Hawken v Cappello

By way of notice of motion filed on 19 February 2026 the second defendant, Sarah Cappello, and the third defendant, Hunt & Hunt Lawyers, seek the following orders:

Mr Hawken appeared before me in person on audio-visual link today. Mr de Robillard appeared in person and spoke on both plaintiffs’ behalf. Mr Rowe appeared on behalf of the second and third defendants.

The background to these proceedings is set out in a judgment of Sweeney J of 15 December 2025, Christian de Robillard v Jeffrey Allen Emery [2025] NSWSC 1499, when the first and fourth defendants sought the same orders against the plaintiffs. Her Honour found in favour of the first and fourth defendants and dismissed the proceedings as against them.

In about May 2025 proceedings were commenced in the New South Wales Civil and Administrative Tribunal (‘NCAT’, ‘the Tribunal’) on behalf of J Emery Investments Pty Ltd, which is the registered proprietor of a unit in Maroubra, against the tenant of the property, Mr Daniel Hawken (who is the second plaintiff).

Mr Hawken and Mr de Robillard applied to the Tribunal to permit Mr de Robillard to represent Mr Hawken in the Tribunal proceedings. The Tribunal refused that application (the representation application) and made orders on 1 July 2025 that each party could be represented by an Australian legal practitioner. Mr Andrew Rowe, a partner of the then law firm Hunt & Hunt, represented the applicant in the Tribunal proceedings.

Mr Hawken appealed against the representation application to the NCAT internal appeal panel which was heard on 17 December 2025. That appeal was dismissed on 16 February 2026.

The substantive proceedings in the Tribunal were heard on 12 September 2025 and were determined on 23 October 2025 by General Member R Stevens. After the hearing of the Tribunal decision was reserved, Mr Hawken sought to reopen the proceedings. On 23 October 2025 the Tribunal made orders, including an order under the Residential Tenancies Act 2010 (NSW), terminating the residential tenancy agreement and ordering Mr Hawken to give vacant possession to the landlord J Emery Investments Pty Ltd.

In due course a warrant for possession was sent to the Office of the Sheriff of New South Wales, and on 17 November 2025 the warrant was executed. An appeal from General Member Stevens’ decision was instituted in NCAT, but it was dismissed at a directions hearing on 8 December 2025, apparently on the basis that there was no appearance by Mr Hawken.

The applicants rely upon two affidavits to which no objection was taken, save for relevance. I admitted that evidence as it appeared to be relevant. The first affidavit is an affidavit of Simone Cacopardo affirmed on 18 February 2026, and the second is an affidavit of Jeffrey Allen Emery affirmed on 30 October 2025. The respondents to the motion relied on no evidence.

The evidence discloses that Hunt & Hunt Lawyers have been subsumed by Hicksons/Hunt & Hunt Lawyers and are winding down the Hunt & Hunt practice and taking on no new work. Ms Cappello is a partner at Hicksons/Hunt & Hunt Lawyers.

The respondents filed an Amended Summons on 22 October 2025. Relevantly, the following relief is sought against the second and third defendants:

I observe that Mr Hawken says that the correct address is 1/156 Marine Parade, Maroubra, NSW 2035 but in the Amended Summons filed on his behalf the address is noted to be 1/150 Marine Parade, Maroubra, NSW, 2035.

As the motion progressed before me, it appeared that the essential rule upon which the applicants relied is rule 13.4 of the Uniform Civil Procedure Rules. That rule provides as follows:

It is fair to say that summary dismissal is an extraordinary remedy and will only be exercised when an examination of the pleading shows that the case is hopeless or that there is no possibility of it giving rise to a good cause of action: see Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 90–92. Both Mr Hawken and Mr de Robillard concede that the power to dismiss a claim at this stage is only to be exercised when a plaintiff's claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129–130.

The authorities variously describe the test for summary dismissal as reserved for claims which are “obviously untenable”, “manifestly groundless” or when a pleading discloses a case which the Court is satisfied “cannot succeed”.

The Court has heard some significant argument and submissions by both Mr Rowe, on behalf of the applicant, and Mr de Robillard, on behalf of the respondents. Appropriately, Mr de Robillard has made some concessions during the course of the hearing of the matter, in particular, that reliance on order 6 sought in the Amended Summons cannot be maintained as against the second or the third defendant, as “the impugned NCAT proceedings” have come to an end.

So far as order 9A is concerned, Mr de Robillard appropriately conceded that the order cannot be maintained as against the third defendant, Hunt & Hunt Lawyers, who are effectively no longer in practice. Thus, the proceedings cannot be maintained against the third defendant. He maintains, however, that the proceedings can be maintained against the second defendant, Ms Cappello.

The question before me then becomes: is it possible for order 9A to be maintained against the second defendant?

It seems to me that in these circumstances, the only person who could transfer or otherwise encumber the title to the premises at 1/150 (or 156) Marine Parade, Maroubra, NSW 2035 is the registered proprietor: J Emery Investments Pty Ltd. It might one day instruct solicitors to do so, but not necessarily the second defendant, who is a partner at Hicksons/Hunt & Hunt, against whom the proceedings have already been dismissed. No reason is advanced why such an order is necessary. Allowing the Amended Summons to proceed against Ms Cappello, in circumstances where J Emery Investments Pty Ltd is not a party to the proceedings (and is not a named defendant) and where Ms Cappello does not act on its behalf, leads me to come to the conclusion that the relief sought in order 9A is manifestly groundless and obviously untenable. In those circumstances I will dismiss the Amended Summons so far as it concerns the second and third defendants.

The question arises whether or not the Amended Summons ought to be dismissed in its entirety. The fifth defendant is NCAT and it has filed a submitting appearance. All of the relief sought against the Tribunal has, in my opinion, been superseded by events which occurred on 8 December 2025 and 16 February 2026. On that basis alone, in my opinion, the Amended Summons ought to be dismissed.

Mr de Robillard carefully and in great detail set out what he said was the second plaintiff's case against the Tribunal. As I understand it, and I say it no doubt in an ineloquent way, Mr de Robillard submitted that the Tribunal never had jurisdiction to come to the conclusions on the substantive matters that it did, because of its misunderstanding of the position of J Emery Investments Pty Ltd, which Mr de Robillard says was the “custodian” rather than the landlord of the premises. That issue was fully ventilated before General Member Stevens on 12 September 2025 at NCAT. I do not know precisely why the appeal from that decision was dismissed on 8 December 2025, but that hearing was the occasion for the arguments that are presently made by Mr de Robillard to have been put.

There is an additional reason why I would dismiss the proceedings in their entirety, and that is because of the absence of the party who must be the most important party to these proceedings: J Emery Investments Pty Ltd. If the plaintiffs were to be successful in these proceedings, it is J Emery Investments Pty Ltd’s rights who would be affected.

Mr de Robillard argued in the alternative that the Amended Summons could again be amended, although he did not say how. In my opinion, bearing in mind what is contained in the Amended Summons at present, I cannot see how the Amended Summons could be amended effectively so that it could disclose a reasonable cause of action.

That, of course, does not prevent the plaintiffs from filing a fresh Summons arising out the most recent decision of NCAT, which was not the subject of the current Amended Summons, if they so choose.

In those circumstances, in my opinion, the proceedings must be dismissed in their entirety and therefore, pursuant to UCPR rule 13.4, on the basis that no reasonable cause of action is disclosed, I dismiss the Amended Summons.

As to the question of costs, during the course of argument I asked Mr Rowe why this application was not brought in November 2025 when the virtually identical application was brought on behalf of the successor firm to Hunt & Hunt, of which Ms Cappello is a partner. Mr Rowe told me, and I accept, that at that time the second and third defendants had not been served. However, he also told me that a forensic decision was taken to file a notice of motion on their behalf in January of this year notwithstanding that they had not been served. Clearly, that forensic decision could have and ought to have been taken in November of last year, so that the motions could have been dealt with together.

In those circumstances, I will make no order as to costs to the intent that each party bear his, its and her own costs of the proceedings.

I make the following orders:-