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[2026] NSWCA 208
respondent. The applicant’s notice of motion was dismissed with costs, and she was ordered to pay the State $35,000 for the leave application costs and $4,000 for the costs of the motion and gross sum costs...
The Court declined to reopen its earlier refusal of leave to appeal. It treated most of Zey’s complaints as attempts to revisit conclusions already reached, not as proof that the Court had misunderstood the case. Although the Court acknowledged that it had not addressed one argument about LEPRA Pt 15, it considered the small amounts at stake and the likely costs of further proceedings decisive against reopening. It also refused to hear proposed witnesses on the underlying events because their evidence was outside the costs application. The State received gross sum costs, discounted from its claim.
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2,304 words · generated 08/10/2026
This judgment concerns two connected matters before the NSW Court of Appeal: Eedra Zey’s attempt to reopen an earlier refusal of leave to appeal, and the State of New South Wales’ application to have its costs fixed as gross sums.
11 cited instruments linked from this judgment.
On 15 July 2026, the Court refused Zey leave to appeal from three District Court decisions in her proceedings against the State. The earlier orders also set a timetable for evidence and submissions on the State’s anticipated gross sum costs application, and formally discharged a stay of enforcement of the District Court costs order ([1]-[2]).
On 29 July 2026, Zey filed a motion under UCPR r 36.16(3A). She sought to set aside the refusal of leave, have leave granted instead, or have the leave application reopened and redetermined. She also sought orders affecting the stay of enforcement, including pending determination of an Australian Human Rights Commission complaint ([4]). The State, meanwhile, sought a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) ([45]).
The Court heard both applications on 21 September 2026, dealing first with Zey’s motion because its result could affect whether the costs issue needed to be determined at that stage ([6]). It dismissed her motion and ordered her to pay the State $35,000 for the leave application and $4,000 for the costs of the later motion and gross sum costs application ([65]).
The Court began with the parties’ agreed understanding of the principles under UCPR r 36.16. The rule’s power is exercised “sparingly and with caution”, in light of the importance of finality. It is not a mechanism for an unsuccessful party to re-argue issues in the hope of a different result ([7]). The judgment distinguishes a genuine misapprehension, such as oversight or inadvertence, from a deliberate judicial conclusion that the applicant says was wrong ([7], [33]).
Zey’s first central complaint concerned proposed ground 2 of her draft notice of appeal. She said it raised procedural unfairness about a trespass to land claim: the District Court judge had allegedly decided the claim on an implied licence that the State had not pleaded. In her phrase, the judge had “pulled something out of their hat” ([9]). Zey argued that the Court of Appeal’s earlier reasons treated this ground as concerning the towing of her vehicle instead of the entry onto her land ([10]).
The Court examined the actual leave submissions rather than treating the label attached to the proposed ground as conclusive. It found that the written submissions did mention the procedural fairness point, but that their main focus was challenging the primary judge’s finding that an implied licence existed ([16]-[19]). The State’s response had also addressed the substance of the implied-licence argument, and Zey replied to that response ([20]-[22]). The Court of Appeal had dealt with the implied-licence issue in its earlier judgment, including the merits of the primary judge’s conclusion and the small amount of damages involved ([23]-[25]).
The Court therefore considered that even if it had approached proposed ground 2 on a mistaken footing, that would not justify granting leave. The relevant issue had already been assessed in the context of proposed ground 1, and the Court had refused leave on both merits and proportionality grounds ([24]-[27]).
Zey also challenged the earlier Court’s treatment of separate vehicle-removal events and argued that safeguards in Pt 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) had not been addressed. The Court characterised the complaint about applying reasoning from one event to another as, in substance, disagreement with how it had decided the leave application. That was not enough to establish a misapprehension within r 36.16 ([29]-[33]).
The Court did acknowledge that its earlier reasons had not addressed the possible application of Pt 15 safeguards to the source of power it had identified ([36]). But it concluded that reopening was not justified. An appeal and possible remittal would entail costs likely to be grossly disproportionate to the sums involved in the trespass to goods claims. The Court described the stakes as “especially small” and finality considerations as “overwhelming” ([37]-[39]). It did not decide whether Pt 15 applied or what consequences any non-compliance would have. It noted that answering those questions would likely require analysis of the extent and consequences of any departure from the statutory provisions ([37]-[38]).
The Court rejected the complaints about the Inclosed Lands Protection Act 1901 (NSW) and LEPRA Pt 16A for a different reason. The earlier judgment had considered the utility of those arguments: the statutory description of the property would not assist in determining, on the facts, whether an implied licence had been negated. Disagreement with that reasoning did not establish that the Court had misunderstood the argument ([40]-[41]).
Zey’s request to adduce evidence from three State officers was refused because it concerned the underlying events and responsibility for the original dispute. By then, the Court had already made an order that Zey pay costs. The question before it was whether to fix those costs as a gross sum, not to reopen the substance of the District Court claims. The Court said the proposed evidence went “well beyond the scope” of the application and that obtaining it would involve time and cost inconsistent with the Civil Procedure Act’s overriding purpose ([57]-[58]).
Finally, the Court considered the State’s evidence of invoices, disbursements and work in progress. It accepted that the material supported fixing a gross sum, while identifying some duplication of work and the preparation of a 450-page supplementary folder to which the State had made only limited reference. The Court concluded that Zey should not bear the costs of preparing that folder and applied an overall discount ([62]-[64]).
The judgment presents r 36.16 as an established, narrow power. It does not announce a new test. Instead, it applies principles summarised in Dibb v Transport for New South Wales (No 2) [2024] NSWCA 176 and refers to earlier authority for the need for caution, finality, and a distinction between inadvertence and an alleged error in a deliberate decision ([7], [33]).
The decision illustrates two separate questions when a party seeks reopening. First, has a relevant misapprehension actually occurred? Second, if it has, should the Court exercise its discretion to vary its orders? The Court’s treatment of the Pt 15 argument demonstrates that identifying an issue not addressed previously does not automatically determine the second question. Here, the Court accepted that the earlier reasons had not dealt with that argument, but declined to reopen because of the small amounts involved and the expected disproportionate cost of further proceedings ([36]-[39]).
The costs analysis applies s 98(4)(c) of the Civil Procedure Act, which permits an order for a specified gross sum instead of assessed costs ([45]). The judgment describes the discretion as broad, but conditioned on fairness and sufficient confidence in fixing an appropriate amount from the available material. It also recognises that the Court need not perform the detailed examination associated with a formal assessment ([46]-[48]).
The judgment’s practical contribution is in its application of those principles to a costs dispute following an unsuccessful leave application. The Court assessed the costs material at a broad level, adjusted for features it considered should reduce the award, and fixed sums rather than referring the matter for assessment ([63]-[64]). It also treated evidence concerning the underlying merits as outside the relevant inquiry once the costs order itself had been made ([58], [61]).
At [33], the Court stated that there is “a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law” and reaching a conclusion that the applicant considers mistaken. In plain English, an application to reopen is not an appeal by another name. The applicant must identify a genuine misunderstanding or oversight, not merely argue that the Court’s reasoning was wrong.
At [39], the Court said “the stakes are especially small and considerations of finality are overwhelming.” This was not a general declaration that small claims can never justify appeal. It was the Court’s assessment of this case, in which the amounts in issue were small compared with the costs likely to be incurred in an appeal and possible remittal.
At [38], the Court noted that resolving the Pt 15 question would likely require consideration of “the extent and consequences of any departure” from the statutory provisions. That passage identifies the legal questions left unresolved. It does not answer whether the safeguards applied, whether they were breached, or what effect any breach would have.
At [58], the Court explained that evidence about events underlying the District Court claims was of “limited if any relevance” to the present question of a gross sum costs order. The distinction was between the merits and history of the original dispute, on one hand, and the costs of the unsuccessful Court of Appeal proceedings, on the other.
At [64], the Court stated that it would “apply an overall discount” and fix the costs for the leave application at $35,000. The judgment explains that the Court took a broad-brush approach, including by excluding the cost of preparing the supplementary folder. It fixed a further $4,000 for the two later applications.
The judgment is relevant where a party seeks to reopen a Court of Appeal order under UCPR r 36.16(3A), arguing that the Court misunderstood a ground of appeal, overlooked a submission, or proceeded on a mistaken view of the facts or law. It is particularly useful for distinguishing a claimed oversight from an attempt to revisit the substance of a decision. The Court compared the applicant’s stated ground with her written submissions, the opposing submissions, and her reply, rather than relying only on how the ground had been labelled ([16]-[25]).
It is also relevant where an applicant identifies an issue that was not expressly resolved in the earlier reasons, but the Court must decide whether reopening is warranted. The judgment shows that the existence of an unaddressed point does not end the inquiry. The likely cost of further litigation, the sums at stake, and finality may affect whether the Court exercises its discretion ([36]-[39]).
For costs practitioners, the decision concerns applications under s 98(4)(c) where a party seeks a specified gross sum instead of a formal assessment. The State relied on a solicitor’s affidavit, invoices and an estimate of ongoing work. The Court examined the relationship between the claimed costs and the proceedings, considered duplication and unnecessary work, and fixed a discounted sum ([48]-[52], [63]-[64]).
The ruling on evidence is relevant where a party opposing a gross sum costs order seeks witnesses to explain the origins of the underlying dispute or the other party’s responsibility for it. The Court treated the scope of the present application as important: the costs order already existed, and the matter before it concerned the form and amount of costs, not the merits of the original claims ([57]-[58], [61]).
This judgment is dated 30 September 2026 and the material provided contains no later judicial treatment of Zey v State of New South Wales [2026] NSWCA 208. It is therefore not possible, on this source alone, to say how later courts have applied, followed or distinguished this decision.
The judgment itself relies on earlier authorities. Dibb v Transport for New South Wales (No 2) [2024] NSWCA 176 is used to summarise the principles under UCPR r 36.16 ([7]). Majak v Rose (No 5) [2017] NSWCA 238 and Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 are relied on for the caution against re-agitation and the distinction between misapprehension and an alleged mistake ([7], [33]).
For costs, the Court refers to Gabrielle v Abood (No 4) [2023] NSWCA 100 for the principles governing gross sum orders and Amirbeaggi v EB (No 2) [2023] NSWCA 184 for the relevance of proportionality and evidence of costs incurred ([46]-[48]). It also refers to Hamod v New South Wales [2011] NSWCA 375 concerning avoidance of the expense and delay of a contested assessment ([62]). Those references show the authorities the Court considered; they do not establish how any later court has treated the present judgment.
The Court expressly left unresolved whether LEPRA Pt 15 applied to the power relied on to remove the vehicle, and what legal consequences any departure from its safeguards might have ([37]-[38]). It recorded the State’s submissions on the interaction between LEPRA and the Road Transport Act 2013 (NSW), but did not decide them ([37]). The judgment therefore should not be read as determining the statutory scope or effect of those provisions.
The Court also did not decide the substantive trespass claims anew. Its task was to determine whether to reopen the earlier refusal of leave and how to deal with costs. Its observations about the underlying facts, including the primary judge’s findings referred to at [38], formed part of its consideration of why reopening was not warranted, not a fresh determination of liability.
The decision does not prescribe a general monetary threshold below which leave to appeal or reopening must be refused. It applies proportionality and finality to the circumstances before it, referring to the small sums at stake and the likely expense of further proceedings ([26]-[27], [37]-[39]).
Nor does the judgment set out a formula for calculating a gross sum costs order. It records the State’s claim, identifies some features that affected the assessment, and fixes discounted sums through a broad-brush approach ([49]-[52], [63]-[64]). The amount remains dependent on the evidence and circumstances of each application.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Zey v State of New South Wales [2026] NSWCA 208
Hearing dates: 21 September 2026
Date of orders: 30 September 2026
Decision date: 30 September 2026
Before: Ward ACJ; Mitchelmore JA
Decision: (1) The applicant’s notice of motion dated 29 July 2026 is dismissed with costs.
(2) The applicant is to pay the respondent:
(a) $35,000 for the costs of the application for leave to appeal; and
(b) $4,000 for the costs of the applicant’s motion and the respondent’s application for a gross sum costs order.
Catchwords: JUDGMENTS AND ORDERS — amending, varying and setting aside — Court of Appeal — application to reopen and vary orders under UCPR r 36.16(3A) — whether judgment affected by misapprehensions — whether misapprehension on part of Court warrants orders being varied — no basis for reopening — application dismissed
COSTS — gross sum costs order — where applicant opposes gross sum costs order — where applicant seeks to adduce evidence beyond scope of Court of Appeal proceedings — application to subpoena witnesses refused — gross sum costs order appropriate in the circumstances
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60, 98
Inclosed Lands Protection Act 1901 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pts 15, 16A
Road Transport Act 2013 (NSW), ss 23, 143
Road Transport (General) Regulation 2013 (NSW), cl 39
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Amirbeaggi v EB (No 2) [2023] NSWCA 184
De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14
Dibb v Transport for New South Wales (No 2) [2024] NSWCA 176
Gabrielle v Abood (No 4) [2023] NSWCA 100
Hamod v New South Wales [2011] NSWCA 375
John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188
Majak v Rose (No 5) [2017] NSWCA 238
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37
Mohareb v Nine Entertainment Co Holdings Ltd (No 2) [2026] NSWCA 117
The trustee for Dawson Street Unit Trust trading as Dawson Street Auto Centre Pty Ltd v 4Cyte Pathology Pty Ltd [2026] NSWCA 78
Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
Category: Consequential orders
Parties: Eedra Zey (applicant)
State of New South Wales (respondent)
Representation: Counsel:
S Woodland (respondent)
Solicitors:
Wotton Kearney (respondent)
File Number(s): 2025/00423763
Publication restriction: Nil
THE COURT: On 15 July 2026, this Court refused an application for leave to appeal from three decisions of the District Court in proceedings that the applicant brought against the respondent, the State of New South Wales (the State): Zey v State of New South Wales [2026] NSWCA 134. These reasons assume familiarity with that judgment.
In addition to refusing leave to appeal (order 2), the Court’s orders included a timetable for evidence and submissions on the State’s foreshadowed application for a gross sum costs order (orders 3 and 4), as well as an order formally discharging a stay of enforcement of the costs order in the District Court proceedings (order 5).
On 29 July 2026, the State filed an affidavit of its instructing solicitor, Patrick Thompson, affirmed 29 July 2026, in support of the application for a gross sum costs order together with written submissions. In response, the applicant filed two affidavits affirmed 9 September 2026 and 11 September 2026, and at the hearing, provided a further affidavit affirmed 18 September 2026. The applicant also prepared written submissions dated 11 September 2026.
Also on 29 July 2026, the applicant filed a notice of motion seeking the following orders:
“1. Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) Order 2 made on 15 July 2026 in Zey v State of New South Wales [2026] NSWCA 134 be set aside.
- In lieu of Order 2, order that leave to appeal be granted.
3. Order 5 made on 15 July 2026 be varied so that the stay of enforcement continue until determination of the appeal or further order.
- Alternatively, to Orders 1–3, the application for leave to appeal be reopened and redetermined after the parties have been given an opportunity to be heard.
- Alternatively, to Order 3, [Order 5] be varied so that the stay of enforcement continue until the determination of the Australian Human Rights Commission complaint 2025-07621.
- The applicant be heard on Costs.
- Such further or other orders as the Court considers appropriate.”
The applicant’s notice of motion was supported by an affidavit of the applicant affirmed 24 July 2026. The applicant also provided written submissions in chief dated 28 July 2026 and in reply dated 14 September 2026. The respondent has filed written submissions on the applicant’s notice of motion dated 18 August 2026.
The applicant’s notice of motion was listed for hearing on 21 September 2026. In light of the order sought in that notice of motion that the applicant be heard on costs, the State’s application for a gross sum costs order was also listed for hearing on 21 September 2026. The Court observed at the hearing that this approach was adopted in the interests of avoiding multiple hearings, whilst recognising that as the outcome of the applicant’s application could affect the necessity of dealing with costs at this stage, it was necessary to consider that application first.
“[8] The principles that govern an application pursuant to UCPR, r 36.16 were recently summarised by this Court in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [13]-[22]. The power conferred under UCPR, r 36.16 is to be exercised ‘sparingly and with caution’ having regard to the importance of the finality of litigation, and ‘does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them’: Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13] (Leeming and Simpson JJA, Emmett AJA) (‘Majak’). The jurisdiction is not to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their case: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 (Mason CJ).
[9] Whilst jurisdiction under UCPR, r 36.16 may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).”
The applicant submitted that proposed ground 2 of her draft notice of appeal raised a procedural fairness complaint regarding how the primary judge dealt with her trespass to land claim. She submitted that in defence of that claim, the State pleaded only a statutory authority, but the primary judge determined the claim on the basis that the State had an implied licence to enter, when that was not a matter that the State had pleaded. In her oral submissions on 21 September 2026, the applicant described the primary judge’s approach in colloquial terms, as having “pulled something out of their hat”.
The applicant submitted that she raised this alleged denial of procedural fairness in her application for leave to appeal, but the Court did not address it in the reasons for judgment. The applicant pointed to the Court’s reasons for judgment at [145]-[153], in which the Court evaluated arguments in relation to the towing of her vehicle, in particular her contention that the State’s reliance on cl 39 of the Road Transport (General) Regulation 2013 (NSW) was a post-event justification without statutory basis. The Court determined the proposed ground on the basis that even if the police officers acted under a mistaken belief as to the source of the power to remove the vehicle, there was a source of power to do so, and did not accept that there was a denial of procedural fairness, or an issue of principle or public importance. The applicant submitted that it was apparent from these paragraphs that the Court misapprehended proposed ground 2 as relating to the removal of her vehicle, rather than her trespass to land claim.
The applicant submitted that this misapprehension was sufficient to engage the power in r 36.16(3A) of the UCPR. She submitted that the misapprehension was not caused by any failure on her part, in circumstances where the complaint was expressly identified in the draft notice of appeal and was developed in her written submissions.
The applicant’s affidavit affirmed 24 July 2026 contained a “documentary sequence” on which she relied in support of her argument. The applicant referred to her Amended Statement of Claim at [13], in which she pleaded the trespass to land (affidavit [7]), the responsive paragraph of the State’s Amended Defence which responded to that pleading (affidavit [8]), and the primary judge’s conclusions on the claim in the principal judgment at [153]-[154] (affidavit [9]-[10]). The applicant then set out proposed ground 2 of the draft notice of appeal, extracts from the parties’ written submissions on that proposed ground (affidavit [11]-[15]), and, finally, a summary of the Court’s reasons at [145]-[153] (affidavit [16]-[26]).
The applicant submitted that the procedural fairness complaint was one that warranted a grant of leave to appeal and, ultimately, an order remitting the matter for a new trial. She submitted that it was appropriate to vary the judgment and orders so as to grant leave to appeal in respect of ground 2 and the related grounds which were affected by the misapprehension. Alternatively, she submitted that the application for leave to appeal should be reopened and redetermined on the case advanced, after a further opportunity for the parties to be heard. The applicant submitted that the High Court’s decision in (1997) 190 CLR 207; [1997] HCA 14 at 215 confirmed that the power to reopen a judgment or order may be exercised where the Court proceeded on a misapprehension and “the interests of justice so require”.
“By deciding the trespass matter on an unpleaded defence, the primary judge denied the applicant procedural fairness.”
“…
The failure to determine the pleaded issue of trespass to vehicle on 21 Sept. 2019.
…
The Court determined the pleaded issue of trespass by entry on a basis other than the only pleaded defence being cl 39 of the Road Transport (General) Regulation 2013 (RT(G)R 2013), thereby denying the applicant an opportunity to respond.”
“[18] The judge erred in finding that police entry on 21 September 2019 was via ‘an open driveway’ J2 [153] and ‘implied licence to enter’ existed. J2 [154].
(a) The only defence pleaded at AD [13], namely cl 39(2)(b) of the RT(G)R 2013, The ‘open driveway’ finding was against the weight of evidence including the photos in J2.
(b) Photos showing a large ‘NO ENTRY’ sign, an orange tape barrier and a privacy screen in front of the gate were admitted without objection and reproduced at J2 [68]; photos showing a ‘PRIVATE’ and ‘NO ENTRY’ sign on the gate were likewise admitted and reproduced at J2 [66].
(c) At common law, an implied licence extends only to the door normally used for communication with an occupier. Bypassing that door and proceeding uninvited 16 metres down a side driveway to a gate not visible from public land remains trespass absent clear statutory authority.
[19] The judge, having made no adverse credit findings on SC Edwards’ evidence J2 [103], failed to consider material aspects of that evidence, including:
(a) Admitting under oath he could not recall ‘whether there was any signs or not any signs’ T287.43 and reiterating ‘I don’t recall.’ T287.48.
(b) When asked by the judge about a ‘No Entry’ sign, Edwards replied: ‘Now, your Honour I wouldn’t enter, but back then I probably would have entered. Just a lot more aware now of what’s required.’ T288.1-6.
(c) When asked about a ‘No Trespassing’ sign, he said he would still have entered ‘back then, yes.’ T288.13-19.
(d) He stated his basis of entry was to ‘resolve the situation quickly and effectively.’ T288.10-11. There was simply no evidence given by the defendant’s sole witness as to the legality of the entry or of the vehicle seizure.
(i) The applicant was unable to cross-examine due to ill-health.”
(Emphasis added.)
It is apparent from the above extract that although the first part of [18(a)] raised the procedural fairness point, the focus of the applicant’s submissions was the primary judge’s finding that an implied licence existed.
In responding to the applicant’s submissions in support of leave, the State pointed out at [14] that the complaints the applicant advanced departed from the notice of appeal; and that as she was self-represented it would treat those complaints as her proposed grounds of appeal. In relation to her submissions in [18]-[19], the State addressed the merits of the applicant’s submissions impugning the primary judge’s finding of an implied licence at [24]-[27], submitting at [27]:
“Even if the primary judge erred, it would not make any meaningful difference to the outcome. At trial, the State conceded a small period of trespass to land on 21 September 2019, which occurred when ‘the implied licence to be on the premises was revoked whilst the police were seeking, without success, to enlist the plaintiff’s co-operation to abate public nuisance over which she had control’: PJ [228]. For this cause of action, in light of the triflingly short period of trespass, and the fact that it was caused by the plaintiff’s uncivil course of conduct, the primary judge awarded $1 in damages: PJ [233] and [237]. Accordingly, to find that the police also trespassed when they initially entered Ms Zey’s property on 21 September 2019 would result in, at best, the addition of some further nominal figure to the existing $1 of damages.”
(Emphasis in original.)
As to the applicant’s submissions at [19], the State submitted, in essence, that the evidence of SC Edwards on which she relied could not have made any difference to the orders.
In her submissions in reply on the leave application, the applicant expressly referred to [14] of the State’s response and adopted the same course as the State had taken in treating the contents of her submissions as her proposed grounds of appeal: at [2]. In reply to the State’s submission at [27], the applicant took issue with the description of her trespass claim as “trifling” by reference to the nominal damages awarded before submitting that liability must be determined before quantum and that “the award of nominal damages cannot excuse a failure to determine liability according to the pleadings”: at [31], see also [32].
The Court addressed the applicant’s complaint about the primary judge’s finding that an implied licence existed in the context of proposed ground 1, at [133] to [144]. At [134]-[135], the Court summarised the submissions she advanced in support of leave, including that “the only defence pleaded in the Amended Defence (at [13]) was cl 39(2)(b) of the [Road Transport (General) Regulation]”. At [142]-[143], the Court summarised the applicant’s submissions in reply, including in response to the State’s submissions at [27] and the further submission that she was seeking to correct the anterior legal error.
The Court’s determination at [144], that the primary judge’s finding about the implied licence did not warrant a grant of leave to appeal, was put on two bases. First, the applicant had not raised any error more than merely arguable in relation to the primary judge’s factual findings and the conclusion of law his Honour drew from those findings. Secondly, accepting the State’s submission in [27], the Court considered that “given the quantum of damages awarded for the conceded short period in which there was a trespass to land, there is no warrant for leave to be granted in relation to this issue”.
It is the case that the Court then proceeded to consider proposed ground 2 of the draft notice of appeal on the basis that it was directed to a denial of procedural fairness in relation to the applicant’s trespass to vehicle claim. However, the Court had already addressed the complaint about the primary judge finding an implied licence to enter her land in the context of proposed ground 1, refusing leave both on the merits of the primary judge’s conclusion and because of the small amount of money involved in the claim.
In its reasons at [119], the Court described the monetary threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW) as “specified for the purpose of limiting appeals to this Court, which functions to recognise the desirability of early finality in the determination of small claims”. The monetary limit for appeals as of right “reflects the need to guard against appeals in which there is disproportionality between the value of the matter at issue and the cost of protracted litigation, both to the parties concerned and to the system more generally”: [2026] NSWCA 78 (“”) at [12].
In addition to the alleged primary misapprehension, the applicant submitted that there were a variety of secondary “apparent misapprehension[s]” in relation to her claimed trespass to goods, being her vehicle, on 17 September 2021 and 21 September 2021. For the reasons set out below, the applicant has not established a basis on which the Court would vary its orders pursuant to r 36.16(3A) of the UCPR.
Misapprehension in relation to the claimed trespass to goods on 21 September 2019: The applicant referred to proposed ground 1(a) of the draft notice of appeal, which contended that the primary judge had failed to determine the separately pleaded trespass to goods claim arising from the removal of her vehicle on 21 September 2019. As to that proposed ground, the Court concluded that the reasoning of the primary judge on the applicant’s claim for trespass to goods arising from the removal of her vehicle on 17 September 2019 was equally applicable to the claim arising from events on 21 September 2019: at [118]. The Court also took into account that the amount involved in the claim fell well below the monetary threshold: at [119].
The applicant submitted that the reasoning on the 17 September 2019 trespass claim was “event-specific” and should not have been applied to a separate and unique event. She submitted that in circumstances where the primary judge did not make any factual findings regarding the 21 September 2019 event, the Court had treated findings made from evidence that was specific to one event as dispositive of a separately pleaded claim arising from another event, without identifying the necessary factual and statutory conditions.
The applicant submitted that it was necessary for the State to prove “that cl 39 was objectively engaged on 21 September 2019, whether any required opinion, belief or satisfaction was formed, whether all statutory conditions were satisfied, and whether the procedures and safeguards governing that exercise of power, including any applicable LEPRA Pt 15 safeguards, were complied with”. The applicant submitted that these questions were directed to the lawfulness of the admitted interference and were capable of affecting the outcome of the leave application, such that in adopting the approach that it did, the Court’s refusal of leave proceeded on a material misapprehension of the issues raised by the proposed appeal.
Although formulated as raising a “misapprehension” on the part of the Court so as to engage r 36.16(3A), in substance the applicant’s submissions challenge the manner in which the Court determined the arguments she raised on this issue in her application for leave to appeal. The applicant’s argument was, in essence, that in refusing leave to appeal the Court was wrong to conclude that the primary judge’s reasoning in relation to the claimed trespass on 17 September 2019 was equally applicable to the claimed trespass on 21 September 2019.
In the context of the application of r 36.16, there is “a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake”: [2015] NSWCA 362 at [17]. This aspect of the applicant’s arguments falls into the latter category. The power in r 36.16 “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: [2017] NSWCA 238 at [12]-[13]. The applicant has not established a misapprehension on the part of the Court on this basis so as to engage r 36.16 of the UCPR.
It follows that the Court would not make the orders the applicant sought pursuant to r 36.16(3A) of the UCPR either to vary order 2 so as to grant leave to appeal (prayer 2) or to reopen and redetermine the application for leave to appeal (prayer 4).
The applicant also sought to stay order 5 of the Court’s orders, either pending determination of any appeal or further order (which for the reasons given above will not be occurring) (prayer 3) or pending determination of the complaint she has made to the Australian Human Rights Commission (prayer 5). In its terms, order 5 formally discharged the stay of enforcement of the costs order made by the primary judge for the avoidance of doubt. It is not an order that is amendable to variation and, in any event, the applicant has not established a basis on which the Court would grant what is in substance a stay of enforcement of the District Court’s costs order.
The respondent sought its costs of this application and the applicant did not advance a basis on which the Court would depart from the ordinary rule in r 42.1 of the UCPR. It follows that this application will be dismissed with costs.
The State has applied for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), which provides that at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to “a specified gross sum instead of assessed costs”.
The principles relating to the making of a gross sum costs order are well settled. In Gabrielle v Abood (No 4) [2023] NSWCA 100 at [6], the Court summarised the applicable principles as follows:
“The power to make a gross sum costs order provided by s 98(4)(c) of the Civil Procedure Act 2005 (NSW) is discretionary. Authority establishes that the discretion is not confined and may be exercised whenever the circumstances warrant its exercise; it should only be exercised when the Court considers that it can do so fairly between the parties, and that includes having sufficient confidence in arriving at an appropriate sum on the materials available; courts have typically applied a discount in assessing costs on a gross sum basis; and the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment...”
In addition to the matters to which the Court referred in that extract, courts have also taken into account s 59 of the Civil Procedure Act, which requires the Court to implement steps to eliminate unnecessary delay; and s 60 of the Act, which imposes a requirement to maintain costs within a range which is “proportionate to the importance and complexity of the subject-matter in dispute”: Amirbeaggi v EB (No 2) [2023] NSWCA 184 (“Amirbeaggi v EB”) at [4]-[5].
The Court has a broad understanding of the costs involved in proceedings before it, but “it is usual for a party seeking a gross sum costs order to provide evidence of the costs in fact incurred and paid”: Amirbeaggi v EB at [13]. As noted above, the State read an affidavit of Mr Thompson, who is a partner at Wotton Kearney (WK) and has practised as a litigation solicitor for some 14 years.
According to Mr Thompson’s affidavit, since the applicant filed her summons seeking leave to appeal, WK had rendered invoices (copies of which were exhibited to his affidavit) for professional costs and disbursements totalling $84,373.12. From this total, Mr Thompson subtracted the costs associated with: (i) miscellaneous attendances pre-dating the commencement of the appeal; (ii) the applicant’s application in the District Court to stay enforcement of the costs order; (iii) the State renewing a writ of levy in relation to the applicant’s property and seeking to register that writ; and (iv) costs of the Federal Court proceedings in which the applicant sought to restrain the State in relation to its conduct in the Court of Appeal proceedings. This left a claim for professional costs of $41,753.51 and disbursements of $14,149.61, totalling $55,903.12 (including GST). Mr Thompson estimated that there was (conservatively) approximately $10,000 in work in progress as at the time of affirming his affidavit, including the costs associated with preparing the affidavit and written submissions on the motion.
In support of the amount claimed, Mr Thompson set out the hourly rates for the three WK employees who primarily worked on the matter, noting that the rates were for work done for NSW Police which, on Mr Thompson’s evidence, were reasonably comparable to the market rates charged by similar firms for work in government and insurance litigation. He also noted that counsel briefed in the matter charged at the rates set by the Attorney General for New South Wales for junior counsel which, in Mr Thompson’s experience, were significantly below what counsel can attract for private clients.
Mr Thompson was instructed to seek costs on an ordinary basis for the entire proceedings. Noting that it was appropriate to make a conservative claim for costs when seeking that they be paid on a gross sum basis, Mr Thompson was instructed to claim for 70% of all solicitors’ fees, 85% of all disbursements, and only 85% of interest on costs across the board, even though some of the interest had accrued on disbursements. The amount that the respondent sought was as follows:
| Item | Total | Percentage | Amount claimed | | Solicitors’ costs | $41,753.51 | 70% | $29,227.46 | | Disbursements | $14,149.61 | 85% | $12,027.17 | | Interest on costs | $1,380.91 | 85% | $1,173.77 | | Estimated further WIP ($10,000) | $10,000 | 70% | $7,000 | | Total (rounded down) | $49,000.00 |
Mr Thompson estimated that the costs assessment process would take approximately 6 months to complete, assuming complete cooperation from the applicant. He further deposed that in his experience, costs assessors typically charge between $400 and $600 per hour (excl GST) depending on their seniority and experience. On his estimate, the costs of a costs assessor on any costs assessment would be likely to be between $10,000 and $15,000 (excl GST), in addition to which the respondent would likely need to retain a costs consultant to prepare the application (a further $10,000 to $15,000). These amounts did not include the costs that the State would incur from WK providing advice throughout the process, or any costs to the applicant.
The applicant opposed the application for a gross sum costs order, and she objected to the application being determined on the papers. In her affidavit of 11 September 2026, the applicant said that she had not read Mr Thompson’s affidavit, attributing this to medical conditions of which she gave evidence on the application for leave to appeal. She had, however, used generative artificial intelligence to obtain “limited information sufficient to understand that the respondent seeks a gross-sum costs order against me of $49,000” (11 September 2026 affidavit at [7]). The applicant did not make any submissions that were specifically directed to that amount, how it was calculated, or the underlying entries for costs and disbursements. At the hearing, the applicant did not make any evidentiary objections to Mr Thompson’s affidavit, also stating in this context that she had not engaged with its contents.
As noted above, the applicant read three affidavits on this application, respectively affirmed 9 September 2026, 11 September 2026, and 18 September 2026, to which there was no objection save for one in general terms as to relevance which did not address specific paragraphs. The applicant also prepared written submissions dated 11 September 2026.
In the affidavit of 9 September 2026, the applicant set out the basis for seeking to adduce evidence of what she described as “material facts concerning the responsibility for the expenditure now claimed”. These facts were not within her direct knowledge but, rather, were said to be within the direct knowledge of “three State officers” in respect of whom she sought, in effect, orders in the nature of a subpoena to attend and give evidence. One of the persons was identified only as the “Lake Macquarie Duty Inspector” or “LM DI”, who was referred to, in an internal police record of 17 September 2019 that the applicant extracted in her written submissions at [45], as having some involvement before her vehicle was towed. The applicant identified the two other individuals by name, being Paul Battley and Darryn Cox, both of whom were police officers at the time of the events in question.
The applicant submitted that she had previously asked the State to obtain evidence from these persons, and the solicitor for the State had declined to do so. At the hearing, in support of her application that the three persons give evidence, the applicant submitted that if a costs order was to be made against her, it was necessary to have the full story of who was responsible for the costs being incurred. The applicant submitted that it was necessary to know how the events of 17 and 21 September 2019 came about, how justification for the entry of the Lake Macquarie Duty Inspector came about, and how Chief Inspector Cox (as he then was) came to provide, by way of justification, s 143 of the some 44 days after the events in question. If the evidence she sought was not given, there would be an evidentiary gap which, if used as a basis for fixing the State’s costs against the applicant, risked compensating the State for costs for which it bore material causal responsibility.
“[89] The State seeks to impose an additional $49,000 on [the applicant] through a gross-sum order. Its calculation assumes that the claimed expenditure was simply the consequence of the applicant’s unsuccessful summons for leave to appeal, without examining how those costs were caused or increased. That premise is untenable.
[90] The State asks the Court to compensate it for the cost of defending the lawfulness of coercive State action notwithstanding that the controversy was not completely determined below. The costs of the appeal therefore cannot be treated as arising in isolation from the State’s own forensic choices: the position it maintained in the District Court, its decision not to join in obtaining determination of matters left unresolved, and its defence of the resulting judgment on appeal despite concessions in its own submissions to this Court as to matters not determined below.
[91] Hamod supports the need to consider responsibility, proportionality, and the circumstances in which the costs were incurred. In Hamod v New South Wales [2011] NSWCA 375 at [816]-[820], Beazley JA identified matters relevant to the exercise of the discretion to make a gross-sum costs order, including the relative responsibility of the parties for the costs incurred, proportionality between the issues and the costs, complexity, and the unsuccessful party’s capacity to satisfy the liability.
a. Those considerations are directly engaged here. The State seeks a gross sum without first resolving the anterior question of its own responsibility for causing, prolonging, or enlarging the expenditure now claimed.”
As the Court has already observed, the subject of the present application is the costs of the application for leave to appeal, in circumstances where the Court has already made an order that the applicant pay the State’s costs. In considering whether to make an order pursuant to s 98(4)(c), the Court is concerned with the responsibility for the costs which are the subject of that claim, the applicant having commenced proceedings in this Court as to which she has not been successful.
The material in Mr Thompson’s affidavit about the additional time and cost associated with costs assessment supports that it is in the interests of both parties “to avoid the expense, delay and aggravation likely to be involved in [a] contested costs assessment”: Hamod v New South Wales [2011] NSWCA 375 at [816]-[817]. The history of the present litigation, and the submissions of the applicant on this application, demonstrate the appropriateness of bringing this dispute about costs to an end now. It is appropriate to make a gross sum costs order. We note that the primary judge was of the same view in making a gross sum costs order with respect to the proceedings below, albeit on an indemnity basis (which is not sought here).
The entries in the invoices that the State has put into evidence and on which it relies support its submission that the costs it seeks in a gross sum relate to the proceedings in question. The invoices provide a narrative for the entries that detail the work performed. The amounts claimed involve some duplication of tasks across the employees of WK, where a senior solicitor is settling the work of more junior employees, but the duplication is not excessive. The work performed by the barrister on the application for leave to appeal, which makes up the bulk of the disbursements and primarily involved preparing written submissions, does not appear to have been duplicated. However, in terms of other disbursements, the Court does note that the State prepared a supplementary white folder of some 450 pages, which included the entirety of the transcript in the District Court and to which the State made only limited reference. The applicant should not have to bear the costs associated with the preparation of that folder.
The Court makes the following orders:
The applicant’s notice of motion dated 29 July 2026 is dismissed with costs.
The applicant is to pay the respondent:
(a) $35,000 for the costs of the application for leave to appeal; and (b) $4,000 for the costs of the applicant’s motion and the respondent’s application for a gross sum costs order.
**********
Zey
State of New South Wales
[2026] NSWCA 188
[2026] NSWCA 117
[2026] NSWCA 78
[2026] NSWCA 134
(1997) 190 CLR 207
(2009) 238 CLR 627
(1993) 176 CLR 300
The applicant’s notice of motion was dismissed with costs, and she was ordered to pay the State $35,000 for the leave application costs and $4,000 for the costs of the motion and gross sum costs application.
The State made two central submissions in response to the applicant’s arguments. First, the State submitted that the applicant did not clearly make the argument the subject of the claimed misapprehension. The State referred to the proposed ground of appeal and contrasted it with the content of the applicant’s supporting written submissions. The applicant’s written submissions did not cross-refer to the proposed grounds of appeal, made limited reference to the respondent’s pleading on trespass to land and did so without raising a denial of procedural fairness, and otherwise challenged his Honour’s findings about the existence of the implied licence, which the Court addressed at [133]-[144]. The State submitted that the applicant's arguments were an example of an unsuccessful party attempting to reformulate arguments on a review application in the guise of arguing that there has been a misapprehension of the case, which is not a proper basis to bring an application pursuant to r 36.16 of the UCPR: Mohareb v Nine Entertainment Co Holdings Ltd (No 2) [2026] NSWCA 117 at [6].
Secondly, the State submitted that even if the Court had misapprehended the argument that the applicant advanced on proposed ground 2, it would not warrant a variation of the Court’s order refusing leave to appeal. Contrary to the applicant’s submissions, the State had raised the implied licence issue in the District Court, admittedly indirectly in its amended defence at [14(c)] but then directly in its opening and closing oral submissions before the primary judge. In those circumstances, the State submitted that the contention that the applicant was denied procedural fairness was without foundation, such that the complaint on the r 36.16 application did not warrant varying the Court’s orders so as to grant leave to appeal on proposed ground 2.
In light of the above, even if r 36.16(3A) of the UCPR were engaged in relation to the Court’s approach to proposed ground 2, the Court would not accede to the application to vary order 2 so as to grant leave to appeal on that ground. The Court declines to vary order 2 on the basis that the Court misapprehended proposed ground 2.
Misapprehension concerning ground 1(b) of draft notice of appeal: The applicant submitted that by proposed ground 1(b), she contended that the primary judge failed to rule on the application of the statutory safeguards in Pt 15 of LEPRA. She submitted that the true content of this proposed ground was that the primary judge failed to determine whether the pleaded statutory safeguards applied and had been complied with. The applicant submitted that in dealing with this proposed ground, the Court relied on the existence of an alternative source of power but did not address the issue of compliance with the safeguards in Pt 15 which applied to the exercise of that power. The applicant emphasised, both in writing and orally, the public importance of the need for clarity concerning the lawful exercise of police powers and the statutory safeguards governing their use.
In its reasons at [123], the Court recorded that the applicant had made a similar submission on the application for leave to appeal. The Court noted at [126] of its reasons that the State had submitted that the applicant alleged non-compliance with s 202 of LEPRA by way of assertion, without developing it orally or in writing. In response to the State’s submission that the primary judge was under no obligation to consider these assertions, the Court noted that the fact that no submissions were filed did not permit a judge not to deal with a pleaded claim, at least unless there was a basis on which to conclude that it was not pressed.
In finding that the proposed ground of appeal did not warrant a grant of leave, the Court found that cl 39 of the Road Transport (General) Regulation constituted a source of power that was available at the relevant time and on the basis of which the police could seize the applicant’s vehicle: at [128]. It is the case that the Court did not address the potential application of Pt 15 of LEPRA to the exercise of that power. However, considering that issue now, the Court would not vary the orders so as to grant leave to appeal.
An appeal on this issue and questions of remittal to the District Court (which is what the applicant sought) would involve the parties incurring costs that would in all likelihood be grossly disproportionate to the amount that was the subject of the trespass to goods claims. The Court notes in this regard that in the State’s written submissions in the District Court, which were handed up at the hearing, the State submitted that Pt 15 did not apply because the Road Transport Act 2013 (NSW) was excluded from its operation by s 201(3) of LEPRA, and s 23 and Schedule 1 of the Road Transport Act conferred the regulation-making power pursuant to which cl 39 was made. The State further submitted that even if Pt 15 did apply (which it denied), where the statute did not specify any consequences of non-compliance the question of validity of an act was a matter of statutory construction.
The Court does not need to resolve those submissions, but does note that in resolving them it would likely need to consider the extent and consequences of any departure from the provisions of Pt 15 of LEPRA (see Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at [35]). The primary judge’s findings about what the police officers actually did would be relevant in that context, including that on 21 September 2019, when they came to the door of the applicant’s house, the applicant knew and understood that they were police officers, and they had made it clear to her that they wished to speak to her about her parked vehicle; and that the applicant refused to acknowledge that her vehicle was obstructing access and egress to and from the construction site: at [164], [168]. The body worn camera footage also recorded SC Edwards saying, to the door, that, “like on Tuesday”, the car was parked illegally and he was going to have to “possibly get [the car] towed again”: at [124].
The applicant emphasised the importance of understanding the application of the Pt 15 safeguards in cases involving the exercise of police powers concerning goods and real property. However, other matters may militate against the grant of leave, and may be determinative in a particular case: John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188 at [38]-[39] (McHugh JA, Free JA and Price AJA agreeing). In the present case, as was the case in Dawson Street Trust at [29], it is necessary to acknowledge the “special interest in finality where small sums are at stake”. In the present case “the stakes are especially small and considerations of finality are overwhelming”. Accordingly, even though the Court did not address the Pt 15 argument and r 36.16(3A) is engaged, the Court declines to exercise the power to vary the order as sought by the applicant.
Misapprehension concerning ground 1(c) and 1(d) of draft notice of appeal: The applicant submitted that the issues that were the subject of these proposed grounds, namely the primary judge’s failure to rule on her pleaded claims under the Inclosed Lands Protection Act 1901 (NSW) and Pt 16A of LEPRA, were not determined in the court below and were required to be determined. The applicant submitted that by her proposed ground of appeal, she was not asking the Court to decide those claims on their merits but rather was asking the Court to remit the matter so that the claims could be determined. She submitted that in accepting the State’s submissions about the substantive utility of the issues raised by these claims, the Court was diverted to a different question and did not address her specific complaints.
Contrary to the applicant’s submission, the ultimate utility of an application for leave to appeal is very much part of the Court’s consideration of the question of leave. In support of the Court refusing leave to appeal, the State had submitted that the applicant’s complaint proceeded on a misconception that the characterisation of the land as “inclosed lands” or a “fortified premises” would render it easier to conclude that any implied licence to enter her property on 21 September 2019 was negated by her conduct. The Court accepted that submission, agreeing that whether the implied licence was negated in the circumstances was a question of fact that was not assisted by considering whether the property met the description in the statutory schemes on which the applicant relied: at [132]. It does not follow from the applicant’s disagreement, in terms of the outcome and the reasoning on which it was based, that the Court misapprehended the substance of her arguments on these two aspects of her proposed grounds. Rule 36.16 of the UCPR is not engaged.
At the hearing, the Court refused the applicant’s application for orders to have the three individuals give evidence, two of whom were identified by name and one by reference to a position held in 2019, stating that it would provide its reasons later. Those reasons now follow.
The evidence that the applicant sought to obtain was said to be relevant to the responsibility for the costs of the proceedings. However, the applicant accepted (apart from her r 36.16 application) that the Court had already made a costs order. The issue on the present application was whether the State was entitled to an order under s 98(4)(c) of the Civil Procedure Act for those costs to be paid in a gross sum. Evidence going to the substance of the events that were the subject of the claims in the District Court, or going to subsequent events leading to the commencement of the proceedings in the District Court, are of limited if any relevance to the Court’s present consideration of whether it should make a gross sum costs order in the proceedings in this Court. The evidence that the applicant sought to adduce was directed to issues that went well beyond the scope of the application before the Court. In those circumstances, and having regard to the time and cost involved in securing the attendance of the three individuals in question, the applicant’s application to adduce evidence from them was inconsistent with the dictates in s 56 of the Civil Procedure Act. The Court refused the application.
Without this further evidence, the applicant relied on what she described in her written submissions as the documentary record in support of her opposition to the State’s application. She submitted that for more than three years before commencing the proceedings, she had repeatedly asked the State to identify the lawful authority for the trespasses for which she claimed damages. Her affidavit of 18 September 2026 detailed evidence of attempts she made in this regard before commencing proceedings, including arranging a meeting with WK in August 2022, in advance of which she prepared an agreed facts document in the hope that certain matters could be agreed. In her affidavit of 11 September 2026, the applicant referred to interactions with the State’s solicitors, following the District Court judgment and following this Court’s judgment, by which she attempted to have errors that she perceived in those judgments corrected by consent.
The purpose behind detailing such events in the 11 and 18 September 2026 affidavits and the written submissions was made clear towards the end of the written submissions, where the applicant submitted, under the heading “Against gross sum”: