ELISABETH STEICKE [2026] SASC 34

Applicant: ELISABETH STEICKE Counsel: MR R ANGYAL SC - Solicitor: GRETSAS & ASSOCIATES Respondents: PEDERICK LAWYERS PTY LTD, DIMITRA PEDERICK AND JOHN RICHARD PEDERICK Counsel: MR B ROBERTS KC - Solicitor: ILES SELLEY LAWYERS Hearing Date/s: 21/10/2025 File No/s: CIV-25-006264 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. STEICKE v PEDERICK LAWYERS PTY LTD & ORS [2026] SASC 34 Decision of the Honourable Associate Justice Bochner 19 March 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHERWISE ABUSE OF PROCESS ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL The applicant retained the respondents to act for her in a Family Law matter between April 2008 and December 2010. Following the termination of the retainer, there has been significant litigation between the parties. The applicant commenced this action alleging that the respondents were guilty of fraud in relation to the fees billed. The respondents applied to have this action summarily dismissed as an abuse of process. Steicke v Pederick & Anor [2018] SASC 146; Bell Lawyers v Pentelow (2019) 269 CLR 333; Mandeville v Better Lending Pty Ltd & Anor (2021) 139 SASR 1; Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2) (2018) 265 FCR 290; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Pederick Lawyers Pty Ltd v Steicke [2025] FedCFamC2G 275; Cabassi v Vila (1940) 64 CLR 130; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Chamberlain v Deputy Commissioner of Taxation (1987) 164 CLR 502; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; High Court in Blair v Curran (1939) 62 CLR 464; Clone Pty Ltd v Players Pty Ltd (in liq) (Receivers and Managers Appointed) & Ors (2018) 264 CLR 165; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; SZFDE v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189, considered. -- 1 of 24 -- -- 2 of 24 -- STEICKE v PEDERICK LAWYERS PTY LTD & ORS [2026] SASC 34 Introduction 1 The first respondent, an incorporated legal practice, and the second and third respondents, who are lawyers, acted for the applicant in a Family Law matter between about April 2008 and December 2010. The respondents terminated the retainer in December 2010, and since that time, there has been a series of litigation between them about the payment of the respondents’ fees. At the time of the termination of the retainer, the respondents say that the applicant owed them $338,462.69. The amount remains unpaid. Over the course of the retainer, the respondents billed the applicant a total of $3,346,747.86. The respondents claimed a lien over the applicant's files for outstanding legal fees, disbursements and GST. 2 At the time that the applicant first retained the respondents, the second respondent worked as a sole practitioner. From 1 January 2010, she conducted the business through the first respondent as an incorporated legal practice. The third respondent is the husband of the second respondent and practised as an employed solicitor, first with the second respondent and then with the first respondent. I will refer to each of the respondents jointly as “the respondents”. 3 When the respondents were first retained, the second respondent sent a retainer agreement to the applicant, with a schedule of fees and the terms of engagement. This agreement was signed by the applicant. When the first respondent was incorporated, a second retainer agreement was sent to her. She also signed this document. 4 For the purpose of the application with which these reasons deal, it is necessary to provide a description of the various pieces of litigation that the parties have been involved in. History of the litigation between the parties The lien action 5 On 12 September 2012, the applicant filed an application in her extant family law matter for an order that the respondents deliver up her files to her. This action was later given its own file number and dealt with as a separate action. This action went to trial in late 2013 and early 2014. Judgment was delivered on 17 February 2016, in which it was determined that the respondents were justified in terminating their retainer with the applicant. A declaration was made that the respondents retained a lien over the applicant’s files. In addition, the applicant was ordered to pay the costs of the respondents. 6 A side issue in that litigation was the question of the liability to pay storage fees for the applicant’s files. The Court found that the applicant had acquiesced in the storage arrangement and its cost was a proper disbursement recoverable from her. -- 3 of 24 -- [2026] SASC 34 Bochner AsJ 2 7 The applicant appealed this decision. On appeal, the declaration was upheld but the costs order was set aside. The Full Court of the Family Court made orders for the delivery up of the applicant’s files to new lawyers, subject to a number of conditions. The Full Court ordered the applicant pay the respondents’ costs of the hearing at first instance and ordered that each party bear their own costs of the appeal. Final orders were made on 21 July 2017. 8 The conditions for the delivery up of the applicant’s files were not satisfied. I understand that the respondents continue to hold the files. I will refer to these proceedings collectively as “the lien action”. The storage action 9 In February 2014, the applicant commenced an action in this Court, seeking an adjudication of costs for the file storage fees. These fees had been incurred by the respondents for storage of the applicant’s files and had been charged to the applicant as a disbursement. This action was dismissed on 23 November 2016 as an abuse of process and for want of prosecution, on the basis that there had been a finding by the Family Court that the applicant had consented to the respondents’ incurring the storage fees. In addition, the applicant did not attend the hearing, despite being advised of the need to do so. 10 On 7 December 2016, the applicant filed an application seeking to set aside the order dismissing the action. This application was dismissed. The applicant was ordered to pay the respondents’ costs of the action on a party/party basis until 17 February 2016 and thereafter on an indemnity basis. 11 The respondents’ costs were dealt with on a lump sum basis and assessed at $45,000.00. An allocatur was issued in the sum of $45,000.00 on 12 September 2019. 12 I will refer to this action, including the costs component of it, as “the storage action”. The adjudication 13 In March 2014, the applicant commenced an action in this Court, seeking an adjudication of the costs charged by the respondents. She sought adjudication of some, but not all, of the invoices which had been rendered. From the application, thirteen invoices were omitted, which had not been paid. In addition to seeking an adjudication of the various invoices, she also sought an order for the setting aside of both of the retainers. Points of claim were filed by the applicant on 28 July 2016, and Points of Defence were filed by the respondents on 17 February 2017. On 3 July 2017, the application to have the retainers set aside was dismissed and an order was made that the adjudication proceed on the basis of the two retainer agreements. 14 The applicant was ordered to pay the respondents’ costs relating to the argument on enforceability of the retainer agreements. -- 4 of 24 -- [2026] SASC 34 Bochner AsJ 3 15 On 28 February 2018, detailed orders were made, by consent, which set out the procedure to be followed to prepare the adjudication for hearing. I will set out those orders (in so far as they are relevant): “THE COURT NOTING: A. That the originating application in these proceedings for the adjudication of costs (FDN 1) was filed on 3 March 2014; B. That there have been over 35 interlocutory hearings including cancelled hearings since the originating application was filed; C. That the Applicant has had at least 10 different firms of solicitors who have represented her since the filing of her application; D. The applicant has not particularised any complaints of supported them with any detailed explanation: i. during the 3-6 year period between (a) her receipt of respondents’ tax invoices in 2008 to 2011 and (b) the filing of the originating application in 2014; ii. in any Notice Disputing Itemised Costs Account pursuant to the requirements of the Family law Rules; or iii. despite the directions and orders of this Court, during the 4 years since the filing of her application; E. The repeated failures of the Applicant to comply with the directions and orders of the Court; F. The dismissal on 23 November 2016 of the Applicant’s application against the respondents in Supreme Court SCCIV-14-266 on the grounds of abuse of process; G. The dismissal on 14 March 2017 of the Applicant’s application for adjudication of costs in Supreme Court SCCIV-13-1390 against another firm of solicitors on the grounds of want of prosecution and abuse of process; H. That these proceedings are delaying the proper prosecution of the Respondents’’ remaining claims in District Court Action No. 1390 of 2016 arising from invoices issued in 2011 which remain unpaid 7 years later, which claims have been stayed by the District Court pending the resolution of these proceedings; I. That the applicant claims to have reasons for the failures described in paragraphs D and E above; AND UPON: J. The undertaking of the Applicant to prosecute her application from today with all expedition and diligence; THE COURT ORDERS that by consent: Particularisation of the applicant’s claims -- 5 of 24 -- [2026] SASC 34 Bochner AsJ 4 1. Extend time for compliance by the Applicant with paragraph 2 of the orders made on 15 December 2017 from 2 February to 28 February 2018. 2. On or before 27 March 20158 the Respondents shall deli8ver to the Applicant a schedule in tabular format setting our for each invoice identified in the application the following details for each individuals item of work in those invoices: 2.1 the item number of the work; 2.2 the date of the item of work; 2.3 brief details of the item of work; 2.4 the units charged; and 2.5 the amount claimed; but without prejudice to, and expressly preserving, the Respondents’ contentions that the application is partly or wholly out of time, barred by laches and/or acts of acquiescence on the part of the applicant and/or constitutes an abuse of process. 3. On or before 24 April 2018 the applicant shall file with the Couert and serve ion the respondents the same itemised schedule in the same tabular format but with additional columns completed providing full particulars in respect of each item of work of the following: 3.1 whether the amount charged for that item of work is disputed in part or whole; 3.2 the grounds upon which the amount charged for that item of work is disputed, including the identification of all documents, it any, and the terms of any retained relevant to those grounds of dispute; and 3.3 the amount which the applicant offers to pay for that item of work. 4. In the event that the Applicant does not provide full particulars of dispute for any item of work as required by sub-paragraphs 3.1 to 3.3 above, the application will be taken to have admitted the amount charged for that item of work in full. 5. In the absence of compliance with the requirements of paragraph 3 above, the application for adjudication of costs filed 3 March 2014 be dismissed. 6. On or before 24 April 2018 the Applicant shall file and serve on the Respondents any affidavits upon which the Applicant intends to rely at any final hearing in support of her application. 7. In order to facilitate the completion by the Applicant of the schedule described above: 7.1 the Respondents shall use all reasonable efforts to facilitate the inspection by the applicant of any of the solicitors’ files of the respondents held by Grace Records Management (formerly Fort Knox Records Management) (“Grace”) to which the applicant requests access in writing; provided that the Applicant must pay in advance to the Respondents all search, retrieval, file return, photocopying and other costs and fees required to be paid by the Respondents -- 6 of 24 -- [2026] SASC 34 Bochner AsJ 5 to Grace in order for the Respondents to access the files sought to be inspected by the Applicant; 7.2 all other costs incurred by the Respondents in facilitating and attending at all inspections of the files by the Applicant shall be costs in the cause; and 7.3 the Applicant undertakes to preserve the integrity of all accessed files and maintain them in the same form in which they were prior to such inspection. 8. The Applicant shall pay the Respondents’ costs of and incidental to the amended interlocutory application dated 25 October 2017 (FDN 39), including the cots of today’s hearing, to be taxed on a party-party basis if not agreed, certified fit for senior counsel.”1 16 I will refer to these orders as “the 2018 consent orders”. The respondents complied with the orders; the applicant did not. The adjudication action was dismissed, in accordance with order 5. 17 On 24 April 2018, the applicant filed an application seeking a stay of the orders made on 28 February 2018, a referral to mediation or, in the alternative, an extension of time to comply with the 28 February 2018 orders. This application was dismissed on 24 September 2018. In his reasons for decision, Judge Dart (as he then was) found that the consent orders amounted to a contract between the parties.2 He found that there was no basis for varying the contract between the parties, nor did the interests of justice require that further time be granted to the applicant to comply with the orders made on 28 February 2018.3 18 On 31 October 2018, the applicant was ordered to pay the respondents’ costs of the costs action on a party/party basis. 19 The applicant then sought leave to appeal the orders made on 24 September 2018. Leave was refused by the Full Court on 29 November 2019. 20 I will refer to these actions and applications collectively as “the adjudication proceeding”. The debt action 21 On 30 September 2016, the respondents commenced an action in the District Court against the applicant, seeking payment of the outstanding invoices. The total amount sought was the sum of $386,623.34, which was the total of the unpaid invoices, some of which had been the subject of the adjudication. On 23 February 2017, the respondents sought summary judgment in the sum of $123,910.26, which was the total of the thirteen invoices which were not subject to the adjudication, and which remained unpaid. The respondents sought to have the balance of their action stayed until the adjudication was finalised. 1 FDN 13, DP-28. 2 Steicke v Pederick & Anor [2018] SASC 146, [13]. 3 Ibid, [20] – [21]. -- 7 of 24 -- [2026] SASC 34 Bochner AsJ 6 22 On 15 June 2017, summary judgment was awarded to the respondents in the sum of $123,910.26, with interest and the costs of the debt action in so far as they related to the invoices the subject of the summary judgment application, as well as the costs of the summary judgment application. I will refer to this as the 2017 summary judgment. 23 On 6 July 2017, the applicant appealed this decision. She discontinued the appeal on 13 February 2018, the day on which it was to be heard. 24 On 25 August 2017, following a contested hearing, the respondents obtained a charging order over the applicant’s interest in real property in the sum of $123,910.26 plus interest and costs. In October 2017, the respondents sought quantification of their costs entitlement following the costs orders made on 15 June 2017 and 25 August 2017. On 20 November 2017, an order was made quantifying these costs in the sum of $45,000.00 plus interest, a charging order was granted over residential property owned by the applicant, and she was ordered to pay the respondents’ costs of and incidental to the application to quantify the costs. 25 In November 2018, the respondents filed a further application for summary judgment with respect to the invoices which had not been the subject of the 2017 summary judgment. On 30 January 2020, summary judgment was awarded to the respondents in the sum of $267,713.08 plus interest in the sum of $107,114.57. The applicant was also ordered to pay the respondents’ costs of and incidental to the summary judgment application. I will refer to this as the 2020 summary judgment. The bankruptcy proceeding 26 On 3 June 2024, the respondents filed a creditor’s petition against the applicant, following the service of a bankruptcy notice which had not been satisfied. The bankruptcy notice sought the payment of $516,067.27 and related to the 2020 summary judgment and costs, the allocatur issued in the storage action and interest on both of these amounts in the sum of $96,239.62. This proceeding was summarily dismissed, on the basis that the applicant was not insolvent; rather, she has chosen not to pay her debts. The judge declined to make an order for costs in favour of either party. I will refer to this as the bankruptcy action. Summary of past actions 27 In summary, the various actions involving these parties were resolved in the following ways: • The lien action was finalised with a judgment in favour of the respondents, following a contested hearing. An appeal (save with respect to costs) was dismissed, following a full hearing. • The storage action was dismissed as an abuse of process, on the basis that it sought to relitigate matters that were the subject of the decision in the lien -- 8 of 24 -- [2026] SASC 34 Bochner AsJ 7 action, and also for want of prosecution, as the applicant did not attend the hearing. The application to set aside the order dismissing the action was dismissed, when the applicant failed to attend the hearing, despite having herself terminated her solicitor’s retainer. A costs judgment was recorded against the applicant on 12 September 2019, in the sum of $45,000.00. • The application to set aside the respondents’ retainers was dismissed, following a hearing on the merits (and despite the applicant’s failure to attend the hearing). A costs order in favour of the respondents was made. • The adjudication proceedings were dismissed when the applicant failed to comply with detailed procedural orders, which had been made by consent. The effect of those orders was that the applicant was deemed to have admitted in full all of the items claimed by the respondents, and the application for adjudication was dismissed. An application to re-enliven the adjudication proceedings was dismissed following a contested hearing, at which the applicant was represented by a solicitor (her solicitor in this action). Leave to appeal from this decision was refused. • Following a contested hearing, summary judgment was awarded in the respondents’ favour with respect to their fee invoices which were not the subject of the adjudication proceedings. An appeal from this decision was discontinued on the day it was to be heard. A charging order over the applicant’s real property was made, following a contested hearing and an order was made quantifying the respondents’ costs of the summary judgment application and the charging order application. A further summary judgment was awarded in favour of the respondents in relation to the invoices which were not the subject of the 2017 summary judgment. According to the record of outcome, the applicant was represented in Court at the time that the judgment was granted. • The bankruptcy action was dismissed following a contested hearing. 28 I will refer to the outcomes of each of these previous actions collectively as “the extant judgments”. The current action 29 The applicant commenced this action on 2 June 2025. A revised claim was filed on her behalf on 12 June 2025, and a revised statement of claim was filed on 18 September 2025. The original claim indicated that the firm, Gretsas and Associates, was acting for the applicant. The revised claim and the revised statement of claim indicate that Gretsas and Associates acts for the applicant; in addition, it identifies The Law Offices of Professor Dion Accoto as interstate principal law firm acting for her. I take this to mean that Gretsas and Associates is acting as town agent for Professor Accoto. The various judgments that I have referred to above indicate that Mr Gretsas was acting for the applicant as counsel at least by September 2018. -- 9 of 24 -- [2026] SASC 34 Bochner AsJ 8 30 The relief sought by the applicant in this action is restraint of the respondents from enforcing the various judgments obtained with respect to their fees, and repayment of monies paid by the applicant to the respondents. In essence, the applicant says that: • The costs disclosures made by the respondents in the retainer agreements were inadequate; • The respondents made false and misleading statements to the applicant about the representation that she would require at a trial in the Family Court; • During the course of the retainer, the respondents fraudulently overcharged the applicant; • Sometime after the termination of the retainer, the applicant was told by employees of the respondents that she had been deliberately overcharged by the respondents; • The respondents sought to conceal their overcharging of the applicant by destroying trust records; • An analysis of the invoices issued by the respondents demonstrates billing exceeding 15 to 20 hours per day; • The filing of the creditors petition was an abuse of process, because the respondents knew that it had no reasonable prospect of success because they were aware of her solvency; • Alternatively, the creditors petition was issued in order to obtain, improperly, disclosure about the applicant’s assets; • The various costs orders obtained by the respondents contravened the “doctrine” in Bell Lawyers v Pentelow;4 • The applicant is entitled to an extension of time to commence this action (if such an extension is required). 31 The respondents have sought summary judgment with respect to this action; in the alternative, they seek summary dismissal of the claim, or that the statement of claim be struck out. The respondents’ submissions 32 The respondents say that this action is an attempt to relitigate matters that are the subject of perfected judgments in this and other Courts. The legitimacy and quantum of the fees charged by the respondents have been determined by this Court and the District Court and are a complete answer to her monetary claim 4 (2019) 269 CLR 333. -- 10 of 24 -- [2026] SASC 34 Bochner AsJ 9 against them. There is no application to set aside any of the perfected judgments that have been obtained in any of the extensive litigation between the parties. The applicant has not pleaded any fraud about the way in which those judgments were obtained. In any event, she has been aware of the alleged overcharging for at least 15 years and well before she commenced the adjudication proceedings. As a result, it is not open to her to obtain an extension of time to commence this action. Consequently, the respondents are entitled to summary judgment on this claim. 33 The respondents say that the dismissal of the adjudication proceeding and 2017 and 2020 summary judgments have finally determined any allegation by the applicant about overcharging by the respondents, including fraudulent overcharging. Both a summary judgment and a default judgment are capable of establishing a res judicata, despite there being no hearing on the merits; these decisions established a res judicata or issue estoppel in relation to the matters raised by them. In making these submissions, the respondents rely on authorities such as Mandeville v Better Lending Pty Ltd & Anor,5 Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2)6 and Rogers v Legal Services Commission of South Australia.7 34 The respondents submit that the applicant’s failure to comply with the 2018 consent orders amounted to an admission of liability in relation to each of the items recorded in the schedule of costs. Thus, the action was dismissed both because she had failed to comply with the terms of the 2018 consent orders, but also because she had admitted liability for all of the work claimed by the respondents. Once liability was admitted, there was no utility in continuing the adjudication proceeding. Similarly, the 2017 and 2020 summary judgments finally determined the applicant’s liability to the respondents’ unpaid invoices. 35 These orders, which finally determined the applicant's liability to the respondents, created a res judicata or issue estoppel which prevents her from seeking to litigate further any aspect of her liability flowing from the retainers with the respondents, including the enforceability of the retainers, the quantum of fees charged by the respondents and an allegation that they had overcharged her (fraudulently or otherwise). 36 In her revised statement of claim, the applicant has sought an order setting aside the judgments that have been obtained against her in favour of the respondents. The respondents say that, despite doing so, she has not set out any basis for the Court to take such a step. The point made by the respondents is that, in order to succeed in such a claim, the applicant must demonstrate actual fraud in the procuring of the judgment. The applicant has not pleaded any facts to support an allegation that the judgments were obtained by fraud. An allegation of 5 (2021) 139 SASR 1. 6 (2018) 265 FCR 290. 7 (1995) 64 SASR 572. -- 11 of 24 -- [2026] SASC 34 Bochner AsJ 10 fraudulent charging practices is not sufficient to satisfy the requirement of proving fraud on the Court. 37 The respondents submit that the applicant’s own evidence establishes that she was aware of the allegations of fraudulent overcharging well before any of the judgments that she now seeks to impugn were obtained. The applicant deposes that, on two occasions in around 2011 and 2013, a former employee of the respondents told her that the respondents had overcharged her and that she had been “deliberately ripped off”.8 She also says that another former employee told her on another occasion that she was being intentionally overcharged, although she does not provide a time frame for when this occurred.9 Further, she says that she was advised by a lawyer in 2011 that she had been charged “exorbitant fees”.10 As a result, these facts cannot be relied on to have the judgments set aside. 38 As to the applicant’s allegation that the bankruptcy proceeding was an abuse of process, the respondents submit that this is not born out by the judgment in the action, where Judge Brown said: It cannot be said that the position of the Pedericks was without merit. At the end of the day, they do hold two significant judgment debts against Ms Steicke, of which she is well aware.11 39 Further, the respondents note that Judge Brown declined to make a costs order in favour of either party, despite the applicant’s seeking an order for indemnity costs against the respondents. 40 As to the applicant’s allegation that the costs orders obtained by the respondents were in breach of the principles established in Bell Lawyers Pty Ltd v Pentelow, the respondents submit that the applicant has not pleaded any material facts in support of this allegation. In any event, it appears to be no more than a further attempt by the applicant to seek to relitigate issues which are already the subject of perfected judgments. 41 The respondents submit that the applicant’s claim is out of time, and that the new material facts on which she seeks to rely in obtaining an extension of time are not, in fact, new. She seeks to rely on a forensic examination of the respondents’ invoices. This examination, however, amounts to no more than a calculation of the number of hours billed by the respondents in two separate months. This calculation could have been done by the applicant at any time on a simple examination of the invoices sent to her. Further, the applicant’s current solicitor, Mr Gretsas, has been acting for her since at least 2018; thus, any reliance on his retainer to establish a new material fact is misconceived. 8 FDN 9, [113] – [115]. 9 FDN 9, [115]. 10 FDN 9, [137]. 11 Pederick Lawyers Pty Ltd v Steicke [2025] FedCFamC2G 275, [148]. -- 12 of 24 -- [2026] SASC 34 Bochner AsJ 11 42 The respondents submit that all of the matters raised in this action are the subject of perfected judgments, which have not been set aside and are therefore binding on the applicant. The judgments have established a res judicata or issue estoppel which prevent her from prosecuting this action. Absent an allegation that the judgments themselves were obtained by fraud, there is no basis to set them aside. The applicant’s submissions 43 The applicant submits that summary judgment or summary dismissal should not be granted unless the case is manifestly groundless, where the Court is satisfied that it cannot succeed, or where there is no possibility of identifying a good cause of action or defence. In addition, the question of an extension of time to bring the action should ordinarily be addressed at the trial of the action and not determined by way of an interlocutory hearing. In this regard, the applicant contends that the cause of action was not known to her until she had the benefit of legal advice during the course of the bankruptcy action, in mid-2024. 44 The applicant’s case is based on the fees charged by the respondents, which she says were so egregious as to be fraudulent. She says that the hours for which she was charged during two months was more than it was practically possible to work, with, at times, up to 21 hours of work being charged for in a single day. 45 The bulk of the applicant’s written submissions addresses the allegation that the respondents’ billing practices amounted to fraud and the elements of the tort of deceit. I do not intend to outline the content of these submissions, for reasons which will become clear. 46 As to the existence of the judgments against her, the applicant says that entry of the judgments is an element of her cause of action in deceit: it is entry of the judgment (whether or not as a result of fraud or deceit) that completes her cause of action against the respondents. As the Court has the power to set aside a judgment or order obtained by fraud, the various judgments against her do not amount to a barrier to her bringing this action against the respondents. In making this submission, the applicant relies on a number of authorities, including Cabassi v Vila,12 where Williams J said: A judgment which is procured by fraud is tainted and vitiated throughout. If the fraud is clearly proved the party defrauded is entitled to have the judgment set aside in an action — Hip Foong Hong v Neotia and Co ., [1918] AC 888; Jonesco v Beard, [1930] AC 298.13 47 I understood the applicant’s position to be that it was sufficient for her to establish that the previous actions were tainted by fraud, for her to succeed in this litigation. 12 (1940) 64 CLR 130. 13 Ibid, 147. -- 13 of 24 -- [2026] SASC 34 Bochner AsJ 12 48 The applicant submits that it is not possible to say, at this early stage, that the claim for abuse of process with respect to the bankruptcy proceeding has no prospects of success. The fact that it was summarily dismissed is evidence of her claim that its commencement was an abuse of process. It is arguable that the respondents commenced the bankruptcy proceeding for an improper purpose and so as to obtain a collateral advantage. She says that no weight should be given to the fact that the judge refused to make a costs order against any party. Consideration 49 This application raises three broad questions: 1. Have the extant judgments created a res judicata or an issue estoppel with respect to their subject matter? 2. Was it incumbent on the applicant to commence a separate action seeking the setting aside of the extant judgments before commencing this action? 3. Has the applicant’s revised statement of claim demonstrated any basis for the setting aside of the extant judgments? 50 While there is considerable overlap in the examination of each of these questions (particularly questions 1 and 3), I will address each question individually to explain why I have reached the view that summary judgment must be entered in favour of the respondents. 1. Have the extant judgments created a res judicata or an issue estoppel with respect to their subject matter? 51 In D’Orta-Ekenaike v Victoria Legal Aid,14 the plurality of the High Court said: A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is 14 (2005) 223 CLR 1. -- 14 of 24 -- [2026] SASC 34 Bochner AsJ 13 fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions.15 (footnotes omitted) 52 The principle of finality of judicial decisions underpins the arguments made by the respondents on this application. 53 In Chamberlain v Deputy Commissioner of Taxation,16 the High Court held that a judgment entered by consent was sufficient to establish a res judicata.17 54 In Rogers v Legal Services Commission of South Australia,18 the Full Court of this Court considered the circumstances in which a res judicata might arise, and outlined the circumstances in which it would not. In particular, Lander J (with whom Cox and Prior JJ agreed) noted that a discontinuance does not prevent a party from commencing a new action based on the same subject matter and cause of action as the discontinued action,19 nor does a dismissal of an action for want of prosecution.20 Whether a dismissal for other reasons gives rise to a plea of res judicata, he said: As to whether or not the dismissal of an action give rise to a matter capable of being pleaded as a res judicata, that may depend upon whether the dismissal of the action is seen to have necessarily involved a determination of any particular issue or question of fact or law.21 55 He went on to say: There are circumstances where a plea of res judicata will be good, even though there has been no investigation of the merits of the matter by the tribunal. In cases where consent orders or judgments are entered, notwithstanding that the court has been relieved of the obligation of carrying out the investigation, that consent judgment will operate as a bar to subsequent proceedings based upon the same subject matter. …A judgment entered by reason of the default of another party can give rise to an estoppel per rem judicatam. It has been said that a default judgment can be looked at as another form of judgment by consent, and as such, then becomes capable of giving rise to all of the consequences of a judgment contained in a contested action.22 15 Ibid, [34] – [36]. 16 (1987) 164 CLR 502. 17 Ibid, 508. 18 (1995) 64 SASR 572. 19 Ibid, 593. 20 Ibid, 594. 21 Ibid, 595. 22 Ibid, 595 – 596. -- 15 of 24 -- [2026] SASC 34 Bochner AsJ 14 56 In the case of Zetta Jet Pte Ltd & Anor v Ship Dragon Pearl & Anor (No 2), the Full Court of the Federal Court examined the authorities dealing with res judicata and issue estoppel. It referred to the case of Rogers v The Queen23 and said: In Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 275, the principle of res judicata was described by Brennan J as applying where there has been a final judicial decision of a question between the parties. Deane and Gaudron JJ said that res judicata arises when a cause of action passes into a judgment – language that describes the principle by the result of its application rather than the circumstances when it applies. However, their Honours went on to describe the reasons for the principle in the following terms which suggest no qualification to the types of final judgment to which the principle is to apply, in particular: (1) A judgment of the court must be respected as fundamental to any civilised and just judicial system. (2) Judicial determinations must be final, binding and conclusive. (3) There is injustice if a party is required to litigate afresh matters which have already been determined by the courts. (4) Decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct. Each of these propositions applies irrespective of the circumstances in which a final judgment is entered. They would be substantially undermined if some types of final judgments gave rise to res judicata and others did not according to some form of inquiry as to whether there was a decision on the merits in the sense of a judicial assessment based upon an evaluation of the facts and application of legal principles. In particular, a party could simply decline to advance a case at trial preventing the matter from being adjudicated on the merits in that sense and thereby deprive the other party of securing finality.24 57 It reiterated that res judicata applies equally to judgments by default and by consent; the only difference between these types of judgments compared to one entered after a full hearing on the merits is that more care may need to be taken to identify exactly what they determined.25 It said: Whether a claim is allowed or dismissed by consent, default or after a contested hearing, the need for finality is the same in each instance. A party who wishes to preserve the right to bring further proceedings should seek leave to discontinue. The need for finality is one reason why an application for such leave may be refused if brought late in the day and without explanation beyond inability to proceed with the case.26 58 As to judgments entered upon the operation of self-executing orders for default, the Full Court said: Consistently with that position, a self-executing order for judgment operating in default of compliance can always be the subject of an application for an extension of time for 23 (1994) 181 CLR 251. 24 (2018) 265 FCR 290, [21] – [22]. 25 Ibid, [27]. 26 Ibid, [33]. -- 16 of 24 -- [2026] SASC 34 Bochner AsJ 15 compliance after the specified date: Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 at [41]-[49].27 59 All of these principles were addressed by the South Australian Court of Appeal in the case of Mandeville v Better Lending Pty Ltd & Anor. On the question of whether a default judgment could give rise to a res judicata, the Court said: The Courts in Rogers and Zetta each acknowledge that while default judgments are capable of engaging the principles of res judicata, they will not always do so; it will depend upon a close scrutiny of the circumstances of the particular judgment and what it can be taken to have decided. Both decisions acknowledge that there will be some default judgments which are premised merely upon some procedural default (such as a failure to comply with an order for further disclosure), or indeed a dismissal for want of prosecution or the failure to identify a cause of action, where it simply cannot be said that the judgment is predicated upon any final determination on the merits of a cause of action. However, there will be other default judgments where, like consent judgments, it will be appropriate to treat them, as a matter of principle and policy, as having involved a determination on the merits of a particular cause of action. There need not for this purpose be an actual determination following the presentation of evidence and argument, and the application of the law to the facts in a reasoned way.28 (footnotes omitted) 60 The difference between res judicata and issue estoppel is aptly described by the High Court in Blair v Curran,29 where Dixon J said: The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.30 61 On the basis of these authorities, I have reached the following conclusions about the various judgments and orders arising from the litigation between the parties. 62 A plea of res judicata is available to the respondents in the lien action: this action was finalised following a contested hearing between the parties and an appeal was dismissed following a full hearing. This action finally determined: • Whether the respondents were justified in terminating their retainer with the applicant; • Whether the respondents retained a lien over the applicant’s files; and 27 Ibid, [30]. 28 (2021) 139 SASR 1, [74]. 29 (1939) 62 CLR 464. 30 Ibid, 532. -- 17 of 24 -- [2026] SASC 34 Bochner AsJ 16 • Whether the applicant was liable to pay the storage fees incurred by the respondents. 63 The storage action also creates a res judicata. While its dismissal for want of prosecution will not do so, the fact that it was also dismissed as an abuse of process, on the basis that it sought to relitigate matters that had been decided in the lien action suffices to make this plea available to the respondents. There is nothing in the authorities that suggest that, where an action is dismissed for two reasons, one of which will establish a res judicata and the other which will not, both reasons for dismissal must satisfy the requirements to establish a res judicata. I consider that it is sufficient that at least one of the reasons for dismissal will give rise to a plea of res judicata. 64 The application to set aside the respondents’ retainer agreements was dismissed following a hearing on the merits. This is sufficient to give rise to a plea of res judicata, notwithstanding that the applicant did not attend the hearing. This action finally determined whether the applicant was bound by the terms of retainer agreements relied on by the respondents. 65 The adjudication proceedings are a little more complicated. Failure to comply with the orders in the adjudication proceedings resulted in two things: first, the applicant was deemed to have admitted liability for all of the amounts claimed by the respondents for their legal fees; and second, the proceedings were dismissed. The dismissal through the operation of a self-executing order is not, by itself, capable of giving rise to a plea of res judicata. However, the applicant sought to re-enliven the adjudication proceedings by seeking an extension of time to comply with the orders, the breach of which had led to its dismissal, or a stay of those orders. That application was dismissed following a contested hearing, and leave to appeal from this decision was refused. I consider that the dismissal of the application to re-enliven the adjudication proceedings, combined with the refusal of leave to appeal is sufficient to create an issue estoppel in respect of the applicant’s liability for all of the legal fees claimed by the respondent. The deemed admission arose as a result of the applicant’s default of compliance with the 2018 consent orders; thus, the question of her liability for the fees claimed has been resolved conclusively and finally. 66 I consider that this sequence of events also gives rise to a plea of res judicata. The consideration on its merits of the application to extend the time to comply with the 2018 consent orders, in addition to the application for leave to appeal, was a consideration on the merits of the applicant’s right to have the 2018 consent orders varied. The decisions conclusively determined that she had no right to a variation of those orders, and that she was not entitled to leave to appeal. 67 Even if I am wrong about this, however, I am satisfied that an issue estoppel has been created with respect to the question of the applicant’s liability for the fees of the respondents, both generally and in relation to quantum. -- 18 of 24 -- [2026] SASC 34 Bochner AsJ 17 68 The adjudication proceedings finally determined: • The applicant’s liability to the respondents for the legal fees charged by them; and • The quantum of those legal fees. 69 The 2017 and the 2020 summary judgments give rise to a plea of res judicata with respect to the debt owed by the applicant to the respondents. The decision giving rise to the 2017 summary judgment was appealed, which appeal was discontinued. There was no appeal of the 2020 summary judgment. These judgments finally determine the amount of money owed by the applicant to the respondents. 70 The bankruptcy action created a res judicata with respect to the solvency of the applicant. Whether it created an issue estoppel with respect to the question of whether the action was brought as an abuse of process, is another matter. The judge found that the respondents’ case was not without merit and refused to make a costs order in favour of the applicant, despite her application for one. However, it is clear from his judgment that the issue of abuse of process was raised and not determined. Judge Brown said: …it is not necessary for me to determine whether the filing of the petition can be characterised as an abuse of process…31 71 I consider that this is one aspect of the current claim which the applicant may be entitled to pursue. The question is whether it is more appropriately pursued in the Federal Circuit and Family Court of Australia, rather than this Court. I raise this as an issue but express no view on it. 2. Was it incumbent on the applicant to commence a separate action seeking the setting aside of the extant judgments before commencing this action? 72 The authorities make it clear that an action seeking to impugn a perfected judgment cannot be commenced until the impugned judgment has been set aside. In Cabassi v Vila, the High Court said: At the date of the statement of claim, therefore, the alleged third cause of action…was not complete, because the judgment of the Supreme Court of 23rd July 1934 [the impugned judgment] had not been set aside, and the appeal can be dismissed on this ground.32 73 This question was answered by the High Court in Clone Pty Ltd v Players Pty Ltd (in liq) (Receivers and Managers Appointed) & Ors,33 where the Court said: 31 [2025] FedCFamC2G 275, [139]. 32 (1940) 64 CLR 130, 149. 33 (2018) 264 CLR 165. -- 19 of 24 -- [2026] SASC 34 Bochner AsJ 18 In June 2010, Players brought two applications to set aside the judgment against it and to obtain an order for a new trial. The first application was brought in the same proceedings that had been the subject of the trial judge's perfected judgment, as amended by the Full Court. The second application was a new proceeding before a single judge of the Supreme Court to set aside the judgment. The second application was the appropriate way to proceed. Even where the separate procedure of a motion for a new trial might be concurrently available, if fraud is alleged then a fresh action will generally be the appropriate application relying upon the power to set aside a perfected judgment of any court for fraud. Independent proceedings, even where the application is to set aside an appellate court's decision, can permit "the whole issue [to] be properly defined, fought out, and determined".34 (footnotes omitted) 74 The Court went on to say: The applications before Hargrave AJ sought to have the Supreme Court of South Australia rescind its own perfected judgment. The proper application by Players was a fresh action to rescind the perfected orders. If fraud had been alleged, as was necessary, then even if there had not already been an appeal from the orders of the Supreme Court the proper course was to bring such an application to the same court rather than to the Full Court of the Supreme Court for a new trial. The power to set aside the Supreme Court's own decision with which Hargrave AJ was concerned was the narrower power that was historically distinct from an appellate court's powers to set aside orders of a court below and order a new trial. Before that narrower power could be exercised in this case it required a pleading, and proof, of actual fraud. Players' alternative contention was that even if actual fraud was required, it could still succeed. That contention should be rejected. Fraud needs to be clearly pleaded and proved. It was not.35 75 When this claim was first filed on 2 June 2025, it did not seek orders setting aside the extant judgments. Nor did the revised claim which was filed on 12 June 2025. 76 A revised statement of claim was filed on 18 September 2025. For the first time, the applicant sought, in the prayer for relief: An Order, (to the extent as may be required), setting aside the judgment(s) as are pleaded in these proceedings that the First and/or Second Respondent have obtained against the Applicant and as are referred to or are pleaded in these proceedings. 77 I am of the view that this action may be an appropriate vehicle to have the extant judgments of this Court set aside. I say “may be” because it is an action separate from the actions which led to the extant judgments. I consider that it is not an appropriate vehicle to have the judgments of other Courts set aside. 78 I consider that the claim and statement of claim as they are currently drafted do not properly put before the Court the primary issue that the applicant must have resolved. The primary issue is the setting aside of the extant judgments; it is not a 34 Ibid, [32]. 35 Ibid, [61] – [62]. -- 20 of 24 -- [2026] SASC 34 Bochner AsJ 19 side issue to the other matters raised in the statement of claim as it is currently formulated. The principal relief sought by the applicant must be the setting aside of the extant judgments on the ground of fraud; the other relief sought by the applicant is consequential on this principal relief. This includes the applicant’s plea with respect to the principles in Bell Lawyers v Pentelow. 79 This is not fatal to the action in so far as it relates to judgments of this Court. Were it not for the overall outcome of this application, the claim and statement of claim could be further amended. 80 The decision in Clone, however, has led me to the conclusion that this Court does not have the power to set aside judgments of another court. Before the applicant can bring an action in this Court that would amount to an attack on judgments in other courts, those judgments must be set aside by the same courts that entered them in the first instance. 3. Has the applicant’s revised statement of claim demonstrated any basis for the setting aside of the extant judgments? 81 If the answer to this question is “no”, then the respondents are entitled to summary judgment with respect to this claim. 82 To have a judgment set aside on the basis of fraud, it must be the judgment itself that was procured by fraud. 83 In Wentworth v Rogers (No 5),36 Kirby P set out the principles which apply when determining whether a judgment should be set aside for fraud: First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires. Jonesco v Beard [1930] AC 298, 301; McHarg v Woods Radio Pty Ltd 119481 VLR 496, 497. Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. See Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167. 170. 174: (1894) 86 LT 365. 366. 368: Cabassi v Vila (1940) 64 CLR 130, 147; McDonald v McDonald (1965) 113 CLR 529, 533; Everett v Ribbands (1946) 175 LT 143, 145, 146; Birch v Birch [1902] P 130, 136, 137-8; Ronald v Harper 119131 VLR 311, 318. This rule has an ancient lineage. See eg Shedden v Patrick (1854) 1 Macqueen 535, 615, 622; 26 Halsbury Laws of England (4th ed), para560. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to 36 (1986) 6 NSWLR 534. -- 21 of 24 -- [2026] SASC 34 Bochner AsJ 20 ensure that the taint of fraud is avoided and the integrity of the court's process preserved.BC8601289 at 8 Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. Birch v Birch [1902] P 130, 136, 139; McHarg v Woods Radio Pty Ltd [1948] VLR 496, 498; Ronald v Harper [1913] VLR 311, 318. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts. Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment; Cabassi v Vila (1940) 64 CLR 130, 147, 148; Baker v Wadsworth (1898) 67 LJ QB 301; Everett v Ribbands (1946) 175 LT 143, 145, 146. The other requirements must fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases, of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.BC8601289 at 9 Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. Cf Perry v Meddowcroft (1846) 10 Beau 122; 50 ER 529, 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment. Ronald v Harper [1913] VLR 311, 318; Sheddon v Patrick (1854) 1 Macqueen 535, 643. Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.37 84 These principles demonstrate why the applicant’s claim is misconceived. She has made no allegation that the extant judgments were procured by fraud; rather, her allegation is that there was fraud in the issuing of the invoices which were the subject of (or the primary source for) the various actions which led to 37 Ibid, 538 – 539. -- 22 of 24 -- [2026] SASC 34 Bochner AsJ 21 them. In effect, her position is that her primary cause of action in any of the proceedings that led to the extant judgments was, or should have been, in fraud. The fraud was not on the Court. 85 As is made clear by the High Court in SZFDE v Minister for Immigration and Citizenship & Anor,38 it must be the decision-making process itself which is corrupted by the conduct of one of the parties. In other words, the conduct complained of must have affected the decision-making process. In that case, the High Court examined the conduct of a migration agent who acted fraudulently towards a client. The migration agent had advised the client not to attend a hearing of the Refugee Review Tribunal; the Tribunal subsequently relied on the client’s failure to attend the hearing when rejecting the review application. The Court said this: No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the Tribunal.39 86 In the revised statement of claim, the applicant has not identified any conduct on the part of the respondents which compromised the decision making of the courts responsible for the extant judgments. As Kirby P pointed out, even proof of perjury by the party who benefitted from the judgment will not normally be sufficient to lead to the setting aside of the impugned judgment. Fraud (or the allegation of fraud) vis-à-vis the applicant, with respect to the conduct which comprises the cause of action in the proceedings underlying the impugned judgments is entirely different to fraud vis-à-vis the Court and its processes. 87 I conclude that the applicant’s revised statement of claim does not plead any basis for the setting aside of the extant judgments. The extension of time 88 On the applicant’s own evidence, she was advised of the fraudulent overcharging as early as 2011. She received invoices from the respondents on a regular basis. The reports that she now relies on do no more than tally the number of hours charged in two separate months. Given that she has had the invoices for many years, there is no reason why this calculation could not have been done many years ago. I express no firm view on the prospects of an extension of time, given my ultimate conclusion on this application; nonetheless, I note these matters as clear obstacles to the grant of any extension. 38 (2007) 232 CLR 189. 39 Ibid, [51]. -- 23 of 24 -- [2026] SASC 34 Bochner AsJ 22 Conclusion 89 The reasoning that I have set out above has led me to the following conclusions: • The respondents are entitled to summary judgment with respect to all of the causes of action raised in the revised statement of claim, save for that set out in paragraphs 41 to 45. These causes of action have no reasonable basis and to allow them to be prosecuted would be an abuse of process. • Paragraphs 41 to 45 must be struck out. • I do not deal with the question of an extension of time, save for noting the matters set out above, as the granting of summary judgment cuts across the need for this. • In light of my determination of FDN 12, FDN 10 must be dismissed. I do not consider it further. 90 The applicant has leave to file and serve, within 14 days of delivery of these reasons, a further statement of claim in relation to the cause of action currently pleaded in paragraphs 41 to 45, if so advised. 91 The parties are to prepare minutes of orders to reflect the conclusions I have reached. I will hear the parties on the question of costs. -- 24 of 24 --