What actually happened in court?

What happened

A building dispute that started in VCAT and was transferred to the Supreme Court. The amounts claimed were modest and the issues were not complex, yet by June 2026 the owners had spent $328,677 on lawyers, the contractor $299,010 and the builder $68,701. The owners were on their third law firm. A Judicial Registrar ordered the contractor to give security for the owners' costs of $49,626.50 in two tranches, and, on her own motion, capped the future recoverable costs of every party at $94,160. The owners appealed. They said the power in s 65C(2)(d) of the Civil Procedure Act 2010 to cap costs in advance can only be used when a party asks for it, and that if there was to be a cap it should be $410,790, the figure their own costs consultant put on their future costs, about four times what the other parties expected to spend.

Appeal dismissed, with the owners to pay the costs of it. An appeal from a judicial registrar under r 84.05 is a hearing de novo, so Delany J decided the questions afresh while giving weight to the reasons below. The court can cap recoverable costs on its own motion: s 65C exists to further the overarching purpose, the factors in s 65C(2A) are a guide and not a checklist, and the Court of Appeal in Bare v Small said as much. The costs already incurred by the contractor and the owners each exceeded the amount in dispute, and s 24 of the Act imposes a positive obligation on the court to ensure costs are not excessive. The same cap was imposed on every party because the reasonable future work was much the same for each. His Honour also barred any further interlocutory application without leave, referred the parties to judicial mediation on 24 September, and left security payable in two tranches so a lump sum did not stultify the claim.

Why it matters

The court does not need to be asked before it caps costs. When what has been spent already exceeds what the case is worth, s 65C and the overarching purpose let a judge cap every party in advance, bar new applications and send everyone to mediation.

What a junior would learn

Before you draft the next interlocutory application, put the costs to date next to the amount in dispute. If the first number is bigger, the court will notice, and it may be your client who pays for it.

What happened

On 31 August 2004 Mr Fernando, then 36, was riding a motorcycle that collided with Ms Woodford's car at a stop sign in Melbourne. Police fined her for failing to give way. He suffered a serious degloving injury to his leg. The limitation period expired in September 2010. He believed for years that he was only entitled to no fault benefits, partly because he was told he had no licence to ride a motorcycle, and took no steps to find out whether he had a claim. In December 2025 an associate justice extended time under s 23A of the Limitation of Actions Act 1958, finding it just and reasonable to do so. Ms Woodford, now 79 and insured by the Transport Accident Commission, appealed to a judge.

Appeal dismissed. The Court of Appeal had just decided, in a five judge bench, that an appeal against an extension of time is governed by House v The King rather than the correctness standard, so Ms Woodford had to show a specific error or a decision that was plainly wrong. Gorton J accepted there were many features pointing against an extension: the delay was very long, the triple zero recordings were lost, possible eyewitnesses were gone, and an insurer should be able to assume it will not be asked to cover a 2004 accident. But the associate justice had weighed all of that and found a fair trial could still be held, because both drivers remember the crash, the injury is discrete and its effects are still ascertainable, and Mr Fernando's inaction was explained by a genuine belief he had no claim. There was no specific error and the decision was not plainly unjust, so the appeal could not succeed.

Why it matters

An extension of time is a discretion, and on appeal the question is not whether the judge would have decided differently but whether the associate justice made a specific error or was plainly wrong. A long delay with a genuine explanation, and an injury whose effects can still be assessed, can survive twenty one years.

What a junior would learn

Learn the difference between an appeal by rehearing under House v The King and a hearing de novo. It decides what you have to prove before you open your mouth.

What happened

A forty year family dispute over Melbourne and Preston properties held through a family trust and a company, Evancon. The plaintiffs, Arthur and Olga Trifonidis, had begun proceedings to wind up the trustee company. At a judicial mediation every family member and corporate vehicle signed a deed of settlement providing for the properties to be sold and the proceeds divided. Con and Mary Pantelidis and Evancon then refused to perform it. Representing themselves at trial, they argued the deed should be set aside for undue influence, because Con had given his brother in law Les authority to negotiate on the company's behalf, for unconscionable conduct, because of Con's health and because they had no legal advice before signing, and because damages would be an adequate remedy.

Specific performance ordered, and Con, Mary and Evancon to pay costs on a standard basis. Craig J found no relationship of dominance or ascendancy and that each of them exercised an independent and voluntary will, applying Thorne v Kennedy. Con's health did not affect his ability to judge his own interests, and the absence of legal advice was not a special disadvantage because nothing about the circumstances made advice a necessity. Damages were not adequate: the loss was hard to quantify and a money award would defeat the just and reasonable expectations the plaintiffs had under the deed, applying Dougan v Ley and the Court of Appeal in Parwan. His Honour also explained the trial judge's duty to a self represented party, which is to make sure they understand the case against them and can answer it, not to run it for them. Indemnity costs were refused despite a clause in the deed allowing a party to seek its costs of enforcement, and no costs order was made against Les, who had not opposed the relief.

Why it matters

A settlement deed signed at mediation is a contract like any other. Regret, a health condition, and choosing not to get advice are not undue influence or unconscionable conduct unless you can prove impaired judgment or a real special disadvantage that the other side exploited.

What a junior would learn

When a client wants out of a deal they signed, the first question is not whether it was a good deal. It is whether there was a relationship of ascendancy or a disadvantage the other side knew about. If not, they will be ordered to perform it and pay costs.

What happened

Mrs Dal Broi sold a Kew property for $6.36 million in 2017 and her solicitors, NJ Lawyers, received $2,240,747.28 of the proceeds into their trust account. Over the following weeks large sums left the account: $600,000 and $25,408 to repay a loan from a company controlled by the sole director of the firm, $500,000 and later $200,000 into that director's investment vehicle, NJ Capital, which lent client money to property developers. She said she never authorised most of it. The firm said she did, or that her husband did on her behalf, and that she had been enthusiastic about investing with NJ Capital. Contracts for the $500,000 investment were requested but never sent or signed. The firm also under reported the proceeds by $30,000, which went into NJ Capital and was used to pay fees and other bills, and the director admitted he never told her.

Most of the claim failed and one part succeeded. Her Honour was not satisfied Mrs Dal Broi had discharged the onus on the $642,924.04 loan repayment claim, the $500,000 claim or the $200,000 claim. She had signed the loan agreement, had made appropriate concessions when shown documents, could not recall key events, had pressed for the investment in writing, and the $200,000 had been applied on her husband's instructions to his Gosford development. The $30,000 was different: the firm's own reconciliation misstated the amount received, the money was moved out on the third day, and the director conceded he never told her. She discharged the onus on that sum. The court will hear the parties on orders, interest and costs.

Why it matters

Where a client says money left the trust account without authority, the client carries the onus of proving it. Documents she signed, emails she sent and instructions her husband gave all counted against her, except for the one sum the firm had misreported and never mentioned.

What a junior would learn

Trust money is the thing that ends careers. If you ever handle it, every movement needs a written instruction from the client, not a conversation, and never a relative. Read this one before your first trust account reconciliation.

What happened

BlueCross sued its builder, Buxton, in contract, and its architect, BLP, in contract and negligence, for the cost of fixing defects in a new aged care facility in Box Hill. BLP pleaded that if it was liable, the claim was an apportionable claim under Part IVAA of the Wrongs Act 1958 and Buxton was a concurrent wrongdoer, so BLP's liability had to be limited to its share. Buxton had recently gone into liquidation. BlueCross applied under r 23.02(a) to strike out the defence as futile, arguing that because it had pleaded only a contract claim against Buxton, and not a claim for failure to take reasonable care, Buxton could not be a concurrent wrongdoer at all.

Application dismissed. The strike out threshold is high, and on an interlocutory application the question is only whether the defence is arguable, not whether it will win. Her Honour found genuine doubt and debate in the authorities on two points: whether a person is a concurrent wrongdoer only where an apportionable claim is actually pleaded against them, and whether the court looks only at the pleaded claims or also at what might be found at trial about a failure to take reasonable care. Tanah Merah did not settle either question in the way BlueCross said. With that uncertainty, the defence was at least arguable and could not be called futile. Costs to be argued.

Why it matters

Strike out is for defences that cannot succeed, not defences that might not. Where the authorities on Part IVAA are genuinely unsettled, a proportionate liability defence stays in and the argument happens at trial.

What a junior would learn

The test on a strike out is arguable, not persuasive. If you can find two lines of authority pointing different ways, you have already won the application.

What happened

Mr Hubicki sues the Australia Air League for damages for childhood sexual abuse by one of its volunteers. The League admits the abuse occurred but denies it knew, and does not admit he suffered psychiatric injury. He had been seeing a psychologist since 2022, originally about workplace harassment, and did not disclose the abuse to her for some time. The League subpoenaed her notes and applied under ss 32C and 32D of the Evidence (Miscellaneous Provisions) Act 1958 for leave to inspect them. The court read the notes itself, with the parties' agreement, before deciding.

Application dismissed. The notes are confidential communications within s 32B whether the definition is read literally or in the narrower way preferred in earlier single judge decisions, and his Honour preferred the literal reading, because the words 'whether before or after the acts constituting the offence' would otherwise have little work to do. Leave requires substantial probative value, no other evidence of similar or greater value, and a public interest in disclosure that substantially outweighs the interest in confidentiality. The League already had the psychologist's report, the psychiatrist's report and its own expert, so evidence of similar or greater probative value was available, and disclosure would undermine the therapeutic relationship. It was not in the public interest to allow inspection. KR v BR and the Court of Appeal's 2026 decision in Coker-Godson applied.

Why it matters

Counselling notes of an abuse survivor are protected, and a defendant who already holds the treating report and its own expert evidence will not get them. The court read the notes itself and decided the public interest was against disclosure.

What a junior would learn

Subpoenaing therapy records is not a fishing exercise you get for free. You need substantial probative value, no other way to get it, and a public interest that outweighs confidentiality. Know ss 32B to 32D before you draft the subpoena.