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[2025] NSWCA 82
respondent. In matter 2025/039861, the application for leave to appeal was dismissed and the applicant was ordered to pay the respondents' costs. In matter 2024/332024, the part of the amended motion seeking...
The Court of Appeal did not rehear the underlying property or costs disputes. It considered whether there was a sufficient reason to allow an appeal to proceed. It concluded that the proposed grounds did not raise an important legal issue or show a sufficiently clear injustice. In particular, the proposed set-off depended on the facts and circumstances before the primary judge, and the applicant could still claim any outstanding amounts. The complaints about trustee fees were also problematic because the Trustees were not parties to the appeal. The Court therefore refused leave, dismissed the appeal as incompetent, and ordered the applicant to pay the respondents' costs.
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2,388 words · generated 07/10/2026
The Court of Appeal considered Dr Renuka Mendonca’s application for leave to appeal from costs and related orders made in the Supreme Court after a series of disputes about a property in Galston. The current respondents were Mark and Lorraine Tonna. The appeal also concerned orders affecting two trustees for sale, Stephen Hathway and Philip Hosking, but the Trustees were not joined as parties in the Court of Appeal ([1]-[3], [13]).
4 cited instruments linked from this judgment.
The dispute had a long procedural history. In 2019, Ward CJ in Eq held that Dr Mendonca held the property on resulting trust for herself and the Tonnas. The beneficial interests were later fixed at 71.13% for Dr Mendonca and 28.87% for the Tonnas. This Court upheld the resulting-trust decision in 2020 ([9]). In June 2021, trustees were appointed under s 66G of the Conveyancing Act 1919 (NSW) to sell the property and apply the proceeds. The Tonnas bought it at auction ([10]).
Three proceedings followed the sale. They addressed the Trustees’ remuneration and expenses, allegations about the conduct of the sale, and entitlement to funds paid into court in response to a garnishee order ([11]). In April 2024, Kunc J heard the proceedings together. The judgment before the Court of Appeal records that Dr Mendonca stopped pressing various claims and challenges during that hearing. The primary judge then made orders concerning costs ([11]-[12]).
The applicant challenged the costs orders and several earlier orders. Her principal issues were whether funds payable to the Tonnas should have been reduced by a set-off for amounts she said they owed; whether the primary judge had dealt fairly with matters concerning the Trustees’ fees; and whether the costs decisions were legally unreasonable or inadequately reasoned ([15]-[16], [23], [29]). She had filed 22 proposed appeal grounds, and the Court said that their meaning and relationship to the orders challenged were sometimes difficult to discern ([4], [15]).
The Court refused leave to appeal. The applicant had accepted that leave was necessary and that if leave were refused the appeal should be dismissed as incompetent ([3]). The Court consequently dismissed the appeal as incompetent, dismissed the extension-of-time request to the extent identified in its orders, and ordered costs against the applicant ([39]-[40]).
The Court began with the function of leave to appeal. It adopted the description in Mohareb v Local Court of New South Wales [2024] NSWCA 235: leave is a broad discretionary gateway directed to whether a full appeal is appropriate, and reasons for refusing leave may be short if they identify the core reasons ([5]). The Court stated that leave is generally appropriate where a case raises an issue of principle, a question of general public importance, or a reasonably clear injustice going beyond something merely arguable. The ultimate consideration is the interests of justice, including both the particular dispute and broader public interests ([6]).
Costs decisions received particular attention. The Court relied on John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139 for the point that costs arise in virtually all litigation and trial judges are generally best placed to weigh the relevant interests ([6]). It considered that most of the applicant’s complaints were challenges to the primary judge’s discretionary costs assessment, which made leave less readily available ([35]-[37]).
On the set-off issue, the applicant said the primary judge erred in principle by concluding that a set-off could not be ordered. The primary judge had referred to “extraneous debts” unrelated to the sale proceeds and said those liabilities had not been identified and could not properly be taken into account when ordering payment from the Trustees’ fund ([17]-[20]). The Court considered that, even if the reasons could be read as rejecting set-off in principle, the decision also rested on the facts: the parties had not established the liabilities that would need to be brought to account ([20]).
The Court did not resolve the general legal availability of set-off. Instead, it held that leave was not in the interests of justice on the circumstances of this application. The decision was substantially fact-based, the challenge came nearly a year later and therefore appeared to require an extension of time, the position had evolved, and it remained open to Dr Mendonca to claim any outstanding amounts. The respondents had not suggested that they were insolvent ([21]-[22]). The Court also noted that accounting for all liabilities at the distribution stage could reduce further dispute and legal costs ([22]).
On procedural fairness, the Court identified two complaints: the alleged failure to refer an issue concerning Trustee fees to a referee, and an asserted arbitrary reduction from $63,037 to $6,446 ([23]). It considered that the requested appellate intervention could affect the Trustees’ entitlement to payment and their obligations concerning funds in their possession. The Trustees had not been joined, despite the earlier observation in the capping judgment that they would need to be joined if the appeal required reconsideration of amounts payable to them ([24]-[25]). The Court also found it unclear whether Dr Mendonca had sought the relevant referral, and said she could make submissions on the issue at the final hearing ([26]).
The numerical complaint did not establish a connection between the two amounts. The $63,037 appeared in a spreadsheet as Trustee costs relating to “Kunc J/Garnishee”, while the $6,446 concerned the Tonnas’ liability for a failed notice of motion in December 2021. The Court said those were different amounts relating to different issues, and that asserting an “arbitrary reduction” assumed a relationship that had not been established ([27]).
Finally, the Court rejected the broad challenge to the costs judgment. It summarised the primary judge’s reasoning: the proceedings had used three days of hearing time and an eight-volume court book; the applicant had abandoned her substantive complaints during the hearing; and the primary judge considered the contentions unreasonably maintained ([30]). The Court explained that 28 July 2023, the date of an unsuccessful mediation, was used as a point from which to adjust costs, not as a finding that Dr Mendonca was to blame for the mediation failing ([31]). It found nothing unreasonable in the primary judge’s approach and described the costs reasons as detailed and careful ([32]).
The judgment describes an existing leave-to-appeal framework rather than announcing a new test. Before this decision, the Court’s cited authority in Mohareb had already characterised leave as a discretionary gateway, with the interests of justice as the ultimate consideration. The usual indicators were an issue of principle, general public importance, or reasonably clear injustice beyond an arguable complaint ([5]-[6]).
The judgment also reiterates appellate restraint in costs matters. John Anthony Arena is cited for the rationale that costs are a routine feature of litigation and that the trial judge is ordinarily best placed to make the assessment ([6]). The Court applied that approach to Kunc J’s costs orders, considering both the trial judge’s familiarity with the proceedings and the detailed reasoning in the Costs Judgment ([30]-[32]).
The decision does not establish that set-off is never available against funds held for distribution, or that unrelated liabilities can never be brought into account. The applicant relied on In the matter of Fewin Pty Ltd [2017] NSWSC 1093, where a set-off had occurred in relation to a costs judgment from another court ([19]). The Court did not decide whether Fewin established a general principle applicable here. It concluded that the proposed appeal did not warrant leave because the primary judge’s decision was substantially fact-based and the parties’ liabilities had not been fully identified ([20]-[22]).
Accordingly, the principal “after” effect is procedural and case-specific. The refusal of leave left the costs orders in place and the appeal was dismissed as incompetent. The judgment is not a merits ruling that determines the general scope of set-off, nor does it decide any outstanding claim Dr Mendonca might make for amounts she says remain owing ([22], [39]-[40]).
At [5], the Court said a leave application is a “gateway mechanism” for deciding whether a full appeal is appropriate. In plain English, the Court uses this preliminary stage to screen proposed appeals. It need not resolve every argument in detail if the central reason for refusing permission can be explained.
At [6], the Court said leave is generally appropriate for matters involving “issues of principle”, “questions of general public importance”, or a “reasonably clear injustice going beyond something that is merely arguable”. This sets a threshold above simply showing that an argument could be made. The Court also said the interests of justice remain the “ultimate issue”, so the listed categories guide rather than replace the overall assessment.
At [20], the Court considered the primary judge’s reasons on set-off. It acknowledged that they might be understood as suggesting set-off was unavailable in principle, but said the decision also depended on the particular facts, especially whether all liabilities had been identified. In plain English, the Court did not treat the reasons as establishing a universal rule; it saw the factual incompleteness as important to the result.
At [22], the Court gave the reasons leave was not justified on the set-off ground: the original decision was substantially based on the facts, the proposed appeal was late, circumstances had changed, and a claim for outstanding amounts remained open. This is a case-specific explanation of why permission was refused, not a final adjudication of what amount, if any, was owing.
At [25], the Court referred to the effect an appeal could have on the Trustees. Changing orders about Trustee remuneration or the distribution of funds might affect the Trustees’ interests and obligations. As they were not parties to the appeal, that raised a procedural difficulty for the proposed challenge.
At [32], the Court said the Costs Judgment showed “a detailed and careful process of reasoning”. In plain English, the Court considered that the primary judge had engaged with the submissions and the circumstances of the litigation, rather than making an unexplained or arbitrary costs decision.
The judgment is most directly relevant to applications for leave to appeal that principally challenge a trial judge’s discretionary costs assessment. It illustrates that a complaint that a costs order was unfair, unreasonable, or should have been different may not suffice where it does not identify a principle or public-importance issue, or a reasonably clear injustice beyond something merely arguable ([6], [29], [35]-[38]).
It is also relevant where a proposed appeal seeks to revisit a case-specific decision about distributing funds after the primary judge has considered incomplete or changing information about parties’ liabilities. The Court emphasised that the set-off decision depended substantially on the evidence and circumstances then before the primary judge and that the applicant retained the ability to claim outstanding amounts ([20]-[22]). The judgment does not establish that those features will always defeat leave; it shows how they informed the interests-of-justice assessment in this matter.
A further relevant pattern is an appeal seeking to alter orders that affect people who are not parties to the appeal. Here, the orders concerned the Trustees’ remuneration and directions about funds held by them. The Court regarded their absence as significant because appellate variation could affect their interests and obligations ([24]-[25]).
The judgment also illustrates the importance of showing that figures said to demonstrate an error are connected to the same liability or decision. The applicant’s argument compared $63,037 and $6,446, but the Court found that the figures related to different costs and issues ([27]). That conclusion concerned the material presented in this case; it is not a general evidentiary rule.
The judgment is dated 29 April 2025 and the supplied text identifies no later decisions applying, distinguishing, or otherwise treating Mendonca v Tonna [2025] NSWCA 82. It is therefore not possible, on the supplied material, to describe how later courts have treated this decision.
The judgment itself refers to earlier authorities rather than discussing subsequent treatment. It applies the leave-to-appeal approach expressed in Mohareb v Local Court of New South Wales [2024] NSWCA 235 and the costs-appeal consideration cited from John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139 ([5]-[6]). It also refers to In the matter of Fewin Pty Ltd [2017] NSWSC 1093 because the applicant relied on it in support of set-off, but does not resolve the scope of that decision ([19]-[22]).
The judgment’s references to Mendonca v Tonna [2024] NSWCA 288 and earlier proceedings in the same dispute are procedural background, not accounts of later courts applying this 2025 decision ([9], [14]). Any assessment of subsequent treatment would require later legal sources not included in the supplied judgment.
The judgment leaves the general availability and limits of set-off unresolved. It does not determine whether a court may, in another factual setting, set off a costs judgment or other liability against funds held for distribution. It records the applicant’s reliance on Fewin, but refuses leave on the particular facts and does not decide the general point ([19]-[22]).
The amount, if any, still outstanding between the parties was also not determined. The Court said it remained open to the applicant to claim outstanding amounts, and it recorded that she had paid approximately $170,000 towards a costs liability since the primary judge’s set-off decision ([21]-[22]). The appeal decision should not be read as a finding that any particular balance was payable.
The dispute about Trustee remuneration was not reconsidered on its merits in the Court of Appeal. The Court refused leave and noted that the Trustees were not parties, while the applicant’s proposed challenge could affect their entitlements and obligations ([24]-[27]). The judgment therefore does not establish whether a referee should have been appointed or whether either figure challenged by the applicant was substantively correct.
Nor does the decision resolve the underlying costs assessment afresh. The Court considered whether the proposed appeal met the leave threshold; it did not conduct a full appeal on whether the primary judge’s discretionary costs orders were the only or best possible outcome ([6]-[7], [32], [39]-[40]). The costs orders remained undisturbed because leave was refused.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Mendonca v Tonna [2025] NSWCA 82
Hearing dates: 22 April 2025
Date of orders: 29 April 2025
Decision date: 29 April 2025
Before: Kirk JA; Price AJA at [1]
Decision: In matter number 2025/039861 (the application for leave to appeal):
(1) Application for leave to appeal dismissed.
(2) The applicant is to pay the respondents’ costs.
In matter number 2024/332024 (the appeal):
(1) Dismiss so much of the applicant’s amended motion filed on 2 December 2024 as seeks an extension of time.
(2) Appeal dismissed as incompetent.
(3) The appellant is to pay the respondents’ costs.
Catchwords: APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Supreme Court Act 1970 (NSW), ss 101(2)(c), 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 51.12(3)(a)
Cases Cited: In the matter of Fewin Pty Ltd [2017] NSWSC 1093
John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139
Mendoca v Tonna [2021] NSWSC 1627
Mendonca v Tonna [2020] NSWCA 196
Mendonca v Tonna [2024] NSWCA 288
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Tonna v Mendonca (No 2) [2020] NSWSC 306
Tonna v Mendonca [2019] NSWSC 1849
Category: Principal judgment
Parties: Renuka Mendonca (Applicant; self-represented)
Mark Tonna (First respondent)
Lorraine Tonna (Second respondent)
Representation: Counsel:
D Stewart / D Emmerig (Respondents)
Solicitors:
BlackBay Lawyers (Respondents)
File Number(s): 2025/039861; 2024/332024
Publication restriction: Nil
THE COURT**:** The applicant, Dr Renuka Mendonca, and the current respondents, Mr Mark Tonna and Ms Lorraine Tonna, have been engaged in a long-running dispute about a property in Galston in the Hills District of Sydney. The last set of iterations of that dispute were case managed and determined by Kunc J in the Supreme Court, leading up to a long judgment on various costs disputes handed down on 15 August 2024: Mendonca v Tonna; Mendonca v Hathaway; The application of Hathaway and Hosking [2024] NSWSC 1024 (Costs Judgment). The decisions reached in that judgment were crystallised in orders made on 3 September 2024.
The applicant seeks leave to appeal from part of the orders made as a result of the Costs Judgment, along with various earlier orders made by his Honour (on 24 October 2023, 14 February 2024, and 3, 5 and 10 April 2024). The current respondents – whom we shall refer to as the Tonnas to avoid possible confusion with the trustee parties in the proceedings below – resist a grant of leave.
Prior to seeking leave to appeal the applicant had filed a notice of appeal, which in due course she amended. The draft notice of appeal for which she sought leave was in materially the same terms as the amended notice of appeal. In the appeal proceedings the Tonnas had filed a motion seeking that the matter be dismissed as incompetent. The applicant accepted before us that leave to appeal is required and thus conceded that if leave to appeal were refused then the appeal should also be dismissed as incompetent (together with a motion in that matter seeking an extension of time).
There are 22 appeal grounds in the draft notice of appeal, extending over six pages. The meaning and significance of the grounds is at times difficult to discern. The applicant filed a 20 page summary of argument followed by a 30 page reply submission – doing so despite the fact that the rules set a 10 page limit for the summary of argument: note Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.12(3)(a). These written submissions are also somewhat difficult to follow.
This Court has recently described decisions whether to grant leave to appeal in the following terms (Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [34], citation omitted):
The Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. In this context, in general, the Court need not give extensive reasons for dismissing an application for leave to appeal. They should be sufficient to articulate for the benefit of the parties and, if special leave is sought, the High Court, the core reasons why the Court was not persuaded to exercise its discretion to grant leave to appeal. They can be short. To require extensive reasons — eg addressing in detail all arguments made or grounds raised by an applicant — would be to defeat the very purpose of having a leave gateway.
It is generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable (ibid at [25]). The “ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law” (ibid at [26]). Also relevant in that regard, in relation to disputes about costs, is that the issue of awarding costs is an invariable one in litigation, and it is trial judges who are generally best placed to weigh up the interests involved in such awards: John Anthony Arena Pty Ltd v Franpina Developments Pty Ltd [2022] NSWCA 139 at [18].
Taking account of those principles, we are not persuaded that the applicant has raised any issue of principle or question of general public importance, nor shown a reasonably clear injustice going beyond something that is merely arguable. More generally and in any event, it is in the interests of justice that this disputation – which is essentially now about costs – should come to an end. The application for leave to appeal, the appeal, and the motion seeking an extension of time should all be dismissed, with costs.
In what follows we first set out the background to the matter, then address the three main issues sought to be raised by the applicant, before referring to other issues also addressed in the application.
The matter has a long and complicated history. The following is a brief overview. In 2019 Ward CJ in Eq held that Dr Mendonca held the property on resulting trust for herself and the Tonnas: Tonna v Mendonca [2019] NSWSC 1849. Her Honour subsequently determined the parties’ beneficial interest in the property, being the Tonnas as to 28.87% and Dr Mendonca as to 71.13%: Tonna v Mendonca (No 2) [2020] NSWSC 306. Her Honour’s decision on the resulting trust issue was upheld in this Court: Mendonca v Tonna [2020] NSWCA 196.
On 4 June 2021 Darke J made orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of the property and as to how the proceeds for the sale were to be applied. Mr Stephen Hathway and Mr Philip Hosking became the trustees for the sale (the Trustees). Dr Mendonca and the Tonnas were allowed to bid at the auction. They bid against each other. The Tonnas were the successful purchaser.
Three proceedings arose from what Kunc J called the “the litigious fallout of that sale process”. The cases involved the current parties along with the Trustees. His Honour case-managed those matters to a hearing, which commenced on 2 April 2024. He summarised the proceedings, and what happened in the course of the hearing, as follows in the Costs Judgment:
[10] The Trustee Remuneration Proceedings (2021/115917) concern an amended notice of motion filed by the Trustees on 28 September 2023 for the payment of their remuneration and expenses/disbursements. Dr Mendonca challenged whether the remuneration sought by the Trustees was reasonable.
[11] The Negligence Proceedings (2022/264829) relate to the allegations raised by Dr Mendonca in her amended statement of claim filed on 19 February 2024 (ASC). This raised a litany of allegations relating to the conduct of the Trustees and the Tonnas during the sale of the property, including that the Trustees preferred the Tonnas’ interests, denied Dr Mendonca procedural fairness by failing to consult with her on various matters related to the sale, and also contended that a substantial part of the Trustees’ remuneration and disbursements should be borne by the Tonnas because of their conduct during the sale process. It was also alleged that the loan that Mr Saliba had provided to the Tonnas was void for illegality.
[12] The Interpleader Proceedings (2022/7598) are an interpleader action. The Trustees commenced the proceedings by summons seeking an order that they pay into Court funds comprising a principal sum of $505,382.64 and interest in the amount of $15,284.51 in response to a garnishee order which the Tonnas had successfully obtained in relation to a costs judgment the Tonnas had against Dr Mendonca. Both Dr Mendonca and the Tonnas subsequently filed notices of motion claiming entitlement to the funds.
[13] The three proceedings were listed for hearing before me for three days commencing on 2 April 2024. As is set out in detail below, Dr Mendonca indicated at various points throughout the hearing that she no longer wished to press various parts of her ASC, contest the remuneration sought by the Trustees, or challenge the Tonnas’ entitlement to the funds. The effect of the numerous concessions provided by Dr Mendonca was that the Court was not required to determine the merits of any of her allegations.
[14] At the conclusion of the hearing, the parties were directed to agree to a set of short minutes reflecting the positions on issues which had been agreed between the parties throughout the hearing. Those orders were made on 10 April 2024. As part of those orders the parties were given an opportunity to file and serve submissions concerning the costs of each of the proceedings for me to determine on the papers. This judgment resolves the issue of costs in the proceedings as between the parties.
In the orders made on 3 September 2024, giving effect to the Costs Judgment, his Honour relevantly ordered that the Tonnas’ costs of the Trustee Remuneration Proceedings be paid by the applicant solely out of her net share of the sale proceeds held in Court, for the period up to 28 July 2023 on the ordinary basis, and thereafter on an indemnity basis. His Honour ordered that the applicant pay the Tonnas’ costs of the Negligence Proceedings on an indemnity basis, and of the Interpleader Proceedings on the ordinary basis.
In this Court the applicant has not joined the Trustees as parties in her application for leave to appeal or her appeal.
In her appeal proceedings the applicant sought a costs capping order. That was refused by Basten AJA: Mendonca v Tonna [2024] NSWCA 288 (Capping Judgment). As his Honour explained there at [12]-[13], leave to appeal is required because it seems that all orders challenged other than those on 3 September 2024 were made by consent, the latter orders related to costs, and the orders also appeared to be interlocutory: note Supreme Court Act 1970 (NSW), s 101(2)(c) and (e).
A significant difficulty with this matter is that by and large the applicant’s numerous proposed grounds of appeal are not directed in a clear way to the orders that she seeks to challenge. In her submissions before Basten AJA the applicant said that she had “three main grounds”, relating to a set-off issue, a procedural fairness issue, and a “legal unreasonableness” issue. The respondents’ solicitor wrote to her subsequently seeking to clarify if she pressed her challenge only on those issues. She declined to confirm that. Before us she described those three issues as her “umbrella” and “main” grounds but said that there were also other grounds.
In the circumstances we will address the three main issues, then briefly the residue of points raised.
This issue relates to an application made by the applicant which was determined by Kunc J on 3 April 2024. There was an amount of some $520,000 that had been paid into court pursuant to a garnishee order which, prima facie, represented funds to which the Tonnas were entitled. There was some procedural complexity associated with this amount, which was raised in the Interpleader Proceedings (as discussed in the Costs Judgment at [132]-[145]). In the end, the applicant sought that the amount paid out to the Tonnas from this sum should take into account that she had at least one costs judgment, if not other amounts, owing to her from the Tonnas.
On 3 April 2024 his Honour declined that application and gave short ex tempore reasons explaining why. His Honour noted that “there are a number of what I will call extraneous debts extant” between the parties, being debts unrelated to the fund which was the product of the sale of the property; he had “sought to encourage the parties to discuss between themselves what those extraneous amounts are” so that they can “agree that whoever is owed money pursuant to that net position can be paid that money out of the ultimate acquittal of funds presently held by the trustees”; but said “that is not something that I can order, and cannot be something which, in my view, I can properly take into account in terms of fashioning orders as to the payment out of funds held by the trustees”.
In this Court the applicant argued that his Honour had erred in principle in concluding that he could not make a set-off costs order, referring to a judgment of Brereton J in which such a set-off had occurred with respect to a costs judgment arising from proceedings in another court: In the matter of Fewin Pty Ltd [2017] NSWSC 1093.
The reasons of Kunc J can possibly be understood as suggesting that the set-off proposed by the applicant was not available in principle. However, even if so read, it is apparent that critical to his Honour’s decision in any event was the view that whilst it would be desirable to set off all of the parties’ liabilities, this would require the parties to identify all such liabilities so that they could be brought to account. Implicit in his Honour’s decision was the view that that had not been done. His Honour was making a determination of what was just on the particular facts before him.
In the respondents’ submissions to this Court it was said that “there is no injustice afforded to the applicant as she can still seek payment of these judgments as can the respondents against her”, and that “[i]n fact, the respondents have said this would sensibly be part of the working out of the final distribution from the Current Trust Fund”. The former argument is correct; there has been no suggestion the Tonnas are insolvent. As to the latter, the applicant disputed that characterisation, saying “[t]hey gave a figure without the interest payments, and were asking me to abide by that”. She also indicated that since his Honour’s decision on 3 April 2024 she has paid some $170,000 in fulfillment of a costs liability owed to the Tonnas (and the respondents accepted that that had been done).
As we understand it the applicant’s complaint here has two main elements:
that Kunc J erred on 24 October 2023 in not referring to a referee, who was to review the Trustees’ claim for fees, a question addressed to verifying or apportioning the Trustees’ fees and legal fees relating to a dispute relating to the property that was determined adversely to the Tonnas in December 2021 (Mendoca v Tonna [2021] NSWSC 1627);
that his Honour erred in making an “arbitrary reduction from $63,037 to $6,446 without adequate reasons”.
Leave to appeal on this issue should be refused. To begin with, the issue involves a challenge to orders made in favour of the Trustees, being orders 4 and 8(b) made on 10 April 2024. Order 4 was that:
the Trustees’ remuneration with respect to the Tonnas’ notice of motion filed on 3 December 2021 …, agreed by the Tonna parties to be $6,446 including GST, is to be paid by the Tonnas (as ordered by Kunc J on 6 December 2021) by deduction from the interim distribution by the Trustees referred to in Order 8 below.
Order 8(b) related to the interim distribution to be paid to the Tonnas by the Trustee. To alter order 4 would potentially affect the Trustees as regards their entitlement to receive certain funds from an identified source. To alter order 8(b) would affect the Trustees in terms of what they were directed to do with the funds they held. Basten AJA pointed out in the Capping Judgment that “the appeal appears to require reconsideration of amounts payable to the trustees, either by way of remuneration or costs”, and thus “the trustees would need to be joined as respondents to the appeal” (at [15]). That has not occurred.
Moreover, the issue involves no point of principle or public importance. Nor are we persuaded that the applicant has suffered a reasonably clear injustice going beyond something that is merely arguable, taking account of the following. It is not clear to us that the applicant in fact sought that the question identified should be referred to the referee. But even if she had, it is difficult to see how she would have suffered practical injustice when it remained open to her to make submissions on the issue to Kunc J in the final hearing in April 2024.
As to the claimed “arbitrary reduction”, it was difficult to follow this argument, as it was not made clear what the figure of $63,037 related to. The applicant indicated that this amount had been identified in a spreadsheet produced pursuant to an order by a registrar, but that explanation threw relatively little light on the matter. The amount is listed in a spreadsheet as the sum of Trustee costs with respect to “Kunc J/Garnishee”. That is a different amount, relating to costs incurred on a different issue, to the liability the Tonnas incurred for their failed notice of motion in December 2021. As the Tonnas submitted, they were liable for the latter amount, but they had succeeded in obtaining a payment out of court from the proceeds of the garnishee order. To assert an “arbitrary reduction” assumes a relationship between the two figures which was not established. It may be that the applicant was again seeking to raise some version of the set-off argument, which we have already addressed.
As noted above, the costs orders relevantly made by Kunc J was that the applicant pay the Tonnas’ legal fees with respect to:
the Trustee Remuneration Proceedings on the ordinary basis up to 28 July 2023, and on the indemnity basis thereafter;
the Negligence Proceedings on an indemnity basis; and
the Interpleader Proceedings on the ordinary basis.
The applicant’s complaint seemed to be focused on the first of these, although it may have extended also to the other two. She submitted, for example, that “my conduct was not unreasonable after 28 July 2023 and [the] primary judge erred in principle”. Various notions of unreasonableness seemed to be at play, because she also argued that Kunc J’s “findings and conclusions in relation to 28 July 2023 … were infected by legal unreasonableness”. More generally, the applicant’s submissions appeared to raise a cavalcade of issues as to why his Honour’s costs orders were unfair or should be varied.
His Honour’s core conclusions on the Tonnas’ costs overlapped with his conclusions with respect to the Trustees’ costs. His Honour said the following:
[157] Second, the lengthy history recounted over the preceding pages warrants the conclusion, which the Court readily draws, that three days of Court time were set aside and a court book of 8 volumes was produced to deal with what were complaints and challenges pressed by Dr Mendonca. However Dr Mendonca may attempt to characterise what occurred, the events as they unfolded before me at the hearing were a gradual capitulation and abandonment by Dr Mendonca of each of her substantive complaints and challenges. In particular, I do not accept that the resolution of any debate about the Tonnas’ costs obligations under the Kunc J judgment was the decisive watershed that Dr Mendonca contends. During the course of the hearing, as it became necessary for her to identify the evidence and specific arguments in support of her particular contentions, she chose not to press them. By the end, it was a complete capitulation.
[158] Both by reason of that capitulation and the nature of the matters she had sought to raise, the Court concludes that her various contentions and objections had been unreasonably maintained by her. The Court also accepts the Tonnas’ specific submissions at [53] to [59] and [121] to [128] above as to Dr Mendonca’s unreasonable prosecution of the proceedings. As to the matters she sought to advance, the Court also concludes that, properly advised, Dr Mendonca should have known that her various contentions and objections had no chance of success. In reaching that conclusion, I have not overlooked the reduction of the Trustee’s remuneration determined by the referee’s report, but on any view Dr Mendonca was pressing for a far greater reduction than 13.3%. By reason of the conclusions set out in this paragraph, the Court does not accept Dr Mendonca’s submissions set out above at [78] and following and [150] to [151] including her reliance on Lai Qin for the proposition that there should, to any extent, be no order as to costs.
[159] Before turning to specific orders in each proceeding, it is convenient to deal first with the issue of who should bear the burden of the Trustees’ remuneration and expenses other than legal costs and the application of the principle set out in [154(6)] above. For example, the Tonnas submit that the Trustees’ remuneration and expenses of the Remuneration Proceedings should be borne by Dr Mendonca. The Trustees submit these should be deducted from the Proceeds without apportionment. This would mean in practical terms that they would be borne by Dr Mendonca and the Tonnas in their respective Interests.
[160] Because of Dr Mendonca’s conduct referred to in [157] and [158] above, in my respectful opinion that is not a just outcome, whether in relation to the Remuneration Proceedings or more generally. It must be recognised that some of the Trustees’ remuneration and expenses would have been incurred even without Dr Mendonca’s interventions, and the Court is not in a position to perform any kind of precise dissection of what they might be. Nevertheless, that does not mean the Court should not do the best it can to achieve a fair result, especially in the interests of bringing finality to the parties.
[161] To that end, I have concluded that the relevant starting point for any adjustment should be after the unsuccessful mediation on 28 July 2023. This resulted in the proceedings being fixed before me for management and hearing. ...
His Honour’s selection of the date of the unsuccessful mediation was not because he attributed any blame to the applicant for the failure of the matter to settle. Rather, he was seeking to adjust the various costs liabilities so as to recognise that her (ultimately abandoned) pursuit of various arguments in the proceedings was unreasonable, but his Honour did not consider that an unrestrained indemnity costs order should be made as regards the Trustee Remuneration Proceedings.
There was nothing unreasonable about his Honour seeking to take such an approach. Given the complicated and unusual nature of the proceedings below, his Honour was well placed to make the appropriate judgment as to costs. No issue of principle or public importance is raised, and we are not persuaded that the applicant has suffered any reasonably clear injustice going beyond something that is merely arguable. On the contrary, the Costs Judgment manifests a detailed and careful process of reasoning, taking account of the extensive submissions made, and seeking to achieve a just and fair outcome.
We have addressed the orders which the applicant seeks to challenge other than those made on 14 February 2024 and 5 April 2024. As to the former, on 2 February 2024 the applicant filed a motion seeking orders with respect to who should bear responsibility for various legal and Trustee costs. On 14 February 2024 Kunc J made procedural orders relating to determining whether the referee’s report should be adopted and ordering that the three proceedings be heard together: see Costs Judgment at [30]-[31]. It is not clear what complaint the applicant has about these orders, which seem to be anodyne procedural directions. The draft notice of appeal does not include orders of 14 February 2024 in what is sought to be challenged.
As for the orders of 5 April 2024, this complaint seems to relate to a decision by Kunc J not to proceed under r 36.13(3B) of the UCPR, as urged by the applicant, with respect to orders made on 3 April 2024. Those orders apparently contained an error. His Honour said that “pursuant to the slip rule I amended Order 2 made on 3 April 2024 by deleting the sum of $195,095.50 and replacing it with the sum of $192,095.50”: Costs Judgment at [47]. Rule 36.13(3B) provides that “[w]ithin 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered”. Given that the rule relates to the court acting of its own motion, and Pt 36 makes separate provision for parties to apply to vary orders, it is difficult to see that the applicant has any cause for complaint.
As noted above, the applicant seeks to raise 22 grounds of appeal. At the end of her written reply submissions she listed 10 questions which she said were raised by the application and which were matters of principle, public interest and a substantial miscarriage of justice. Eight of the ten questions listed were followed by this secondary question: “If yes, whether it would be an appropriate exercise of discretion in this case to order Dr Mendonca pay Tonna parties costs on indemnity basis from 28 July 2023?”
That question suggests that ultimately most of her complaints are directed to a discretionary exercise of power with respect to costs. As indicated, leave is not readily granted with respect to such matters. Nothing in the remainder of her submissions has identified any issue worthy of a grant of leave to appeal.
Of the two questions which did not end with the secondary question just identified, one was “[w]hether Tonna parties had been so unreasonable in their approach to the conduct of the matter”. This question is in essence another merits complaint about his Honour’s discretionary exercise of power with respect to costs.
The other of the two questions was whether Kunc J erred “in principle by failing to give adequate reasons”. This question may relate to the “arbitrary reduction” point raised with respect to procedural fairness. Neither on that point, nor on any other point, has any material doubt been raised as to the adequacy of his Honour’s reasons.
The orders of the Court will be as follows. In matter number 2025/039861 (the application for leave to appeal):
Application for leave to appeal dismissed.
The applicant is to pay the respondents’ costs.
In matter number 2024/332024 (the appeal):
Dismiss so much of the applicant’s amended motion filed on 2 December 2024 as seeks an extension of time.
Appeal dismissed as incompetent.
The appellant is to pay the respondents’ costs.
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Mendonca
Tonna [2025] NSWCA 82
In matter 2025/039861, the application for leave to appeal was dismissed and the applicant was ordered to pay the respondents' costs. In matter 2024/332024, the part of the amended motion seeking an extension of time was dismissed, the appeal was dismissed as incompetent, and the appellant was ordered to pay the respondents' costs ([39]-[40]).
As Kunc J indicated, there is obvious good sense in the parties seeking to bring to account all of their various liabilities when finalising distribution of the sale proceeds. Doing so will reduce further disputation and legal costs. Whether or not there are matters of principle which might be argued were leave to appeal to be granted on this issue, we do not regard it as in the interests of justice to grant such leave given the following: the decision was substantially founded on the facts before him; it was made nearly a year ago (thus the challenge seems to require an extension of time); the position has since evolved; it remains open to the applicant to claim any amounts outstanding from the respondents; and there is still a possibility that common sense may prevail on both sides as the parties finalise their position.