Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175

Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175

Given the substantial question to be tried regarding whether the Strathfield South property was validly transferred and whether it should form part of the deceased's estate, and in light of evidence suggesting the sale was not at arm's length and was at undervalue, the balance of convenience lies in denying the variation of the injunction to preserve the property for the estate pending judgment.

Parties
Plaintiff: Magdy Mekhail; Defendant: Georgette Hana; Plaintiff: Youssef Shoukry Wardakhan Mekail; Plaintiff/applicant: Youssef Mekail; Caveator: Caveator
Jurisdiction
Australia
Judgment Date
05 September 2017
Procedural Posture
Probate/equity Interlocutory Application / Application to Vary Injunction (interlocutory)
Outcome
Application dismissed
Legal Topics
Injunctions, Interlocutory Relief, Testamentary Capacity, Constructive Trust, Estate Administration
Equity Probate Injunctions Interlocutory Relief Testamentary Capacity Constructive Trust Estate Administration

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Parties

Magdy Mekhail

Plaintiff

Georgette Hana

Defendant

Youssef Shoukry Wardakhan Mekail

Plaintiff

Youssef Mekail

Plaintiff/applicant

Caveator

Caveator

Procedural Posture

Probate/equity Interlocutory Application / Application to Vary Injunction (interlocutory)

Legal Issues

  1. 1 Whether to vary an existing injunction to permit sale of disputed estate property pending judgment
  2. 2 Whether proceeds of sale should be quarantined in a trust account

Ratio Decidendi

Given the substantial question to be tried regarding whether the Strathfield South property was validly transferred and whether it should form part of the deceased's estate, and in light of evidence suggesting the sale was not at arm's length and was at undervalue, the balance of convenience lies in denying the variation of the injunction to preserve the property for the estate pending judgment.

Court Disposition

Application dismissed

Orders

  • Dismiss the application of the defendant Georgette Hana to vary injunction.
  • Direct notice of these orders and reasons be given by plaintiff Magdy Mekhail to Abboud & Co and RM Legal.