Hana v Shad Legal Services Pty Ltd

[2021] NSWSC 601

Supreme Court

New South Wales

Medium Neutral Citation:

Hana v Shad Legal Services Pty Ltd [2021] NSWSC 601

Hearing dates:

7 May 2021

Date of orders:

31 May 2021

Decision date:

31 May 2021

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)   The statement of claim be struck out;

(2)   The plaintiff file and serve any amended statement of claim on or before 27 June 2021;

(3)   The proceedings be listed for directions before the Registrar at 9.00am on 6 July 2021 at 9.00am;

(4)   The plaintiff pay the defendant’s costs of its notice of motion dated 29 January 2021; and

(5)   The notice of motion be otherwise dismissed.

Catchwords:

SUMMARY DISMISSAL – abuse of process – Anshun estoppel – plaintiff unsuccessful in probate proceedings – failed to show testator knew and approved of will making plaintiff sole beneficiary – defendant’s employed solicitor drafted and supervised execution of will – alleged defendant’s failures meant plaintiff lacked evidence to prove will approved – attempt to relitigate probate proceedings – statement of claim struck out

Cases Cited:

D’Orta-Ekenaike v Victoria Legal (2005) 223 CLR 1; [2005] HCA 12

Egri v DRG Australia Ltd (1988) 19 NSWLR 600

Ekes v Commonwealth Bank of Australia [2014] NSWCA 336

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Harris for and on behalf of the estate of Harris and Harris v Rapisarda [2019] NSWSC 1088

Henderson v Henderson (1843) 3 Hare 100, 67 ER 313

Kuligowskiv Metrobus (2004) 220 CLR 363

Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197

Mekhail v Hana; Mekhail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452

O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Redowood Pty Limited v Link Market Services Pty Limited (formerly known as ASX Perpetual Registrars Limited) [2007] NSWCA 286

Rippon v Chilcott Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198

State of Bank New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81-423

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 2

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Williams v Spautz (1992) 174 CLR 509

Texts Cited:

K R Handley AQ CStj QC, Spencer Bower and Handley: Res Judicata, Lexis Nexus, 5th edition, 2019

Category:

Principal judgment

Parties:

Georgette Hana (Plaintiff)
Shad Legal Services Pty Ltd (Defendant)

Representation:

Counsel:
JC Lee; BJS Smith (Plaintiff)
GES Ng (Defendant)

Solicitors:
Darby Jones Lawyers (Plaintiff)
YPOL Lawyers (Defendant)

File Number(s):

2020/313930

Judgment

1. This judgment concerns a well-argued notice of motion seeking the dismissal of proceedings against a solicitor for professional negligence on the basis that they constitute an abuse of process. It is contended that the proceedings are an attempt to relitigate probate proceedings that were determined adversely to the plaintiff in these proceedings, Georgette Hana. For the reasons that follow, I accept that the proceedings as formulated in the statement of claim are an abuse of process.

Background

2. The late Nadia Mekhail passed away on 2 April 2015 after a sustained battle with cancer. In December 2014 she attended the offices of the defendant, Shad Legal Services Pty Ltd, and met with one of its employed solicitors, Thomas Liondos. On or about 12 December 2014, she “made” a will that purported to appoint Ms Hana as executrix and left her the entirety of the estate (the “2014 Will”). The statement of claim in these proceedings pleads that, at that time, her estate consisted of some cash and real estate. Subsequently some of the estate was dissipated through a transfer of the real estate executed by Ms Hana using a power of attorney. Nothing turns on this.

3. In 2015, two of Ms Mekhail’s nephews, Magdy Mekhail and Youseff Mekhail, commenced proceedings in the Equity Division of this Court against Ms Hana (the “probate proceedings”). Amongst other forms of relief, they sought a grant of probate in respect of an earlier will made by Ms Mekhail in 2001 (the “2001 Will”). They and other nephews of Ms Mekhail were beneficiaries under the 2001 Will. Amongst other matters, they contended that Mekhail lacked testamentary capacity to make the 2014 Will. By a cross‑claim, Ms Hana sought a grant of probate under the 2014 Will.

4. On 5 October 2018, Slattery J dismissed the proceedings brought by Magdy and Youseff Mekhail and granted Ms Hana probate under the 2014 Will (Mekhail v Hana; Mekhail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452; the “primary judgment”). His Honour found that Ms Hana “had testamentary capacity when she executed her Will on 12 December 2014” (at [327]).

5. Magdy and Youseff appealed. On 14 August 2019, the Court of Appeal upheld their appeal and granted probate under the 2001 Will in solemn form (Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197). Leeming JA (with whom Basten and Emmett JJA agreed) noted that, leaving aside the onus of proof, for the grant of probate to be made, the deceased had to have testamentary capacity and had to know and approve of the will (at [128] citing Veall v Veall (2015) 46 VR 123; [2015] VSCA 60). Further, his Honour noted that so far as the onus of proof was concerned (at [131]):

“Where as here those taking a benefit under a will have played a part in its preparation, it is for the propounder to show “the righteousness of the transaction”, namely, that the testator or testatrix knew the contents of the will and appreciated its effect, so that it can be said that the will contains the real intention and reflects the true will of the testator or testatrix. The same is true where there are “suspicious circumstances”, such as those mentioned by the primary judge, including the erroneous description of Georgette as Nadia’s daughter, and the erroneous belief of Mr Liondos.” (emphasis added)

6. In the primary judgment, Slattery J identified two “suspicious circumstances” surrounding the making of the 2014 Will. Those circumstances were that “Nadia [Mekhail], Georgette and Bishoy [Hana] led Mr Liondos to believe that they had a relationship of mother, daughter and grandson and did not disabuse him of those relationships in a way that would allow him to give the complete advice to Nadia that he would otherwise have given” (at [310]) and that “this conduct misleading Mr Liondos led to the [2014] Will falsely describing Georgette as Nadia’s daughter and Adel Hana as her son-in-law” [at [311]). His Honour then noted that “[o]ther suspicious circumstances were identified ... [b]ut in my view these two are quite sufficient” to impose an onus on Ms Hana. Adel Hana is Ms Hana’s husband and Bishoy is her son.

7. On appeal, Leeming JA found error on the part of Slattery J in not “examining the quantity and quality of the matters giving rise to suspicion once he had concluded that the onus had shifted’ and that it was “necessary for his Honour to determine the full nature of the suspicious circumstances” (at [136]). His Honour identified an additional eight such circumstances (at [147]) namely that (1) the 2014 Will was drafted on instructions from Ms Hana’s son rather than from Ms Mekhail; (2) the 2014 Will left nothing to the church; (3) it was anticipated that the 2014 Will might be contested; (4) Ms Hana and her son were present when the 2014 Will was made; (5) Mr Liondos made various factual errors that were reflected in the drafting of the 2014 Will; (6) there was an unexplained change in the identity of the beneficiaries; (7) Ms Hana’s son attempted to obtain two powers of attorney; and (8) the 2014 Will and documentation were made with a sense of urgency.

8. Having identified error, his Honour found that Ms Hana did not “discharge ... the onus borne by her as to permit the 2014 Will to be admitted to probate” (at [162]). As noted, the Court made orders appropriately including granting probate under the 2001 Will in the solemn form.

The Statement of Claim

9. The statement of claim recites the basic facts surrounding the retention of Mr Liondos by Ms Hana to prepare Ms Mekhail’s will. It pleads that Ms Mekhail referred to Ms Hana as her daughter and they were in a “close, personal relationship as at 2014” (at [7]). It recites that Ms Mekhail’s instructions were to leave the entirety of her estate to Ms Hana (at [19]) and that on 12 December 2014 Ms Mekhail made a will (being the 2014 Will). It specifically pleads that “[a]s at December 2014 [Ms Mekhail] intended the plaintiff to be the sole beneficiary of her estate” (at [26]).

10. The statement of claim pleads that the defendant owed Ms Mekhail a duty of care to take reasonable care in the performance of its retainer. In terms of whether a duty was owed by the defendant to Ms Hana the statement of claim pleads (at [32]):

“… there was a coincidence of interests between [Ms Mekhail] and the plaintiff [Ms Hana], in that [Ms Mekhail’s] testamentary intentions were for the [Ms Hana] to be the sole beneficiary of her estate pursuant to the Will, and it was in the interests of the plaintiff to be the sole beneficiary of [Ms Hana’s] estate pursuant to the will.” (emphasis added)

11. Next the statement of claim pleads a “risk of harm” being that, if no probate was granted, it would result in Ms Hana’s “testamentary intentions not being given effect” to thereby causing Ms Hana loss (at [33]).

12. Under the heading “Breach and causation”, the statement of claim pleads that the defendant breached its duty to Ms Mekhail and Ms Hana by failing to give Ms Hana “independent advice”, not having a medical practitioner present in conference and not having such a practitioner examine her to certify that she had testamentary capacity.

13. The statement of claim then pleads as follows:

“But for the defendant’s breaches of the Duty as pleaded above:

(a)   the defendant would have taken instructions from the Deceased in relation to her will without the presence of the plaintiff or any other third party who had an interest in the Will, but rather would have had another solicitor present;

(b)   The Deceased would have given instructions to the defendant in the same manner as she actually did in December 2014;

(c)   the defendant would have requested that the Deceased be reviewed by a medical practitioner to determine whether or not she had capacity;

(d)   that medical practitioner would have certified that the Deceased did have capacity;

(e)   any challenge subsequently brought to probate being granted of the Deceased’s Will would not have been brought or, alternatively, would have failed; and

(f)   probate of the Will would have been granted to the plaintiff and the Deceased’s estate would have been distributed pursuant to that Will.”

14. The reference to the “Deceased’s Will” and that “Will” in these subparagraphs is to the will that Ms Mekhail in fact executed (ie, the 2014 Will). To the end, the statement of claim then pleads the loss suffered by Ms Hanna principally being the “entire benefit of that she was given pursuant to the [2014] Will”.

15. It is apparent from the above that the entire premise of the statement of claim was that, firstly, Ms Mekhail has testamentary capacity and, secondly, that it was her knowledge and intention in executing the 2014 Will to leave the entirety of her estate to Ms Hana. The second matter, expressly pleaded as a fact, was the foundation for: the assertion that a duty was owed to Ms Hana by the defendant; the pleaded risk of harm and the pleading of breach and causation. Further, the statement of claim asserts that, had the defendant taken the steps noted at [12], then the opposite result to the relief granted in the Court of Appeal would have ensued, namely that the probate would have been granted under the 2014 Will (and not the 2001 Will or even some variant on the 2014 Will).

Submissions

16. In his written submissions, counsel for the defendant, Mr Ng, submitted that the proceedings are an abuse of process that, if permitted to be maintained, would detract from the finality of litigation, specifically the outcome of the probate proceedings. He contended that, given Ms Hana failed to show it was the “real intention” and “true will” of Ms Mekhail that she be the sole beneficiary of Ms Mekhail’s estate in the probate proceedings, then, in bringing proceedings that assume that was her intention, she is seeking a “finding manifestly inconsistent with the conclusion of the Court of Appeal.” [1]

    1. Defendant’s outline of submissions at [17].

17. Although Mr Ng’s submissions were primarily directed to abuse of process, they also invoked the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun”) as said to have been incorporated into the doctrine of abuse of process (see Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at [24]; “Rippon”). Mr Ng submitted that, although Mr Liondos was a witness, it was nevertheless open to Ms Hana to bring a cross claim against the defendant in the probate proceedings that assumed probate was not granted under the 2014 Will or commence separate proceedings and have them determined at the same time and thereby avoid inconsistent judgments. [2]

    2. Defendant’s outline of submissions at [25].

18. In his written submissions, counsel for Ms Hana, Mr Lee, submitted that these proceedings do not involve the relitigation of any issue decided in the probate proceedings and nor was it unreasonable for his client not to have cross claimed against the defendant. [3] His submissions referred to the heavy onus cast upon a party who contends that proceedings were an abuse of process and the necessity to closely analyse what the Court of Appeal determined. [4] The plaintiff’s submissions analysed the inter-relationship between the Court of Appeal’s judgment and Ms Hana’s claim in these proceedings by characterising his client’s claim as being that, had the defendant taken the pleaded steps, then “there would have been additional evidence available to Ms Hana to resist” the challenge to the 2014 Will. It was submitted that, in that event, “either the Court of Appeal would not have formed the view that there was suspicious circumstances which placed an additional evidential burden on Ms Hana or, alternatively [it] would have found that she had discharged the burden”. [5] Ms Hana was described as having “lost the opportunity to succeed in the probate proceedings”. [6]

    3. Plaintiff’s outline of submissions at [3] to [4].

    4. Plaintiff’s outline of submissions at [11] to [12].

    5. Plaintiff’s outline of submissions at [18].

    6. Plaintiff’s outline of submissions at [20].

19. Insofar as the defendant seeks to rely on Anshun, Mr Lee submitted that an Anshun claim could not rise any higher than the defendant’s claim that the proceedings are an abuse of process. [7] He also submitted that it was not unreasonable for Ms Hana not to have joined the defendant as a cross‑defendant given that Mr Liondos was a witness in Ms Hana’s case and the consequential delay and cost that would have resulted from the addition of a substantial cross‑claim to the probate proceedings. [8]

    7. Plaintiff’s outline of submissions at [44].

    8. Plaintiff’s outline of submissions at [45] to [47].

Abuse of Process?

20. The interrelationship between res judicata, estoppels arising from judicial determinations, abuse of process and double recovery was described in Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 at [20] to [27] per French CJ, Bell, Gageler and Keane JJ (“Tomlinson”). As res judicata arises from the judicial quelling of controversies between the same parties (at [20]) it can be put aside as can any suggestion that the plaintiff in these proceedings might obtain double recovery (at [27]).

21. In relation to estoppel, the plurality in Tomlinson described its three relevant forms being cause of action estoppel, issue estoppel and an estoppel of the kind described in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 and Anshun, specifically the assertion of a claim or the raising of an issue that could have and should have been raised in earlier proceedings (at [22]; “Anshun estoppel”). Although it was observed that “considerations similar to those which underpin [Anshun] estoppel may support a preclusive abuse of process argument” the plurality stated that all three forms of estoppel including Anshun only operate “between parties to a proceeding or their privies” (at [23]).

22. The plurality in Tomlinson then addressed the interrelationship between these forms of estoppel and abuse of process. Of some significance to this matter, their Honours observed that, like estoppel, “the doctrine of abuse of process is informed in part by similar considerations of finality and fairness” (at [24]). In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34], Gleeson CJ, Gummow, Hayne and Heydon JJ addressed the principle of finality in stating that “[a] central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.”

23. In Tomlinson, the plurality observed as follows in relation to abuse of process (at [25] to [26]):

“25   Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories …, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute…. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

26   Accordingly, …. it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel…”. (emphasis added)

24. On this motion the defendant seeks to invoke the principle stated in the emphasised passage. The defendant in these proceedings was neither a party nor the privy of a party to the probate proceedings. Nevertheless, the defendant contends that these proceedings are an abuse of process in that they are in substance an attempt to relitigate the probate proceedings.

25. The footnote to Tomlinson at [26] referred to the discussion of abuse of process involving the relitigating of earlier proceeding between different parties by Beazley P in O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 at [99] to [111] (“O’Shane”). In O’Shane, her Honour concluded that discussion with the admonition that the “onus of satisfying the court that there is an abuse of process lies upon the party alleging it and the onus is a ‘heavy one’” (at [111] citing Williams v Spautz (1992) 174 CLR 509 at 529). One of the decisions cited by her Honour was State of Bank New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Tort Reports 81-423 in which Giles CJ Comm Div discerned the following from the cases concerning this form of abuse of process (at 64,089):

“It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –

(a)   the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)   the opportunity available and taken to fully litigate the issue;

(c)   the terms and finality of the finding as to the issue;

(d)   the identity between the relevant issues in the two proceedings;

(e)   any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

(f)   the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)   an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”

26. A consideration of these factors points strongly to a finding that the defendant has satisfied the heavy onus cast upon it of proving an abuse of process. The entire predicate of the plaintiff’s statement of claim is that it was Ms Mekhail’s intention in exercising the 2014 Will to leave the entirety of her estate to Ms Hana. In substance, that raises the same issue as the ultimate issue upon which Ms Hana failed in the Court of Appeal namely whether the 2014 Will reflected Ms Mekhail’s “real intention” (Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 at [131]) (ie factors (a) and (d) from Stenhouse). In the probate proceedings, Ms Hana had the opportunity to fully litigate that issue and it was finally disposed of in a manner that was adverse to her (ie, factors (c) and (d) from Stenhouse). In terms of “fresh evidence”, Ms Hana’s case does not appear to be that there is any fresh evidence of events that happened which were not revealed in the probate proceedings but instead asserts that if the defendant had taken certain steps then further evidence would have been available to prove those events (ie, Ms Mekhail’s “real intention”). When it is borne in mind that that (counterfactual) additional evidence is only sought to contradict the critical finding made in Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 and the relief that was granted then it follows that considerations (e) and (f) from Stenhouse tend strongly in favour of the defendant. As for consideration (g), I struggle to see any injustice flowing to Ms Hana from denying her the ability to contend that, but for the defendant’s negligence, she might have some additional evidence to prove now what she could not in the probate proceedings.

27. I return to the considerations of “finality” and “fairness” that inform, at least “in part”, the doctrine of abuse of process (Tomlinson at [24]). As stated, the pleaded cause of action is premised on the establishment of a fact that is directly inconsistent with the Court of Appeal’s finding on the ultimate issue, namely whether the 2014 Will reflected Ms Mekhail’s “real intention[s]”. The pleaded cause of action could only succeed by establishing that, contrary to the releif granted by the Court of Appeal, probate should have been granted under the 2014 will. At its highest, the statement of claim contends that, but for the pleaded breaches, further evidence would have been available to prove Ms Mekhail’s knowledge and approval and the challenge to the 2014 Will would have failed. To allow this to continue would undermine the principle of finality as it attaches to the Court of Appeal’s decision which did not uphold that Will. It involves a challenge to precisely the same ultimate finding made in those proceedings. As noted, given the full opportunity that Ms Hana had to litigate this issue I do not accept that Ms Hana would suffer from any relevant form of unfairness from being denied a further opportuntiy to once again litigate whether Ms Mekhail’s testamentary intentions were for Ms Hana to be the sole beneficiary of her estate. I am satisfied that, as formulated, Ms Hana’s statement of claim is an abuse of process.

28. This result can be contrasted with a circumstance in which, as a result of a solicitor’s negligence, a court determines that a will was not executed properly and declines to grant probate. Subsequent proceedings against the solicitor concerning the default in execution would take as their premise the correctness of the earlier finding and posit a counterfactual whereby a differently executed or drafted will would have obtained a grant of probate. Such a proceeding would not involve any challenge to the correctness of any ultimate finding of fact made about the manner of execution of the will that was made in the earlier decision or any finding of law about its validity. The counterfactual inquiry in the claim against the solicitor would not be an inquiry into the same events with additional evidence as this case proposes but an inquiry into different (hypothetical) set of events and their legal consequences. By contrast, these proceedings posit a counterfactual whereby the same will that was not granted probate in the earlier proceedings is granted probate; in this case, precisely the same cause of action that previous failed succeeds in the counterfactual.

29. This distinction is borne out by considering a case relied on by Mr Lee, namely Harris for and on behalf of the estate of Harris and Harris v Rapisarda [2019] NSWSC 1088 (“Harris”). In Harris, Stevenson J declined to strike out proceedings by the estate of the proprietor of a home (the “proprietor”) against a firm of architects. The architects contended that the proceedings were an abuse of process in circumstances where the proprietors had previously sued a builder for defective building work and the builder cross‑claimed for amounts under the building contract (at [15]). In the proceedings against the architects the proprietor alleged they, inter alia, failed to properly prepare and adminster the building contract under which the builder was engaged (at [19]). The proprietor contended that, due to the architects’ breaches, the work that was performed by the builder was of lower quality and the dispute arose with the builder (at [20]).

30. Stevenson J did not accept that the proprietor’s action involved either an abuse of process or was precluded by an Anshun estoppel (at [54]). His Honour did not accept that the proprietor was seeking findings inconsistent with the findings made in the earlier proceedings against the builder (at [36]), stating (at [40]):

“Determination of the [proprietor’s] claim against the Architects will involve consideration of the quality of the work that would or should have been undertaken by the Second Builder, had the Contract have provided for a “high standard” of workmanship on the part of the …. Builder, and had the Architects supervised the …… Builder’s work and ensured that a “high standard” was achieved. In effect, the Executor will run an “alternative transaction” case which will proceed on this hypothesis.”

31. Thus, in Harris the counterfactual inquiry that would be undertaken in the second proceedings concerned the result that would have ensued under a differently drafted and supervised building contract to that which was the subject of the earlier proceedings against the builder. It follows that undertaking that inquiry would not imperil the finality of what was determined in the proceedings against the builder which concerned the contract that was in fact executed. By contrast, in this case, Ms Hana’s claim against the defendant requires a counterfactual inquiry into the validity of precisely the same will and the same state of mind of the testator in respect of which a grant of probate was refused in the probate proceedings. Ms Hana’s claim against the defendant requires a counterfactual inquiry into Ms Mekhail’s actual intentions for the purpose of achieving an opposite finding to that which the Court of Appeal made.

32. I note two further matters about this conclusion.

33. First, as noted, one aspect of the defendant’s notice of motion endeavoured to invoke Anshun. The defendant referred to a number of decisions of intermediate Courts of Appeal which have extended Anshun so that it applies to proceedings subsequently brought against entities that were not parties to the original proceedings but where it can be said that the claim against that entity “were so relevant to the subject matter of the first action that it was unreasonable for the purchasers not to rely upon them in that action” (Rippon at [23]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 at [131]).

34. In Redowood Pty Limited v Link Market Services Pty Limited (formerly known as ASX Perpetual Registrars Limited) [2007] NSWCA 286 at [45], Hodgson J stated that, in cases that seek to invoke Anshun where the parties to the later proceedings are not the same as the earlier proceedings, then a finding of unreasonableness in not raising the matter in the earlier proceedings is still “relevant; but ... it must either be considered not conclusive, or else must be understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process”. In Ekes at [131], Bathurst CJ observed that a factor of importance in such cases is that the second action may give rise to inconsistent judgments.

35. The application of Anshun to a second proceeding not involving the parties to the first proceeding has not to date been adopted by the High Court. As noted, the discussion in Tomlinson characterised Anshun as one of “three forms of estoppel” operating “between parties to a proceeding or their privies” (Tomlinson at [23]). The finding I have made is that, as formulated, these proceedings are an abuse of process because they seek to directly relitigate precisely what was lost in the probate proceedings. Success for the plaintiff would yield inconsistent findings about Ms Mekhail’s intentions and whether probate should have been granted under the 2014 Will in these proceedings compared to the probate proceedings.

36. To the extent it may be relevant, I am not satisfied that it was unreasonable for Ms Hana not to bring a cross‑claim against the defendant in the probate proceedings. That said, a moments reflection on what such a cross‑claim might have looked like only reinforces the finding of an abuse of process. The putative cross‑claim would have only arisen if probate was not granted under the 2014 Will because the Court was not satisfied that Mrs Mekhail knew and approved of its contents. The cross‑claim would have then sought a finding that the Court would have found the opposite had Mr Liondos asked Ms Hana and her son to leave the conference when the Will was discussed or request that a medical practitioner attend. Such a line of reasoning is contradicted by its premise, namely that it was not shown that Ms Mekhail knew and approved of the contents of the 2014 Will.

37. Second, Mr Ng also sought to rely on Egri v DRG Australia Ltd (1988) 19 NSWLR 600 (“Egri”) for the proposition that a finding that an ultimate fact was not established creates an issue estoppel that the fact did not happen (at 601F, 604D and 608D and see K R Handley AQ CStj QC, Spencer Bower and Handley: Res Judicata, Lexis Nexus, 5^th edition, 2019 at p 42). However, in Kuligowskiv Metrobus (2004) 220 CLR 363; [2004] HCA 34, the High Court disapproved of Egri and held that “[a] failure to find a matter alleged does not establish the truth of the contrary of that which is alleged” (at [59] to [61]). It suffices to state, the above conclusion does not rest upon Egri which is directed to issue estoppel. Instead, it concerns the undermining of the principle of finality engaged by Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 that would ensue if Ms Hana’s case as pleaded were allowed to go forward.

Relief

38. The defendant’s notice of motion sought an order that the proceedings be dismissed or, in the alternative, that the statement of claim be struck out. No attention was given to which of these orders might be appropriate. As the above analysis depends on the precise manner in which the statement of claim is framed I consider it appropriate to give the plaintiff some opportunity to reformulate its claim in a manner that does not constitute an abuse of process, although presently I cannot conceive of how that can be done.

39. Accordingly the Court orders that:

1. The statement of claim be struck out;

2. The plaintiff file and serve any amended statement of claim on or before 27 June 2021;

3. The proceedings be listed for directions before the Registrar at 9.00am on 6 July 2021 at 9.00am;

4. The plaintiff pay the defendant’s costs of its notice of motion dated 29 January 2021; and

5. The notice of motion be otherwise dismissed.

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Endnotes

Decision last updated: 31 May 2021