.
I can see no reason to decline an order that the interim payment be made to TPT.
I make the following orders:
Leave to file the Notice of Motion dated 26 May 2026 in Court.
Pursuant to s 82 of the Civil Procedure Act 2005 (NSW), the defendant is to make an interim payment to the first plaintiff of $612,083.76.
Pursuant to s 76 of the Civil Procedure Act 2005 (NSW), the interim payment of $612,083.76 is approved.
The payment referred to in Order (3) is to be paid within 28 days.
Pursuant to s 77(3) of the Civil Procedure Act 2005 (NSW), the interim payment of $612,083.76 is to be paid to TPT Wealth Ltd, to be held and applied for the maintenance, advancement or benefit of the first plaintiff.
The defendant is to have credit for the interim payment on any final settlement or verdict in favour of the first plaintiff.
The first plaintiff's entitlement (if any) to interest on damages shall be reduced to take into account receipt of the interim payment.
Costs of the Notice of Motion are to be costs in the proceedings.
The Court notes:
(a) The interim payment is made with no admission by the defendant as to whether the first plaintiff has any entitlement to the various items forming the interim payment and the defendant reserves its right to argue that entitlement at the trial. (b) The Court is satisfied that if the proceedings went to trial the first plaintiff would obtain judgment for substantial damages from the defendant in an amount in excess of the interim payment.
Li bht Lam
Trustees of the Sisters of Charity of Australia as Trustee of the St Vincent's Private Hospital Sydney Trust