Yazbek v Yazbek (No 2) - [2012] NSWSC 783

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 881
Texts 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 Yazbek
Representation:
Counsel:

Plaintiff:- R. Bellamy
Defendants:- Dr C. Birch SC, B. Burke
Solicitors:
Plaintiff:- Geoffrey Adelstein, Diamond Conway
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…

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

Case: [2012] NSWSC 783
Decision Date: 11 July 2012

CaseChat Overview and Summary

The case of Yazbek v Yazbek (No 2) involved the plaintiff and the defendants, who were the children of the deceased. The dispute centred around the administration of the deceased's estate, specifically the decision to grant administration to the defendants due to the intestacy of the deceased. The plaintiff sought to have the grant of administration revoked, and instead, independent administrators appointed. The plaintiff also argued for the recovery of costs incurred by the parties from the estate, on a basis of costs following the course of the proceedings.

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.

Orders