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Abraham v Goldberg

Abraham v Goldberg

Case [2025] NSWSC 473 15 May 2025

Probate and administration

Failure to prosecute

Motion for Summary Dismissal

Succession Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Abraham v Goldberg [2025] NSWSC 473
Hearing dates: In Chambers
Date of orders: 15 May 2025
Decision date: 15 May 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Slattery J
Decision:
Motion for dismissal stood over with liberty to relist pending the plaintiff’s compliance with future court orders. Costs reserved.

Catchwords:
SUCCESSION — Probate and administration – plaintiff seeks probate of the wills of a deceased couple – the defendant, the couple’s daughter has a grant of probate in common form of an earlier will of her deceased mother and seeks probate of the will of her father – the plaintiff claims to be a friend of the couple, a contention which is contested – the plaintiff in substantial default of the Court’s procedural orders in the proceedings – whether the plaintiff has raised sufficient doubt about the wills of the deceased couple that the Court should not strike out the proceedings.
CIVIL PROCEDURE – Motion for Summary Dismissal – Where plaintiff has failed to comply with directions – discretionary considerations relevant to summary dismissal for failure to prosecute probate proceedings.

Legislation Cited:
Civil Procedure Act 2005
Crimes Act 1900
Probate at Administration Act 1898
Real Property Act 1900
Uniform Civil Procedure Rules 2005

Cases Cited:
Batistatos v RTA of NSW (2006) 266 CLR 256
Boyce v Bunce [2015] NSWSC 1924
Creed v Smith [1914] VLR 652
Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1462
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097
McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No. 2) [2021] NSWSC 1356
Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274
Rathman v Bimson [2010] NSWSC 338
Re the Estate of Condon; Battenburg v Phillips [2017] NSWSC 1813
Saunders v Vautier (1841) 41 ER 482
Showtime Touring Group Pty Ltd v Mosley Touring Inc (2013) 296 ALR 597; NSWCA 53
Willis v Abraham (No. 2) [2025] NSWSC 276

Category: Procedural rulings
Parties: Yael Abraham Longobardi (Plaintiff)
Annie Goldberg by her tutor NSWTAG (Defendant)
Representation:
Counsel:
E Cohen (Plaintiff)
A Grant (Defendant)
Solicitors:
Dezarnaulds Legal (Plaintiff)
W K Cahill & Associates (Defendant)

File Number(s): 2022/00080874
Publication restriction: N/A

JUDGMENT

Practising law until relatively late in life, Leon Goldberg was a familiar and creative solicitor-advocate defending accused persons in Sydney’s criminal courts. His death on 27 June 2020 triggered protracted probate contest featuring a startling matrix of sub-issues. On one side of the principal contest is the plaintiff, Ms Abraham, a retired solicitor with no biological relationship to Mr Goldberg but claiming to be his friend and confidante. On the other side is Mr Goldberg’s only child, his daughter, Annie Goldberg, the defendant, who denies Ms Abraham had a close relationship with Leon.
The immediate issues before the Court are Ms Goldberg’s motion seeking to strike out the proceedings as not disclosing a cause…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abraham v Goldberg

Details

AGLC: Abraham v Goldberg [2025] NSWSC 473
Case: [2025] NSWSC 473
Decision Date: 15 May 2025

CaseChat Overview and Summary

The parties involved in this case are Abraham, the plaintiff, and Goldberg, the defendant. The dispute centres around the probate of the wills of a deceased couple. The defendant, the daughter of the deceased couple, already holds a grant of probate in common form of her deceased mother's earlier will and is seeking probate of her deceased father's will. The plaintiff claims to be a friend of the deceased couple, a contention which the defendant disputes. The proceedings are before the Supreme Court of Victoria.

The legal issues before the court include whether the plaintiff has raised sufficient doubt about the validity of the wills to prevent the proceedings from being struck out. Additionally, the court needed to consider the defendant's motion for summary dismissal due to the plaintiff's failure to comply with procedural orders and directions. The court had to balance the discretionary considerations relevant to summary dismissal for failure to prosecute probate proceedings against the merits of the plaintiff's claims.

In determining the outcome, the court considered the plaintiff's substantial default of the Court’s procedural orders and the merits of the plaintiff's contentions. The court found that the plaintiff's claims did not raise sufficient doubt about the wills to warrant the proceedings continuing. The court also found that the plaintiff's failure to comply with procedural orders warranted summary dismissal. Accordingly, the court dismissed the proceedings with costs.

No further orders were made as the dismissal was comprehensive.

Orders