Tobin v Ezekiel

[2009] NSWSC 1313

CITATION:	Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1313
HEARING DATE(S):	3 November 2009
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	3 November 2009
DECISION:	Applicant’s claim for caveatable interest dismissed
CATCHWORDS:	REAL PROPERTY – caveat – claim for caveatable interest - where a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest
CATEGORY:	Procedural and other rulings
CASES CITED:	Guardian Trust and Executors of New Zealand v Hall [1938] NZLR 1020 Re Savage’s Caveat [1956] NZLR 118
PARTIES:	Robert Stephen Angyal (Applicant) Evelyn Tobin (First Plaintiff) Clara Ezekiel (Second Plaintiff) Morris Ezekiel (First Defendant) Albert Ezekiel (Second Defendant)
FILE NUMBER(S):	SC 106746/06
COUNSEL:	Mr R Parsons (applicant) Mr T Kelly (sol) (plaintiffs) Mr T Hale SC w Mr J Tobin (defendants)
SOLICITORS:	Keith Hurst & Associates (applicant) T.D. Kelly & Co (plaintiffs) McLachlan Chilton (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRERETON J

Tuesday 3 November 2009

106746/06 Evelyn Tobin & anor v Morris Ezekiel & anor; The Estate of Lily Ezekiel

JUDGMENT (ex tempore – Application for Costs of Mediator)

1 HIS HONOUR: I regret that in my view it is plain that there is no tenable claim to a caveatable interest in this case. It is well-established that a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest (See Re Savage’s Caveat [1956] NZLR 118; Guardian Trust and Executors of New Zealand v Hall [1938] NZLR 1020). The claim of a creditor of the estate – which is, after all, what the applicant’s status really is – is in worse plight than that of a beneficiary of the estate in that respect. It cannot logically make any difference that the only remaining asset of the estate is land.

2 The order that the costs of the mediation be paid out of the estate, made at a time when no mediator had been identified, could not possibly have created an interest in land owned by the estate such as to found a caveat by the mediator. The application for an order extending the operation of the caveat is, therefore, doomed to fail, and there is no point in permitting the applicant to intervene in the proceedings for the purpose of enabling that application to be pursued.

3 It has been submitted that I should retrospectively rectify that position by making an order charging the mediator’s costs on the Bondi property. There are a number of difficulties with that proposed. First, it is not at all clear that the Bondi property is, at present, an asset of the estate, it having been transmitted to the defendants. It may be that, as a result of these proceedings, that is undone in the future; but at present it seems at least probable that the property is no longer an asset in the estate – and indeed was not when the relevant order was made.

4 Secondly, to make such an order at this stage would be to alter the basis of the commercial relations between the parties, after their commercial relationship has come to an end. I have the greatest sympathy for Mr Angyal’s position, who is plainly entitled to be paid, but I do not think I can allow that sympathy to bring about a retrospective change in the commercial and contractual relationship between the parties. Regrettably, it seems to me that, as the mediation agreement provides for the parties to share equally the costs of the mediation, and that the plaintiffs and defendants are jointly and severally liable to pay the mediator’s fees, his remedy is to sue the plaintiffs and the defendants on that agreement for those fees. While I have been tempted to impose some summary solution in that respect, I do not think I can properly give a judgment in his favour in these proceedings, on a claim for those costs which has not yet been articulated in any proceeding, and to which, therefore, there has been no opportunity to plead any defence.

5 Accordingly, I am not prepared to grant leave to the applicant to intervene in the proceedings, nor to make any other of the orders proposed in the applicant’s Draft Notice of Motion. That motion not having been filed, it does not appear to me that there is any need to make any formal orders dismissing it, other than to refuse leave to file it.

6 The matter was relisted today, at the request of the applicant, for the purpose of obtaining relief to which the applicant was not entitled, and, frankly, it should have been reasonably apparent that that was so. On the other hand, the defendants have responded on a scale that exceeded the needs of the application in question. While they were entirely entitled to do so, those who adopt such a course do so at their own risk, to the extent that the response is more than proportionate. That should not be taken as the slightest reflection on the utility of Mr Hale SC’s involvement in the proceedings, but simply an application of principals of proportionality.

7 In my view, the applicant must pay the defendants’ costs, but those costs should not include the costs of retaining Senior Counsel for the purposes of the application.

8 I order that the applicant, Robert Angyal, pay the costs of the defendants of today, such costs not to include the costs of retaining Senior Counsel.

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