/

/

Sasterawan v Molla [2026] NSWSC 1116 | Case summary | Zoe

NSWNSWSC

Sasterawan v Molla

[2026] NSWSC 1116

Supreme Court of NSW|2026-09-15|Before: Parker J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-09-15

Before

Parker J

Catchwords

PRACTICE AND PROCEDURE — persons under legal incapacity — capacity of a self-represented litigant to conduct proceedings — question to be determined separately under UCPR r 28.2 — opposing party also becomes self-represented — Court declines to read evidence of its own motion — presumption of capacity not displaced — comments on procedure — application for stay as an alternative — UCPR rr 7.14, 7.18

Source

Original judgment source is linked above.

Catchwords

PRACTICE AND PROCEDURE — persons under legal incapacity — capacity of a self-represented litigant to conduct proceedings — question to be determined separately under UCPR r 28.2 — opposing party also becomes self-represented — Court declines to read evidence of its own motion — presumption of capacity not displaced — comments on procedure — application for stay as an alternative — UCPR rr 7.14, 7.18

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Sasterawan v Molla [2026] NSWSC 1116

Hearing dates: 20 August 2026

Date of orders: 20 August 2026

Decision date: 15 September 2026

Jurisdiction: Equity

Before: Parker J

Decision: See [64]-[65]

Catchwords: PRACTICE AND PROCEDURE — persons under legal incapacity — capacity of a self-represented litigant to conduct proceedings — question to be determined separately under UCPR r 28.2 — opposing party also becomes self-represented — Court declines to read evidence of its own motion — presumption of capacity not displaced — comments on procedure — application for stay as an alternative — UCPR rr 7.14, 7.18

Legislation Cited: Civil Procedure Act 2005, ss 67, 86(3)
Evidence Act 1995, s 91(1)
Uniform Civil Procedure Rules 2005, rr 7.13-7.18, 28.2

Cases Cited: Angius v Salier (No 4) [2019] NSWSC 1698
Bobolas v Waverley Council [2012] NSWCA 126
Bowering v Knox [2014] NSWSC 1107
Gorczynski v Bendigo & Adelaide Bank Ltd [2016] NSWCA 170
Murphy v Doman (2003) 58 NSWLR 51
Re P [2006] NSWSC 1082
Re WS [2017] NSWSC 745
Sasterawan v Molla [2025] NSWDC 185
Slaveski v Victoria (2009) 25 VR 160

Texts Cited: nil

Category: Principal judgment

The defendant, Parulunnessa Molla, is the wife of Jamir Ali. The plaintiff, Wahyu Sasterawan, has a long-standing claim that Mr Ali is indebted to him.
In 2022, Mr Sasterawan brought an action in the District Court against Ms Molla (“DC action”). He alleged that she had guaranteed the payment of the debt allegedly owed by Mr Ali to Mr Sasterawan. He sought judgment against her in the sum of $195,000 plus interest.
The action came before Judge Weber SC, who delivered judgment in May last year: Sasterawan v Molla [2025] NSWDC 185. His Honour was satisfied (because no evidence was led to the contrary) that Mr Ali was indebted to Mr Sasterawan as Mr Sasterawan claimed, but was not satisfied that the debt had been guaranteed by Ms Molla. He gave judgment for Ms Molla on Mr Sasterawan’s claim.
Judge Weber also ordered Mr Sasterawan to pay Ms Molla’s costs (both of them had been represented by solicitors and counsel in the proceedings). On 30 July last year, presumably as a result of an application on Ms Molla’s behalf, his Honour made an order fixing Mr Sasterawan’s liability under the costs order in the lump sum of $82,391.
There are now two sets of proceedings before the Court. In both proceedings, Mr Sasterawan is acting as a litigant in person.
The first set of them is in the Court of Appeal (“CA proceedings”). They were commenced by way of summons filed on 1 September last year. Mr Sasterawan seeks leave to appeal against the May judgment in the DC action.
The second is in this Division (“ED proceedings”). They were commenced by summons filed on 4 November last year. Mr Sasterawan claims a declaration that the costs order made by Judge Weber SC on 30 July “was procured by fraud and is void of no effect; alternatively, that it be set aside”.
Mr Vaikom Rajeev, a solicitor in practice at Campbelltown, acted for Ms Molla in the DC action. Mr Rajeev filed a notice of appearance on behalf of Ms Molla in the CA proceedings. But, although for a period he acted for Ms Molla in the ED proceedings, he has not, according to the records of the Court, ever filed a notice of appearance.
Earlier on the same day on which the ED proceedings were commenced, a bankruptcy notice was issued against Mr Sasterawan on the application of Mr Rajeev, acting for Ms Molla. The notice required payment of the District Court costs judgment plus accrued interest. By his summons in the ED proceedings, Mr Sasterawan claimed, by way of interlocutory relief, an interim injunction to restrain Ms Molla from pursuing any bankruptcy proceedings on the costs judgment, and orders for the production of documents. He however took no immediate steps to pursue those claims for interlocutory relief.
At about the same time as the bankruptcy notice was issued and the ED proceedings commenced, two notices of motion were filed in the CA proceedings. Mr Sasterawan filed a notice of motion, which sought, among other things, orders preventing Mr Rajeev from acting for Ms Molla in the proceedings. Mr Rajeev filed, on Ms Molla's behalf, a notice of motion seeking security for costs.
On 6 November the Court of Appeal Registrar fixed both motions for hearing on 17 November. But on 12 November, the Registrar made an order vacating the motion hearings and listing the proceedings for directions in the Protective List on 17 November instead. The orders were made in chambers, and there was (at least, it seemed, in the evidence before me) no record of the Registrar’s reasons for making them.
Both proceedings duly came before Lindsay J in the Protective List on 17 November. Mr Sasterawan appeared for himself. Counsel instructed by Mr Rajeev (Ms F Sinclair) appeared for Ms Molla in both proceedings (despite the lack of a notice of appearance in the ED proceedings).
His Honour made notations and orders in the same form in both proceedings, which relevantly included:

Because of the late service of Ms Sinclair’s submission and Mr Rajeev’s affidavit, the proceedings were adjourned to allow Mr Sasterawan an opportunity to reply. They returned to Lindsay J for further directions on 2 April. On that occasion Ms Sinclair attended Court as a courtesy, advising that her instructions and those of Mr Rajeev had been withdrawn. Ms Molla did not appear.
His Honour referred the proceedings to the Equity Registrar for the purpose of fixing a date for the hearing of the separate question. He also directed Mr Sasterawan to draw the judgment in Re WS to the attention of the judge allocated to hear the matter.
As a result of the referral, the hearing of the separate question was fixed before me to take place on 20 August. I convened a pre-trial directions hearing which took place on 3 July. Mr Sasterawan appeared, but there was no appearance for Ms Molla. In her absence, it was unclear what shape the hearing on 20 August would take and it was not practicable to make any further directions about how it was to be conducted.
Meanwhile, Mr Sasterawan had brought proceedings in the Federal Circuit and Family Court (Division 2) concerning the bankruptcy notice issued by Ms Molla based on the DC costs judgment. A hearing in those proceedings had been fixed for 8 September.
On 10 August, Mr Sasterawan made an urgent application by way of notice of motion for interlocutory relief in the ED proceedings. The application came before Kunc J. Again there was no appearance for Ms Molla, although his Honour was satisfied that she had been given notice. His Honour made an order, until further order, restraining Ms Molla from proceeding further by way of enforcement of the DC costs judgment, including by relying on the bankruptcy notice. He then arranged to have the proceedings on the notice of motion listed before me on 20 August also.
At the hearing on 20 August, Ms Molla did appear in person. She told me that she had consulted Mr Rajeev, who would not be appearing on her behalf but advised her that she could appear in person.
As already noted, Mr Rajeev never formally entered an appearance in the ED proceedings. Ms Molla was therefore entitled to appear to represent herself, although she needed to file a notice of appearance with an address for service, which she agreed to do.
But the CA proceedings were different. Mr Rajeev remained the solicitor on record in those proceedings, and if anyone was to appear for Ms Molla it should have been him or counsel retained by him for that purpose. Strictly speaking, Ms Molla was not entitled to appear for herself while Mr Rajeev remained on the record as her solicitor.
The situation was unsatisfactory. A solicitor in Mr Rajeev’s position should not act in proceedings on some sort of limited basis. The solicitor must either withdraw completely from acting in the proceedings or take responsibility for the carriage of the client’s case.
In ordinary circumstances, it would have been appropriate to require Mr Rajeev to attend Court personally to explain what had happened and to adjourn the proceedings in the meantime, potentially at Mr Rajeev’s personal cost. But given the long delays which have already occurred in the proceedings, I decided to allow the hearing to go ahead with Ms Molla appearing for herself in both sets of proceedings.

UCPR rr 7.13-7.18 apply in all of the New South Wales courts, including this one. But a line of case law establishes that the Court has an additional power of its own which may be available in circumstances such as the present.
The line stems from the decision of Young CJ in Equity in Re P [2006] NSWSC 1082. That case concerned proceedings in the District Court. An application was made under UCPR r 7.18 to that Court for the appointment of the plaintiff’s wife as his tutor to conduct the proceedings on his behalf. The application was made by the plaintiff’s own legal representatives, with his consent. It was however refused by the District Court Judge on the ground that the Court lacked jurisdiction to make such an order. A further application was then made to this Court under r 7.18.
Young CJ considered that the District Court Judge was clearly wrong in the view which she had taken about jurisdiction. But the evidence, which included a report from a medical expert, did not go as far as to say that the plaintiff lacked general capacity to express his will with respect to his property or affairs. It did, however, suggest that the defendant might “have some mental illness of probably a temporary type and may be depressed. He currently had a mental problem with the litigation which prevented him from giving proper instructions to his lawyers.” His Honour said that in these circumstances he did not think that r 7.18 applied.
Rather than send the proceedings back to the District Court, however, his Honour held that this Court could exercise its “inherent power … under its parens patriae jurisdiction to deal with situations such as the present”: at [8]. Noting that the application was made by the plaintiff’s wife, with his consent, Young CJ made the order sought.
Bobolas v Waverley Council [2012] NSWCA 126 concerned an appeal against orders made against Mrs Mary Bobolas and her daughters in the Land and Environment Court requiring the removal and disposal of waste on their premises. Mrs Bobolas and her daughters were all named as the appellants. But the New South Wales Trustee and Guardian had previously been appointed by the Guardianship Tribunal to manage Mrs Bobolas’ finances on the ground that she lacked capacity. That order had been challenged by her daughters, and this Court had set it aside and remitted the matter to the Tribunal, which had not yet redetermined it.
The New South Wales Trustee and Guardian considered itself bound by the order of the Guardianship Tribunal, but declined to act as tutor for Mrs Bobolas for the purposes of the appeal proceedings. Mrs Bobolas’ daughters took the running in the appeal. The question of Mrs Bobolas’ involvement arose. Her daughters took the position that their mother was not in fact a “person under legal incapacity” for the purposes of r 7.18. But if the Court were to find that a tutor was required, then one of the daughters, Ms Elena Bobolas, consented to be appointed.
The judgment of the Court of Appeal was given by McColl JA. The substantive challenge to the orders made by the Land and Environment Court succeeded. That made it necessary to consider what to do about Mrs Bobolas’ status as an appellant.
McColl JA referred to the provisions of r 7.18, emphasising that the Court had power to appoint a tutor (subrule (1)(a)) and to do so of its own motion (subrule (6)). But her Honour observed that it was not open, in the absence of medical evidence, to make a finding that Mrs Bobolas was not a “person under legal incapacity” for the purposes of the rule.
But this was not the end of the question. Her Honour cited the judgment of Young CJ in Re P at [8] for the proposition that “the Court has inherent power to appoint a tutor for the purposes of particular litigation under its parens patriae jurisdiction in circumstances where there may be doubt as to whether a person’s mental state falls within the statutory definition of ‘person under legal incapacity’”: at [60], emphasis added.
Her Honour noted that there was no opposition to the appointment of Ms Elena Bobolas as Mrs Bobolas’ tutor, if necessary. That would allow Mrs Bobolas to benefit from the success of the appeal. Her Honour concluded that the Court of Appeal should “in the circumstances and for more abundant caution” appoint Ms Elena Bobolas to be Mrs Bobolas’ tutor for the purposes of the appeal proceedings: at [62].
It is notable that, although Young CJ seems to have proceeded on the basis that r 7.18 did not apply unless the party in question had a general lack of capacity, subsequent case law has accepted that the rule may be engaged where the disability relates solely to conduct of the proceedings in question. This was the approach expressly taken by Lindsay J in Re WS (see [45]-[47]). It was also reflected in the form of the order for separate determination made by his Honour in these proceedings.
It is also notable that, while in Re P Young CJ initially used language suggesting that there was some doubt about the nature of the defendant’s condition, he later said quite expressly that the defendant was labouring under a mental condition which prevented him from giving proper instructions to his solicitors. Nevertheless, McColl JA expressly stated that the power under the parens patriae jurisdiction, unlike the power under r 7.18, could be exercised in cases where mental incapacity was in doubt. That feature of the decision has been picked up and applied in subsequent decisions: Bowering v Knox [2014] NSWSC 1107 at [62] (Sackar J); Angius v Salier (No 4) [2019] NSWSC 1698 at [13] (a decision of my own; however my order was later set aside, because the appointed tutor, the New South Wales Trustee and Guardian, declined to act, and I now have some doubts about it).

As already noted, the submissions earlier made by Ms Sinclair on Ms Molla’s behalf characterised the proceedings which came before me on 20 August as proceedings brought on the Court’s own motion, though supported by Ms Molla, for a determination that Mr Sasterawan lacked capacity. For reasons given below, there was some procedural uncertainty about that. But on any view there were practical constraints on what the Court could itself do to advance the case for such a determination.
Mr Sasterawan has the right to conduct these proceedings in person. That is a right which he evidently wishes to exercise and which is of importance to him. The Court, in raising a question about his capacity of its own motion (if that was what was happening), had to take particular care to afford procedural fairness to him.
I did not call upon Mr Sasterawan to read into evidence, or tender, the evidence which he had previously filed on the separate question. The presumption of capacity was in his favour. He had no obligation to prove anything. In any event, his evidence was hardly likely to advance the case that he lacked capacity.
In these circumstances, I began by asking Ms Molla whether she wished to read into evidence the affidavit previously filed on her behalf from Mr Rajeev. But she declined. In fact, it quickly emerged that she had little or no understanding of what the hearing was about or how the relevant Court procedures operated.
If what was happening was a hearing of the Court’s own motion, it would in theory have been open to me to read Mr Rajeev’s affidavit into evidence myself. But that would have been highly problematical.
The evidence did not constitute a professional opinion from an independent medical expert. It came from a solicitor for the opposing party. It is no criticism of Mr Rajeev to say that it would, or at least might, have been designed to present a case for incapacity in support of his client’s interests.
In these circumstances, for the Court to present Mr Rajeev’s affidavit to itself would have created an unacceptable risk of drawing the Court into making forensic judgments which could have compromised its ability to remain, and to appear to remain, neutral. I have in mind, for example, judgments about how much of the affidavit to read and what line to take if Mr Sasterawan sought to cross-examine Mr Rajeev or give contradictory or qualifying evidence in response.
It is also far from clear that, even if I had read Mr Rajeev’s affidavit into evidence myself, that would have been sufficient to establish a lack of capacity. As Kyrou J noted in Slaveski v Victoria (2009) 25 VR 160 at [34], while a finding of incapacity may be based on the Court’s observations of a litigant’s conduct, it usually requires expert medical evidence (as it ultimately did in that case, despite the irrational and overbearing behaviour of the plaintiff recorded at [76]).
In truth, it must often be a difficult task to persuade a court, based solely on a litigant’s conduct of proceedings, that the litigant lacks capacity. Every day the courts have to deal with claims (and not always by litigants in person) which appear to be misconceived or to be pursued with an excessive degree of single-mindedness. That is part of the ordinary experience of litigation. Before such conduct can be treated as manifesting some lack of capacity, it is necessary to go further. In my view an extreme level of irrationality or obsession would usually be required.
The requirements of proof may not be so stringent if the application is made under the Court’s parens patriae jurisdiction. But that had not previously been suggested. It was not the question posed in the r 28.2 order. Again, raising the question at the trial could have given rise to procedural unfairness, or at least a perception of procedural unfairness.
I did of course have regard to the judgment in Re WS, in accordance with Lindsay J’s direction. But the judgment was not evidence of the facts found by his Honour: Evidenc**e Act 1995, s 91(1). Moreover, it concerned Mr Sasterawan’s conduct in separate litigation conducted nearly a decade ago. As the judgment itself recognises (at [25]), the question of capacity is always specific to the current conduct of the subject litigation.
Whether it is open to a judge hearing an application such as the present to take into account that judge’s own experience with the litigant, through the litigant’s communications with the Court and conduct at hearings, must be questionable. In the present case my experience of dealing with Mr Sasterawan was limited. I should acknowledge, however, that I saw nothing to suggest a lack of capacity. On the contrary, Mr Sasterawan’s correspondence and presentations in Court were, whatever their merits, respectful and moderate.
I therefore found it impossible to reach the conclusion that Mr Sasterawan lacked the capacity to conduct the proceedings. There was no choice but to make an order resolving the separate question in his favour.
No question of making a costs order in favour of Mr Sasterawan arose (which was just as well, given the uncertainty to which I refer below about the nature of the proceedings). But I did consider it necessary to make an order depriving Ms Molla of any costs, given that for part of the proceedings she had been legally represented and had contended (ultimately unsuccessfully) that Mr Sasterawan lacked capacity.