Tarbes v Taleb (No 2)

[2023] NSWSC 809

Supreme Court

New South Wales

Medium Neutral Citation:

Tarbes v Taleb (No 2) [2023] NSWSC 809

Hearing dates:

10 July 2023

Decision date:

10 July 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Orders made to give effect to order for provision

Catchwords:

SUCCESSION — Family provision — Orders made giving effect to reasons for judgment and addressing disputed issues regarding various matters including mechanics of timing of payment and amounts of payment of orders for provision from the sale of the deceased’s real property, terms of liberty to apply and timing for running of interest

Legislation Cited:

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Tarbes v Taleb [2023] NSWSC 565

Category:

Consequential orders

Parties:

Juan Segundo Tarbes (Plaintiff)
Tarek Taleb (First Defendant)
Laila Merza (Second Defendant)

Representation:

Counsel:
D Price (Plaintiff)
P Wallis (Defendants)

Solicitors:
McPhee Kelshaw Solicitors and Conveyancers (Plaintiff)
Heckenberg Lawyers (Defendants)

File Number(s):

2021/224473

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: On 5 June 2023, I delivered reasons for judgment in relation to this matter (Tarbes v Taleb [2023] NSWSC 565), which is a family provision claim, and I will describe those reasons as the “principal judgment”. These reasons assume a familiarity with the principal judgment and will adopt its abbreviations.

2. I found that an amount of $2.5 million was an appropriate legacy for the plaintiff in lieu of the provision for him under the Will of the deceased. However, in part because Mr Price intimated that there would or may be some practical issues in the plaintiff needing some money to obtain or to acquire some form of accommodation, I gave the parties an opportunity to confer and prepare short minutes of order to give effect to my reasons for judgment.

3. I directed the parties to bring in short minutes of order and stood the matter over to 19 June 2023 to enable the parties to do that and, if need be, to address on the question of costs. There was some delay in the parties being able to do that, and, following a number of extensions permitting the parties time to consider appropriate orders, the matter has been listed this morning to address orders to give effect to the reasons for judgment.

4. The parties have been able to agree on various orders dealing with the formalisation of the provision amount and the listing of three of the deceased’s properties for sale within specified times from the date of making of the orders. They have also agreed on costs orders, per se, and a direction that the exhibits be returned.

5. I will make orders in accordance with the agreed matters.

6. Nonetheless, the parties have not agreed on a number of matters and have provided submissions in relation to them. I have had regard to their competing short minutes of order and to the submissions and in addition have had the benefit of oral submissions from each of Mr Price and Mr Wallis.

7. The matters in dispute between the parties may be summarised as follows:

1. Whether a notation should be made regarding the anticipated sale price of two of the properties?

2. How much money is to be paid to the plaintiff from the proceeds of sale of the Run-O-Waters property and the Sanctuary Point property?

3. Whether there should be a period of notice for the defendants to access the Bringelly property?

4. When should the plaintiff give vacant possession of the Bringelly property?

5. What should happen if completion of the sale of the Bringelly property is delayed for more than 24 months after the date of the sale of the Sanctuary Point property?

6. What should be the extent of the terms of any liberty to apply?

7. When the timing of interest on the lump sum should run from?

8. Whether an order should be made for the payment of the plaintiff’s costs within a particular time?

8. These reasons address those issues.

Preliminary matters and submissions

9. In addressing the issues, the following context is important.

10. The effect of an order for provision for the plaintiff is that it takes effect as a codicil to the Will of the deceased person: s 72(1)(a) Succession Act.

11. The parties accept that some time is necessary for the defendants to realise real property in order for the plaintiff to be paid the lump sum provision.

12. The Minto property is specifically gifted under the deceased’s Will. Accordingly, the parties contemplate sale of the deceased’s three other properties, being the Run-O-Waters property, the Sanctuary Point property and the Bringelly property, as a means of funding the lump sum provision for the plaintiff and, presumably, payment of testamentary expenses and the other legacy amounts.

13. For the purposes of the hearing, the parties prepared an agreed schedule regarding the value of the deceased’s estate. It is evident from the schedule that the estate was comprised of four properties and that the Bringelly property accounts for a very large component of the deceased’s estate.

14. Further, the evidence before the Court on the hearing was to the effect that the Bringelly property had an estimated value of $11.825 million subject to a typical sale period, being indicated as a period of three to six months, and an estimated value of $14.9 million subject to an extended settlement period indicated as being a period of two to three years.

15. The plaintiff appears willing to receive some interim payments and accepts that he will need to obtain some rental accommodation prior to being paid the complete amount of the lump sum provision.

16. The plaintiff accepts that the sale and settlement of the Run‑O‑Waters property and the Sanctuary Point property will take place each within a period of about three months.

17. The plaintiff has proposed orders containing provisions to incentivise quicker payment of provision and, to use an expression of Mr Price, to protect the position of the plaintiff if for some reason there is a delay in the sale of the Sanctuary Point property and/or the Bringelly property.

18. The defendants contemplated a real estate sale program which envisages the plaintiff vacating the Bringelly property pending its sale.

19. The defendants point to the increased expected amount to be achieved from an extended sale of the Bringelly property and submit that it would not be reasonable for there to be a quick sale of the Bringelly property. They further submit that their proposal of payment to the plaintiff of a sum of $445,000 from the Run‑O‑Waters property and the Sanctuary Point property, which sum is less than that sought by the plaintiff, is nonetheless adequate for the plaintiff to obtain temporary accommodation pending sale of the Bringelly property.

Notation regarding anticipated sale price

20. I raised the issue of notations regarding anticipated sale price and Mr Price indicated that he did not wish to say very much more about it other than had been proposed in the orders.

21. The parties agreed at the time of the hearing regarding the estimated value of the properties.

22. They further agreed on expenses regard sale. They did not provide any updating evidence regarding the anticipated sale of the properties or costs.

23. It is not necessarily usual for a particular notation to be made regarding the anticipated sale price of properties.

24. Having regard to Mr Price’s oral submissions, I do not propose to make such a specific notation. In making the orders, I will simply proceed on the basis of the agreed values and the agreed expenses that the parties provided on the hearing.

Payments from the Run-O-Waters property and the Sanctuary Point property

25. On the hearing, I found that the plaintiff has fairly minimal resources of his own right.

26. My intent (as indicated in the principal judgment) is that regarding provision for the plaintiff orders should be made for the payment of some reasonably immediate sum to the plaintiff to assist with any transitional arrangements for his accommodation. Further, the evidence on the hearing was that the plaintiff had other expenses that he contemplated as needs apart from accommodation.

27. None of the defendants or other beneficiaries placed before the Court any details of their financial circumstances or any evidence regarding immediate need for cash resources.

28. I consider that the plaintiff should be paid the larger sums from the sale of the Run-O-Waters property and the Sanctuary Point property as proposed by the plaintiff’s counsel rather than as the defendants propose.

29. Specifically, I consider that the plaintiff should receive a sum of $250,000 from the sale of the Run-O-Waters property on completion of sale rather than the sum of $100,000 as submitted by the defendants.

30. If, as is contemplated by the parties, the Sanctuary Point property be listed for sale within one month of the date of these orders, there is no particular reason to think that the sale of the Sanctuary Point property will be delayed for more than 12 months after the date of settlement.

31. Having regard to that, I consider that the plaintiff should be paid (as proposed by Mr Price) the higher of the sum of $400,000 or 50% of the net proceeds of sale of the Sanctuary Point property rather than be necessarily limited to a payment of only 50% of the net proceeds of sale.

32. However, if for some reason there is unexpected delay in the sale of the Sanctuary Point property, that can be dealt with in relation to liberty to apply if the parties or any of them wish to seek further orders such as to facilitate the prompt sale of the property.

Notice for the defendants to access the Bringelly property

33. The plaintiff seeks an order that the defendants provide the plaintiff with not less than four days’ notice of their wish to access the Bringelly property for the purposes of preparing and marketing the sale of it.

34. Mr Wallis, in oral submissions, did not seem to oppose that as being reasonable.

35. It seems to me to be a sensible proposal and I will make an order to that effect.

Vacant possession of the Bringelly property

36. There is dispute between the parties as to the time that the plaintiff is to give vacant possession of the Bringelly property.

37. The plaintiff seeks that the date of vacation be the later of four months from the date of these orders or the earlier of 28 days after the completion of the sale of the Run-O-Waters property and the Sanctuary Point property. The defendants propose the timing to be within 28 days of the payment of the amounts that the defendants proposed from the sale of the Run‑O‑Waters property and the Sanctuary Point property.

38. The essential difference between the parties’ proposals is whether a timing of 28 days from the completion of the sale of the Run‑O‑Waters property and the Sanctuary Point property will occur prior to the four months from the date of these orders.

39. Based on the plaintiff’s expectations regarding the time to sell these properties, a period of 28 days after the completion of those sales will, broadly speaking, likely coincide with a date of four months from the date of these orders.

40. Neither party appear to suggest that a period of four months will be prior to the time for the sale of the Bringelly property.

41. It may take a bit of time for the plaintiff to find appropriate accommodation. In those circumstances, I consider that the plaintiff’s proposal giving the plaintiff potentially a bit more time to vacate the Bringelly property, if that should be beyond a period of 28 days from the completion of the sale of the Run-O-Waters property or the Sanctuary Point property, is appropriate. I propose to make an order in the terms as proposed by the plaintiff.

Potential delayed completion of the sale of the Bringelly property

42. The plaintiff seeks a very specific order regarding payment of the amount of $100,000 to the plaintiff if the sale of the Bringelly property is delayed for more than 24 months after the completion of the sale of the Sanctuary Point property.

43. The plaintiff further seeks the payment of $100,000 for each further 12 months that there may be delay until the settlement of the Bringelly property.

44. It is clear on the evidence that an extended sale of the Bringelly property will likely increase its expected sale price considerably.

45. The evidence regarding an extended sale period is, as I have noted above, a period of two to three years.

46. I do not consider that it is appropriate at this point to make a specific order about payment of a specific sum in relation to a sale of a property that might take place beyond 27 months from the date of these orders (3 months to list and 24 months to complete any sale).

47. I consider that the appropriate means of addressing the issues arising out of any potential delay is to reserve to the parties’ liberty to apply to enable the plaintiff to seek, should he wish to do so, specific orders in relation to the then‑prompt sale of the Bringelly property and to enable the defendants to seek such orders as they may be advised to seek at that time.

Extent of liberty to apply

48. The defendants’ proposed orders limit the liberty to apply to the event that the plaintiff does not vacate the Bringelly property.

49. I do not consider that the liberty to apply should be so limited.

50. I consider that it should be generally in relation to the implementation of these orders and to cover the potential issues that I raised above including in respect of the timing of sale of the deceased’s properties.

Timing for payment of interest

51. The parties appear to agree that interest should run on the payment of the lump sum in the event that it is not completely paid by a certain time. Their dispute relates to what that certain timing is.

52. The plaintiff proposes that the interest should run on so much of the outstanding amount of the lump sum “more than 2 years after the date of these Orders and further, on any amount still owing to the Plaintiff more than 7 days after completion of the sale of the Bringelly Property notwithstanding that the sale of Bringelly Property is completed within 2 years of the date of these Orders”.

53. The defendants propose that interest should run on so much of the lump sum as remains unpaid more than one day from the completion of the sale of the Bringelly property until payment of the lump sum.

54. In light of the evidence contemplating the extended sale period for the Bringelly property being two to three years and the likely expected increase in value of the Bringelly property of over $3 million if such an extended settlement period occurs, it seems to me that I need to balance the interests of the parties in a manner I will describe.

55. As noted in the principal judgment, there is evidence that the cost of the plaintiff’s accommodation included figures ranging from $1.1 million to $1.35 million. It is distinctly possible that the plaintiff will not be able to buy accommodation without funds from the sale of the Bringelly property.

56. Attempting to give effect to what I intended as provision for the plaintiff and to balance the interests of the parties regarding the plaintiff’s need for funds on the one hand and the beneficiaries’ potential desire to have an increased sale price of the Bringelly property on the other, it seems to me that the appropriate timing for interest to run on the outstanding amount of the lump sum should be interest to run on so much of the lump sum as remains unpaid after more than two years from the date of these orders.

57. I consider there should be an order to the effect that, subject to further order, the balance of the lump sum is to be paid to the plaintiff on the completion of the sale of the Bringelly property if it has not already been paid prior to then.

58. If there are other issues that arise in respect of the timing of the sale of the Bringelly property, those can be dealt with under the liberty to apply.

Payment of the plaintiff’s costs by a particular time

59. The plaintiff seeks a specific order to the effect that his costs be paid within 28 days of the latter of the plaintiff’s costs being agreed or assessed and the date of settlement of the sale of the Run-O-Waters property.

60. The plaintiff’s costs, as noted in the principal judgment, were estimated to be $185,982.48 on the ordinary basis (inclusive of GST). The defendants’ costs on the indemnity basis were estimated to be in the order of $251,218.65.

61. The payment of the plaintiff’s costs will be a testamentary expense. I do not consider it to be appropriate that the costs be paid within a very specific time period.

62. The plaintiff appears to contemplate that some costs could be paid out of the sale of the Run-O-Waters property. However, if that was the case there may be insufficient funds to pay any amount for the defendants’ costs.

63. I consider that the appropriate way of addressing the payment of costs is to provide that if there is to be payment of testamentary expenses including costs from the proceeds of sale of the Run-O-Waters property and the Sanctuary Point property after the part payments of the sums referable to the lump sum provision, there should be part payments of equal amounts referable to the plaintiff’s costs and the defendants’ costs from any such proceeds.

64. Beyond that, any specific issue regarding payment of costs can be dealt with under the provisions of the liberty to apply.

Conclusion

65. Accordingly, I make the following orders:

1. Order pursuant to s 59 Succession Act 2006 (NSW), that in lieu of his entitlements under the Will of the late Fekrat Taleb (the deceased) dated 16 October 2018, the plaintiff receive by way of provision a lump sum of $2.5 million (lump sum) out of the deceased's estate.

2. Order that the defendants list the property located at and known as XX Greendale Crescent, Run-O-Waters (Folio XX/XXXXX X) (the Run-O-Waters Property) within one month of the date of these orders.

3. Order that the defendants list the property located at and known as X Truscott Avenue, Sanctuary Point (Folio XXXX/XXXXX X) (the Sanctuary Point Property) within one month of the date of these orders.

4. Order that the defendants list the property located at and known as XXXX The Northern Road, Bringelly in the State of New South Wales (Folio X/XXXXX X) (the Bringelly Property) for sale within three months of the date of these orders.

5. Order that the plaintiff provide the defendants with reasonable access to the Bringelly Property for the purposes of preparing and marketing the Bringelly Property for sale.

6. Order the defendants pay $250,000 to the plaintiff from the proceeds of sale of the Run-O-Waters Property at the completion of the sale of that property, in part payment of the lump sum.

7. Order that on completion of sale of the Sanctuary Point Property, the defendants pay to the plaintiff, in part payment of the lump sum, the higher of:

1. $400,000; and

2. 50% of the net proceeds of the sale of the Sanctuary Point Property.

8. Order that the defendants provide the plaintiff with not less than four days' notice of their wish to have access to the Bringelly Property for the purposes of preparing and marketing the Bringelly Property for sale.

9. Order that the plaintiff give vacant possession of the Bringelly Property to the defendants from the latter of:

1. four months from the date of these orders; or

2. the earlier of 28 days from the completion of the sale of the Run-O-Waters Property and the Sanctuary Point Property.

10. Order, subject to further order, that the balance of the lump sum to be paid to the plaintiff on the completion of the sale of the Bringelly Property if it has not already been paid prior to then.

11. Order that interest under s 84A(3) of the Probate and Administration Act 1898 (NSW) is to run on so much of the lump sum as remains unpaid from two years after the date of these orders.

12. Order that the plaintiff's costs of the proceedings as agreed or assessed be paid out of the deceased's estate on the ordinary basis.

13. Order that the defendants’ costs of the proceedings calculated on the indemnity basis be paid out of the deceased's estate.

10. Order that in the event that there is payment of testamentary expenses, including costs from the proceeds of the sale of the Run-O-Waters Property and the Sanctuary Point Property after the part payments of the sums referable to the lump sum provision (as set out earlier in these orders), that there should be part payments of equal amounts referable to the plaintiff's costs and the defendants’ costs from such proceeds.

11. Order that the parties have liberty to apply in relation to the implementation of these orders including in relation to the timing of the sale of the deceased's properties and the payment of costs.

12. Direct that the exhibits be returned.

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Decision last updated: 10 July 2023