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

1. 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.

2. 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.

3. 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 pending the determination of these proceedings.

4. The resolution of the issues presented by these facts may turn partly upon expert handwriting evidence as to whether the signatures of the deceased and her husband on the transfer are forgeries. Other questions arise as to whether valuable consideration was given for the transfer, the reasons for the removal of the caveat, and whether the deceased and her husband received independent legal advice before executing the transfer.

5. But the plaintiff has lived in the Lebanon for a long time. The first defendant seeks by Motion dated 13 December 2023, since amended on 9 February 2024, an order for security for her legal costs on the basis that the plaintiff is not ordinarily a resident in Australia. The plaintiff says she returned to Australia permanently on 25 January 2024 to live here. She says she needs medical treatment in Australia. This raises contests both of fact and of law.

Victoria Younan’s family and her Ashfield property

6. The plaintiff’s Statement of Claim conveniently summarises the structure of the allegations which will be determined at any final hearing of these proceedings. These may be briefly summarised as follows.

7. The deceased and her husband John Younan had four daughters, the plaintiff, Amal Taouk, Antoinette Therese Wehbe, who was appointed executrix of the estate of the deceased under the 1983 will, Mary Donato and Norma Taouk. The 1983 will provides for an express trust in favour of the children of the deceased in equal shares. Without intending any disrespect to any person, it is convenient for the Court to refer henceforth in these reasons to each of the four daughters by their first names, Amal, Norma, Antoinette and Mary.

8. A transfer bearing the date 16^th of June 2007 was registered on the title to the Ashfield property on or about 2 July 2007. The transfer was apparently executed by the deceased and John Younan (hereafter collectively referred to as “the parents” or “their parents”) to transfer the property from them to Norma. The Statement of Claim alleges that the parents lodged a caveat on the title on 27 February 2009 claiming that the signatures of the parents were forged. The Statement of Claim alleges that the parents did not affix their signatures to the transfer, that neither Norma or anyone on her behalf had the authority to affix the signatures of the parents to the transfer, that the parents did not consent to the registration of the transfer, and that Norma did not pay the consideration of $650,000 referred to in the transfer to either of the parents or any other person at their direction.

9. Because of the alleged lack of payment of valuable consideration for the transfer and the obscure circumstances of the execution of the transfer, Amal seeks a declaration that Norma held the Ashfield property (before its sale) on resulting trust for the benefit of the deceased’s estate, or alternatively on constructive trust for the benefit of the estate.

10. Some seven mortgages were recorded on the title to the Ashfield property by the time of its sale in 2023. Some of these predated the transfer from the parents to Norma.

11. After the deceased’s death, Antoinette renounced her office as executrix on 4 July 2023. No party has since applied for a grant of probate of the estate which is said to have had a value of about $95,000.

12. By these proceedings Amal seeks to be appointed as executrix of the estate or more appropriately as its administrator, so that she can prosecute a claim on behalf of the estate to recover from Norma the proceeds of sale of the Ashfield property.

13. In her defence, Norma states that in February 2006 the parents granted a first registered mortgage over the Ashfield property to the Commonwealth Bank of Australia (CBA) and that by June 2007 the total amount secured by the mortgage was approximately $650,000. Norma alleges that by a partly oral and partly written agreement made in June 2007 between the parents and Norma, the parents agreed to transfer the Ashfield property to Norma. The written part of the agreement was said to have been the transfer itself.

14. Norma contends that the terms and conditions of the June 2007 agreement with the parents were as follows: Norma would pay the parents $650,000 as consideration for the transfer of the Ashfield property by paying out the debts secured by the in mortgage to the CBA; the parents would transfer all their rights, title and interests in the property to Norma; Norma would grant her parents a life estate in the property; and thereafter, until their deaths, Norma would meet existing expenses of maintaining and preserving the property including utilities.

15. Norma says the June 2007 agreement was performed as follows: she paid out the debt to the CBA and discharged the mortgage over the Ashfield property, refinancing it with another first mortgage; the parents signed the transfer acknowledging receipt of the consideration of $650,000; the parents lived in the property until shortly before their respective deaths, John in January 2022 and the deceased in February 2023; and Norma continued to meet the expenses of maintaining and preserving the property including the payment of utility expenses. Her case is that the June 2007 agreement that was made between her and the parents has been wholly performed, and that she is now entitled to the fee simple in the property, or its proceeds.

16. It is now necessary to examine the evidence in more detail as to Amal’s residence.

Amal Taouk’s residence

17. Amal is an Australian citizen who was born in Australia. She holds an Australian passport and a New South Wales driver’s licence. She does not hold a Lebanese passport. She is married to Mr Tony Taouk and they have three daughters.

18. She has travelled back and forth between Australia and Lebanon for many years. One of her daughters, Rachelle, is studying in Lebanon. Amal’s husband, Tony, also has family in Lebanon, as does Amal on both her mother and father’s side of the family. Amal’s daughter, Rachelle, is planning to return to Sydney upon completion of her studies in Lebanon in June this year.

19. Amal resides at an apartment in Mascot with her husband, Tony, and another of her three daughters, Sarah. Their middle daughter, Naomi, is employed by an international accountancy firm in Lebanon and remains in Lebanon so a family member is with her Rachelle whilst she is studying. Amal says Naomi is likely to return to Sydney when Rachelle completes her studies in Lebanon.

20. Amal deposes in her affidavit of 23 February 2024 that she has no intention of leaving Australia during the course of these proceedings or any time thereafter. She says that part of the reason for this is that she is receiving treatment for cancer here in Australia. She had been receiving such therapy in Lebanon until mid-January this year. She currently plans to continue that cancer treatment which is scheduled to occur over the balance of 2024 and into the first quarter of 2025 at St Vincent’s Hospital here in Sydney.

21. Amal’s cancer treatment means that she is not presently working. Her husband, Tony is providing financial support to her, in part from his carpentry business in Sydney. None of this evidence can be seriously contested.

22. Amal is now 55 years of age. She has spent the majority of her life in Australia until 2009. Over the 15-year period from 2009 until now she estimates that she has spent 20% of her time in Australia. This change in pattern of her residence occurred because she says her daughters were being schooled in Lebanon and she wished to be close to them there. As her daughters grew up Amal was able to spend more time in Australia.

23. Amal also explains that she would probably have returned to Australia in 2023 but for her cancer therapy. It was difficult for her to return to Sydney during chemotherapy from which she had become ill.

24. Amal’s account is challenged by other evidence advanced by Norma. Fact-finding is difficult in a case such as this, where competing accounts are offered, and cross-examination has not taken place. In the busy probate Motions list in which this Motion was advanced, it was not possible for the Court to provide the parties the opportunity for extensive cross-examination. Nevertheless, upon analysis of the competing affidavit evidence, some basic conclusions can be drawn.

25. Norma's case advances two principal affidavits to contradict Amal's version of events, an affidavit from Mary sworn on 8 March 2024 and Norma’s own affidavit sworn on 11 March 2024.

26. As to Mary’s affidavit, much of it does not dispute Amal's account of her time in Australia and in Lebanon. Mary confirms that Amal relocated to Lebanon in December 2009 to live in a multi-story apartment complex in the coastal village of Tabarje, in an apartment owned by Tony's parents. Amal answers this by pointing out that the property in which she resided, in Lebanon, was owned by her parents-in-law, Tony's parents, and was not hers. She points out, as might be expected, that Tony needs to stay in Australia to operate his business here. When Tony did return to Australia he often lived with her parents, Victoria and John at their request.

27. But the Court accepts as probable, Amal’s more detailed account that she move to Lebanon to provide a cultural expertise and education for her daughters and for them to live in another country with family.

28. Amal is likely to know far more than Mary about her own accommodation and family travel arrangements. She says, and the Court accepts, that Tony travelled to Lebanon once a year for about six weeks and that she also travelled to Australia almost once a year from 2009, but that she and Tony are not a separated couple. She says that the arrangements described here are for the wellbeing of her family. It also seems reasonably clear from the evidence that Tony has had an established construction business in Sydney and was deriving an income from that business which appeared to a more stable source of remuneration than attempting to obtain employment in the uncertain economic and security environment of Lebanon.

29. Mary says that when she went to Lebanon in April 2010, September 2017 and November 2018 she stayed with Amal and her daughters in a luxury style apartment which occupied the whole floor of a multi-story building with sea views and a live-in maid. The implication of this appears to be that life was so comfortable for Amal in Lebanon that she would not wish to return on any long-term basis to Sydney.

30. Mary says that although Amal does not have a Lebanese passport, she does have a Lebanese Identity card. But Amal explains that a Lebanese Identity card is necessary under Lebanese law for a person wishing to reside in Lebanon for more than one month without a visa. Amal needs an identity card, as well as a Lebanese driver’s licence to live in Lebanon and take the children to school.

31. Mary says that in 2021, their parents organised for enduring powers of attorney and the appointment of enduring guardians for their parents to be arranged through a solicitor who recommended that Amal, who was then living overseas, not be appointed to act on behalf of their parents. But little turns on this. That sounds like common sense legal advice, consistent with Amal’s narrative that she was mostly out of Australia, and could not conveniently act in the role of an attorney or guardian for either of their parents.

32. Mary says that Amal has only returned to Australia since 2009, "on only a handful of occasions”. Mary concedes that Amal was in Sydney between March and December 2020, being caught here by the COVID lockdown and unable to return to Lebanon, and again in March 2022. The Court accepts Amal's evidence that her return trips to Australia have been on average only for one month. Amal says that her return trips to Australia have been an average three months or longer since 2009. She was not able to return to Australia for the funeral of her father, John Younan, because of COVID restrictions but she did return to Sydney for the traditional 40^th day memorial service organised in his memory in March 2022.

33. Mary criticises Amal for not coming back to Australia for the last illness of the deceased when she was in hospital prior to her death. Amal says that that was because she was undergoing cancer treatment in Lebanon and it was difficult return to Sydney during that phase of a cancer treatment. Again, it is unlikely that Mary was aware of the medical challenges that Amal was facing at this time. But Amal says she organised a memorial service for the deceased and her relatives and friends in Lebanon shortly after the funeral service in Sydney.

34. Amal says that she has been living in Australia continuously since 25 January 2024, a period of almost five months and does not intend to leave Australia in the foreseeable future, and certainly not in the course of these proceedings. She expects that the family will be reunited in Sydney in July this year when Rachelle and Naomi return to live in Sydney and join Tony, Amal and Sarah here.

35. The Court sought to test this declaration of Amal’s intent to stay by seeking an undertaking from Amal whether she was prepared to stay in Australia until the conclusion of these proceedings. Such an undertaking was given on her behalf by her counsel during the hearing.

36. Norma’s affidavit filed on 11 March 2024 raises many of the same issues fielded by Mary. The additional issues are considered here. Norma and Amal have long been estranged. The estrangement has dated at least since litigation involving an enterprise in which their husbands were involved collapsed with mutual allegations of misconduct by directors. This litigation went to final hearing in this Court: cf Schmierer & Anor v Taouk [2004] NSWSC 345.

37. This estrangement means that Amal has not stayed with Norma for more than two consecutive nights at any time from 2009 onwards, and neither has Amal's daughters. Amal says, and the Court accepts, that she has stayed with her husband Tony when she has returned to Sydney and with their parents when they were alive. Amal is uncomfortable staying with Norma because of the estrangement. This means that Norma’s observations about Amal's life are necessarily limited in scope. Therefore, when Norma makes statements about Amal’s marriage to Tony to the effect “[they] have lived largely separate lives ever since” 2009, such statements are made with little insight into Amal’s daily life and close family circumstances.

38. Norma paints a picture of Amal’s husband, Tony, living with his friends, his sister and their parents from time to time since 2009, and an image of him being separated from Amal. But Amal points to quite a different family relationship with her husband and her daughters. Norma’s description does not accord with the background facts. If she were correct, one might expect after such long periods of separation, that Amal and Tony might be divorced by this stage, which is not the case.

39. Norma concedes that despite living in Lebanon Amal has always maintained her Australian passport, her New South Wales drivers licence, her Medicare card and her Australian bank account. But Norma says that Amal has used Norma’s address rather than Tony’s, because Norma’s address has been permanent and it was easier to use. Norma says that she continued to make her address available for these purposes until about 2017 when their relationship broke down. Norma advances considerable objective evidence that Amal did use Norma’s postal address. Amal agrees that this is what occurred because Tony's address was less permanent and both Norma and Antoinette offered that service to her. But this does not change much in relation to the issue of Amal’s residence.

40. When Amal and Tony left Australia, Norma says that she lent them $20,000 to pay their mortgagee who was about to repossess their home. Norma says that the money was never repaid. Amal denies that either she or Tony received a loan in the amount of $20,000 from Norma. Amal denies that she needed money to meet mortgage payments and that the properties that she and her husband sold before leaving for Lebanon were not the result of distressed sales. The Court cannot decide any of these issues. But it does not need to do so because they are collateral to the central issues and do not bear upon the question of Amal's residence.

41. Finally, as to the future, Amal says that but for her cancer treatment having commenced in January 2023, she would have returned to Australia at that time because the fabric of her life is in Australia. She says that she has accomplished what she and her husband Tony agreed for their daughter's education in Lebanon, and now wishes to return to Australia to resettle in this country. She says that she enjoys and has often reunited with her relatives here in Sydney. She further says that Tony operates a building and a property, maintenance and repair business and has done so for the past six years. She says that Tony is a licensed carpenter and has both commercial and residential clients all over Sydney.

17. A number of factors point to this account being probable. Amal’s daughters have grown up. Tony's parents are now elderly. Amal does not own property in Lebanon. Tony has a stable business operating Australia, not in Lebanon. Amal has transferred her cancer treatment to a Sydney Hospital. Tony was also born in Australia. His and Amal’s three daughters were born in Australia. Amal has lived between 40 and 45 of her 55 years in Australia.

18. Amal has very close friends in Australia, with whom she has reconnected since her return in January. They include cousins, nieces, nephew, uncles and friends with whom she socialises.

19. Amal is frank that she does not hold any real property assets in Australia or elsewhere overseas. She claims that her impecuniosity is "mostly due to my sister Norma transferring to herself our mother’s only asset" being the Ashfield property.

20. This leads to a short analysis of the underlying issues in the proceedings.

The forgery claim and its disposition

46. Amal’s case is that from about 2001 their parents were coerced by Norma and her husband, Fahd (Louie) Taouk, to borrow money against the Ashfield property to benefit the Norma and Louie’s property ventures and developments. Amal alleges that their parents received no benefit from the mortgages registered for Norma and Louie’s benefit over the Ashfield property. In short, the contention is that Norma and Louie have substantially benefited from leveraging the real estate of their parents. Amal gives direct evidence of complaints by their parents about this alleged coercion. Amal says that she was unaware that Norma and Louie had requested that the mortgage be registered over the Ashfield property before that transaction took place and that when she found out and discussed it with her mother, it was clear that her mother and father were destabilised by and fearful about the consequences of a mortgage being called upon. Norma strongly contests these matters.

47. As a result of their parents’ concerns in 2009, Tony, Amal and Antoinette took their parents to see a solicitor, Mr Chris Frazis of Hancock Alldis and Roskov in Hurstville, to give him instructions about their interest in the Ashfield property. As a result, the solicitor lodged a caveat, apparently based upon their instructions, alleging that the parents did not sign a transfer of their property to Norma and claimed that their signatures had been forged.

48. Amal’s evidence is also that her parents did not receive any consideration for the transfer. Her mother declaring "I did not receive one dollar from them" for it. Norma’s defence is that the consideration was Norma’s pre-existing mortgage on the Ashfield property. But this defence begs the real issue. If the mortgage on the property was taken for the benefit of Norma and Louie, their payment out of the mortgage does not give valuable consideration to the parents for the transfer of the property. It merely discharges an obligation which Norma and Louie already had to the parents. If that is correct then, quite apart from the issue of forgery such a gift for no consideration by an elderly couple to a relative looks arguably improvident.

49. Unless the defendants advance evidence that their parents had independent legal advice, or received a full market value for the property apart from the mortgage, or can explain that the mortgage was in fact for the benefit of the parents, the improvident nature of the transaction makes it a reasonably strong candidate to be set aside. But Norma’s case on these matters is yet to unfold and she may have a good answer to them.

50. Amal says that her parents had struggled with what had happened to them after the transfer of the Ashfield property but that they remained silent about it until they died. Amal says that she is been threatened by Louie because of her interest in defending and advancing the interests of all the parents. These allegations are also contested.

51. Amal conducted the early part of these proceedings from Lebanon. The proceedings were commenced in or about July 2023 after Amal filed another caveat over the Ashfield property and Norma issued a lapsing notice. Interim orders were made extending the operational of the caveat until the sale of Ashfield property.

52. There is little direct evidence about the alleged forgery of the transfer. Norma denies participating in any forgery. But as the above analysis shows even if the transfer is not a forgery, Norma may bear a significant onus in upholding the validity of the transaction. This onus has not obviously been discharged by any evidence yet available to the Court. This causes the Court to take a broader view of these proceedings and to give directions to bring the real issues in dispute to a head as well as the motion which is now before the Court.

Applicable legal principles and submissions

53. Norma’s application for security for costs was originally brought under Uniform Civil Procedure Rules (UCPR) r 42.21(1)(a), which relevantly provides that:

(1)   If, in any proceedings, it appears to the court on the application of a defendant—

(a)   that a plaintiff is ordinarily resident outside Australia, or

54. Norma also relies upon the court’s inherent jurisdiction. But a framework for resolving this dispute, UCPR r 42.21(1A) provides for a range of matters that the Court may consider relevant in determining “whether it is appropriate to make an order” referred to in (1). Only some of these considerations are relevant to the contest in this case. They are dealt with in the Court’s analysis below.

55. The defendant submits that the law is clear. The test for being “ordinarily resident” in Australia depends significantly on the state of mind of the person in question, coupled with a consideration of whether that person habitually normally resides in the jurisdiction and does so for a settled purpose: Logue v Hansen Technologies Pty Ltd [2003] FCA 81 at [26]. The time at which residency is to be assessed is the time at which an application for security is brought and not the plaintiff circumstances at the beginning of the proceedings or at some indeterminate future time: Anderson v Patersons Securities Ltd [2019] NSWSC 852 at [43]. Where the period of claimed residency began shortly before the hearing of the application it is appropriate to have regard not only to the circumstances since the claimant returned to Australia but also to the longer history: Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245 at [24].

Analysis of the issues

56. This case raises issues that are somewhat like those raised in Logue and Corby: whether a person may have two ordinary residences, one within the jurisdiction in one outside. In Logue, citing long developed English authority, Weinberg J at [24] stated the law that applies in resolving an application for security where a plaintiff may be said to have two ordinary residences, as follows:

“In such a case the Court has power to order security for costs, but that person’s connection with the United Kingdom will be relevant to the exercise of that discretion. The closer the connection, the greater the relevance. If the claimant has an established home, and is resident, though not “ordinarily resident” in that country, security will rarely be ordered. If the claimant has an established home and is ordinarily resident in that country, security will be ordered even more rarely: Leyvand v Barasch (2000) 144 SJLB 126.

57. The power to order security for costs is enlivened here. Although Amal has recently moved back to Australia, in the Court’s view she is neither ordinarily resident in Lebanon nor ordinarily resident in Australia. She is at a momentary point of transition between two places and situations of ordinary residence. She has left a place, Lebanon, where it can safely be said that she has been ordinarily resident within the meaning of that term. For a long time, she has intended to reside habitually and normally in Lebanon for the settled purpose of educating her children in the cultural and family environment of Lebanon. But for her health issues, she would probably have left Lebanon about 12 months ago as she had formed the intention to do so. In the Court’s view she is now a resident in Lebanon and resident in Australia, but she is not “ordinarily resident” in either jurisdiction.

58. The Court accepts that Amal’s settled purpose of ordinary residence in Lebanon has come to an end because she has decided to return permanently to Australia. This is evidenced by several matters. First, her children have reached the age of independence and are going their own way in life. They have during primary and secondary school in Lebanon absorbed the local culture and enriching family connections as far as might reasonably be expected from Amal’s original purpose in taking them there. They are now at the next age of life and Amal perceives that they will benefit from the financial security, career, and personal options available here in Australia from now on. Added to this it may readily be inferred that distancing the family from the present warlike situation in the Middle East must be a background factor. Amal’s and her husband’s plan is now to bring them back by midyear 2024.

59. Secondly, Amal’s cancer treatment has now been transferred to Sydney where it can be expected to continue. Further change in her treatment arrangements is inherently unlikely given the seriousness of her health diagnosis, giving her a strong reason to continue to reside here in Sydney.

60. Thirdly, Amal’s economic and social environment indicate that her continued residence in Australia is likely. The Court does not accept that Amal has sham marriage with her husband Tony, who lives in Australia. She declares otherwise. Objective facts indicate otherwise. They are living together in Mascot at present. Although they have been living in what might on any view be regarded as unusually separate arrangements for many years, there is no suggestion of a divorce or property settlement between them to separate their financial affairs. His family and closer parts of her family are part of their family life. Given her health challenges these family connections assume prominent importance in her life. And balanced against these important Australian connections and Amal’s explanation of the timing of her leaving Lebanon, Norma’s case has not developed an alternative narrative of what it is that would draw Amal back to Lebanon right now such that it could be said that she was ordinarily resident there.

61. Finally, and importantly Amal has offered an undertaking to the Court to stay in Australia until the conclusion of these proceedings. This commitment cements the idea that she is at least resident in Australia at present. And that is the Court’s conclusions. She resides in both Lebanon and in Australia; but she is ordinarily resident in neither jurisdiction. Her undertaking is enforceable. It should be understood that the “conclusion” of these proceedings includes the inclusion of any enforcement action against Amal in the event she were to be unsuccessful.

62. In these circumstances, the Court may exercise its discretion to order for security for costs. But the Court declines to do so. The Court will not order security for costs in the exercise of its discretion. This decision is based on the strength of Amal’s connection with Australia, the probability that she has made a decision to return to this country on a permanent basis with her children although permanency is not yet proven, a lack of any clear narrative in Norma’s case as to why is she would now return to the instability of Lebanon, and her undertaking to the Court to remain in this country until the conclusion of these proceedings.

63. Three matters remain: the form of the undertaking or order that Amal remain in Australia, issues of costs, and the future management of these proceedings.

64. As to the form of the undertaking or order that Amal remain in Australia, the Court’s view is that the better course is to make an order to this effect rather than accept an undertaking. Amal’s undertaking clearly indicates she is prepared to consent to such an order. An order to this effect is included as part of the orders below, dismissing the motion. It can be recorded with Australia’s customs and immigration authorities. But a permanent liberty to apply will also be granted to Amal should some emergency arise requiring her to leave Australia for some purpose. But she can expect in those emergency circumstances that she or some other person on her behalf, such as a family member, will be required to provide some security on her behalf before any Court would temporarily stay this order for her to leave the jurisdiction. She should prepare herself and should not expect to leave the jurisdiction without the provision of security for Norma’s costs.

65. As to costs of the motion, although Amal has been successful in resisting an application for security for costs, the Court is not inclined to make any order as to costs on Norma’s application. One of the decisive factors that has led the Court to decline to order security is Amal’s offer of an undertaking to stay in Australia until the conclusion of these proceedings. That offer was only made during the hearing after the costs had been incurred on both sides and where Norma’s claim for security for costs was reasonably arguable. Subject to the Court hearing within 14 days whether any Calderbank offers have been made, or whether any other special costs order is to be sought, this is the course the Court will take.

66. Finally, as to the future management of the proceedings, the Court’s early and necessarily incomplete analysis of the profile of the issues, indicates that pleadings and evidence in this case will need to better address three questions that are likely to be prominent in the resolution of these proceedings: (1) whether the mortgage for $650,000 over the Ashfield property that Norma and her husband paid out for the parents before it was transferred to Norma, was a mortgage for the benefit of the parents or for the benefit of Norma, (2) whether the deceased and John received independent legal advice before transferring the Ashfield property to Norma, and (3) whether the parents’ signatures on the transfer of the Ashfield property to Norma were forgeries, a matter which may perhaps require expert evidence. A clear understanding of what the evidence is on these three matters and a review of the pleadings is likely to better position the parties to negotiate a settlement of these proceedings at mediation.

67. The Court is inclined to order mediation under Civil Procedure Act 2005 s 26. This family dispute with relatively confined issues should be capable of settlement before more legal costs are expended. The Court will list the matter for directions to enable the parties to take instructions about the adducing of evidence, including by subpoena or notice to produce, in relation to these three matters, to prepare the proceedings for early mediation.

68. Another aspect of the future management of these proceedings which may need attention is the constitution of and the relief sought in the proceedings. Amal has sought in her Statement of Claim to be appointed as administrator of the estate of the deceased. This may not be necessary because the interests of the estate are protected by Amal’s claim as a plaintiff to restore value to the estate. The Court is inclined to make orders joining the estate as a party but ordering that the proceedings continue in the absence of a representative of the estate under Uniform Civil Procedure Rules r 7.10(2)(a). Subject to some assurance that the cash in the estate of some $95,000 has been secured, the deceased’s estate does not need an administrator pending the resolution of the proceedings. Depending upon the outcome of the proceedings, the estate may yet need an administrator.

69. The Court therefore will adjourn these proceedings into the directions list on 31 May 2024 so the parties can consider these reasons and plan the future management of the proceedings. The Court expects to hear proposals from the parties for a clear way forward on 31 May 2024.

Conclusions and Orders

70. For these reasons the Court makes the following orders and directions:

1. subject to order (2), DISMISS the first defendant’s amended motion dated 13 December 2023;

2. ORDER that the plaintiff, with her own consent and subject to her right to apply to vary this order upon due cause being shown, shall not leave Australia until the completion of these proceedings including any enforcement action consequent upon the making of orders in the proceedings;

3. MAKE no order as to costs but subject to the right of any party to apply for a special costs order on or before 31 May 2024; and

4. ADJOURN the proceedings into the probate directions list on 31 May 2024 for the parties to report to the Court with their plans to address the matters raised in these reasons for the future management of these proceedings.   

Decision last updated: 20 May 2024