Sanjiv v Shah

Medium Neutral Citation: Sanjiv v Shah [2026] NSWCA 231

Hearing dates: 23 October 2026

Date of orders: 30 October 2026

Decision date: 30 October 2026

Before: Ward ACJ, Ball JA and Griffiths AJA

Decision: 1. The applicant have leave to rely upon the amended draft notice of appeal dated 15 October 2026 on condition that she file and serve an amended notice of appeal in substantially similar terms within seven days hereof.
2. The appeal is dismissed in relation to the grounds in the amended draft notice of appeal dated 15 October 2026 concerning the vexatious proceedings order and related orders made by Ierace J and Emmett J on 6 March 2026 and 30 March 2026 respectively.
3. Under s 15(1)(a) of the Vexatious Proceedings Act 2008 (NSW), the applicant/appellant is refused leave to institute proceedings in respect of the orders dated 6 March 2026 and 30 March 2026 relating to matters other than the vexatious proceedings order and related orders.
4. The summons seeking leave to appeal filed on 4 June 2026 is dismissed.
5. The applicant/appellant pay the respondent’s costs of both the appeal and the summons seeking leave to appeal.

Catchwords: APPEALS — Challenges to vexatious proceedings order — No procedural unfairness or miscarriage of discretion in the making of the vexatious proceedings order — No appealable error demonstrated in primary judge’s finding that the applicant had “frequently instituted or conducted vexatious proceedings in Australia” within the meaning of s 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW)
APPEALS — Procedure — Parties on appeal — Vexatious litigant — Leave to institute proceedings — Where applicant has failed substantially to comply with requirements of s 14(3) of the Vexatious Proceedings Act 2008 (NSW) — Court obliged by s 15(1) of the Vexatious Proceedings Act 2008 (NSW) to dismiss application for leave to institute proceedings regarding summary dismissal and related orders

Legislation Cited: Civil Liability Act 2002 (NSW)
Family Law Act 1975 (Cth), ss 102QAC, 102QAE
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 10
Federal Circuit Court of Australia Act 1999 (Cth), s 8
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.16
Vexatious Proceedings Act 2008 (NSW), ss 6, 8, 9, 14, 15, 16

Cases Cited: Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales (2012) 83 NSWLR 125; [2012] NSWCA 207
Chamberlain Group Pty Ltd v Kids For Life Academy Pty Ltd (2015) 18 BPR 35,591; [2015] NSWCA 241
Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118
In Marriage of Bishop (2003) 175 FLR 10; [2003] FamCA 240
In Marriage of Warby (2001) 166 FLR 319; [2001] FamCA 1469
Ip v Chiang [2019] NSWSC 1549
Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219
Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256
Sanjiv v Coleman Greig Lawyers Pty Ltd (No 2) [2025] NSWSC 908
Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528
Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 1422
Sanjiv v Shah (No 2) [2026] NSWSC 343
Sanjiv v Shah [2026] NSWSC 139
Uttar & Rajendra [2023] FedCFamC2F 1609
Uttar & Rajendra [2025] FedCFamC2F 647
Uttar [2025] FedCFamC1A 121
Viavattene v Attorney General (NSW) [2014] NSWCA 218
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Texts Cited: M Leeming, Cowen and Zines’s Federal Jurisdiction in Australia (5th ed, 2025, Federation Press)

Category: Principal judgment

Parties: Rekha Sanjiv (Applicant)
Sanjiv Shah (Respondent)

Representation: Counsel:
P E King (Applicant)
K Spencer (Solicitor) (Respondent)
Solicitors:
Arch Law (Respondent)

File Number(s): 2026/00093800

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

By a summons filed on 4 June 2026, the applicant seeks leave to appeal from two related decisions and orders, namely those of Ierace J in Sanjiv v Shah [2026] NSWSC 139 (6 March 2026) and Emmett J in Sanjiv v Shah (No 2) [2026] NSWSC 343 (30 March 2026). The respondent and applicant are formerly husband and wife respectively, having separated on 1 July 2014. Since then, they have been engaged in long-running litigation that has traversed multiple courts, including those exercising jurisdiction under the Family Law Act 1975 (Cth) and the Supreme Court.

In this Court, the applicant seeks to challenge a vexatious proceedings order made against her by Ierace J pursuant to the Vexatious Proceedings Act 2008 (NSW) (Grounds A1, A2 and A3). The applicant further contends that Ierace J erred in dismissing her statement of claim summarily (Grounds B1 and B2). The applicant also argues that Emmett J erred in awarding costs to the respondent on an indemnity basis (Grounds C1 and C2).

Though not adverted to in the amended draft notice of appeal, as the applicant is the subject of a vexatious proceedings order, a further issue arises as to which orders may be challenged on appeal as of right and which require leave under the Vexatious Proceedings Act 2008 (NSW).

The Court (Ward ACJ, Ball JA and Griffiths AJA) held, refusing leave to institute proceedings to the extent necessary and dismissing the appeal:

As to Ground A1: Denial of procedural fairness in making the enlarged vexatious proceedings order

1. The claim of procedural fairness is without substance in circumstances where the respondent’s written submissions below gave the appellant sufficient notice of the breadth of the requested vexatious proceedings order and she failed to take advantage of the opportunity to respond. Ground A1 is dismissed: [38]-[45].

As to Ground A2: Material factual error and miscarriage of discretion

2. Ierace J’s finding that the appellant commenced proceedings in the Supreme Court in anticipation of Judge Neville making a harmful proceedings order against her did not turn on any concession made by the appellant. It was well open to his Honour to make this finding based upon the appellant’s own affidavit. Ground A2 is dismissed: [47]-[50].

As to Ground A3: Failure to apply ss 6 and 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW)

3. No appealable error has been demonstrated in Ierace J’s extensive and considered reasoning that some, but not all, of the family law proceedings were instituted without reasonable ground for the purposes of s 6(c) of the Vexatious Proceedings Act 2008 (NSW). His Honour was entitled to find that the appellant had “frequently instituted or conducted vexatious proceedings in Australia” within the meaning of s 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW). Ground A3 is dismissed: [51]-[58].

As to Ground B1: Error in finding issue estoppel

4. The appellant requires leave to institute proceedings under s 14 of the Vexatious Proceedings Act 2008 (NSW) to raise this ground. As the appellant has not substantially complied with the requirements in s 14(3) of the Vexatious Proceedings Act 2008 (NSW), the Court is obliged to dismiss the application under s 15(1)(a) of the Vexatious Proceedings Act 2008 (NSW). Ground B1 is rejected: [61].
5. In any event, an Anshun estoppel would arise in circumstances where it was unreasonable for the appellant not to seek to raise her claims in the Supreme Court of negligence, breach of fiduciary duty and other claims in the Federal Circuit and Family Court of Australia (Division 2) or its predecessor court, the Federal Circuit Court of Australia: [62]-[64].

Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 considered.

As to Ground B2: Summary dismissal and refusal of leave to amend

6. The Court is obliged under s 15(1)(a) of the Vexatious Proceedings Act 2008 (NSW) to reject this ground because of the appellant’s failure to comply with s 14(3) of that Act. Ground B2 is rejected: [66].
7. A further difficulty is that to date the appellant has not complied with order 8 of the orders made on 6 March 2026. This would be a significant relevant consideration in any determination by the Court, were it to arise, whether or not to permit the appellant to institute proceedings under s 16 of the Vexatious Proceedings Act 2008 (NSW): [67]-[68].

Chamberlain Group Pty Ltd v Kids For Life Academy Pty Ltd (2015) 18 BPR 35,591; [2015] NSWCA 241*; Ip v Chiang* [2019] NSWSC 1549 considered.

As to Grounds C1 and C2: Challenges to indemnity costs orders made by Emmett J

8. The Court is obliged under s 15(1) of the Vexatious Proceedings Act 2008 (NSW) to reject these grounds because of the appellant’s failure to comply with s 14(3) of that Act. Grounds C1 and C2 are rejected: [70]-[73].

JUDGMENT

1. THE COURT: By a summons filed on 4 June 2026, the applicant seeks leave to appeal from two related decisions and orders, namely those of Ierace J (the primary judge) in Sanjiv v Shah [2026] NSWSC 139 (6 March 2026) (PJ1) and Emmett J in Sanjiv v Shah (No 2) [2026] NSWSC 343 (30 March 2026) (PJ2). An issue also arises as to whether the applicant requires leave to institute the proceedings in respect of some or all of the proposed grounds in the amended draft notice of appeal filed 16 October 2026. This issue arises because one of the orders in relation to which the applicant seeks leave to appeal is a vexatious proceedings order made under s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW).

2. We will briefly summarise the reasons and orders which are relevant to the present proceedings.

Ierace J judgment summarised

3. His Honour’s reasons relate to four notices of motion. Two were filed by the now respondent to the summons and the other two were filed by the now applicant. The applicant and respondent were formerly wife and husband. They separated on 1 July 2014 and have been involved in multiple proceedings in Courts (in addition to the Supreme Court) under the Family Law Act 1975 (Cth).

4. The applicant commenced proceedings in the Supreme Court on 23 April 2025, seeking damages against the respondent in negligence for alleged breaches of orders made in the family law litigation.

5. Ierace J dismissed the statement of claim under r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). In brief, his Honour determined that the statement of claim was an abuse of process because of an issue estoppel arising from the judgment and orders of Judge Neville in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)) on 4 June 2025 (see Uttar & Rajendra [2025] FedCFamC2F 647, which judgment appears not to have been published). Judge Neville dismissed the applicant’s application for an enforcement order concerning the respondent’s compliance with consent orders made on 30 April 2019 (as varied in orders dated 6 December 2023 by Judge Beckhouse of the FCFCOA (Div 2) in Uttar & Rajendra [2023] FedCFamC2F 1609). The essential effect of the orders was that the marital property would be sold and the applicant would receive 55% of the net assets. On 5 February 2020, orders were made on the respondent’s application appointing him as the trustee for the sale of the marital property.

6. Judge Neville noted that the respondent resisted the applicant’s enforcement application on the basis of an issue estoppel or, alternatively, that the enforcement orders had in fact been fully satisfied save for a double counting error.

7. On the respondent’s application, Judge Neville also made a “harmful proceedings order” under s 102QAC(1) of the Family Law Act. This order prohibited the applicant from instituting proceedings under that legislation against the respondent without the Court’s leave.

8. The applicant sought leave to institute proceedings under s 102QAE(2) of the Family Law Act challenging Judge Neville’s orders. Her application was dismissed by Schonell J on 17 July 2025 for reasons which are reported under the pseudonym, Uttar [2025] FedCFamC1A 121. The Application in an Appeal was found to be vexatious on the basis that it was devoid of merit and had no reasonable prospects of success. His Honour also found that the applicant had failed to provide an affidavit which complied with the requirements in s 102QAE(3) of the . As will emerge, there is a similar omission on the part of the applicant in her current application before us.

(3) As to the defendant’s motion filed on 2 September 2025, the Court orders that pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Rekha Sanjiv is prohibited from instituting proceedings in her own name or through or in the name of SRI Services Superannuation Fund or any other entity controlled by the plaintiff, in New South Wales, against Sanjiv Shah other than with leave of an appropriate court under that Act;

The applicant was ordered to pay the respondent’s costs of all four notices of motion.

19. After publishing his reasons for judgment in PJ1 on 6 March 2026, on the same day Ierace J made an additional four orders, three of which related to the respondent seeking indemnity costs and the last (order 8) was a direction to the applicant to provide in writing her residential address to the respondent’s solicitor by noon on 6 March 2026.

Emmett J judgment summarised

20. Following the orders made by Ierace J on 6 March 2026, the respondent sought indemnity costs and a gross sum costs orders in relation to the four notices of motion determined by Ierace J. For reasons given ex tempore in PJ2, Emmett J awarded indemnity costs in respect of three of the four notices of motion determined by Ierace J (namely the respondent’s notice of motion dated 8 July 2025 and the applicant’s notices of motion dated 26 September 2025 and 20 October 2025), but declined to make a gross sum costs order. His Honour also explained why he dismissed the applicant’s notice of motion dated 17 March 2026 which sought to have Ierace J’s orders made on 6 March 2026 set aside or varied under r 36.16 of the UCPR and also sought a stay of those orders pending foreshadowed proceedings in the Court of Appeal. Emmett J ordered the applicant to pay the respondent’s costs of her notice of motion filed 17 March 2026 on the ordinary basis.

The summons seeking leave to appeal

21. The applicant represented herself up until shortly before the hearing in this Court, when she was represented by Mr P E King of counsel. The applicant drafted the summons seeking leave to appeal, the summary of argument and the draft notice of appeal.

22. On 16 October 2026, the applicant filed the following documents:

(a) an amended draft notice of appeal dated 15 October 2026; (b) a proposed further amended statement of claim dated 15 October 2026; and (c) supplementary written submissions dated 15 October 2026.

23. The Court has proceeded on the basis that the first and third of these documents replace the draft notice of appeal and the summary of argument, both of which had been drafted by the applicant personally. Mr King handed up a copy of the transcript of the hearing before Ierace J on 27 November 2025.

24. The amended draft notice of appeal raises seven grounds which may be summarised as follows:

25. It is claimed that the primary judge denied the applicant procedural fairness by making the vexatious proceedings order which prohibited not only the applicant personally from instituting proceedings but also prohibiting her from doing so through or in the name of SRI Services Superannuation Fund or any other entity controlled by her (Ground A1).

26. It is claimed that the primary judge’s exercise of discretion in making the vexatious proceedings order miscarried because of the finding at PJ1 [96] that the applicant had conceded that she had commenced the proceedings in the Supreme Court in anticipation of her being blocked from continuing to litigate in the family law proceedings without obtaining leave having regard to the harmful proceedings order made by Judge Neville (see at [7] above). The applicant claims that she made no such concession. She also claims that the primary judge failed to consider whether a narrower vexatious proceedings order was appropriate (Ground A2).

27. It is claimed that the primary judge erred in concluding that the applicant had frequently instituted or conducted vexatious proceedings within the meaning of s 8(1)(a) of the Vexatious Proceedings Act (Ground A3).

28. In determining to dismiss the statement of claim summarily, it is said that the primary judge erred in concluding at PJ1 [58] that the proceedings were barred by issue estoppel and therefore constituted an abuse of process under r 13.4(1)(c) of the UCPR (Ground B1).

29. In summarily dismissing the proceeding and refusing leave to amend, the primary judge erred in circumstances where the proposed amended pleadings arguably alleged duties arising from the respondent’s position and conduct as trustee for the sale of the marital property, including fiduciary and equitable obligations, which were legally distinct from the mere enforcement or validity of the Family Court orders (Ground B2).

30. It is claimed that Emmett J erred in ordering the applicant to pay the respondent’s costs on an indemnity basis merely because Ierace J had found that the applicant’s pleadings were fundamentally flawed and liable to summary dismissal “without identifying relevant unreasonable or delinquent conduct by the [applicant] sufficient to justify departure from the ordinary basis of costs” (Ground C1).

Does the applicant require leave to appeal or leave to institute any aspect of the proceeding?

26. We consider that a distinction needs to be drawn between the applicant’s challenge to the vexatious proceedings order and related orders made on 6 and 30 March 2026 and the order dismissing the statement of claim under r 13.4(1)(c) of the UCPR and related orders. For reasons which we will explain, another important issue is whether the applicant requires leave to institute any part of the proceedings having regard to the existing vexatious proceedings order.

27. The issue whether the applicant may appeal as of right against the vexatious proceedings order (and orders relating thereto) is not straightforward.

28. In Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [30], Leeming JA highlighted the complex issues which can arise in determining whether leave to appeal is required under s 14 of the Vexatious Proceedings Act to challenge a vexatious proceedings order itself, having regard to the right of appeal in s 9 of that Act and the discussion in authorities such as Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219, Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256 and Viavattene v Attorney General (NSW) [2014] NSWCA 218.

29. It is unnecessary to resolve those issues in these proceedings. We shall assume, without deciding, that leave is not required to appeal the vexatious proceedings order and related orders made by Ierace J and Emmett J. Accordingly, for convenience we will proceed on the basis that the amended draft notice of appeal dated 15 October 2026 constitutes the notice of appeal relied upon and we will treat the White Folder as containing material relevant to the proceedings generally, including the appeal. This does not mean that the Court accepts that the applicant has an appeal as of right in relation to all aspects of the amended draft notice of appeal.

30. Hereafter, we shall refer to the applicant as the “appellant”.

31. Putting the vexatious proceedings order and related orders to one side for the moment, and turning to the orders and related orders summarily dismissing the proceeding under r 13.4 of the UCPR, we consider that leave to institute this aspect of the proceedings is required under s 14(2) of the Vexatious Proceedings Act. This is because the appellant is currently the subject of a vexatious proceedings order prohibiting her from instituting proceedings. She is entitled to apply for leave to institute proceedings despite that order but only if the requirements of s 14(3) are satisfied. Those requirements are as follows:

14 Application for leave to institute proceedings

…

(3) The applicant must file an affidavit with the application that—

(a) lists all occasions on which the applicant has applied for leave—

(i) under this section, or

(ii) before the commencement of this section—as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and

(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

…

32. Section 15 of the Vexatious Proceedings Act describes the circumstances in which an application for leave to institute proceedings must be dismissed:

15 Dismissing application for leave

(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers—

(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or

(b) the proceedings are vexatious proceedings, or

(c) there is no prima facie ground for the proceedings.

(2) The application may be dismissed—

(a) even if an oral hearing is not held, or

(b) even if the applicant does not appear at any hearing of the application.

33. Reference should also be made to s 16 of the Vexatious Proceedings Act, which relevantly provides:

16 Granting application for leave

(1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must—

(a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and

(b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application.

(2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate.

(4) However, the court may grant leave only if it is satisfied that—

(a) the proceedings are not vexatious proceedings, and

(b) there are one or more prima facie grounds for the proceedings.

(4A) A grant of leave to institute proceedings made under this section includes leave to make interlocutory applications, and other procedural applications, in connection with or incidental to those proceedings, unless the grant of leave specifies otherwise.

(4B) However, a grant of leave to institute proceedings does not include leave to make the following applications (unless the grant of leave specifically extends to such applications)—

(a) an application to join a new party to the proceedings,

(b) an application to introduce into the pleadings for the proceedings a substantially new cause of action based on facts different from those already pleaded,

(c) an application to remove the proceedings from one court or tribunal to another.

(5) In this section—

relevant person**,** in relation to the applicant for leave to institute proceedings, means each of the following persons—

(a) the person against or in relation to whom the applicant proposes to institute the proceedings,

…

34. It is noted that Basten JA provided a helpful description of these statutory requirements in Bar-Mordecai v Attorney General (NSW)**; Bar-Mordecai v State of New South Wales (2012) 83 NSWLR 125; [2012] NSWCA 207 at [16]-[18].

35. For reasons which we will provide below in respect of the proposed grounds of appeal which are not directed to the vexatious proceedings or related orders, the appellant has failed to persuade us that she should have leave to institute proceedings in relation to these orders.

Why the appeal should be dismissed and leave refused

36. The amended draft notice of appeal draws no clear distinction between orders which may be challenged on appeal as of right as opposed to other orders. Addressing the grounds seriatim, we shall now explain why we would dismiss the grounds of appeal in the former category and refuse leave to institute proceedings in respect of the other proposed grounds.

Ground A1: Denial of procedural fairness in making the enlarged vexatious proceedings order

37. The focus of this and the next ground is on the terms of the vexatious proceedings order (as set out at [18] above) and what Ierace J said at PJ1 [96]:

Although the statement of claim is the only proceeding that the plaintiff has commenced against the defendant in this Court, it was filed by her in anticipation of Neville J blocking her from continuing to litigate in the family law proceedings without leave. Indeed, she has conceded with candour that is why she filed the statement of claim.

38. For the following reasons, we reject the claim of procedural unfairness concerning the vexatious proceedings order made by Ierace J, which prohibited the appellant from instituting proceedings in NSW against the respondent through or in the name of SRI Services Superannuation Fund or any other entity controlled by her.

39. The appellant complains that such relief was not sought in the respondent’s notice of motion filed on 2 September 2025. Prayer 1 of that motion sought a vexatious proceedings order “in relation to the Plaintiff”.

40. The appellant claims that the broader formulation was advanced or materially enlarged in written submissions delivered after the hearing before Ierace J on 27 November 2025. The appeal documents do not contain any written submissions by the respondent in the proceedings before Ierace J during the period from 27 November 2025 to 6 March 2026, when judgment was delivered. More significantly, however, the appellant has failed to grasp what Ierace J said at PJ1 [70], which contradicts the appellant’s claim that she was denied procedural fairness.

41. Ierace J noted there that the respondent had submitted in his written submissions dated 22 September 2025 that “if the Court is minded to make a vexatious proceedings order, it should extend to a prohibition on the plaintiff instituting proceedings through or in the name of the trustee of SRI Services Superannuation Fund, through or in the name of any other entity controlled by the plaintiff or through a person or entity acting in concert with the plaintiff”.

42. Ierace J then added at PJ1 [70]:

… In his submissions dated 3 December 2025, the defendant submitted that in view of the 2024 proceedings against the plaintiff’s former solicitors, such an order should be broader; it should extend to a prohibition on the plaintiff, or any person or entity controlled by or acting in concert with her, commencing or continuing with any proceedings against any person or entity in any way arising out of or connected with the plaintiff’s matrimonial property dispute with the defendant. The plaintiff did not respond to that submission.

43. In these circumstances, the claim of procedural fairness is entirely without substance. The appellant had sufficient notice of the respondent’s position regarding the breadth of the requested order and she failed to take advantage of her opportunity to respond. This course of events cannot be explained away on the basis that the appellant was a litigant in person. The submissions made by the respondent in favour of a broader order than that sought in the notice of motion filed 2 September 2025 were adequate to meet procedural fairness requirements.

44. For completeness, it may also be noted that order 3 in its terms is directed to the appellant directly (as opposed to SRI Services Superannuation Fund). The prohibition applies to the appellant herself instituting proceedings, including through or in the name of SRI Services Superannuation Fund or any other entity controlled by her etc. It does not prevent SRI Services Superannuation Fund acting independently of the appellant from instituting proceedings.

45. The expanded ambit of the order reflects the way in which the appellant also conducted the proceedings. In her written submissions dated 10 October 2025, which addressed the respondent’s application for security for costs, the appellant said that if her proceedings were stayed because of a failure to provide security for costs “the proceedings would still be continued by S[RI] Services Superannuation Fund of which Rekha Sanjiv is a trustee and member” (emphasis added). She then submitted that such proceedings would “likely deal with the same issues and will thus cause Sanjiv Shah to incur the same level of costs”. In paragraph 5 of those submissions, the appellant stated that “S[RI] Services Super Fund is willing to stand behind Rekha Sanjiv and be liable for cost order made against Rekha Sanjiv” and that no order for security should be made against her personally because “S[RI] Services Super Fund is a party and exposed to all of the costs”.

46. It is also notable that, in three of the proposed amended statements of claim dated 7 November 2025, 20 November 2025 and 27 November 2025 the appellant herself sought to join SRI Services Superannuation Fund as the second plaintiff in the proceedings.

Ground A2: Material factual error and miscarriage of discretion

47. The appellant contends that Ierace J erred in stating at PJ1 [96] that she had made a concession to the effect of that described in that paragraph (which is set out at [37] above). She claims that she made no such concession. There are two answers to this claim. First, the relevant part of the transcript for the hearing on 27 November 2025 records the following exchange between his Honour and counsel for the respondent:

RUSITI: .... In relation to that wrongful purpose, your Honour, I would like to take your Honour to the plaintiff's affidavit filed 21 August 2025 in these proceedings. Paragraph 9, on page 3, the plaintiff records that by then the harmful proceedings order had been made.

HIS HONOUR: No, I am looking at a different page. What page is it?

RUSITI: Page 3, paragraph 9 of the 21 August 2025 affidavit of the plaintiff. It says "page 3" at the top of the page. The page with the jurat. It is a ten‑paragraph affidavit.

HIS HONOUR: Yes. So what paragraph?

RUSITI: 9.

HIS HONOUR: Yes. I think that is not the only place where the plaintiff says something similar by way of explanation. I think she may have said something to Justice Fagan as well along those lines.

RUSITI: Yes.

HIS HONOUR: So it seems to be a candid admission‑‑

RUSITI: Yes.

HIS HONOUR: ‑‑that effectively this is a court of last resort.

RUSITI: Yes. My submission is it can be summarised as saying, "I have come here because I am no longer allowed, without leave, to go back to the Family Court, so I have needed to find another way to continue my campaign of harassment against my ex‑husband from whom I separated 11 years ago".

HIS HONOUR: Yes.

48. This exchange is presumably what Ierace J had in mind when he described the concession which he considered had been made by the appellant.

49. Secondly, and in any event, even if the appellant did not make the concession in the precise terms described by his Honour, that would not constitute a material error. That is because it was well open to Ierace J to make the critical finding set out at the beginning of PJ1 [96], which does not turn on any concession by the appellant. This finding was that the statement of claim was filed in the Supreme Court by the appellant “in anticipation of Neville J blocking her from continuing to litigate in the family law proceedings without leave”. It was well open to his Honour to make that finding, not the least because in her affidavit dated 20 August 2025, after referring to the orders made by Judge Neville on 4 June 2025, the appellant said: “Clearly, I am prohibited from instituting proceedings against Sanjiv Shah under the Family Law Act 1975 NOT Negligence under Civil Liability Act 2002 and/or for loss of opportunity and/or breach of trust”.

50. This affidavit was filed after orders were made by Judge Neville on 4 June 2025 but the affidavit was provided in circumstances where the appellant had commenced the proceedings in the Supreme Court approximately two months before those orders were made. Plainly the appellant anticipated that Judge Neville was about to make a harmful proceedings order against her hence she commenced the proceedings in the Supreme Court where leave was not required.

Ground A3: Failure properly to apply ss 6 and 8(1)(a) of the Vexatious Proceedings Act

51. The appellant contends that, before making an order under s 8, the Court was required to determine whether she had frequently instituted or conducted vexatious proceedings in Australia as referred to in s 8(1)(a) of the Vexatious Proceedings Act. She contends that this requires “identification and adequate evaluation of the proceedings relied upon, including whether and in what respect each was said to answer the statutory description in s 6 [of what constitutes a ‘vexatious proceedings’], followed by a qualitative assessment of whether vexatious proceedings had been instituted or conducted ‘frequently’”.

52. The appellant contended that these alleged errors were particularly manifest in Ierace J’s analysis of the proceedings before Judge Neville. In those proceedings, the respondent conceded an underpayment of approximately $38,000 and that amount (together with interest) was ultimately offset by the costs orders. The appellant contended that merely because she may have achieved a better net result by accepting an offer which would be relevant to costs or the reasonableness of continuing particular aspects of the litigation, it did not necessarily establish that the proceeding before Judge Neville was instituted without reasonable ground. She contended that Ierace J had to distinguish between whether there were reasonable grounds when the proceedings were instituted, when the underpayment was conceded before Judge Neville and whether the litigation produced or contributed to that concession, as well as whether discrete claims had reasonable grounds.

53. We do not accept those contentions. Ierace J provided extensive reasons in support of his finding at PJ1 [89] that he was satisfied, on the basis of Judge Neville’s judgment, that the proceedings were instituted without reasonable ground for the purposes of s 6(c) of the Vexatious Proceedings Act. At PJ1 [87], his Honour set out the following parts of Judge Neville’s reasons for judgment:

164 Although the wife submitted that she will not return to Court after I determine this matter, I do not feel confident that she will remain true to her word. The litigation history I canvassed in the Background section of these reasons (noting that it was, in effect, a snapshot and did not cover the entire litigation history going back to 2014) [satisfies] me that the wife has been pursuing arguments similar to those ventilated before me, for some time now. She attempted, unsuccessfully, to appeal the orders of Rees J some four years after the orders were made. She has returned numerous times to the theme of the husband’s purported breaches of the 2019 orders.

165 The wife has appeared, self-represented, in the appeal proceedings, the proceedings before Judge Beckhouse and now, in the proceedings before me. Although she contended she had no funds to pursue litigation, as a litigant in person, she has no solicitor’s or counsel’s fees to pay and she need meet only any filing fee subject to any fee relief the Court may grant. I do not consider impecuniosity to be a matter that will preclude the wife from filing further proceedings.

166 Costs orders have been made against the wife which have gone unpaid by her. But for the fact that there are funds owing to her which can be applied to outstanding costs orders, I have doubt as to whether the costs orders made by Austin J, Christie J and Appeal Judicial Registrar Cameron would have ever been paid by the wife given her submissions about her financial circumstances. Costs have not proved to be an effective deterrent to the wife pursuing litigation about matters which she has already brought to the Court.

167 I accept that ongoing litigation exposes the husband to stress, although in the absence of direct evidence by the [husband], or some medical evidence about the extent of that stress, I cannot be [satisfied] that any stress he experiences rises as high as ‘psychological harm or oppression or major mental distress’ as set out at s 102QAC(2)(a) and (b) of the Act.

168 I am, however, [satisfied] that the proceedings are now financially harmful to the husband. He has had costs in the vicinity of $200,000.00 for legal fees and for the sale of the Epping property. To the extent that those costs may have been accounted for by way of costs orders and the by the provisions of the 2023 orders which effectively reimbursed him for some of the sale costs of the Epping property, I am [satisfied] that he will have recouped only a portion of the money he has spent.

169 Ten years is a long time to spend before the Court. I am comfortably [satisfied] that the proceedings between these parties must now be brought to an end. A person who is the subject of a harmful proceedings order may, with leave of the Court, commence further proceedings. In this instance, a harmful proceedings order against the wife will not prevent her from litigating any proper claim for relief she may have. She will, however, require leave to do so.

170 For these reasons, I am [satisfied] that a harmful proceedings order should be made against the wife.

54. At PJ1 [88], Ierace J explained why he rejected the appellant’s argument that the analysis of Judge Neville’s judgment needed to take into account that she was “partly successful”, being a reference to the fact that the respondent had conceded the double counting error. His Honour noted that this amount together with interest was “completely offset by costs orders” against the appellant, as well as the adverse findings made against her by Judge Neville. His Honour accepted Judge Neville’s statement at [206] of her Honour’s judgment that, had the appellant accepted the respondent’s offer to resolve the double payment, “she would have been financially better off than she was by litigating the matter”.

55. We are not satisfied that the appellant has demonstrated any appealable error in his Honour’s reasoning and acceptance of Judge Neville’s reasoning.

56. The appellant also contended that Ierace J erred in not assessing qualitatively whether the bringing of successive applications, reviews or appeals “arising from a limited number of underlying matrimonial controversies” established the statutory requirement of frequency. She contended that Ierace J erred in focusing substantially upon the consequences of the repeated litigation, without sufficiently identifying the manner in which the relevant proceedings were conducted.

57. We do not accept those contentions. His Honour gave extensive and persuasive reasons why he considered that some (i.e. the decisions of Christie J, AJR Cameron, Austin J and Schonell J), but not all, of the family law proceedings also constituted “vexatious proceedings” within the meaning of s 6 of the Vexatious Proceedings Act. No appealable error has been demonstrated in his Honour’s analysis.

58. It is evident from PJ1 [97] that his Honour also regarded the proceedings before him as being devoid of merit and doomed to fail. He included those proceedings along with the others when he said that he was satisfied that the appellant “has frequently instituted and conducted proceedings that are vexatious within the meaning of s 6(a) and/or (c) and (d) of the VP Act”. We are not satisfied that the appellant has established any appealable error regarding this part of his Honour’s reasoning.

Ground B1: Error in finding issue estoppel

59. This ground relates not to that part of Ierace J’s judgment concerning the making of the vexatious proceedings order, but to his Honour’s summary dismissal decision. His Honour held at PJ1 [58] that the original statement of claim constituted an abuse of process on the basis of issue estoppel alone, because the issue of the respondent’s compliance with his obligations concerning the 30 April 2019 consent orders were dealt with to finality by Judge Neville, as reflected in the 4 June 2025 orders.

60. The appellant complained that Ierace J did not identify the precise ultimate issue determined in the proceedings before Judge Neville which foreclosed each essential element of the appellant’s proposed claims in negligence, breach of trustee duty, breach of fiduciary duty, restitution, loss of opportunity and equitable compensation. The appellant submitted that Ground B1 is based on a distinction between the validity or enforcement of the orders made by Judge Neville and the civil or equitable consequences of the respondent’s alleged conduct in executing his position as trustee.

61. There is a short answer to this ground. As it is directed to the summary dismissal order and not the making of the vexatious proceedings order, the appellant requires leave to institute proceedings raising this ground. Moreover, that application had to be supported by an affidavit which substantially complies with the requirements of s 14(3) of the Vexatious Proceedings Act. Absent such an affidavit, the Court is obliged to dismiss the application under s 15(1)(a) of the Vexatious Proceedings Act. When the Court raised this matter with Mr King, he was unable to identify any affidavit which fulfilled the mandatory requirements of s 14(3). That is sufficient to reject Ground B1.

62. Putting to one side the appellant’s failure to comply with s 14(3), we shall explain why, in any event, we would not uphold Ground B1. There may be some force in the appellant’s challenge to the primary judge’s finding that an issue estoppel provided the basis for his conclusion of abuse of process but as the Court raised with Mr King during the course of the hearing of the appeal, any such error would be immaterial in circumstances where an Anshun estoppel would arise.

63. It is well to set out the following relevant principles in Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 at [21]-[24] per Meagher JA (McColl and Leeming JJA agreeing):

Anshun estoppel operates to preclude a party from asserting a claim or raising an issue that is so closely related to the subject matter of proceedings already conducted that it ought reasonably to have been asserted or raised at an earlier time: see Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 89 ALJR 750 at [22]. The circumstances in which such an estoppel arises were described by Gibbs CJ, Mason and Aickin JJ in *Anshun (*at 602):

[T]here will be no estoppel unless it appears that the matter relied upon… in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.

In addressing the question of reasonableness for this purpose, the joint judgment went on to note (at 603):

[T]here are a variety of circumstances … why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.

For this reason, a mechanical approach to identifying common facts in proceedings said to give rise to an Anshun estoppel should be avoided: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 at [3] (Allsop P), [52] (Giles JA). As Allsop P emphasised (at [4]):

The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather it has to be so relevant as to make it unreasonable not to raise it. [emphasis in original]

When applying these principles and in particular considering the question of reasonableness, it is necessary to bear in mind, as McColl JA observed in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (at [85]):

… that “shut[ting] out a claim … a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation…is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’ ”: Ling v Commonwealth (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce.

64. We consider that it was unreasonable for the appellant not to seek to raise her claims of negligence and breach of fiduciary duty and the other claims raised in the Supreme Court in the FCFCOA (Div 2) or its predecessor court, the Federal Circuit Court of Australia (see M Leeming, Cowen and Zines’s Federal Jurisdiction in Australia (5th ed, 2025, Federation Press) at 151). At the heart of the family law litigation was the dispute as to whether or not there had been compliance with the 30 April 2019 consent orders as varied. Those orders were directed to the sale of the marital property. As described above, on 5 February 2020, the respondent was appointed trustee for the purposes of that sale. The appellant’s complaints of negligence, breach of fiduciary duty and the other matters agitated by her in the Supreme Court proceedings are derived from those orders. The orders provide the framework for any claim in negligence or breach of fiduciary duty. It was unreasonable for the appellant not to have sought to raise these claims in the FCFCOA (Div 2), relying upon that Court’s accrued jurisdiction (see by analogy In Marriage of Warby (2001) 166 FLR 319; [2001] FamCA 1469 at [79]ff; In Marriage of Bishop (2003) 175 FLR 10; [2003] FamCA 240, and Federal Jurisdiction in Australia at 194). The FCFCOA (Div 2) is a court of record and a court of both law and equity: see s 10 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and its predecessor provision s 8 of the Federal Circuit Court of Australia Act 1999 (Cth).

65. For these reasons, Ground B1 is rejected.

Ground B2: Summary dismissal and refusal of leave to amend

66. This ground also relates to the summary dismissal order and to the related order refusing the appellant leave to amend her statement of claim. Accordingly, the appellant’s failure to file an affidavit which substantially complies with the requirements of s 14(3) of the Vexatious Proceedings Act means that the Court is obliged to reject this ground for similar reasons to those given above for rejecting Ground B1.

67. There is another difficulty with this proposed ground. As noted above, the appellant has to date not complied with order 8 made on 6 March 2026, requiring her to provide to the respondent’s solicitor her current residential address (on the undertaking of the solicitor not to disclose it to the respondent). This order is not challenged in the amended draft notice of appeal. Mr King candidly acknowledged that the appellant had not complied with the order.

68. It appears that the appellant is simply unwilling to comply with the order. This would be a significant relevant consideration in any determination by the Court, were it to arise, whether or not to permit the appellant to institute proceedings under s 16 of the Vexatious Proceedings Act (see generally, Chamberlain Group Pty Ltd v Kids For Life Academy Pty Ltd (2015) 18 BPR 35,591; [2015] NSWCA 241 at [16]-[17]; and Ip v Chiang [2019] NSWSC 1549 at [115] per Parker J).

69. For all these reasons, Ground B2 is rejected.

Ground C1: Error of principle as to indemnity costs

70. This ground relates to PJ2 and the orders made by Emmett J on 30 March 2026. In particular, it relates to his Honour’s orders that the appellant pay the respondent’s costs on an indemnity basis of the notices of motion dated 8 July 2025, 26 September 2025 and 20 October 2025. It should be noted that Emmett J did not make any order as to the costs of the respondent’s notice of motion filed on 2 September 2025 which led to Ierace J making the vexatious proceedings order on 6 March 2026.

71. For reasons given above, the appellant requires leave to institute that part of the proceedings in the amended draft notice of appeal which relate to matters other than the vexatious proceedings order and related orders. Leave is refused for the same reasons as those given immediately above concerning Grounds B1 and B2.

Ground C2: Failure to differentiate reasonably resisted and unsuccessful relief

72. This ground also relates to PJ2 and the orders made by Emmett J, for which leave is required under the Vexatious Proceedings Act. Leave is refused for the same reasons as those given above.

73. For completeness, we would also add that if the appellant requires leave to appeal (as opposed to leave to institute proceedings) in respect of those parts of the amended draft notice of appeal relating to the summary dismissal and related orders, we would refuse to grant such leave. This is because these parts of the amended draft notice of appeal do not raise any issue of principle or point of general importance, nor are we satisfied that the appellant has demonstrated any substantial injustice arising from any error on the part of either Ierace J or Emmett J which is more than merely arguable.

Conclusion

74. For all these reasons, the following orders will be made:

75. The applicant have leave to rely upon the amended draft notice of appeal dated 15 October 2026 on condition that she file and serve an amended notice of appeal in substantially similar terms within seven days hereof.

76. The appeal is dismissed in relation to the grounds in the amended draft notice of appeal dated 15 October 2026 concerning the vexatious proceedings order and related orders made by Ierace J and Emmett J on 6 March 2026 and 30 March 2026 respectively.

77. Under s 15(1)(a) of the Vexatious Proceedings Act 2008 (NSW), the applicant/appellant is refused leave to institute proceedings in respect of the orders dated 6 March 2026 and 30 March 2026 relating to matters other than the vexatious proceedings order and related orders.

78. The summons seeking leave to appeal filed on 4 June 2026 is dismissed.

79. The applicant/appellant pay the respondent’s costs of both the appeal and the summons seeking leave to appeal.

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