Sanjiv v Shah (No 2)

1. [1]

   I have before me an application by the defendant, Mr Shah, for indemnity costs following Sanjiv v Shah [2026] NSWSC 139, the decision by Justice Ierace given on 6 March 2026. The application for indemnity costs was foreshadowed before Ierace J.

2. [2]

   The defendant also seeks a gross sum costs order, although that does not appear to have been foreshadowed before Justice Ierace on the last occasion.

3. [3]

   The plaintiff, Ms Sanjiv, has filed a notice of motion to set aside Justice Ierace’s orders and also seeks a stay of those orders until a judgment is made by the Court of Appeal in respect of any one of those orders. Although Ms Sanjiv’s notice of motion is not returnable until 16 April 2026, Ms Sanjiv has asked me to deal with those prayers in the notice of motion today and the defendant’s counsel indicated to me that she was ready to deal with it.

Background to indemnity costs application.

1. [4]

   Justice Ierace made four orders on 6 March 2026:

   1. (1)

      Dismiss statement of claim on a summary basis;

   2. (2)

      Dismiss plaintiff’s two notices of motion, both of which related to the proposed amended statements of claim because he made an order under s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the terms of which are as follows:

   3. (3)

      As to the defendant’s motion filed on 2 September 2025, the Court orders that pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Rekha Sanjiv is prohibited from instituting proceedings in her own name or through or in the name of SRI Services Superannuation Fund or any other entity controlled by the plaintiff, in New South Wales, against Sanjiv Shah other than with leave of an appropriate court under that Act;

   4. (4)

      Plaintiff to pay costs of the four notices of motion.

2. [5]

   The statement of claim sought damages arising from defendant’s application to be appointed trustee for sale pursuant to orders made 5 February 2020 by the Federal Circuit and Family Court of Australia (‘FCFCOA’).

   1. (1)

      On 5 Feb 2020, FCFCOA made orders appointing the defendant (who is the plaintiff’s ex-husband) as sole trustee for the sale of that property.

   2. (2)

      On 4 June 2025, FCFCOA made a harmful proceedings order under s 102QAC of the Family Law Act 1975 (Cth) preventing the plaintiff from instituting proceedings under the Act without leave. This followed a hearing on 17 and 24 February 2025.

   3. (3)

      On 23 April 2025 (ie, after the hearing in which harmful proceedings order had been sought, but two weeks before the decision was handed down), the plaintiff filed her statement of claim in these proceedings.

   4. (4)

      The plaintiff recognised before Justice Ierace that she was prohibited from instituting proceedings under the Family Law Act because of the harmful proceedings order but said that she was not prohibited from instituting proceedings under the Civil Liability Act 2002 (NSW) for negligence: [24] of Justice Ierace’s decision.

3. [6]

   Justice Ierace in his judgment canvassed other litigation between the parties and between the plaintiff and her former solicitors.

4. [7]

   His Honour held:

   1. (1)

      at [57], the claim that the defendant should not have been appointed trustee is, in effect, an attempt to appeal the 5 February 2020 orders, that is orders of the FCFCOA (leave to appeal having already been dismissed by the FCFCOA);

   2. (2)

      at [58], the challenges to the defendant’s compliance with earlier orders made in the FCFCOA on 30 April 2019 were dealt with to finality by Judge Neville in June 2025 and attempts to ventilate it in this Court were an abuse of process;

   3. (3)

      at [62], his Honour found that there were fundamental flaws in the statement of claim and in draft amended statements of claim that had been propounded by Ms Sanjiv.

5. [8]

   His Honour found that various applications in the FCFCOA were instituted without reasonable ground.

6. [9]

   At [92], his Honour noted expressly that he made no determination that the Supreme Court proceedings against the former lawyers were vexatious having regard to a conclusion reached by Harrison CJ at CL in that regard.

7. [10]

   Justice Ierace’s reasons provide a sufficient basis in my view for indemnity costs of the defendant’s application for summary dismissal.

8. [11]

   As for the plaintiff’s two notices of motion seeking leave to file proposed amended statements of claim, on the basis of Justice Ierace’s findings, these were equally hopeless, noting his Honour’s view that the pleadings were fundamentally flawed.

9. [12]

   I am conscious that the notice of motion for summary dismissal sought additional relief that was not granted, namely, orders that Ms Sanjiv is estopped from bringing her claim in this Court and orders permanently staying the proceedings on the basis that the Supreme Court is a clearly inappropriate forum to security for costs (these are prayers 2 to 4 in the notice of motion of 8 July 2025).

10. [13]

    While I have some hesitation about whether any resistance to those prayers was doomed to fail, I regard all of those as part of the defendant’s costs of responding to a claim which Justice Ierace has held to be fundamentally flawed. Accordingly, in my view, an indemnity costs order is warranted in respect of all three of the notices of motion I have mentioned to date.

11. [14]

    Ms Sanjiv resists indemnity costs on the following grounds (according to her written submissions):

    1. (1)

       Ms Sanjiv advances the alleged errors of law she wishes to ventilate on appeal, and says that in light of these alleged errors the principles for the award of indemnity costs are not met.

    2. (2)

       I have considered those grounds of appeal. Although they are all primarily matters for the Court of Appeal. I proceed on the basis that Ierace J’s findings and conclusions are not disturbed. On that basis, I am not persuaded that there was any reasonable prospect of Ms Sanjiv avoiding having her statement of claim struck out and the proceedings dismissed – especially noting Ierace J’s finding that the claim was fundamentally flawed.

    3. (3)

       I would add that most of the grounds of appeal are directed to the vexatious proceedings order which I will address separately.

    4. (1)

       Ms Sanjiv also says that Justice Ierace did not find in Mr Shah’s favour on all four matters. However, only one of the four matters on which she relies relates to Mr Shah’s motion dated 8 July 2025 (Justice Ierace’s decision at [63] regarding the application for a permanent stay).

    5. (2)

       I have addressed that matter above at [12]-[13]. I am satisfied it is part of the defendant’s costs of responding to a claim which Justice Ierace has held to be fundamentally flawed.

12. [15]

    I do not accept these grounds for refusing indemnity costs.

Vexatious Proceedings Act motion

1. [16]

   The application for orders under the Vexatious Proceedings Act is a serious application that has significant consequences. Applicants for such an order face a high hurdle and defendants should typically be allowed an opportunity to resist an order of that kind. While Justice Ierace was persuaded that the preconditions were engaged – and I say nothing against that conclusion – I am unable to accept that the orders under the Vexatious Proceedings Act were so obviously inevitable that there was some degree of delinquency in the plaintiff not acceding to those orders.

2. [17]

   Mr Shah’s answer to this is that there was a collateral purpose to bringing the proceedings to the Supreme Court. Mr Shah relies on [24] of Justice Ierace’s decision to which I have already referred. It was submitted that this indicated an attempt to subvert and render nugatory the harmful proceedings order in the FCFCOA. It was said this amounted to vitriol by the plaintiff and treating litigation like a game, citing Justice Sackar’s decision in Seven Network (Operations) Ltd v Harrison [2017] NSWSC 952 at [61] to [62].

3. [18]

   It was also submitted that the plaintiff’s conduct displayed a real disregard for any adverse consequences: [63] of Justice Sackar’s decision. The defendant’s counsel accepted that no finding by Justice Ierace had been made that Ms Sanjiv intended to harass and annoy the defendant and I am not asked to make that finding. The submission was that the conduct was apt to have that impact. I accept that it was apt to have that impact but I am not persuaded that that warrants an indemnity costs order in respect of the notice of motion for orders under the Vexatious Proceedings Act.

4. [19]

   That being the case, Ms Sanjiv’s submissions about the alleged errors in relation to the Vexatious Proceedings Act findings are not relevant to the question of an indemnity costs order.

5. [20]

   Accordingly, I will award costs in respect of the defendant’s notice of motion filed 8 July 2025 and the plaintiff’s notices of motion filed 26 September 2025 and 20 October 2025 on an indemnity basis.

6. [21]

   I decline to order indemnity costs in respect of the defendant’s notice of motion filed 2 September 2025 for orders under the Vexatious Proceedings Act.

Gross sum costs order

1. [22]

   In light of my conclusion awarding indemnity costs for some but not all of the motions, I do not consider that this is a matter suitable for a gross sum costs order nor do I consider I have sufficient information to enable me to conduct the gross sum costs order exercise. Accordingly, I do not make a gross sum costs order.

Plaintiff’s notice of motion to set aside, vary or stay orders

1. [23]

   I turn to the plaintiff’s notice of motion in respect of which the plaintiff moved on the following prayers before me:

2. [24]

   As to the application to vary or set aside Justice Ierace’s orders, no basis has been shown for that to occur. The matters that the plaintiff alleges are errors in his Honour’s reasoning will be matters for the Court of Appeal. Justice Harrison’s conclusion that other proceedings were not vexatious does not impact this. It is clear that Justice Ierace was mindful of Justice Harrison’s conclusion and modified his own conclusion with respect to it.

3. [25]

   As to the application for a stay of the orders made by Ierace J, the plaintiff relies on a notice of intention to appeal filed and served on 6 March 2026, that is, the same date as Justice Ierace decision.

4. [26]

   Dealing first with the orders under the Vexatious Proceedings Act I offer no view about whether any of the appeal grounds are arguable but on the material before me I am not persuaded that the issues warrant a departure from the usual position that the defendant is entitled to the benefit of the judgment obtained. I would be comfortably of this view even if I was satisfied that there was a reasonably arguable ground of appeal. The Vexatious Proceedings Act orders are protective. They are also subject to the capacity to satisfactorily obtain leave so that the prohibition is not absolute. The interests of justice support the plaintiff continuing to have the benefit of the Vexatious Proceedings Act orders unless and until the Court of Appeal is persuaded to intervene. I have taken into account, in making an assessment of what the interests of justice require, the fact that the defendant has been in litigation with Ms Sanjiv for over 11 years and that no actual appeal has yet been brought.

5. [27]

   As for the application for a stay of the costs orders I have declined to order a gross sum costs order. I am not persuaded that the interests of justice warrant me making an order that would prevent the defendant from having the costs orders assessed. It is of course a matter for the defendant to decide whether to proceed to have his costs assessed even when there is a pending appeal. If he decides to take that course he may incur costs with respect to that. For the avoidance of doubt my order is not intended to prejudice any application for a stay of enforcement of the costs order once the costs have been assessed. I offer no view about that save to say it would be a matter for the Court to which any such application might be made.

6. [28]

   As for the order that the plaintiff provide a combined address for service, no ground of appeal has been advanced before me that challenges that order. I am not persuaded that the interests of justice require a stay of that order pending appeal or an extension of time to comply with that order until the Court of Appeal makes any decision it might make. As I say, none of the views I reach prejudice the plaintiff’s ability to seek a stay before the Court of Appeal.

7. [29]

   It follows that I dismiss prayers 1 to 3 of the plaintiff’s notice of motion. Dealing with the balance, prayer 4 of the notice of motion has been overtaken by the fact that I have dealt with this matter today so an adjournment is no longer necessary and I will deal with costs shortly, that is costs of the plaintiff’s notice of motion and today. Subject to that matter I dismiss the plaintiff’s notice of motion filed on 17 March 2026.

Costs

1. [30]

   The defendant seeks costs of today including the costs of responding to the plaintiff’s notice of motion. In my view taking a broadbrush approach although I did not accede to the whole of the defendant’s application, I am satisfied that the defendant enjoyed substantial success. What I propose to order is that the plaintiff pay the defendant’s costs of today and the costs of the plaintiff’s notice of motion filed 17 March 2026 but excluding the defendant’s costs of the application for gross sum costs. The costs order will accordingly carve out that issue. In other words the order will be that the plaintiff pay the defendant’s costs of today and the costs of the plaintiff’s notice of motion excluding the defendant’s costs of the application for a gross sum costs order.

2. [31]

   The plaintiff, in resisting an adverse costs order, said that she had no money and no lawyers and complains about costs incurred in previous litigation with the defendant. I am not persuaded that any of the matters that the plaintiff has raised warrant a departure from the costs order I have made.

3. [32]

   Accordingly, I make the following orders:

   1. (1)

      The plaintiff pay on the indemnity basis the defendant’s costs of:

   2. (2)

      The plaintiff’s notice of motion dated 17 March 2026 is dismissed.

   3. (3)

      The plaintiff pay the defendant’s costs in respect of the hearing today excluding the defendant’s costs of the application for a gross sum costs order.

   4. (4)

      The plaintiff is to pay the defendant’s costs of the plaintiff’s notice of motion filed 17 March 2026.