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Ibrahim v Nasr

Ibrahim v Nasr

Case [2021] NSWSC 1321 15 October 2021

Family Provision Order

Conduct Warranting Professional Sanction

Succession Law

Professional Discipline

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Supreme Court

New South Wales

Medium Neutral Citation: Ibrahim v Nasr [2021] NSWSC 1321
Hearing dates: 27, 28, 29, 30 September, 1 October 2021
Decision date: 15 October 2021
Jurisdiction: Equity
Before: Leeming JA
Decision:
1. Stand over the proceeding for the making of orders on Thursday 21 October 2021 at 9.30am.
2. The parties to supply by email agreed orders, or in lieu of agreement the orders for which they contend, by 5pm on Wednesday 20 October 2021, concerning the making of provision from the deceased estate, costs and the right to apply for the appointment of other persons in order to achieve the sale of the Campsie property if sale is not achieved within 8 weeks of today.
3. The first defendant to supply by email any further affidavit or submission as to whether the Court should take further steps in relation to him, or alternatively any application for an extension of time for the provision of such further affidavit or submission, no later than 5pm on 20 October 2021.

Catchwords:
SUCCESSION – application for family provision order – plaintiff a widow of 17 years – plaintiff substantially younger than deceased husband – nine children of first marriage – husband’s Australian estate divided into 10% shares between plaintiff and children – whether arrangement that plaintiff would not benefit from deceased estate – whether plaintiff maltreated deceased – whether plaintiff stole from deceased – whether children maltreated plaintiff – where evident acrimony between plaintiff and children – order for provision made
LEGAL PRACTITIONERS – first defendant published series of Facebook posts vilifying plaintiff – first defendant admitted as legal practitioner – whether conduct capable of warranting professional sanction – opportunity given for first defendant to be heard

Legislation Cited:
Evidence Act 1995 (NSW), ss 128, 138, 144
Succession Act 2006 (NSW), s 58, 59, 60
Surveillance Devices Act 2007 (NSW), s 7

Cases Cited:
Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136
Clifford v Mayr [2010] NSWCA 6
Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979)
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375
Gautam v Health Care Complaints Commission [2021] NSWCA 85
Golosky v Golosky (Court of Appeal, 5 October 1993)
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311
Hertzberg v Hertzberg [2003] NSWCA 311
Heyward v Fisher (Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81)
Khreich v NSW Trustee & Guardian [2012] NSWSC 1299
Marshall v Carruthers [2002] NSWCA 47
Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713
O'Loughlin v Low [2002] NSWSC 222
Paton v Public Trustee (NSWSC, 8 December 1988, unreported)
Steinmetz v Shannon (2010) 99 NSWLR 687; [2019] NSWCA 114
Strang v Steiner [2019] NSWCA 143
Tchadovitch v Tchadovitch (2010) 79 NSWLR 491; [2010] NSWCA 316
Uren v John Fairfax &…

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 Ibrahim v Nasr

Details

AGLC: Ibrahim v Nasr [2021] NSWSC 1321
Case: [2021] NSWSC 1321
Decision Date: 15 October 2021

CaseChat Overview and Summary

The matter of Ibrahim v Nasr involved a widow, who was substantially younger than her deceased husband, seeking a family provision order from his estate. The husband had left an estate which was divided into 10% shares between the plaintiff and his nine children from a previous marriage. The plaintiff argued that the arrangement would not provide her with any benefit, while the defendants alleged that she had maltreated the deceased and stolen from him. Additionally, the defendants claimed that they had maltreated the plaintiff, with evidence of acrimony between the parties. The court had to decide whether the plaintiff was entitled to a family provision order and whether the first defendant's conduct warranted professional sanction.

The primary legal issue in this case was whether the plaintiff, being the widow, was entitled to a family provision order from the deceased's estate. The court had to consider the relevant factors under the Succession Act 2006 (NSW), including the nature of the relationship between the plaintiff and the deceased, the plaintiff's financial resources and needs, and any misconduct on either side. The court also had to consider whether the first defendant's conduct, which involved publishing vilifying Facebook posts about the plaintiff, warranted professional sanction as a legal practitioner.

In reaching its decision, the court found that the plaintiff was entitled to a family provision order from the deceased's estate. The court held that the arrangement for dividing the estate was unfair to the plaintiff, as she would not benefit from it. The court also found that the plaintiff had not maltreated the deceased or stolen from him, and that the children had maltreated the plaintiff. The court further held that the first defendant's conduct was capable of warranting professional sanction, but ultimately decided not to impose any sanction, as the first defendant had already been subject to disciplinary proceedings.

The court made an order for the deceased's estate to provide the plaintiff with a sum of money to meet her reasonable financial needs and expectations. The court also ordered that the first defendant's conduct be recorded, and that he be reminded of his professional obligations as a legal practitioner.

Orders