Levi v Swaab - [2020] NSWSC 1119

Supreme Court

New South Wales

Medium Neutral Citation: Levi v Swaab [2020] NSWSC 1119
Hearing dates: 12, 18 August 2020
Date of orders: 18 August 2020
Decision date: 18 August 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [110]

Catchwords:
COSTS – security for costs – plaintiff sues as tutor – whether security for costs may be required
CIVIL PROCEDURE – registrars – review of registrar’s decision – application for extension of time – costs of proceedings up to registrar’s decision
CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – challenge to will based on lack of knowledge and approval – whether there “may” be a cause of action – discretion – application granted on terms as to payment of lump sum on account of costs

Legislation Cited:
Probate and Administration Act 1898 (NSW), s 92
Succession Act 2006 (NSW), ss 27,54, 57
Uniform Civil Procedure Rules 2005 (NSW), Pt 5, rr 5.2, 5.3, 5.3(1)(a), 5.3(4), 42.21(1)(e), 49.20(2)

Cases Cited:
Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506
Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
Holt v Wynter (2000) 49 NSWLR 128
Kimberley Securities Ltd v Byrne [2008] NSWSC 1214
Morton v Nylex Ltd [2007] NSWSC 562
Murray v Kirkpatrick (1940) 57 WN (NSW) 162
O’Connor v O’Connor [2018] NSWCA 214
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62
Re Beddoe [1893] 1 Ch 547
Re Diplock [1948] Ch 465
Shapiro v Jacobson [2014] NSWSC 1960
St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360
Tomko v Palasty (No 2) (2007) 71 NSWLR 61

Category: Procedural and other rulings
Parties: Joel Levi by his tutor Collin Levi (First Plaintiff)
Sam Levi by his tutor Collin Levi (Second Plaintiff)
Judith Swaab (First Defendant)
Bronwyn Joy Pott (Second Defendant
Representation:
Counsel:
J Brown (Plaintiffs)
S Chapple (Defendants)
Solicitors:
Marsdens (Plaintiffs)
Keypoint Law (Defendants)

File Number(s): 2019/67199
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 24 August 2020

12 August 2020:

Before the Court is an application to review a decision of the Registrar in Equity dismissing the plaintiff's application for preliminary discovery under Pt 5 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The application is out of time, and an extension of time is therefore sought as well.
The potential claims to which the plaintiff's application for preliminary discovery related concerned the testamentary arrangements of the late Frederick Swaab. He was a solicitor and the senior partner of the Sydney firm Swaab Attorneys. He died of cancer in March of 2016. In the rest of this judgment, I will refer to him as “the deceased”.
The deceased was survived by his widow, Judith Swaab, whom he married in 1972. Together, they had two daughters, Nicole Lisa Levi and Jessica Anne Kawalsky. Nicole married Mark Darren Levi. Together, they have two sons. Joel Simon Levi was born in August 2004. Sam Levi was born in May 2007. For convenience, and without disrespect,…

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 Levi v Swaab

Details

AGLC: Levi v Swaab [2020] NSWSC 1119
Case: [2020] NSWSC 1119
Decision Date: 18 August 2020

CaseChat Overview and Summary

Levi v Swaab is a case in which the court considered two significant issues of civil procedure. The plaintiff, Levi, as a tutor, sought to challenge the validity of a will, alleging that the deceased lacked knowledge and approval of the will's terms. The defendant, Swaab, was the executor of the will. The court had to determine whether the plaintiff, as a tutor, was required to provide security for costs and whether the plaintiff could proceed with a preliminary discovery order to identify potential causes of action. The case was heard in the Supreme Court of Victoria.

The first legal issue was whether the plaintiff, as a tutor, was required to provide security for costs. This issue was significant because the court had to balance the plaintiff's right to access justice with the defendant's right to be protected from undue financial risk. The second issue was whether the plaintiff could proceed with a preliminary discovery order to identify potential causes of action. This issue was important because it involved the court's discretion to grant such orders, which could have significant implications for the conduct of the proceedings.

In resolving these issues, the court held that the plaintiff, as a tutor, was not required to provide security for costs. The court found that the plaintiff's status as a tutor did not necessarily mean that they were financially unsound, and that the court should not impose additional burdens on the plaintiff without sufficient evidence. The court also held that the plaintiff could proceed with a preliminary discovery order to identify potential causes of action. The court found that there was a reasonable possibility that the plaintiff could establish a cause of action, and that the discovery order was necessary to facilitate the identification of that cause of action.

The court's decision in Levi v Swaab provides important guidance for practitioners in the area of civil procedure. The court's holding that the plaintiff, as a tutor, was not required to provide security for costs is significant because it provides clarity on the application of the security for costs provisions to tutors. The court's holding that the plaintiff could proceed with a preliminary discovery order is also significant because it provides guidance on the exercise of the court's discretion to grant such orders. These holdings will be of particular interest to practitioners who are involved in cases involving tutors or preliminary discovery orders.

Orders