Supreme Court
New South Wales
Medium Neutral Citation: Alan Yazbek v Ghosn Yazbek & Anor (No. 2) [2012] NSWSC 783 Hearing dates: 11 July 2012 Decision date: 11 July 2012 Jurisdiction: Equity Division Before: Slattery J Decision: Grant of administration to defendants revoked. Grant of administration cum testamento annexo made to independent administrator. The plaintiff's and the defendants' costs of the proceedings paid out of the estate on the ordinary basis.
Catchwords: SUCCESSION - wills, probate and administration - whether grant of administration to defendants upon intestacy should be revoked - whether independent administrators should be appointed - whether plaintiff and defendants should have their costs out of the estate and if so on what basis. Legislation Cited: Family Provision Act 1982 (NSW)
Succession Ac 2006 (NSW)
Uniform Civil Procedure Act 2005, s 26
Wills, Probate and Administration Act 1898 (NSW)Cases Cited: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594
Bourdales v Carroll, Estate of Diana Holebrook (2007) 1 ASTLR 202
In the Goods of Loveday [1900] P 154
O'Brien v McCormick [2005] NSWSC 619
Shorter v Hodges (1988) 14 NSWLR 698 Zang v Middleton [2011] NSWSC 881Texts Cited: G L Certoma, The Law of Succession in New South Wales, (Thomson Reuters (Professional) Australia, 4th edition, 2010), p 266 [14.90] Category: Consequential orders Parties: Plaintiff:- Alan Yazbek
First Defendant:- Ghosn Yazbek
Second Defendant:- Mouna YazbekRepresentation: Counsel:
Plaintiff:- R. Bellamy
Plaintiff:- Geoffrey Adelstein, Diamond Conway
Defendants:- Dr C. Birch SC, B. Burke
Solicitors:
Defendants:- Malcolm John Cameron, Sparke Helmore Lawyers
File Number(s): 2011/ 240654 Publication restriction: No
EX TEMPORE Judgment
This is my second judgment in these proceedings. My principal judgment was given on 1 June 2012: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594. Persons, matters and events are referred to in this judgment in the same way as they are in the principal judgment and both judgments should be read together.
Mediation
In the principal judgment, at paragraphs [148] to [152], I made certain observations about the desirability of mediation in this case. This morning neither counsel submits that the foreshadowed mediation order under the Uniform Civil Procedure Act 2005, s 26 should not be made.
The defendants' family provision Succession Act proceedings are not the only proceeding on foot among family members. But the Succession Act proceedings are, for the reasons explained in the principal judgment, a sufficient basis to order mediation. I will order a mediation of those issues.
As both counsel have suggested, it is open to parties who are not now before the Court in this litigation, to join in that ordered mediation, to see if all issues, even in related litigation, can be resolved. Once a mediator is engaged, it is highly desirable for mediation of the Succession Act proceedings to provide a platform for the parties to gather in and resolve their wider disputes.
So on this first issue, I will order, pursuant to s 26 of the Uniform Civil Procedure Act that the Succession…
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- Case
- [2012] NSWSC 783
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. Firstly, whether the grant of administration to the defendants should be revoked and independent administrators appointed. Secondly, whether the plaintiff and defendants should have their costs out of the estate and, if so, on what basis. The court had to consider the circumstances of the estate, the conduct of the parties, and relevant statutory provisions in making its determination.
The court found that the grant of administration to the defendants should not be revoked and independent administrators appointed. The court held that the defendants had acted in good faith and had not breached any of their fiduciary duties. The court also held that the plaintiff and defendants should bear their own costs, but if costs were to be paid out of the estate, they should be on a basis that reflected the course of the proceedings. The court considered that the plaintiff's claim was not entirely without merit and that it had not been entirely without justification.
No further orders were made by the court.
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