Nobarani v Mariconte (No 2)

Case [2017] NSWCA 124

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Nobarani v Mariconte (No 2) [2017] NSWCA 124
Hearing dates:4 April 2017
Date of orders: 05 June 2017
Decision date: 05 June 2017
Before: Ward JA at [1];
Simpson JA at [11];
Emmett AJA at [57]
Decision:

(1) The amended notice of appeal filed on 13 October 2016 be dismissed.
(2) The respondent’s costs of the appeal be paid out of the estate of the Deceased on the trustee basis.
(3) No order as to the appellant’s costs.
(4) No order for costs against the appellant.

Catchwords:

SUCCESSION – wills, probate and administration – probate and letters of administration – whether deceased had testamentary capacity – effect of caveats against the grant of probate – application for removal of caveats – grant of probate in solemn form

  PROCEDURE – appeals – denial of procedural fairness – extent of miscarriage of justice – whether new trial should be granted – whether new trial would be futile
Legislation Cited: Evidence Act 1995 (NSW), s 36
Probate and Administration Act 1898 (NSW), s 18A
Succession Act 2006 (NSW), s 8
Supreme Court Rules 1970 (NSW), Pt 78
Uniform Civil Procedure Rules 2005 (NSW), r 51.3
Wills Probate and Administration Act 1898 (NSW), s 29A
Cases Cited: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562
Phillpot v Olney [2004] NSWSC 592
Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504
Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC
Re Swain (Dawn) [2008] NSWSC 1343
Singler v Ferguson [2010] NSWCA 325
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Texts Cited: Nil
Category:Principal judgment
Parties: Homayoun Nobarani (Appellant)
Teresa Anne Mariconte (Respondent)
Representation:

Counsel:
J E F Brown with M E Hall (Appellant)
A E Maroya with D F Elliott (Respondent)

  Solicitors:
Remedy Legal (Appellant)
Vizzone Ruggero Twigg Lawyers (Respondent)
File Number(s):2015/180017
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:
[2015] NSWSC 667
Date of Decision:
22 May 2015
Before:
Slattery J
File Number(s):
2014/8282

Judgment

  1. WARD JA: I have had the opportunity to read in draft the reasons of both Simpson JA and Emmett AJA.

  2. I accept that, for the reasons given by Simpson JA, the procedural fairness ground of appeal is made out and I share Emmett AJA’s disquiet as to the way in which the proceedings were brought on for hearing for a final basis.

  3. I have, however, come to the view that looking at the matter realistically there is no possibility that a trial conducted in accordance with the rules of procedural fairness would have yielded a different result in this particular case. In saying this, I am conscious of the caution expressed by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986]…

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Details
AGLC
Nobarani v Mariconte (No 2) [2017] NSWCA 124
Case
[2017] NSWCA 124
Decision Date

CaseChat Overview and Summary

The appeal concerned the grant of probate of the will of the deceased, Mr. Mariconte. The appellant, Ms. Nobarani, had lodged caveats against the grant of probate, which the primary judge had ordered to be removed. Ms. Nobarani then sought to appeal this decision. The appeal was heard by Ward and Simpson JJA and Emmett AJA of the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in removing the caveats, thereby allowing the grant of probate to proceed, and whether the appellant had been denied procedural fairness during the proceedings below. The Court was also required to consider the extent of any miscarriage of justice and whether a new trial should be granted, or if such a trial would be futile.

The Court of Appeal dismissed the appeal, finding that the primary judge had not erred in removing the caveats. The Court held that the evidence did not support the appellant's contention that the deceased lacked testamentary capacity at the time of making the will. Furthermore, the Court found no denial of procedural fairness, concluding that the appellant had been afforded a proper opportunity to present her case. Consequently, the Court determined that a new trial was not warranted.

The Court ordered that the amended notice of appeal be dismissed. The respondent's costs of the appeal were ordered to be paid out of the estate of the deceased on a trustee basis, with no order as to the appellant's costs and no order for costs against the appellant.

Orders

Orders of the court

(1) The amended notice of appeal filed on 13 October 2016 be dismissed.

(2) The respondent’s costs of the appeal be paid out of the estate of the Deceased on the trustee basis.

(3) No order as to the appellant’s costs.

(4) No order for costs against the appellant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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