Erem v Moussa; The Estate of Mary Moussa [2023] NSWSC 536
Hearing dates:
15 and 16 May 2023
Date of orders:
16 May 2023
Decision date:
22 May 2023
Jurisdiction:
Equity
Before:
Meek J
Decision:
Hearing dates vacated. Costs of the vacation of the hearing dates be the respondent’s costs in the cause, but not including cancellation fees
Catchwords:
CIVIL PROCEDURE — Hearings — Estate litigation — Principally probate issues focussing on deceased’s capacity and rectification of a Will though other relief sought regarding property including an alternative family provision claim — Adjournment — Applicable principles — Vacation of hearing dates — Illness of counsel — First Defendant’s counsel suffers several medical episodes requiring hospitalisation and investigations — Initial episodes not of sufficient moment at that stage to require the applicant then and there to apply to vacate the hearing dates — Counsel’s discussion with medical specialist on 12 May 2023 indicating imperative for counsel to be hospitalised the decisive event to prompt application to vacate hearing dates — Various considerations applicable to decision to vacate — A significant consideration being the volume and complexity of materials for any new counsel who might have been available to have been briefed to consider — Materials in Court Book and Additional Document Bundle exceed 2,500 pages, including recently incorporated set of over 1,400 pages of hospital, healthcare and medical records — Materials include reports of over 20 medical practitioners and specialists spanning a period of over 20 years
COSTS — Principles where adjournment not arising by fault of the applicant — Meaning of costs to be a particular party’s costs in the cause — Discussion regarding cancellation fees
SUCCESSION — Cancellation fees in estate litigation — Probate, Will rectification and family provision costs orders — The particular nature of probate, Will rectification and family provision proceedings is a relevant consideration for the Court in exercising its discretion on costs — No evidence concerning practice regarding cancellation fees or the reasonable need for such fees to be recoverable from another party in probate and estate litigation — On particular facts of the case direction made that cost orders not include cancellation fees
[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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Erem v Moussa [2023] NSWSC 536
Case
[2023] NSWSC 536
Decision Date
CaseChat Overview and Summary
The case of Erem v Moussa involved a complex dispute over the estate of a deceased individual, focusing on issues such as the deceased's capacity and the rectification of a Will, as well as claims relating to property and an alternative family provision claim. The matter was heard in a court where the primary issues were the adjudication of probate, the rectification of a Will, and the resolution of property disputes, all of which are intricate and require careful consideration of various legal principles.
The court was tasked with determining whether to adjourn the hearing dates due to the illness of counsel for the First Defendant, who experienced several medical episodes necessitating hospitalisation. The court also had to consider the appropriate principles to apply when deciding on the vacation of hearing dates, especially given the volume and complexity of the materials involved. These materials, which exceeded 2,500 pages, included hospital, healthcare, and medical records, as well as reports from over 20 medical practitioners and specialists.
Upon assessing the circumstances, the court concluded that the hearing dates should be vacated. A significant factor in this decision was the impracticality of briefing new counsel on the extensive and complex materials. The court further deliberated on the issue of costs, determining that in the absence of fault by the applicant, the costs should be borne by the party seeking the adjournment. Notably, the court ruled that cancellation fees should not be included in the costs orders, given the unique nature of probate, Will rectification, and family provision proceedings. The court found no evidence to support the recoverability of such fees from another party in these types of cases.