Lewis v Mayhew as executor of the estate of the late Peter Stewart

1. [1]

   By notice of motion dated 23 October 2025, the defendant seeks:

2. [2]

   The plaintiff, by statement of claim filed 20 September 2025, seeks the following relief:

3. [3]

   The reference to the judgment and orders of Robb J is a reference to orders made in this Court in proceedings 2016/00002731.

4. [4]

   Those proceedings concerned a claim by the plaintiff against Mr Peter Stewart (who at the time lacked capacity and was represented in the proceedings by a tutor Ms Peggy Mayhew, being the defendant in these proceedings) for an equitable interest in Lot 1 by reason of an equitable estoppel. Lot 1 is contiguous with Lot 2 in the same Deposited Plan which is also the subject of the earlier litigation.

5. [5]

   In those proceedings, Robb J delivered three relevant judgments:

   1. (1)

      Lewis v Stewart [2018] NSWSC 1186, handed down on 2 August 2018 (the 2018 Judgment), in which his Honour:

   2. (2)

      Lewis v Stewart [2019] NSWSC 841, handed down on 5 July 2019 (the 2019 Judgment), in which his Honour:

   3. (3)

      Lewis v Mayhew as executor of the estate of the late Peter Stewart [2020] NSWSC 1215 (the 2020 Judgment), handed down on 8 September 2020, in which his Honour:

6. [6]

   The orders made on 8 September 2020 were:

7. [7]

   Further substantive orders and notations were made in the proceedings on 27 November 2020:

8. [8]

   It will be seen that, apart from order 1 made on 27 November 2020, which related to the provision of information about expenses for sale of the two lots, those orders (ie, dated 27 November 2020) concerned the plaintiff’s equipment or other chattels, and access to the lots for the purpose of the plaintiff obtaining those chattels.

9. [9]

   It is common ground that Lots 1 and 2 were sold at public auction on 31 October 2020 for $2,501,000.00, and that settlement occurred on 21 January 2021.

10. [10]

    By his statement of claim in these proceedings, the plaintiff raises two issues. First, he contends that the calculation of the amount to be paid to him pursuant to Justice Robb’s orders in the 2020 Judgment does not reflect the “true value” of his 90% interest and seeks an order that he be paid an amount “representing the true value of the plaintiff’s 90% interest”. Second, he claims $69,000.00 for missing equipment from Lot 1 “less the amount of $10,269.72 received by the plaintiff for alleged scrap”.

Plaintiff’s first claim: revisiting orders of Robb J

1. [11]

   According to the statement of claim at paragraphs 6 to 7, the basis for the first claim is:

2. [12]

   The plaintiff, through his solicitor, accepted during oral argument that prayers 1 and 2 for the relief were, in form and substance, an application to vary or amend the orders made by Justice Robb.

3. [13]

   The defendant contends that there is a cause of action estoppel in respect of the relief sought by the plaintiff, or in the alternative an issue estoppel preventing the plaintiff from relitigating the issues determined by Justice Robb. The defendant also contended that no power had been identified which this Court has, sitting at first instance, to vary or amend the final orders made by Justice Robb.

4. [14]

   The plaintiff, in submissions in response to the defendant’s notice of motion before me, seeks to rely on Carl Zeiss Stiftung v Rayner v Keeler Ltd (No 2) [1967] 1 AC 853 at 947 for a contention that there is an exception to issue estoppel to avoid its inflexible operation, where special circumstances arise. I will return to that exception in the context of issue estoppel.

5. [15]

   The bar created by a cause of action estoppel is absolute with no exception for special circumstances or otherwise: Lee v Kim (2006) 68 NSWLR 433; [2006] NSWCA 384 at [26] per Handley JA, Beazley and Santow JJA agreeing; see the cases cited there and Patrick Keane, Spencer Bower and Handley: Res Judicata (6th Ed, 2024, LexisNexis) at [7.04].

6. [16]

   The plaintiff had asserted a 100% equitable interest in Lot 1. He claimed that he had that interest by reason of a proprietary or equitable estoppel: 2018 Judgment at [12] and [15]. The relief he sought was a declaration that he had an interest in Lot 1 on the basis of proprietary and/or equitable estoppel: 2018 Judgment at [15]. That was the cause of action that was finally determined by the orders made on 8 September 2020.

7. [17]

   In the 2018 Judgment, his Honour was not persuaded to declare that the plaintiff had 100% interest in the value of Lot 1. In the 2019 Judgment, his Honour did not determine that the plaintiff had a 90% interest in the value of Lot 1. Indeed, the plaintiff himself, in submissions on relief before the 2019 Judgment, claimed compensation of 50% of the probable value of Lot 1 plus an adjustment for work done on the property. Instead of that relief, his Honour determined in the 2019 Judgment that Lots 1 and 2 should be sold, and that the plaintiff should receive an amount that reflected 90% of the value of Lot 1, on the specific basis that the value of Lot 1 would be determined on the basis that each lot per square metre was equal.

8. [18]

   In the 2020 Judgment, his Honour expressly declined to declare that the plaintiff had a 90% interest in Lot 1, or to vary the approach to calculating equitable compensation that had been determined in the 2019 Judgment. His Honour made final orders accordingly.

9. [19]

   The plaintiff’s claim for an equitable interest in Lot 1 was finally determined by Robb J by the orders made in the 2020 Judgment. I accept the defendant’s submission that there is a cause of action estoppel in relation to that matter. The Court determined the plaintiff’s claim not by awarding him a 90% equitable interest in Lot 1, nor by ordering that he be paid equitable compensation in an amount of 90% of the “true value” of Lot 1, but by ordering that he be paid 90% of the value of Lot 1 determined in the manner described in Order 1(c) made on 8 September 2020. I accept that a cause of action estoppel has arisen in respect of the plaintiff’s claim for an equitable interest in Lot 1 on the basis of the equitable estoppel established in the 2018 Judgment.

10. [20]

    Furthermore, as the solicitor for the plaintiff candidly accepted, the relief sought in prayers 1 and 2 of the statement of claim amounts to an application to vary the orders made on 8 September 2020. While the asserted basis for this is a “mistake or error”, that is not a basis on which this Court has power to vary final orders made and entered.

11. [21]

    The plaintiff does not articulate in the statement of claim any of the Court’s powers to vary or revisit a final order once it has been entered.

12. [22]

    In oral argument, the plaintiff’s solicitor advanced for the first time two grounds on which it was said the Court has this power. The first was said to be “in equity, due to unconscionability on the basis that the calculation based on area is significantly less than the true value”. The Court was taken to no authority suggesting that the Court has this power. Furthermore, I am not persuaded that the matters asserted by the plaintiff provide an arguable basis for finding any unconscionability. Justice Robb was persuaded that the appropriate relief was to order equitable compensation in an amount to be calculated in the manner set out in order 1(c) of the orders made on 8 September 2020. The Court determined in the 2020 Judgment at [12] that the point had been reached where the Court must make the appropriate final orders that could be made at that time. I infer that his Honour’s view was informed by the importance of finality and the need for there to be an end to litigation. Whether or not that informed his Honour’s view, I am satisfied that the matters alleged in the statement of claim in these proceedings before me could not provide a basis for finding any unconscionability, even if that were a basis on which the Court had power to revisit final orders.

13. [23]

    I note for completeness that although Justice Robb reserved (in order 3 of the orders made on 8 September 2020) liberty to the parties to apply for further orders in respect of the reserve price, it is common ground that neither party exercised that liberty.

14. [24]

    The second ground which the plaintiff’s solicitor advanced during oral argument was the Court’s power in rule 36.15 of the Uniform Civil Procedure Rules to set aside an order that was made, or a judgment that was entered, irregularly. The plaintiff’s solicitor accepted in argument that it could not be contended that the orders were made or entered, at the time of making or entering them, against good faith (and there was no suggestion of illegality). In relation to whether orders were made or entered irregularly, the plaintiff was given a short adjournment to draw the Court’s attention to any authority on which the plaintiff relied suggesting that orders might have been made or entered irregularly in the circumstances that are the subject of the plaintiff’s allegations.

15. [25]

    Following that adjournment, the plaintiff’s solicitor drew the Court’s attention to Ritchie’s Uniform Civil Procedure New South Wales at [36.15.12], and in particular, the section on excessive judgments. I am satisfied no basis has been articulated on which it could be concluded that the order was entered irregularly by reason of being excessive or by reason of being entered for more than, or indeed for less than, the amount that was due. It does not arise in the present circumstances because his Honour clearly determined in the 2019 Judgment at [27] to [28] and [31] that the amount due by way of equitable compensation was the amount calculated in accordance with order 1(c) that was ultimately made. His Honour considered and refused an application to revisit that conclusion in the 2020 Judgment.

16. [26]

    That being the case, I am satisfied that the plaintiff has articulated no basis on which it might be contended that Justice Robb’s orders were made or entered irregularly.

17. [27]

    There is no suggestion of a judgment obtained by fraud – indeed, the essence of the plaintiff’s case in relation to Justice Robb’s orders is that the 2020 Judgment might have appeared correct having regard to the evidence then before the Court, but that the subsequent valuation evidence allegedly provided a basis for seeking different orders.

18. [28]

    Fresh evidence can in certain circumstances provide a basis for an appeal, but these proceedings are not appeal proceedings.

19. [29]

    For these reasons, I am satisfied not only that the statement of claim should be struck out with regards to the plaintiff’s first claim, but that the plaintiff should not have leave to replead in relation to that part of the plaintiff’s claim, that is, the claim in respect of Justice Robb’s orders of 8 September 2020.

20. [30]

    For completeness, I advert to the argument advanced in respect of issue estoppel.

21. [31]

    Even if there were no cause of action estoppel, I would be satisfied that there is an issue estoppel that the remedy required in equity to avoid unconscionable conduct by the late Mr Stewart is an award of equitable compensation to be calculated in the manner described in Order 1 made on 8 September 2020 on the basis of the conclusion reached in the 2019 Judgment and the 2020 Judgment, and not an equitable interest in 90% of the “true value” of Lot 1.

22. [32]

    There is some question about whether an exception to issue estoppel for special circumstances exists in Australian law. I draw attention in that regard to Federal Treasury Enterprise (FKP) v Spirits International B.V. [2021] FCAFC 77 at [339]; Charafeddine v Morgan [2014] NSWCA 74 at [25].

23. [33]

    It is not necessary to decide this, as the statement of claim does not plead any matter that could provide a basis for the exception of special circumstances. In this regard, I refer to my reasoning above in relation to unconscionability and the question whether the orders were entered irregularly. The facts were not articulated during argument that might provide a basis for a finding of special circumstances.

Plaintiff’s second claim regarding equipment and other chattels

1. [34]

   I turn to the plaintiff’s second claim, that is the claim in relation to chattels and other equipment. I am satisfied that this part of the statement of claim should also be struck out, as the statement of claim does not articulate adequately the basis of the plaintiff’s asserted cause of action. The statement of claim asserts that it was an “implied condition” that the defendant take proper care of the plaintiff’s equipment, but it does not articulate the contract or other obligation in respect of which this alleged “implied condition” arose. Such an obligation my arise by bailment, or on some other basis, and that basis should be articulated.

2. [35]

   Furthermore, the statement of claim does not articulate the basis on which it is alleged that the defendant breached any obligation to take proper care.

3. [36]

   However, while I am satisfied that this part of the statement of claim should also be struck out, I am not satisfied that the plaintiff’s claim in relation to equipment or other chattels is unarguable. I am satisfied leave to replead should be granted, such leave to be limited to those matters that were the subject of the plaintiff’s second claim.

4. [37]

   It was common ground that if this was the view I reached, the proceedings should be transferred to the Local Court, given that the claim in respect of equipment is below the jurisdictional limit of the Local Court.

Costs

1. [38]

   As to costs, the defendant contended, and I accept, that costs should follow the event, and there will be an order for costs in the defendant’s favour. The defendant sought that order on an indemnity basis, in part on the basis that the claim was hopeless, and in part on the basis that the defendant is an executor.

2. [39]

   There is some force in the proposition that a significant part of the plaintiff’s claim was hopeless. Nevertheless, I am not persuaded to order indemnity costs, having regard to the fact that the claim in relation to the equipment or other chattels is one in respect of which leave to re-plead has been given, and there was some significant evidence from both parties in relation to that matter which was prepared on the motion, but which ultimately did not bear on my reasons. In saying this, I make no criticism of either party for preparing that evidence, which was dealt with expeditiously by the parties, but I take that into account in considering whether or not indemnity costs is appropriate. Having regard to the fact that part of the plaintiff’s claim has survived and those other matters, I am satisfied that an order on the ordinary basis is appropriate.

3. [40]

   The defendant’s counsel also raised the fact that the defendant is the executor of the estate of the late Mr Stewart, and that she would seek an order that any costs that she does not recover from the plaintiff be payable from the estate on a solicitor/client basis. I make no order about that, only because I do not have the whole of the estate before me. In saying that, I should not be understood to be suggesting for a moment that the defendant is not entitled to that indemnity, which is the usual position in relation to an executor. I simply say I am not in a position to make an order of the Court in relation to it because I am not seized of the whole estate.

4. [41]

   Accordingly, in declining to make an order for indemnity costs, that should not be understood as expressing any view about whether the defendant is entitled to indemnity on a solicitor/client or any other basis from the estate in respect of her costs.

5. [42]

   The order of the Court will be that the plaintiff pay the defendant’s costs of this motion.

6. [43]

   The court makes the following orders:

   1. (1)

      Pursuant to s 61 of the Civil Procedure Act 2005 (NSW) and r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the Statement of Claim filed on 20 September 2025 be struck out;

   2. (2)

      Grant leave to the plaintiff to replead by filing an Amended Statement of Claim, such leave to be limited to the relief sought in prayer 3 of the Statement of Claim (which the Court has struck out), being in substance the matters alleged in that Statement of Claim at paragraphs [14]-[18]; and

   3. (3)

      Direct that the revised amended statement of claim be filed and served within 28 days;

   4. (4)

      Pursuant to s 146 of the Civil Procedure Act transfer the matter to the Local Court at the Downing Centre;

   5. (5)

      The plaintiff to pay the defendant’s costs of the Notice of Motion on the ordinary basis.