Albecz v Bloom - [2024] NSWCA 166

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Albecz v Bloom [2024] NSWCA 166
Hearing dates: 10 July 2024
Date of orders: 11 July 2024
Decision date: 11 July 2024
Before: Stern JA; Basten AJA
Decision:
(1) Dismiss the summons for leave to appeal filed 2 May 2024.
(2) Order that the applicant pay the respondent’s costs in this Court.

Catchwords:
APPEALS – leave to appeal – interlocutory judgment – application to appoint administrator pendente lite –executor granted probate in common form – application to prevent executor recovering costs from estate – application to recoup costs already paid – whether executor protecting personal interests – whether executor obliged to seek judicial advice - principles governing leave to appeal from interlocutory procedural orders – applicant was not joined by parties with prior interests

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56(1)
Probate and Administration Act 1898 (NSW), ss 63, 73
Supreme Court Act 1970 (NSW), s 101(2)
Trustee Act 1925 (NSW), s 63

Cases Cited:
Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Drummond v Drummond [1999] NSWSC 923
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
O’Brien v McCormick [2005] NSWSC 619
Ritossa v Ritossa [2023] NSWCA 14

Category: Principal judgment
Parties: Judit Albecz (Applicant)
Yonah Bloom (Respondent)
Representation:
Counsel:
B Oliak (Applicant)
L Ellison SC / P Muscat (Respondent)
Solicitors:
Palmer Legal (Applicant)
Arnotts Law Group (Respondent)

File Number(s): 2024/86654
Publication restriction: N/A
Decision under appeal

Court or tribunal:

New South Wales Supreme Court

Jurisdiction:

Equity

Citation:

[2024] NSWSC 114

Date of Decision:

15 February 2024

Before:

McGrath J

File Number(s):

2021/153209

JUDGMENT

THE COURT: This application for leave to appeal concerns an interlocutory order made in probate proceedings presently on foot in the Equity Division. The respondent, Yonah Bloom, is the executor of a will executed by the deceased, Paul Lenkey, on 8 November 2018 (“2018 Will”). The probate proceedings involve three claimants challenging the validity of the 2018 Will and propounding earlier wills, codicils or inter vivos agreements. The applicant, Judit Albecz, is one of the claimants and a beneficiary under two earlier wills. By an amended notice of motion filed on 16 May 2023, she sought interlocutory orders in relation to the administration of the estate (“May 2023 motion”). On 15 February 2024, McGrath J (primary judge) dismissed the May 2023 motion with costs: Rosenberg v Bloom [2024] NSWSC 114. By a summons filed on 2 May 2024, the applicant sought leave to appeal from those orders. Leave is required under s 101(2)(e) of the Supreme Court Act 1970 (NSW).

Background

The background circumstances may be briefly noted. The testator died on 28 October 2020. On 28 January 2021 a grant…

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 Albecz v Bloom

Details

AGLC: Albecz v Bloom [2024] NSWCA 166
Case: [2024] NSWCA 166
Decision Date: 11 July 2024

CaseChat Overview and Summary

The parties to this proceeding were Albecz (the applicant) and Bloom (the respondent). The dispute concerned an application for leave to appeal an interlocutory judgment of the Supreme Court of New South Wales. The underlying matter involved an application to appoint an administrator *pendente lite* and to prevent the respondent, who had been granted probate in common form, from recovering costs from the estate, as well as to recoup costs already paid.

The primary legal issue before the Court of Appeal was whether leave to appeal should be granted from the interlocutory procedural orders made by the primary judge. This required the Court to consider the principles governing appeals from such orders, particularly in circumstances where the applicant alleged the executor was protecting personal interests rather than acting in the best interests of the estate and questioned the executor's obligation to seek judicial advice.

The Court of Appeal dismissed the summons for leave to appeal. The reasoning, though not detailed in the provided text, would have involved an assessment of whether the applicant had demonstrated sufficient grounds to warrant an appeal from an interlocutory decision, likely finding that the threshold for granting leave was not met. The Court also ordered that the applicant pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the summons for leave to appeal filed 2 May 2024.

(2) Order that the applicant pay the respondent’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Albecz v Bloom [2024] NSWCA 166
Hearing dates:	10 July 2024
Date of orders:	11 July 2024
Decision date:	11 July 2024
Before:	Stern JA; Basten AJA
Decision:	(1) Dismiss the summons for leave to appeal filed 2 May 2024. (2) Order that the applicant pay the respondent’s costs in this Court.
Catchwords:	APPEALS – leave to appeal – interlocutory judgment – application to appoint administrator pendente lite –executor granted probate in common form – application to prevent executor recovering costs from estate – application to recoup costs already paid – whether executor protecting personal interests – whether executor obliged to seek judicial advice - principles governing leave to appeal from interlocutory procedural orders – applicant was not joined by parties with prior interests
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56(1) Probate and Administration Act 1898 (NSW), ss 63, 73 Supreme Court Act 1970 (NSW), s 101(2) Trustee Act 1925 (NSW), s 63
Cases Cited:	Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Drummond v Drummond [1999] NSWSC 923 Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 O’Brien v McCormick [2005] NSWSC 619 Ritossa v Ritossa [2023] NSWCA 14
Category:	Principal judgment
Parties:	Judit Albecz (Applicant) Yonah Bloom (Respondent)
Representation:	Counsel: B Oliak (Applicant) L Ellison SC / P Muscat (Respondent) Solicitors: Palmer Legal (Applicant) Arnotts Law Group (Respondent)
File Number(s):	2024/86654
Publication restriction:	N/A
Decision under appeal	Court or tribunal: New South Wales Supreme Court Jurisdiction: Equity Citation: [2024] NSWSC 114 Date of Decision: 15 February 2024 Before: McGrath J File Number(s): 2021/153209