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The underlying District Court proceedings arose from an appeal from a Costs Review Panel. Malouf commenced those proceedings under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) ([1]). The District Court made orders on 12 December 2025 setting aside Review Panel certificates and making payment orders. Those orders were amended on 13 February 2026 to include affirmances of the Costs Assessor’s determinations and certificates ([3]). A further order requiring Malouf to pay the plaintiff’s costs was made on 5 March 2026 ([3]).

Malouf filed a summons for judicial review in the Court of Appeal on 13 March 2026 ([1]). He later moved for a stay of the District Court orders pending determination of those proceedings ([3]). This was not an appeal. The judgment explains that no further appeal lay to the Court of Appeal from a District Court judgment on an appeal from a costs assessment. The matter therefore proceeded by summons in the Court’s supervisory jurisdiction ([2]).

The respondent entered a submitting appearance, save as to costs, and did not formally appear at the hearing of the motion ([4]). The stay was granted. The orders were to remain stayed until determination of the proceedings, and the applicant was required to prosecute the matter “with all deliberate speed and dispatch” ([12]). The applicant’s costs of the motion were ordered to be costs in the cause ([12]).

The ruling was limited. The Court did not determine the proper construction of the Legal Profession Uniform Law provisions, the validity of the District Court’s decision, or the ultimate outcome of the judicial review. It decided only whether the challenged orders should be paused in the meantime.

Why the court decided this way

Griffiths AJA applied the principles for stays pending appeal to the supervisory-jurisdiction judicial review application. The judgment adopted the explanation given in ACN 627 087 030 Pty Limited v Poche [2025] NSWCA 66: a stay application requires consideration of serious issues for determination, risk of prejudice or damage that a successful challenge would not redress, and the balance of convenience. The judgment also notes that conditions may be used to achieve fairness between the parties ([5]).

The Court began from the position that the respondent was entitled to the fruits of the District Court costs order. It was for the applicant to put material before the Court justifying a stay ([6]). This is significant because the motion was not treated as automatically suspending the effect of the District Court orders merely because judicial review proceedings had been commenced.

The first reason favouring a stay was that the proposed judicial review appeared to raise serious questions about the construction of ss 174 and 178 of the Legal Profession Uniform Law (NSW), and cl 2 of Sch 1 to the Application Act ([8]). Griffiths AJA expressly avoided making a final assessment of the review’s strength. The finding was that serious questions appeared to arise on the face of the application, not that the applicant had established an error or would succeed.

The second and third considerations concerned funds held in the respondent’s lawyers’ trust account. In earlier proceedings, the parties had agreed to a mutual undertaking that certain funds would be placed in that account and not released until all proceedings between them had been finalised ([9]). The judgment records that the respondent had taken steps to relist earlier proceedings before Chen J to seek release of those funds. On the material before Griffiths AJA, that step appeared inconsistent with the undertaking ([9]). The judgment does not finally decide whether the undertaking had been breached.

The Court also considered the risk that, if funds were released to the respondent, they might not be recoverable. The amount sought for release was $160,000. Public searches conducted by the applicant suggested that the respondent was heavily mortgaged, and the respondent had not fully disclosed his assets and liabilities ([10]). The Court described a real possibility that the money would not be recoverable, rather than making a final finding about the respondent’s solvency or financial position.

Finally, the Court considered duration and fairness. Counsel indicated there was some prospect of a hearing date within a couple of months, and the applicant was willing to accept a condition requiring the proceedings to be prosecuted with all deliberate speed ([11]). The relatively short anticipated period helped support a temporary stay, while the condition addressed the risk that the stay might otherwise continue without prompt progress.

Before and after state of the law

The judgment does not purport to change the law on stays. Its procedural contribution is to state that the established principles for a stay pending appeal apply equally where a stay is sought in judicial review proceedings in the Court of Appeal’s supervisory jurisdiction ([5]). The judgment gives no separate or novel test for this type of application.

The route by which the underlying challenge reached the Court is also explained. The District Court had exercised a statutory appellate jurisdiction in a costs matter. The judgment cites Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 and Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 for the proposition that no appeal lies to the Court of Appeal from a District Court judgment exercising that kind of statutory appellate jurisdiction ([2]). In that setting, the proceedings were brought by summons invoking supervisory jurisdiction. The judgment refers to Gazecki for the limits of that jurisdiction, identifying jurisdictional error or error of law on the face of the record ([2]).

The practical position before the stay was that the District Court orders were operative and the respondent could claim their benefit. The judgment describes this as the respondent’s entitlement to the fruits of the costs order ([6]). After the ruling, the specified orders were stayed pending determination of the judicial review, subject to the applicant’s obligation to prosecute the matter expeditiously ([12]).

The judgment does not decide whether the challenged orders were legally correct, nor whether the statutory provisions were properly construed by the District Court. It also does not state that every supervisory-jurisdiction judicial review will justify a stay. Its reasoning is tied to the stay principles and the particular material presented, including the apparent serious questions, the risk regarding recovery of the funds, the undertaking, and the short expected duration.

Key passages with plain-English translation

At [2], Griffiths AJA explains why the proceeding was brought by summons rather than appeal. No further appeal was available from the District Court’s decision in a statutory appeal concerning a costs assessment. In practical terms, the applicant had to invoke the Court of Appeal’s supervisory jurisdiction, and the judgment notes that the scope of that jurisdiction is limited to matters such as jurisdictional error or error of law on the face of the record, as described in Gazecki.

At [5], the Court says that stay principles used in appeals also apply to a stay application in supervisory-jurisdiction judicial review. In plain English, the procedural label differs, but the Court uses the established framework for deciding whether an order should be temporarily paused. The judgment identifies serious issues, irreparable or inadequately redressed prejudice, and the balance of convenience as relevant considerations, and recognises the possibility of conditions to manage fairness.

At [6], the Court emphasises that the respondent was entitled to the benefit of the costs order unless a basis for a stay was established. The applicant had the responsibility of putting supporting material before the Court. This frames the stay as exceptional relief requiring justification, not as an automatic consequence of filing judicial review proceedings.

At [8], the Court says the review “would appear on its face to raise serious questions” about particular statutory provisions. The wording is deliberately provisional. It records a threshold assessment for the stay motion and does not decide that the District Court’s construction was wrong.

At [9]–[10], the Court discusses the undertaking and the possible non-recovery of $160,000 if released from the trust account. The judgment treats these matters as relevant to the risk of prejudice if the stay were refused. It uses qualified language: the apparent inconsistency with the undertaking and the risk of non-recovery were assessed on the material then before the Court, rather than determined as final findings.

At [11]–[12], the Court links the expected short period before a hearing with the condition requiring the matter to be prosecuted “with all deliberate speed and dispatch”. In plain English, the stay was granted on the footing that the applicant would move the proceedings forward promptly.

What fact patterns trigger this precedent

The judgment provides guidance for stay applications in the Court of Appeal’s supervisory jurisdiction where judicial review is pending and the orders under challenge would otherwise take effect. The relevant pattern here included a challenge to District Court orders made in a statutory appeal from a costs assessment, for which the judgment states no further appeal lay ([1]–[2]).

It is most directly useful where an applicant needs to show more than the existence of a judicial review proceeding. The judgment emphasises that the applicant must provide material justifying a stay, while recognising the respondent’s existing benefit under the order ([6]). Relevant material in this case included the apparent seriousness of the statutory construction questions, evidence concerning the location and possible release of funds, an earlier undertaking, indications about the respondent’s financial position, and the expected time before the substantive proceeding could be heard ([8]–[11]).

The decision does not establish that an alleged risk to recovery will always suffice, or that any undertaking concerning funds necessarily supports a stay. Here, the Court relied on the combination of matters before it and the relatively short anticipated period of the stay. It also attached a condition requiring prompt prosecution.

The ruling should therefore be read as an application of the established stay framework to its particular facts, not as a rule that stays must be granted whenever a judicial review raises a statutory issue or concerns money that may be difficult to recover.

How later courts have treated it

The supplied judgment contains no discussion of later treatment of Malouf v Mavrakis, and its decision date is 15 June 2026. On the material provided, it is not possible to identify how later courts have treated this judgment. No later authorities should be inferred from this text.

The judgment itself refers to earlier decisions. It cites Burrows and Gazecki when explaining why the substantive challenge proceeded by summons in supervisory jurisdiction rather than by appeal ([2]). It cites ACN 627 087 030 Pty Limited v Poche for the stay principles and, through that discussion, refers to Kalifair Pty Ltd v Digi-Tech (Australia) Ltd and Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) ([5]). Those cases form the stated doctrinal background in this judgment; their full reasoning is not independently set out here beyond the extracts and propositions reproduced in the judgment.

Still-open questions

The underlying statutory construction questions remain unresolved. The Court identifies ss 174 and 178 of the Legal Profession Uniform Law (NSW) and cl 2 of Sch 1 to the Application Act as provisions giving rise to serious questions, but does not explain or decide the competing constructions ([8]).

The judgment also does not determine whether the steps taken to relist the earlier proceedings were in fact contrary to the undertaking. It says those steps appeared, on their face, to be contrary to the agreed undertaking ([9]). The final meaning, scope, and effect of that undertaking are not determined in this stay ruling.

The financial risk is also assessed provisionally. The judgment records public searches suggesting substantial mortgage indebtedness and the absence of full disclosure of assets and liabilities, and concludes that there was a real possibility that the $160,000 might not be recoverable if released ([10]). It does not make a final finding about the respondent’s assets, liabilities, solvency, or ability to repay.

Finally, the judgment does not decide whether the District Court orders should ultimately be quashed or otherwise altered, whether the applicant’s review will succeed, or what final costs orders should be made. Its operative effect is temporary: it stays specified orders pending determination of the proceedings, with a condition requiring prompt prosecution ([12]).

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.