Jones v Jones (bht Shaw)

The respondent is 101 years old. She resides at a residential aged care facility in Lane Cove. The applicant, who until very recently was self-represented in this Court, is her granddaughter. The applicant is now represented by a firm of solicitors. On 12 August 2025, the applicant filed a summons seeking leave to appeal from a decision of Hammerschlag CJ in Eq given on 8 May 2025 to which I will return below.

By notice of motion filed on 21 October 2025, the respondent seeks an order that the summons filed on 12 August 2025 be dismissed. There is power to do so pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 12.7(1) and 51.1(3), on the ground that the applicant has not prosecuted the proceedings with due despatch. Alternatively, the respondent seeks an order that the appeal be expedited. The respondent also seeks her costs.

The material before me on the notice of motion is largely contained in an affidavit of the respondent's solicitor, Ms Sewell, made on 23 October 2025. Annexure I to that affidavit consists of the applicant's written submissions dated 20 October 2025, which itself attaches a number of documents including medical certificates from the applicant's doctor. The material discloses the following matters of background to the present application.

In 2022, the respondent commenced proceedings in the Supreme Court against the applicant seeking, amongst other things, the removal of a caveat that the applicant had caused to be lodged on the respondent's unit at Burns Bay Road in Lane Cove. Those proceedings were settled in December 2022 on the basis of agreed orders that provided for the removal of the caveat. The applicant also gave an undertaking to provide various documents regarding the proceeds of sale of the respondent's sale of her home in Lane Cove.

The respondent then commenced some form of proceeding in 2023, alleging that the applicant was guilty of contempt on the ground that she had not complied with her undertaking. In April 2024, the contempt proceedings were resolved on the basis that the applicant was ordered to pay the respondent's costs.

In December 2023, the respondent commenced a further set of proceedings against the applicant seeking, amongst other things, an order that the applicant give an account of the net proceeds of sale of her prior home at Elizabeth Parade, Lane Cove. Those were the proceedings that came on for hearing before Hammerschlag CJ in Eq on 8 May 2025: Gladys Carol Jones v Traci Haelli Jones [2025] NSWSC 448. By the morning of the hearing, the parties had agreed to resolve all issues other than the account. His Honour said at [3]:

His Honour gave reasons ex tempore, stating at [2] that the respondent had sold the house, which yielded net proceeds of $588,969.33, which had been paid into the applicant's bank account. His Honour noted at [6] that it was not disputed that the money was beneficially owned by the respondent, and said that at least an evidentiary burden rested on the applicant to establish that she had spent the money lawfully, within authority or for the benefit of the respondent. His Honour said at [11] that a disturbing feature of the case was that a significant portion of what had been spent could not conceivably have been for the benefit of the respondent, such as the applicant’s overseas travel expenses and a number of other items.

Hammerschlag CJ in Eq conducted the accounting by reference to a schedule of payments that had been created by the applicant (see at [8] and [14]). His Honour awarded various amounts to the respondent, the result of which was to be seen in the annexure to his Honour's reasons. His Honour concluded that the respondent was entitled to judgment for $223,178.24 (at [14]), with interest from 9 December 2022, being the date of certain orders made by Kunc J in the related proceedings about the caveat (see at [15]-[16]). His Honour also ordered the applicant pay the respondent's costs on the ordinary basis until 19 December 2023 and thereafter on the indemnity basis.

I have been informed this morning, without objection, that very little of the judgment debt of $223,178.24 has been paid to date, and that the costs the subject of the costs order are in a very substantial amount, running into the hundreds of thousands of dollars, and that those costs have not been paid. It is to those orders that the summons for leave to appeal, which plainly requires amendment, is apparently directed.

In about May 2025, the respondent obtained garnishee orders against the applicant. The applicant sought a stay of the garnishee orders. The application came before Richmond J as Duty Judge on 4 July 2025. On 11 July 2025 the applicant's notice of motion seeking a stay was dismissed and the Court ordered that if the applicant had not filed an appeal from the decision of Hammerschlag CJ in Eq on or before 8 August 2025 the applicant was to pay the respondent's costs of the notice of motion.

The applicant apparently filed a notice of intention to appeal, but did not serve it on the respondent within 28 days of the date of Hammerschlag CJ in Eq's judgment.

The applicant filed the summons for leave to appeal on 12 August 2025. By UCPR, r 51.12, the applicant was required to file and serve a White Folder containing various documents, such as a summary of the applicant's argument, together with the summons for leave to appeal. The applicant did not do so. Nor did she separately file the documents required by the rule. On several occasions throughout September 2025, the solicitors for the respondent sought service of the summons and the White Folder, to no avail.

On 19 September 2025, the applicant was ordered to file and serve an amended summons seeking leave to appeal and the White Folder by 4pm on 8 October 2025. The applicant failed to do so.

On 13 October 2025, the applicant was ordered to file the amended summons seeking leave to appeal and the White Folder by 4pm on 17 October 2025. The applicant again failed to do so.

There have thus been three occasions so far on which the applicant was required to file the White Folder but failed to do so: on 12 August (as required by the rules), and on 19 September and 13 October (as required by orders of the Court).

That would ordinarily be a sufficient basis for dismissal of the proceedings for failure to prosecute them with due dispatch. Having regard to the respondent's very advanced age, and the evidence in Ms Sewell's affidavit that the proceedings have caused anxiety for the respondent and that the respondent is being kept out of funds and has taken out a reverse mortgage to finance her commitments, there is a very powerful case for exercising the discretion to dismiss the proceedings.

However, the applicant explains her delay by reference to the following matters.

In her written submissions dated 20 October 2025, the applicant sought a further 28 day extension until 14 November 2025 to file an amended summons and the accompanying appeal materials, that is, the White Folder. Given the applicant's various impediments referred to above, there would be serious reason to doubt her capacity to comply with that timeframe.

However, the applicant submitted that she had now retained legal representation, that she was scheduled to meet with appellate counsel on 21 October 2025 to review and settle the materials, and that she had obtained the assistance of a commercial service provider, Law in Order, to assist with preparation of the White Folder. In addition, she was represented at the hearing of the notice of motion today by a solicitor in the firm which has recently commenced acting for her.

I do not accept the applicant's submission that granting the extension will not prejudice the respondent, particularly given her advanced age and the anxiety of the litigation. However, given that the applicant now has the benefit of professional assistance, on balance I consider that it is in the interests of justice to give the applicant one final opportunity to put her house in order.

I have considered whether to make a self-executing order that the proceedings be dismissed if the applicant does not comply with the orders I propose to make. However, it seems to me likely that such an order would only give rise to a debate about whether my other orders had been complied with. The better course is to stand the matter over to the Registrar to deal with it immediately after 14 November 2025. The applicant should expect that unless her house is in order at that point, the proceeding will be dismissed.

Both parties before me today submitted that it was appropriate that the matter be expedited, and in the circumstances, I will make such an order. Accordingly, I make the following orders: