Basten JA at [1]; Campbell JA at [1]; Meagher JA at [1].
Decision:
(1) The appellants' notice of motion filed on 19 September 2012 is dismissed.
(2) The appellants to pay the respondents' costs of that motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PRACTICE AND PROCEDURE - judgments and orders - application by appellants to reopen appeal pursuant to UCPR r 36.16 - appeal from orders refusing relief under Family Provision Act - miscalculation by Court of legal costs incurred by respondents/executors - not material to disposition of appeal - appellants seeking to introduce issues not raised and arguments not made on hearing of appeal - application to reopen refused
Evelyn Tobin (First Appellant) Clara Ezekiel (Second Appellant) Morris Ezekiel (First Respondent) Albert Ezekiel (Second Respondent)
Representation:
Counsel: T D Kelly, G S Watson (Sols)(Appellants) T S Hale SC, J S Tobin (Respondents) Solicitors: T D Kelly & Co (Appellants) Diamond Conway (Respondents)
THE COURT: On 13 September 2012 the Court delivered judgment in this appeal. The orders made included orders allowing in part the appeal from orders made by Brereton J rejecting the appellants' applications for provision under the Family Provision Act 1982. In relation to those applications, the Court designated as notional estate, the property at Beach Road, Bondi Beach, subject to existing registered mortgages, and ordered that provision be made for the second appellant, Clara, in the amount of $225,000. There was no order making provision for the first appellant, Evelyn. The leading…
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.
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Details
AGLC
Tobin v Ezekiel (No 2) [2012] NSWCA 409
Case
[2012] NSWCA 409
Decision Date
CaseChat Overview and Summary
In *Tobin v Ezekiel (No 2)*, the appellants sought to reopen an appeal that had been determined by the Court of Appeal of New South Wales. The original appeal concerned orders that had refused relief sought by the appellants under the *Family Provision Act*. The respondents were the executors of the estate.
The primary legal issue before the Court of Appeal was whether the appellants were entitled to have the appeal reopened pursuant to rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). This rule permits applications to set aside or vary judgments or orders, subject to certain time limits. The appellants sought to introduce new issues and arguments that had not been raised during the original hearing of the appeal.
The Court of Appeal reasoned that the application to reopen the appeal was not made within the fourteen-day time limit prescribed by rule 36.16. Furthermore, the Court found that a claimed miscalculation by the Court of legal costs incurred by the respondents, which the appellants sought to rely upon, was not material to the disposition of the original appeal. The Court concluded that the appellants were attempting to introduce entirely new issues and arguments that were not part of the original appeal, and that the grounds for reopening under rule 36.16 were not met.
Consequently, the Court of Appeal dismissed the appellants' notice of motion and ordered that the appellants pay the respondents' costs of that motion.
Orders
Orders of the court
(1) The appellants' notice of motion filed on 19 September 2012 is dismissed.
(2) The appellants to pay the respondents' costs of that motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]