Taouk v Taouk - [2024] NSWSC 598

Supreme Court

New South Wales

Medium Neutral Citation: Taouk v Taouk [2024] NSWSC 598
Hearing dates: 12 April 2024
Date of orders: 17 May 2024
Decision date: 17 May 2024
Jurisdiction: Equity
Before: Slattery J
Decision:
Motion dismissed. No order as to costs. Directions made for the future conduct of the proceedings.

Catchwords:
COSTS – application for security for costs – UCPR r 42.21 – factors relevant to the exercise of discretion to order security – ordinary residence of plaintiff – where defendant has failed to establish plaintiff is ordinarily a foreign resident – where Court is not satisfied that the plaintiff is ordinarily a resident of Australia – where Court is satisfied that the plaintiff is transitioning to Australia – where plaintiff has given enforceable undertaking not to leave Australia until conclusion of proceedings – whether an order for security for costs appropriate in the circumstances

Legislation Cited:
Civil Procedure Act 2005 s 26
Uniform Civil Procedure Rules 2005 r 7.10(2)(a, 42.21(1)(a)

Cases Cited:
Anderson v Paterson’s Securities Ltd [2019] NSWSC 852
Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245
Leyvand v Barasch (2000) 144 SJLB 126
345
Logue v Hansen Technologies Pty Ltd [2003] FCA 81 Schmierer & Anor v Taouk [2004] NSWSC

Category: Consequential orders
Parties: Plaintiff: Amal Taouk
First Defendant: Norma Taouk
Second Defendant: Office of Registrar General
Representation:
Counsel:
Plaintiff: D. Eardley
First Defendant: S. Woodland
Solicitors:
Plaintiff: Moscardo Lawyers
First Defendant: Anne McDonald Lawyers

File Number(s): 2023/245800
Publication restriction: No

JUDGMENT

The plaintiff, Amal Taouk is one of four daughters of the late Victoria Younan (the deceased) who died on 8 February 2023 leaving a will dated 25 January 1983. The will provided for equal distribution of her estate among her daughters when she executed her will, the deceased and her late husband, Hanna Dib (John) Younan owned their home at Ashfield (the Ashfield property) as joint tenants.
The signatures of the deceased and her husband appear on transfers of the Ashfield property to the first defendant, Norma Taouk in 2007. The property was registered in Norma Taouk’s name soon afterwards. By her Statement of Claim, the plaintiff contends that the signatures of the deceased and her late husband were forged on the transfers. Before their deaths, the deceased and her husband lodged a caveat on the title to the Ashfield property, claiming an interest in the property on the basis that their signatures had been were forged. But their caveat was later withdrawn.
The named executor of the will has renounced. By her Statement of Claim, the plaintiff now seeks an appointment as administrator of the estate and to have the Ashfield property restored to the estate so that its value can be administered in accordance with the deceased’s will. The plaintiff has consented to the Ashfield property being sold by the first defendant and the proceeds of sale being paid into a controlled moneys account. The property was sold in 2023 for $2.5 million, and the monies are presently held…

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 Taouk v Taouk

Details

AGLC: Taouk v Taouk [2024] NSWSC 598
Case: [2024] NSWSC 598
Decision Date: 17 May 2024

CaseChat Overview and Summary

The case of Taouk v Taouk involved a dispute between the plaintiff, Taouk, and the defendant, Taouk, concerning an application for security for costs under the Uniform Civil Procedure Rules 1999 (NSW). The plaintiff, who had recently arrived in Australia, sought security for costs against the defendant, who had not established that the plaintiff was ordinarily a foreign resident. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the court could exercise its discretion to order security for costs under UCPR rule 42.21, and what factors should be considered in making that decision. Specifically, the court had to determine whether the plaintiff's ordinary residence was relevant to the exercise of discretion, and whether it was appropriate to order security for costs given that the plaintiff was transitioning to Australia and had provided an enforceable undertaking not to leave the country until the conclusion of the proceedings.

The court found that the plaintiff's ordinary residence was not determinative of the exercise of discretion to order security for costs. It noted that the plaintiff was transitioning to Australia and had provided an enforceable undertaking not to leave the country until the conclusion of the proceedings. The court considered these factors, along with the plaintiff's financial situation and the likelihood of the defendant being able to pay the costs if the plaintiff was successful in the proceedings. The court held that it was not satisfied that the plaintiff was ordinarily a resident of Australia, and that an order for security for costs was not appropriate in the circumstances. The court dismissed the defendant's application for security for costs.

The court's final orders were that the defendant's application for security for costs be dismissed, with no order as to costs. The court also made a number of other orders relating to the proceedings, including an order that the plaintiff provide a financial undertaking in relation to the proceedings.

Orders