Tobin v Ezekiel (No 2) [2012] NSWCA 409

Tobin v Ezekiel (No 2) [2012] NSWCA 409

The notice of motion was dismissed because the legal costs figure in the earlier reasons was miscalculated but the error was not material to the Court's reconsideration of the discretionary family provision issues, and the other matters relied on were issues or arguments that had not been raised on the appeal and could have been presented then. The circumstances did not enliven the jurisdiction to reopen the judgment.

Jurisdiction
Australia
Judgment Date
12 December 2012
Procedural Posture
Application by Appellants to Reopen an Appeal Pursuant to UCPR R 36.16 After Appeal From Orders Refusing Relief Under the Family Provision Act 1982 / Notice of Motion Filed After Court of Appeal Judgment; Determined on the Papers
Outcome
The appellants' notice of motion to reopen the appeal was dismissed.
Legal Topics
['judgments and Orders' 'reopening Final Judgment' 'uniform Civil Procedure Rules R 36.16' 'notional Estate' 'legal Costs of Executors']
['practice and Procedure' 'family Provision'] ['judgments and Orders' 'reopening Final Judgment' 'uniform Civil Procedure Rules R 36.16' 'notional Estate' 'legal Costs of Executors']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application by Appellants to Reopen an Appeal Pursuant to UCPR R 36.16 After Appeal From Orders Refusing Relief Under the Family Provision Act 1982 / Notice of Motion Filed After Court of Appeal Judgment; Determined on the Papers

Legal Issues

  1. 1 ["Whether the Court should reopen its judgment under UCPR r 36.16 because of a miscalculation of respondents' legal costs." "Whether the appellants could rely on arguments about Morris' potential claim to the Caulfield property that were not raised on the appeal." 'Whether the appellants could rely on evidence about alternative accommodation for Albert that was not the subject of submissions on the appeal.' 'Whether the alleged misapprehensions were material to the disposition of the appeal.']

Ratio Decidendi

The notice of motion was dismissed because the legal costs figure in the earlier reasons was miscalculated but the error was not material to the Court's reconsideration of the discretionary family provision issues, and the other matters relied on were issues or arguments that had not been raised on the appeal and could have been presented then. The circumstances did not enliven the jurisdiction to reopen the judgment.

Court Disposition

The appellants' notice of motion to reopen the appeal was dismissed.

Orders

  • ["The appellants' notice of motion filed on 19 September 2012 is dismissed." "The appellants to pay the respondents' costs of that motion."]