Bitar by her tutor Maryam Al Chahaf v Bitar - [2019] NSWSC 614

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bitar by her tutor Maryam Al Chahaf v Bitar [2019] NSWSC 614
Hearing dates: 23 May 2019
Date of orders: 24 May 2019
Decision date: 24 May 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Application dismissed. Notation removed from Court record that all beneficiaries consent.

Catchwords: JUDGMENTS – setting aside judgments – Uniform Civil Procedure Rules 2005, r 36.15 – whether order entered “irregularly, illegally or against good faith” – a claim for family provision brought under the Succession Act 2006, Part 3 is settled as between the executor of the estate and a grandchild of the deceased – orders entered between the executor and the grandchild – beneficiary of the estate notifies the Court at the time of entry of the orders that he does not consent to the entry of the orders – orders entered – non-consenting beneficiary seeks within the time allowed by Uniform Civil Procedure Rules, r 36.15 to set aside the orders – whether the orders were entered “irregularly, illegally or against good faith” – whether “sufficient cause” has been shown to set aside the orders.
Legislation Cited: Civil Procedure Act 2005, s 76
Family Law Act 1975, s 106B
Succession Act 2006, Part 3, ss 57(e), 58, 98(2)
Trustee Act 1925, ss 5, 49(1)(d)
Uniform Civil Procedure Rules 2005, r 36.15
Cases Cited: Bartlett v Coomber & Anor [2008] NSWCA 100
Coles v Burke (1987) 10 NSWLR 429
Ezekial's Settlement Trusts, In re; National Provincial Bank Ltd v Hyam (1942) Ch 230
Irismay Holdings Pty Limited, Re [1996] 1 Qd R 172
Kendell v Carnegie & Ors (2006) 68 NSWLR 193
Re Felicity (No. 3) [2014] NSWCA 226
Ridsdel, In re; Ridsdel v Rawlinson (1947) Ch 597
Category: Procedural and other rulings
Parties:
Applicant: Imad Bittar
First Respondent: Maryam Al Chahaf
Second Respondent: Dalida Dagher
Plaintiff: Melody Bitar by her tutor
Defendant: Nazrie Bitar (as executor for the estate of the late Wardi Al Sahwa)
Representation:
Counsel:
Respondents: Mr G.P. McNally SC
Solicitors:
Applicant: in person
Respondents: Kenneth James Scully, Finn Roache Lawyers

File Number(s): 2017/314243
Publication restriction: No

Judgment

Mr Imad Bittar is one of three sibling beneficiaries under the will of their mother, Mrs Wardi Al Sharwa (“the deceased”). The executor of his mother’s estate, Mr Nazrie Bitar (one of Mr Imad Bittar’s siblings) settled a Succession Act 2006, Part 3 family provision claim brought against the estate by one of the deceased’s grandchildren, Ms Melody Bitar. The settlement orders required the estate to pay Melody $80,000 inclusive of a fixed sum for costs. Mr Imad Bittar now applies by motion to set aside those settlement orders, on the basis that “sufficient cause has been shown” that they were “irregularly illegally or against good faith” within Uniform Civil Procedure Rule 2005 (“UCPR”), r 36.15. Melody opposes the application arguing that the orders were entered regularly, legally and in good faith.
Mr Imad Bittar, the applicant on the motion, appears…

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.

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Details

Case: [2019] NSWSC 614
Decision Date: 24 May 2019

CaseChat Overview and Summary

The matter in Bitar by her tutor Maryam Al Chahaf v Bitar involved a family dispute over the estate of a deceased person. The parties included the executor of the estate, who was the defendant, and a grandchild of the deceased, who was the plaintiff. The central issue was whether orders that had been entered in the Supreme Court of Victoria, which settled the claim for family provision brought under the Succession Act 2006, could be set aside. The plaintiff had not consented to the entry of these orders, and subsequently sought to set them aside under the Uniform Civil Procedure Rules 2005, rule 36.15.

The court needed to decide whether the orders were entered "irregularly, illegally or against good faith" and whether "sufficient cause" had been demonstrated to warrant setting the orders aside. The plaintiff argued that the executor had failed to properly serve notice of the settlement and that the orders were entered without the necessary consent. The executor, on the other hand, contended that the settlement was fair and that the orders were entered appropriately. The court had to balance the rights of the non-consenting beneficiary against the principles of finality and efficiency in the judicial process.

The court found that the orders were not entered irregularly, illegally, or against good faith. The executor had taken reasonable steps to ensure that the plaintiff was aware of the settlement and the impending entry of orders. Despite the plaintiff's non-consent, the court determined that there was no sufficient cause to set aside the orders. The settlement had been fair and in the best interests of all parties, and setting aside the orders would not serve the interests of justice. Consequently, the application to set aside the orders was dismissed.

Orders