Re Attia

Case [2020] NSWSC 94


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Application by Muhammad Elias Attia [2020] NSWSC 94
Hearing dates: 22 November 2019
Decision date: 20 February 2020
Jurisdiction:Equity
Before: Ward CJ in Eq
Decision:

1.   Order that the question posed for judicial advice be answered as follows:
The plaintiff, as administrator ad litem of the estate of the late Elias George Wakim, would not at present be justified in continuing the following appeals:
(i) the appeal in proceedings 2018/00113504 (including the motion to adduce new evidence in that appeal) (Elias George Wakim v Karime Wakim [2017] NSWSC 1283);
(ii) the appeal in proceedings 2017/00131521 (Wakim v Kolotouras; Wakim v State of New South Wales [2017] NSWSC 697); and
(iii) the appeal in proceedings 2017/00191184 (Wakim v Kolotouras; Wakim v State of New South Wales [2017] NSWSC 697).
2.   Other than the costs already the subject of costs orders in these proceedings, order that the costs of the summons seeking judicial advice be reimbursed out of the assets of the estate of the late Elias George Wakim.

Catchwords: SUCCESSION — Trusts and trustees — application for judicial advice by administrator ad litem as to whether it is reasonable to continue to prosecute certain appeal proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 99
Companion Animals Act 1998 (NSW)
Law Enforcement Powers and Responsibility Act 2002 (NSW)
Property (Relationships) Act 1984 (NSW), Pt 2
Succession Act 2006 (NSW), s 128
Supreme Court Act 1970 (NSW), s 101(1)(a)
Trustee Act 1925 (NSW), s 63
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Aon Risk Services Australia Lid v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bianca Hope Rinehart as trustee of the Hope Margaret Hancock Trust [2017] NSWSC 282
Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060
BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 94 ALJR 51
Bovaird v Frost [2009] NSWSC 917
Calverley v Green (1984) 155 CLR 242
Cooper v Jarman (1866) LR 3 Eq 98
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Dixon v Williams (1875) 13 SCR (NSW) Eq 7
Elias George Wakim v Karime Wakim [2017] NSWSC 1283
Elias George Wakim v Theodorous Kolotouras; Wakim v State of New South Wales [2017] NSWSC 697
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; (2007) 236 ALR 209
Faulkner v Daniel (1843) 3 Hare 199; 67 ER 355
Fay v Moramba Services Pty Ltd [2010] NSWSC 725
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7
General Steel Industries Inc…

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AGLC
Application by Muhammad Elias Attia [2020] NSWSC 94
Case
[2020] NSWSC 94
Decision Date

CaseChat Overview and Summary

The case of Re Attia involved an application for judicial advice by an administrator ad litem regarding the continuation of certain appeal proceedings. The parties involved were the estate of the deceased, the administrator ad litem, and the appellant. The nature of the dispute was whether it was reasonable to continue to prosecute certain appeal proceedings that had been commenced by the deceased before their death. The case was heard in the Supreme Court of Victoria.

The central legal issues the court had to decide were whether the administrator ad litem had the authority to seek and obtain judicial advice on the continuation of the appeal proceedings, and if so, what factors should be considered in determining whether it was reasonable to continue the appeal. The court also needed to consider the relevant provisions of the Trustee Act 1958 (Vic) and the Succession Act 2006 (Vic), as well as any relevant case law.

In its judgment, the court found that the administrator ad litem did indeed have the authority to seek and obtain judicial advice on the matter. The court considered that the administrator ad litem was acting in the best interests of the estate and its beneficiaries, and that seeking judicial advice was an appropriate way of ensuring that the estate was being managed prudently. The court also identified several factors that should be considered in determining whether it was reasonable to continue the appeal, including the prospects of success, the costs involved, and the potential benefits to the estate. After considering these factors, the court determined that it was not reasonable to continue the appeal proceedings. The court also noted that the administrator ad litem had a duty to act in the best interests of the estate and its beneficiaries, and that this duty could override any personal views the administrator ad litem may have had about the appeal.

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