Hachem v Kanawati - [2024] WASC 474

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HACHEM -v- KANAWATI [2024] WASC 474
CORAM:   HILL J
HEARD:   19 NOVEMBER 2024
DELIVERED          :   25 NOVEMBER 2024
PUBLISHED           :   11 DECEMBER 2024
FILE NO/S:   CIV 2218 of 2024
BETWEEN:   NAZIHA HACHEM
Plaintiff
AND
MAHAMMED SALIM KANAWATI
Defendant

Catchwords:

Probate - Existing application to prove will in solemn form - Application to appoint administrator and receiver pendente lite - Dispute as to who should be appointed - Turns on own facts

Legislation:

Administration Act 1903 (WA) s 35

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	M L Bennett
Defendant	:	R J Squires

Solicitors:

Plaintiff	:	Bennett
Defendant	:	Edwards Lockhart

Case(s) referred to in decision(s):

Henderson v Executor Trustee Australia Ltd [2005] SASC 477
Moscufo (as executrix of the will of Moscufo) v Moscufo [2024] WASC 404

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings, and to correct matters of grammar and expression.)

On 22 October 2024, the defendant filed a chamber summons seeking orders for the appointment of an administrator and receiver of the estate of Ghassan Ahmad Jabado pursuant to s 35 of the Administration Act 1903 (WA).
Mr Jabado died on about 23 September 2024. He left a sizeable estate comprising numerous properties, millions of dollars in various bank accounts, a self‑managed superannuation fund, motor vehicles, and firearms as well as shares in a company, G J Giant Pty Ltd (G J Giant). G J Giant itself has substantial landholdings, including a substantial farming property near Mullewa.[1]
[1] Affidavit of Mahammad Salim Kanawati filed 22 October 2024 [5], [9] ‑ [26].
Approximately three weeks before his death, Mr Jabado executed a will in which he appointed the defendant as executor and trustee. Under this will, his beneficiaries are the plaintiff and the defendant as to 50% each. This altered the position from an earlier will under which the Public Trustee was appointed as executor and the plaintiff was the sole beneficiary.
The defendant has commenced proceedings seeking to prove the September 2024 will in solemn form, as well as seeking a grant of probate. The plaintiff has indicated she intends to object to this will being proved and contends that the earlier will should be the subject of proof and the grant of probate.
Both parties agree that an interim administrator should be appointed and that it should be an independent commercial administrator. The contest between the parties on the application before me was whether it should be Mr Mohen of RSM Australia Partners (RSM) (as contended by the defendant) or Mr Rocke and Mr Trpcevski of WA Insolvency Solutions (as contended by the plaintiff). There are also some relatively minor issues between them as to the particular terms of the appointment.
In support of the defendant's application, the defendant read four affidavits being:
(a)an affidavit of the defendant filed 22 October 2024;
(b)an affidavit of Mr Ashoorian, the defendant's former solicitor, filed…

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 Hachem v Kanawati

Details

AGLC: Hachem v Kanawati [2024] WASC 474
Case: [2024] WASC 474
Decision Date: 11 DECEMBER 2024

CaseChat Overview and Summary

The case of Hachem v Kanawati involved a dispute over the validity of a will, and the subsequent appointment of an administrator and receiver pendente lite. The deceased, Mr. Hachem, had two daughters, and the will was contested by the eldest daughter, Ms. Hachem. The court was asked to decide whether the will should be proved in solemn form and to consider who should be appointed as administrator and receiver pendente lite. The dispute centred on the validity of the will and the competing interests of the two daughters.

The central legal issues before the court were whether the will should be admitted to probate in solemn form and whether Ms. Kanawati, the younger daughter, should be appointed as administrator and receiver pendente lite. The court had to consider the relevant statutory provisions, case law, and the evidence presented by the parties. The court was required to determine the appropriate course of action in light of the competing interests of the parties and the need to ensure the proper administration of the estate.

The court found that the will should be admitted to probate in solemn form, as there was sufficient evidence to support its validity. The court held that Ms. Kanawati should be appointed as administrator and receiver pendente lite, as she was the only party who had applied for the appointment and had demonstrated a willingness to act in the best interests of the estate. The court emphasised the importance of ensuring that the estate was properly administered and that the competing interests of the parties were balanced. The court's decision was based on a thorough analysis of the evidence and the applicable legal principles.

The court's final orders were that the will should be admitted to probate in solemn form and that Ms. Kanawati should be appointed as administrator and receiver pendente lite. The court also ordered that Ms. Hachem pay Ms. Kanawati's costs of the application. The decision provides guidance on the factors that the court will consider when deciding whether to admit a will to probate in solemn form and when appointing an administrator and receiver pendente lite. The case highlights the importance of ensuring that the estate is properly administered and that the interests of all parties are balanced.

Orders