Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1313

Tobin v Ezekiel; Estate of Lily Ezekiel [2009] NSWSC 1313

The applicant does not hold a caveatable interest; a right to share in the surplus of a deceased estate or to be paid mediation costs is insufficient to support a caveat over estate land. Leave to intervene and to charge mediation costs on the estate property is refused.

Parties
Applicant: Robert Stephen Angyal; First Plaintiff: Evelyn Tobin; Second Plaintiff: Clara Ezekiel; First Defendant: Morris Ezekiel; Second Defendant: Albert Ezekiel
Jurisdiction
Australia
Judgment Date
03 November 2009
Procedural Posture
Application in Probate Proceedings / Ex Tempore Judgment on Interlocutory Application for Caveat and Costs
Outcome
Applicant's claim for caveatable interest dismissed. Applicant to pay defendants' costs of today, excluding costs of retaining Senior Counsel.
Legal Topics
Caveatable Interest, Surplus of Deceased Estate, Costs of Mediation
Real Property Probate Caveatable Interest Surplus of Deceased Estate Costs of Mediation

Case Brief

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Parties

Robert Stephen Angyal

Applicant

Evelyn Tobin

First Plaintiff

Clara Ezekiel

Second Plaintiff

Morris Ezekiel

First Defendant

Albert Ezekiel

Second Defendant

Procedural Posture

Application in Probate Proceedings / Ex Tempore Judgment on Interlocutory Application for Caveat and Costs

Legal Issues

  1. 1 Whether the applicant has a caveatable interest in estate land
  2. 2 Whether the costs of mediation can be charged on estate property
  3. 3 Whether leave to intervene should be granted

Ratio Decidendi

The applicant does not hold a caveatable interest; a right to share in the surplus of a deceased estate or to be paid mediation costs is insufficient to support a caveat over estate land. Leave to intervene and to charge mediation costs on the estate property is refused.

Court Disposition

Applicant's claim for caveatable interest dismissed. Applicant to pay defendants' costs of today, excluding costs of retaining Senior Counsel.

Orders

  • Refused leave to intervene in proceedings.
  • Refused to make orders proposed in the applicant's Draft Notice of Motion.