Hillston Estate - Allan Hillston

[2010] NSWSC 465

CITATION:	Hillston Estate - Allan Hillston [2010] NSWSC 465
HEARING DATE(S):	12 May 2010
JUDGMENT DATE :	12 May 2010
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	12 May 2010
DECISION:	Leave refused.
CATCHWORDS:	PROCEDURE – Application by vexatious litigant for leave to institute proceedings – whether application is one “to institute proceedings” for the purposes of s 14(2) Vexatious Proceedings Act – whether material put forward to the Court justifies the granting of leave.
LEGISLATION CITED:	Vexatious Proceedings Act 2008 (NSW) – s 14
CATEGORY:	Principal judgment
PARTIES:	Allan David James Hillston (Plaintiff) Michael Bar-Mordecai (Interested party)
FILE NUMBER(S):	SC 2007/289166
COUNSEL:	D.P. Courtenay (Plaintiff) In person (Interested party)
SOLICITORS:	Courtenay & Co (Plaintiff)

2007/289166 Hillston Estate: Allan Hillston

JUDGMENT on Mr Bar-Mordecai’s Amended Notice of Motion – Ex tempore

12 May , 2010

1 By an Amended Notice of Motion sought to be filed in Court, Mr Bar-Mordecai seeks leave to prosecute certain claims in opposition to an application by the Executor of the estate for the passing of accounts and for commission. The leave of the Court to prosecute those claims is required because Mr Bar-Mordecai has been declared a vexatious litigant.

2 Section 14 of the Vexatious Proceedings Act 2008 (NSW) relevantly provides:

“ Application for leave to institute proceedings

(1) This section applies to a person ( the applicant ) who is:


(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or

(b) acting in concert with another person who is subject to an order referred to in paragraph (a).

(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.”

3 As noted above, the Executor’s application before the Court today is simply for the passing of accounts and for commission. Mr Bar-Mordecai is a beneficiary of the estate. If he had sought to do no more than object to the passing of accounts or oppose the claim for commission, for example on the basis that the expenses claimed by the Executor have been overstated or that the Executor has overstated the work done by him in the administration, he would not require leave under s 14(2) because to oppose a claim which in law he, as a beneficiary of the estate, already has status to oppose, is not “to institute proceedings” within the meaning of that phrase in s 14(2).

4 However, by his proposed Amended Notice of Motion, Mr Bar-Mordecai seeks to do more than oppose the Executor’s claims. He seeks to remove the Executor and to have the estate administered by himself, on the basis of allegations which he has put forward for more than ten years in very many applications to the Court before very many Judges, all of which have been refused and which have led to his being declared a vexatious litigant.

5 In the affidavits which Mr Bar-Mordecai seeks to file in Court today, he traverses exactly the same allegations that he has made previously, only in very summary form. There is no material which he puts before the Court in those affidavits which gives the slightest reason for the Court to consider granting leave for Mr Bar-Mordecai now to prosecute the relief which he seeks. Accordingly, I refuse leave to file the Amended Notice of Motion and I refuse leave to file the affidavits of Mr Bar-Mordecai which he tenders.

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