Tobin v Ezekiel (No 2)

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.