Preparation is short. Publication is permanent. Appearing before Slattery J.
Slattery J has sat in the Equity Division of the Supreme Court of NSW since 2009. His published judgments deal mostly with probate, succession, family provision, caveats and trusts. He is also one of the court's most frequent Duty Judges.
Since 2015 his work divides into equity, property, costs, procedure, family and contract. He was President of the NSW Bar Association from November 2005 to November 2007 and served as Judge Advocate General of the Australian Defence Force (Rear Admiral, RANR) from July 2014 to July 2021. His reasons reflect a long career at the Bar: he is patient with genuine difficulty and unforgiving of preventable error.
Do not explain your own default from the Bar table
Togias v State of New South Wales [2025] NSWSC 937 at [16] is the cleanest example:
"The Court ordered the parties on 22 July 2024 to serve their evidence and submissions for the 8 October hearing. But the second defendant failed to do so. Mr Hale SC explains this as arising from change of solicitors which occurred at about that time. This may be right, and the Court of course accepts what Mr Hale SC says from the Bar table on the subject. But TAG adduced no evidence to explain its default or how the change of solicitors led to this result. And TAG made no application for leave to extend time for submissions to be filed."
No affidavit. No motion for an extension. An oral submission taken as courtesy to counsel but not as evidence. If a timetable is going to slip, write to the other side proposing a joint approach with a revised timetable. If that fails, file an affidavit from the instructing solicitor, and a motion for extension, before the deadline passes.
If the solicitor is a likely witness, act early
The Estate of Tabain [2025] NSWSC 690 is a cautionary case about the solicitor-witness rule. The solicitor who had prepared the disputed 2019 will continued to act for the proponent. To work around the risk of cross-examination, she "quarantined" herself from the preparation of other witnesses' affidavits, using support staff (not legally qualified: at [33]) and briefed counsel to settle witness statements. The cost of a single one of her affidavits was remarkable. At [53]:
"The Court called for information about the cost of producing Ms Kneebone's affidavit of 5 March 2025. The Court was told that she and counsel had together billed an eye-catching sum of $45,247.25 to produce that single affidavit."
The judge then flagged at [53] that, on any assessment, the opposing party might have a persuasive argument that it should not have to pay the additional cost of the quarantine workaround. Rules 25 and 27.2 of the Solicitors' Conduct Rules were treated as real constraints, not merely professional aspirations: at [38].
If you took instructions on a will that is now in dispute, consider whether you should continue to act at all, and obtain advice. Do not structure the litigation around elaborate workarounds that duplicate counsel's time and then expect those costs to be recoverable from the other side.
Identify the real issues
Bell v Hartnett Lawyers (No. 2) [2021] NSWSC 1270 at [85]:
"Through no fault of either counsel, it does appear to the Court that one of the 'real issues' in the case has not as yet been identified by either party. A question of equitable priorities is a potential central issue in this case, which the submissions of neither party [addresses]."
The judge identifies the real issue himself when counsel have not. That is a sign that the submissions were not sharp enough. He does not penalise counsel for it in that case, but the point is one he makes often: the advocate who gets to the real issue first, in writing, gains the court's attention.
He articulated the same point extracurially in a 2014 CLEAA Conference address:
"From time to time each year I run a busy Equity Duty list. Barristers and solicitor advocates crowd the Bar table at 10.00am in a scrum vying for priority in judicial attention. The Court must triage available judicial resources to deal with a press of urgent cases. The talented advocate who can compress all her ideas into a tight economical and interesting story has a huge advantage in securing the Court's attention."
The same address identified what he calls a good advocate: taking only meritorious points, making appropriate concessions, and dealing with the other side's best points fairly. His costs reasons reward exactly this. A practitioner who runs every point rarely recovers more on costs than one who conceded what could not be won; often less, because the conceded points still burden the costs assessment.
If you act for a trustee or executor, move the estate, and use judicial advice when in doubt
The Estate of Max Hall [2025] NSWSC 1261 at [10]:
"Today, 22 October 2025, some three months after the Court's orders granting probate and appointing the executors, no steps have yet been taken on behalf of the executors to obtain the probate that the Court granted on 22 July."
Three months of inaction was enough for the Court, on its own motion, to consider whether an independent administrator should be appointed. A solicitor acting for an executor should be chasing the grant.
Estate of Frost [2025] NSWSC 994 at [41] reinforces the point at the correspondence level: "The executor was slower to respond to requests for information under his previous solicitors, than his present solicitors." The judge noticed the change of solicitors because the pace of correspondence visibly changed. Your correspondence is part of the record.
Where the question is whether to commence or defend proceedings, Kaljo v Mitchell [2025] NSWSC 404 at [52] endorses judicial advice under s 63 of the Trustee Act as the proper route: "It is not appropriate for the representative of the estate to be required to litigate Mr Mitchell's opposition to the trust proceedings." Judicial advice protects the trustee from personal costs exposure and satisfies s 56 by resolving the issue in a single application rather than a contested trial.
Concede what cannot be won, and do it in writing
Slattery J's costs reasons reward concession. In Saunders v Maestri [2025] NSWSC 244 at [50] he restated the principle that indemnity costs may be awarded in cases commenced or continued where "the applicant, properly advised should have known that [they] had no chance of success". The corollary for the practitioner is the duty to advise, in writing, that a point cannot run.
In Rahman v Rahman (No. 6) [2026] NSWSC 43 at [23] the Court recorded that repeated interlocutory motions were threatening to deplete the fund the parties were fighting over. A lawyer who files motion after motion without a genuinely changed basis is exposed to the finding that the repetition is vexatious: see also Sethi v Cho [2025] NSWDC 538 at [25].
Concessions also work backwards. In Saunders v Maestri [2025] NSWSC 244 at [74], his Honour said of the sibling defendants: "Their contentions now that she should have sought judicial advice, or the consent of the defendants, before commencing proceedings does not sit well with the pre-trial correspondence they vigorously pressed against her."
Pre-action correspondence is evidence. If you pushed the other side to litigate and then argued that they should not have done so, the Court will notice and the costs discretion will reflect it. Correspondence that clearly states the defect, invites discontinuance, and reserves costs: at [34] and [40]. Write it as if the judge will read it, because if costs are contested, the judge will.
If your client cannot fund an undertaking as to damages, bring the evidence anyway
In Option Funds Management v Wenbo Zhao [2025] NSWSC 1376 at [78], he refused an injunction in part because: "Although invited on several occasions [to] provide evidence as to the value of that undertaking, Mr Zhao has not done so. Nor has Mr Zhao offered to meet the ongoing funding shortfall of which the receivers complain." The solicitors had been asked and had not answered. In International Minerals Group v Elleissy [2025] NSWSC 1513 at [9], a $30,000 offer to support an undertaking was "grossly inadequate and well short of what would be a fair payment"; at [7], "Little is known about the value of that undertaking other than that the tenant is in substantial rental arrears to the landlord."
File the balance sheet, bank statements and last tax return with the injunction application, not after the judge asks. If the undertaking is weak, open on why the discretion should still be exercised, and offer a payment into Court or a third-party covenantor.
The Court presumes your client has been told about the hearing
Abraham v Goldberg [2025] NSWSC 473 at [84]:
"Mr Klooster's courteous appearance on 2 February 2024 is an indication of the professional commitment of Ms Abraham's lawyers. The Court does not accept that they did not properly discharge their professional duties by telling her of the 2 February 2024 directions hearing at which she failed to appear."
If the client does not attend, the default is that you told them, and a later assertion that they did not know will not be accepted without evidence. Keep the file note. If you have reason to think the client will not attend, write to the Associate in advance.
Impecuniosity submissions will be tested. Have the statement of affairs ready
In Abraham v Goldberg (No. 2) [2026] NSWSC 277 at [37]-[38], the plaintiff had obtained procedural indulgences on the footing that she was impecunious. When the Court later required verification, the claim was exposed:
"The later verification of her financial position now proves that she is anything but impecunious... a preparedness to make false statements to the Court about her financial position indicate[s] she cannot be relied upon to adhere to any future timetable."
The costs consequence at [46] was an order on the indemnity basis.
If you are asking for time, waiver or security relief based on the client's asset position, obtain a verified statement of affairs before making the submission. The solicitor who puts a hardship case without underlying documents is exposed if it is later found to be wrong, and the client's credibility and the solicitor's credibility tend to move together in his reasons.
The Practice Note on the court book binds whoever is the moving party
In The Estate of Nelly Mary Aston [2024] NSWSC 1346 at [63], the judge extracted a letter from the respondent's solicitors to the moving party's solicitors:
"It is a well-established convention that the Plaintiff/Applicant is to prepare and circulate the Court Book and the same is reflected in numerous Practice Notes. That is particularly in circumstances such as these where your client is the moving party for the hearing... we appreciate neither your firm nor, apparently, Counsel assisting your firm, places great store in such matters and will just act and do as it best pleases."
A practitioner who does not read the Practice Note should expect the opposing solicitor's letter to end up in the judgment. Read SC Eq 3, SC Eq 7 or whichever Practice Note applies to your list before the first directions hearing. If you are the moving party, prepare the court book. If you cannot meet a deadline, write to the Associate and the other side before the deadline lapses.
Indemnity costs
His indemnity costs orders follow conduct he has described as "egregious" or "inordinate": Abraham v Goldberg (No. 2) [2026] NSWSC 277 at [46]. The threshold is reached where the practitioner's own handling of the file adds materially to the problem: missed timetables without an extension application, financial-hardship submissions that cannot be verified, points run after a warning from the Bench that they are untenable. Most matters never get there. The ones that do, in his reasons, usually involved more than one of those things at once.