Court of Appeal practice

2026/00154227

Monday, 12 October 2026

COSTS – the respondents are the executors of the estate of the late Blanche Condon, who died on 13 December 2016 – the appellant resides in the United Kingdom and is a nephew of the deceased – on 30 January 2020, the respondents were granted probate in solemn form of the will of the deceased dated 22 November 2016 after a contested hearing in which the appellant challenged the validity of the will – the appellant was ordered to pay the respondents’ costs of the trial proceedings and the costs of an unsuccessful appeal by him to this Court – various contests between the appellant and the respondents ensued as to enforcement of the cost orders – on 14 October 2021, the respondents registered the costs judgments against the appellant in the High Court of Justice in London pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) – in enforcement proceedings in the High Court of Justice, the respondents have been largely successful, with that Court making charging orders over two properties in favour of the respondents, securing an amount of £577,240.67 (as at 28 October 2025) plus daily interest of £117.67 – on the date of the primary judge’s decision, the total amount owing to the respondents and secured by the charging orders was £625,994 – on 20 October 2025, the appellant commenced proceedings in the NSW Supreme Court seeking an order for the revocation of the grant of probate in solemn form and, in lieu thereof, a grant of letters of administration in respect of the deceased’s estate in favour of a suitable person on the basis that the deceased revoked the will the day after it had been executed – on 9 December 2025, the respondents sought orders that the appellant provide security for their costs in the proceedings in the sum of $253,000, that the proceedings be stayed until security was provided, and that the respondents have liberty to apply to have the proceedings dismissed if the security was not provided within 28 days of the order – the primary judge held that an order for security was necessary to protect the efficacy of the Court’s jurisdiction to award costs by addressing the real risk to the respondents that the registration and enforcement in the United Kingdom of any costs judgment in the proceedings against the appellant would be a long, complex and costly process – the primary judge therefore made the orders sought by the respondents – whether the primary judge erred in ordering the appellant to provide security for costs.

Decision under appeal

Battenberg v Phillips [2026] NSWSC 292

Coram

• Mitchelmore JA
• Free JA

Counsel

• Appellant: T Becker
• Respondent: M Condon

2026/00013733

Tuesday, 13 October 2026

SUCCESSION – Mr Geoffrey Baxter (the deceased) died intestate on 1 August 2023 – on 16 May 2025, the appellant, a sister of the deceased, was granted letters of administration in respect of the estate of the deceased – the respondent commence proceedings seeking provision for her maintenance, education or advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) out of the estate of the deceased – it was agreed that the respondent and the deceased had a relationship but the nature, longevity and extent of the relationship was disputed – the respondent and the deceased were living apart when the deceased died and the respondent did not learn of his death for six weeks, but the respondent maintained that she still considered the deceased to be her de facto spouse and long-term partner at the time of his death – the appellant contended that the relationship had ended by the time of the deceased’s death – the primary judge found that, while the relationship between the deceased and the respondent was tumultuous, the respondent was the person to whom the deceased was closest for the final decade of his life and that the respondent and the deceased were for many periods of time members of the same household and dependent on each other – the primary judge further found that the respondent’s financial position was poor and her needs great – the primary judge held that under s 59, the respondent was an eligible person, that there were factors warranting the making of her application, and that a family provision order should be made in her favour as she was that only person to whom the deceased owed a moral duty to make provision – whether the primary judge erred in finding that the respondent was partly dependant on the deceased and that there were factors warranting the making of the application – whether the primary judge erred in principle by conflating the concepts of the respondent being the “love of [the deceased’s] life” and the existence of a “connection that kept bringing [the deceased and the respondent] together” as partners with a moral or social obligation to make provision for the respondent, and by ultimately holding that the respondent was a person to whom the deceased owed any moral duty – whether the primary judge erred in making the provision for the respondent that his Honour did.

Decision under appeal

Robinson v Glennon [2025] NSWSC 770

Coram

• Leeming JA
• Adamson JA
• McHugh JA

Counsel

• Appellant: A Martin
• Respondent: self-represented

2025/00373479

Thursday, 15 October 2026

PROFESSIONAL NEGLIGENCE (medical) – the appellant attended upon the respondent following a course of conservative treatment to her lower back which commenced in 1995 – on 11 March 1999, the respondent performed surgery on the appellant and attended upon her thereafter on several occasions again in 1999 – the appellant alleged that she experienced symptoms of lower back injuries in the years following the surgery – the appellant alleged that the respondent negligently advised and managed the appellant over the period in which he treated her in 1999 – the primary judge dismissed the appellant’s claim, including by not granting an extension of the 3-year limitation period – whether the primary judge erred in failing to find that the respondent breached his duty of care to the appellant with respect to medical advice given including regarding pre-operation advice of the risks of surgery – whether the primary judge erred in failing to find that the respondent breached his duty of care in respect of advice regarding the appellant’s return to playing hockey post-operatively – whether the primary judge erred in rejecting the appellant’s accounts of back pain commencing in 2004 – whether the primary judge erred in failing to find that, but for the respondent’s negligent advice, the appellant would not have had the surgery and would not have returned to playing hockey until a reasonable time had elapsed, or at all – whether the primary judge erred in not granting an extension of the limitation period.

Decision under appeal

Briggs v Hillier [2025] NSWSC 1021

Submissions

1. Notice of Intention to Appeal, 29 September 2025
2. Notice of Appeal, 5 December 2025
3. Affidavit of G J Potter, 2 March 2026
4. Appellant's Chronology, 11 June 2026
5. Appellant's written submissions, 17 June 2026
6. Amended Notice of Appeal, 10 July 2026
7. Respondent's written submissions, 2 September 2026
8. Respondent's Chronology, 2 September 2026
9. Appellant's submissions in reply, 2 October 2026
10. Appellant's Certification of Suitability for Publication, 6 October 2026
11. Respondent's Certification of Suitability for Publication, 6 October 2026

Coram

• Leeming JA
• Adamson JA
• Griffiths AJA

Counsel

• Appellant: DA Lloyd & J A Hillier
• Respondent: J Downing SC & M Hamdan