Tobin v Ezekiel - [2006] NSWSC 694

CITATION: Tobin & Anor v Ezekiel & Anor [2006] NSWSC 694

HEARING DATE(S): 06/07/06

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 07/06/2006

DECISION: Plaintiffs ordered to pay defendants' costs on an indemnity basis upon assessment or agreement.

CATCHWORDS: PROCEDURE - Costs - Plaintiffs' refusal to remove insupportable caveat - Whether costs on an indemnity basis should be ordered with payment on assessment or agreement

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

FILE NUMBER(S): SC 106746/06

COUNSEL: Mr A Cheshire - Plaintiff
Mr P O'Loughlin - Defendant

SOLICITORS: T D Kelly & Co - Plaintiffs
Segal & Associates - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 6 JULY 2006

106746/06 EVELYN TOBIN & ANOR v MORRIS EZEKIEL & ANOR

EX TEMPORE JUDGMENT

1 The deceased made a will leaving her estate to the plaintiffs on 28 September 1977. She made a further will excluding the plaintiffs and leaving the entirety of her property to the defendants on 10 December 1997. Probate was granted to the defendants on 3 February 2006.

2 The plaintiffs lodged a caveat on an asset in the estate that had been transmitted to the defendants on 14 February 2006. The caveat lodged by the plaintiffs stated the nature of their interest as follows:

“Claim upon whole or part of the interest of the registered proprietors pursuant to proposed applications in the Equity Division of the Supreme Court of New South Wales for the Revocation of the Grant of Probate, being Probate No.101240/06 granted on 3 February 2006 of the will of the late Lily Ezekiel dated 10 December 1997 and pursuant to the Family Provision Act NSW 1982.”

3 What followed the lodgement of that caveat was a consent order made by Windeyer J on 15 May 2006 and the lapsing of the caveat. Upon the plaintiffs by their counsel giving the usual undertaking as to damages, his Honour ordered that until further order the defendants and each of them be restrained from selling, transferring, alienating or otherwise disposing of the property otherwise than obtaining a mortgage up to $300,000.

4 On 19 May 2006, some four days after the making of that order, a further caveat was lodged by the plaintiffs stating their interest thus:

“Claim upon whole or part of the interest of the registered proprietors pursuant to Order 1 of Mr Justice Windeyer in the Equity Division of the Supreme Court of NSW, Matter No 10676 of 2006, made on 15 May 2006.”

5 On 1 June 2006, the solicitors for the defendants put the plaintiffs’ solicitors on notice that they regarded the caveat as being insupportable in that what was claimed was not a caveatable interest.

6 In response, on 1 June 2006, the solicitors for the plaintiffs said that the further caveat had been lodged to protect the plaintiffs’ right to prevent any…

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 [2006] NSWSC 694
Case: [2006] NSWSC 694
Decision Date: 06/07/2006

CaseChat Overview and Summary

The case of Tobin v Ezekiel involved a dispute over costs following a failed caveat lodged by the plaintiff, Tobin, against the defendant, Ezekiel. The case was heard in the Supreme Court of Queensland, where the primary issue was whether the plaintiff's refusal to remove the insupportable caveat warranted costs on an indemnity basis. The court was required to decide whether the costs should be determined on an assessment or agreement basis.

The legal issue at hand was whether the refusal of the plaintiff to remove an insupportable caveat could justify the imposition of costs on an indemnity basis. The court needed to weigh the principles of indemnity costs against the traditional approach of costs on an assessment or agreement basis. The court considered the precedent set by earlier cases, which suggested that indemnity costs should be awarded sparingly and only in exceptional circumstances.

In reaching its decision, the court examined the circumstances surrounding the lodging of the caveat and the plaintiff's subsequent refusal to remove it despite being ordered to do so. The court concluded that the plaintiff's conduct warranted costs on an indemnity basis. The court reasoned that the plaintiff's refusal to remove the caveat was unjustified and had caused unnecessary expense and delay, which the defendant should not bear. The court ordered the costs to be determined on an indemnity basis, with the payment to be made on assessment or agreement as the circumstances allowed.

In conclusion, the court ordered that the costs of the proceedings be awarded on an indemnity basis, to be paid by the plaintiff to the defendant. The court emphasised that such an order was appropriate in cases where the refusal to remove an insupportable caveat caused significant expense and delay. The decision underscored the importance of parties acting reasonably and responsibly in the context of caveats and the potential consequences of failing to do so.

Orders