Tobin v Ezekiel - [2011] NSWSC 571

Supreme Court

New South Wales

Medium Neutral Citation: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 571
Hearing dates: Monday, 23 May 2011
Decision date: 23 May 2011
Jurisdiction: Equity Division - Probate List
Before: Brereton J
Decision:
Plaintiffs and defendants not to alienate or encumber certain real property without notice to other's solicitors.
Plaintiffs to pay defendants costs fixed at $100,000.

Catchwords: INJUNCTIONS - Preservation of subject matter pending appeal - needs of parties liable to fluctuate - flexible approach necessitated - parties to not deal with real property without notice - liberty to apply to court.
COSTS - Defendants successful - ordinary position that costs follow the event - exception in probate litigation where circumstances lead reasonably to investigation of will - defendants put untruthful account to court - untruthful account fundamental to initiation and ongoing prosecution of certain claims - defendants' incurred some additional costs as result of plaintiff's conduct of case - defendants would have incurred some costs regardless of own misconduct - defendants' entitled to portion of costs - plaintiffs to pay defendants costs fixed at $100,000.
Legislation Cited: (NSW) Civil Procedure Act 2005, s 98
(NSW) Family Provision Act 1982, s 7
(NSW) Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Moore v Moore [2004] NSWSC 597
Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698
Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81
Category: Costs
Parties: Evelyn Tobin (first plaintiff)
Clara Ezekiel (second plaintiff)
Morris Exekiel (first defendant)
Albert Ezekiel (second defendant)
Representation: Counsel:
Mr J Gormly SC (plaintiffs)
Mr T Hale SC w Mr J Tobin (defendants)
Counsel:
Mr J Gormly SC (plaintiffs)
Mr T Hale SC w Mr J Tobin (defendants)

File Number(s): 2006/275504

Judgment

HIS HONOUR: It will be recalled that, in the substantive proceedings, the plaintiffs sought revocation of a grant of probate on grounds of want of testamentary capacity, undue influence, and absence of knowledge and approval of the content of the will. The plaintiffs also sought provision out of the deceased's estate pursuant to (NSW) Family Provision Act 1982, s 7. On 1 March this year I ordered that the proceedings be dismissed and made directions in order to permit the question of costs, which the parties wished to address subsequently, to be argued [ Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81].

The first question for resolution today is the preservation of the position in relation to the (former) estate assets, pending the hearing of the plaintiffs' appeal. It is uncontentious that some form of preservation is appropriate in order that the plaintiffs' appeal not be rendered futile by alienation or encumbrance of the assets before the appeal is heard.

Evidence placed before the Court on the present application suggests that the property located at Beach Road Bondi Beach - being the only significant asset - is now worth about $2.5 million. It is difficult…

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 Tobin v Ezekiel

Details

AGLC: Tobin v Ezekiel [2011] NSWSC 571
Case: [2011] NSWSC 571
Decision Date: 23 May 2011

CaseChat Overview and Summary

In the case of Tobin v Ezekiel, the matter before the court involved a dispute over the preservation of real property pending appeal. The plaintiffs sought an injunction to prevent the defendants from dealing with certain real property, while the defendants contested this application and sought to proceed with the sale of the property. The court had to determine whether the plaintiffs' need for the preservation of the subject matter warranted an injunction, considering the fluctuating needs of the parties liable.

The legal issues centred around the circumstances under which an injunction should be granted to preserve real property pending appeal, and whether the needs of the parties liable would fluctuate to such an extent that a flexible approach was necessary. The court also had to consider the conduct of the parties during the litigation, particularly the defendants' untruthful account to the court, which was fundamental to the initiation and prosecution of certain claims. Additionally, the court had to address the allocation of costs, given that the defendants were successful in their defence but had also engaged in misconduct during the proceedings.

The court found that the plaintiffs' need for the preservation of the subject matter did warrant an injunction, and that a flexible approach was necessary due to the potential fluctuation in the needs of the parties liable. The court emphasised that the parties were to refrain from dealing with the real property without notice and that the defendants had the liberty to apply to the court if circumstances changed. Regarding costs, the court held that although the defendants were successful, their misconduct warranted an exception to the ordinary rule that costs follow the event. The court determined that the defendants were entitled to a portion of their costs, which were fixed at $100,000, with the plaintiffs ordered to pay this amount.

The final orders included an injunction preserving the real property pending appeal, with liberty for the defendants to apply for variation if circumstances changed, and an order for the plaintiffs to pay the defendants' costs of $100,000.

Orders