Tobin v Ezekiel - [2009] NSWSC 1313

CITATION: Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1313

HEARING DATE(S): 3 November 2009

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 3 November 2009

DECISION: Applicant’s claim for caveatable interest dismissed

CATCHWORDS: REAL PROPERTY – caveat – claim for caveatable interest - where a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest

CATEGORY: Procedural and other rulings

CASES CITED: Guardian Trust and Executors of New Zealand v Hall [1938] NZLR 1020
Re Savage’s Caveat [1956] NZLR 118

PARTIES: Robert Stephen Angyal (Applicant)
Evelyn Tobin (First Plaintiff)
Clara Ezekiel (Second Plaintiff)
Morris Ezekiel (First Defendant)
Albert Ezekiel (Second Defendant)

FILE NUMBER(S): SC 106746/06

COUNSEL: Mr R Parsons (applicant)
Mr T Kelly (sol) (plaintiffs)
Mr T Hale SC w Mr J Tobin (defendants)

SOLICITORS: Keith Hurst & Associates (applicant)
T.D. Kelly & Co (plaintiffs)
McLachlan Chilton (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRERETON J

Tuesday 3 November 2009

106746/06 Evelyn Tobin & anor v Morris Ezekiel & anor; The Estate of Lily Ezekiel

JUDGMENT (ex tempore – Application for Costs of Mediator)

1 HIS HONOUR: I regret that in my view it is plain that there is no tenable claim to a caveatable interest in this case. It is well-established that a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest (See Re Savage’s Caveat [1956] NZLR 118; Guardian Trust and Executors of New Zealand v Hall [1938] NZLR 1020). The claim of a creditor of the estate – which is, after all, what the applicant’s status really is – is in worse plight than that of a beneficiary of the estate in that respect. It cannot logically make any difference that the only remaining asset of the estate is land.

2 The order that the costs of the mediation be paid out of the estate, made at a time when no mediator had been identified, could not possibly have created an interest in land owned by the estate such as to found a caveat by the mediator. The application for an order extending the operation of the caveat is, therefore, doomed to fail, and there is no point in permitting the applicant to intervene in the proceedings for the purpose of enabling that application to be pursued.

3 It has been submitted that I should retrospectively rectify that position by making an order charging the mediator’s costs on the Bondi property. There are a number of difficulties with that proposed. First, it is not at all clear that the Bondi property is, at present, an asset of the estate, it having been transmitted to the defendants. It may be that, as a result of these proceedings, that is undone in the future; but at present it seems at least probable that the property is no longer an asset in the estate…

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 [2009] NSWSC 1313
Case: [2009] NSWSC 1313
Decision Date: 3 November 2009

CaseChat Overview and Summary

The case of Tobin v Ezekiel involved a dispute over the validity of a caveat lodged by the respondent, Ezekiel, over a property held by the appellant, Tobin. The crux of the dispute was whether the interest claimed by Ezekiel in the property, which was a right to share in the surplus of a deceased estate after liabilities had been discharged, constituted a caveatable interest under the Real Property Act 1900. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the interest claimed by Ezekiel was a form of interest in land that could be protected by a caveat.

The legal issue before the court was whether a right to share in the surplus of a deceased estate, after liabilities had been discharged, qualified as a caveatable interest. The court considered the statutory definition of caveatable interest under the Real Property Act and examined previous case law on the matter. The court noted that the interest claimed by Ezekiel was contingent upon the distribution of the estate and did not provide a present possessory interest in the property. The court held that such a future interest did not meet the criteria for a caveatable interest as it did not provide an immediate possessory right in the property.

The Supreme Court of New South Wales found that the interest claimed by Ezekiel did not constitute a caveatable interest as it did not provide an immediate possessory right in the property. The court held that the right to share in the surplus of a deceased estate, after liabilities had been discharged, was not a present possessory interest and therefore did not meet the statutory requirements for a caveatable interest. The court quashed the caveat lodged by Ezekiel, thereby allowing Tobin to proceed with the sale of the property. The court's decision clarified the scope of what constitutes a caveatable interest under the Real Property Act, ensuring that only present possessory interests in land can be protected by a caveat.

Orders