Alexakis v Masters - [2022] NSWSC 1256

Supreme Court

New South Wales

Medium Neutral Citation: Alexakis v Masters [2022] NSWSC 1256
Hearing dates: On the papers
Date of orders: 16 September 2022
Decision date: 16 September 2022
Jurisdiction: Equity
Before: Henry J
Decision:
Leave to re-open refused

Catchwords:
CIVIL PROCEDURE – application to re-open case –where plaintiff sought to adduce further evidence after judgment is reserved – whether further evidence is important and of probative value to issues in the case – where some consequential delay and further expense would be caused – application refused

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)

Cases Cited:
Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168
Goodman Fielder Consumer Foods Pty Ltd v GrainCorp Foods Australia Pty Ltd [2020] NSWSC 706
Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141
Owners - Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1682
Taouk v Louis (No 1) [2014] NSWSC 656

Category: Procedural rulings
Parties: Peter Alexakis (Plaintiff/Cross-Defendant)
Gary Masters (First Defendant/Cross-Claimant/Cross-Defendant)
Frank Camilleri (Second Defendant/Fourth Cross-Defendant/Second Cross-Claimant)
Hildegard Schwanke (Third Defendant/Second Cross-Defendant/First Cross-Claimant)
Irmgard (Marianne) Schwanke (Fourth Defendant/Third Cross-Defendant/Second Cross-Claimant)
Representation:
Counsel:
L Ellison SC with L Fernandez (Plaintiff)
R Wilson SC with C Birtles (First Defendant)
V Bedrossian SC with L Reeves (Second Defendant)
J Brown with P Wiggins (Third and Fourth Defendants)
P Rogers (Interested Party)
Solicitors:
Teece Hodgson Ward (Plaintiffs)
Makinson d’Apice Lawyers (First Defendant)
Crumpton Lawyers (Second Defendant/Fourth Cross-Defendant/Second Cross-Claimant)
Turner Freeman (Third and Fourth Defendants)

File Number(s): 2019/201496
Publication restriction: Nil

JUDGMENT

These reasons deal with the plaintiff’s application, made by notice of motion filed on 30 June 2022, for leave to re-open to adduce further evidence (a letter) in his case. In support of his application, the plaintiff relies on his affidavit sworn 29 June 2022 and written submissions.
The application is made in proceedings which concern the estate of the late Raymond McClure (deceased), who died on 21 November 2017.
The plaintiff, Dr Peter Alexakis, seeks a grant of letters of administration in respect of a will made by the deceased on 10 July 2017 or, alternatively, a will made on 8 June 2017. The plaintiff was the deceased’s treating general practitioner and is the principal beneficiary under the 2017 wills.
The first defendant is the financial secretary of the Salvation Army (NSW) Property Trust. The financial director of the Salvation Army was appointed as executor under a will made by the deceased on 27 May 2016 which provided for the Salvation Army to be the major beneficiary of the deceased’s estate. The three other defendants (Frank Camilleri, Hildegard Schwanke and Irmgard Schwanke, respectively) are beneficiaries under the deceased’s 2017 and 2016 wills.
In these proceedings, the defendants challenge the plaintiff’s claim on various grounds, including that the 2017 wills were procured by undue influence, fraud and/or unconscionable conduct on the part of the plaintiff, and have filed cross-claims that seek a range of declaratory, injunctive and other relief…

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 Alexakis v Masters

Details

AGLC: Alexakis v Masters [2022] NSWSC 1256
Case: [2022] NSWSC 1256
Decision Date: 16 September 2022

CaseChat Overview and Summary

The case of Alexakis v Masters involved a plaintiff who sought to present additional evidence after judgment had been reserved. The plaintiff applied to the court to reopen the case, arguing that the new evidence was crucial to the issues at hand and had probative value. The application was made to the court with an acknowledgment that there would be some delay and additional expense as a consequence. The court was tasked with determining whether the importance of the new evidence outweighed the potential drawbacks of reopening the case.

The central legal issue before the court was whether the new evidence presented by the plaintiff was of such significance that it warranted the reopening of the case, despite the potential for additional delay and expense. The court had to weigh the importance and relevance of the evidence against the established practice of finality in judgments once reserved. The court also considered whether the new evidence could be considered so crucial that it justified the reopening of the case.

In reaching its decision, the court meticulously evaluated the probative value of the new evidence against the potential for delay and increased costs. The court found that, while the evidence might be relevant, it was not of such critical importance that it necessitated the reopening of the case. The court emphasised the importance of maintaining finality in judgments and the need to balance this against the introduction of new evidence. Consequently, the application to reopen the case was refused, and the court adhered to the principle that the importance of the evidence did not outweigh the consequences of reopening the case.

The court's final orders were that the application by the plaintiff to adduce further evidence after judgment had been reserved was refused. The court maintained the finality of its earlier decision, and no further evidence was allowed to be presented. The plaintiff's application to reopen the case was denied on the grounds that the evidence, while potentially relevant, was not of such critical importance as to justify the additional delay and expense.

Orders