Nobarani v Mariconte

The proceeding before Meagher and Simpson JJA, and Sackville AJA concerned an application to set aside a stay of proceedings, which had been ordered pending payment of costs of an interlocutory application. The respondent also sought to strike out the appellant's Notice of Appeal as incompetent due to alleged deficiencies, and alternatively, sought summary dismissal of the appeal. The respondent further sought orders under the Vexatious Proceedings Act 2008 (NSW).

The court was required to determine whether the stay of proceedings should be set aside, whether the Notice of Appeal was incompetent, and whether there were arguable grounds of appeal such that summary dismissal was appropriate. The court also considered the application for orders under the Vexatious Proceedings Act 2008 (NSW).

The court reasoned that the stay order should be set aside, allowing the appeal to proceed on the filed Notice of Appeal. The court found no basis for orders under the Vexatious Proceedings Act 2008 (NSW). Regarding the application for summary dismissal, the court determined that the exclusion of certain evidence, which was capable of being relevant to the issue of testamentary capacity, was arguably erroneous, and therefore, it was inappropriate to order summary dismissal. The court dismissed the respondent's notice of motion.

The court ordered that the stay order made by Emmett AJA on 14 March 2016 be set aside, and that the appeal proceed on the basis of the Notice of Appeal of 4 April 2016. The parties were directed to approach the registrar for directions regarding the preparation of the appeal. The respondent's notice of motion dated 23 May 2016 was dismissed, and the costs of the two motions dated 29 March 2016 and 23 May 2016 were to be costs in the appeal.