Wehbe & Anor v Giotopoulos [2022] NSWSC 1566

Supreme Court New South Wales

Medium Neutral Citation: Wehbe & Anor v Giotopoulos [2022] NSWSC 1566 Hearing dates: 7 November 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Jurisdiction: Equity Before: Hallen J Decision: Orders: (1) The Plaintiffs' notice of motion filed on 20 October 2022 be dismissed with costs. (2) The matter be referred to the Equity Registrar on 28 November 2022 for the purpose of obtaining a hearing date with an estimated duration of 5 days. (3) The directions hearing listed on 5 December 2022 is vacated. Catchwords: PRACTICE AND PROCEDURE – Plaintiffs are currently litigants in person who seek to propound a Will dated 8 July 2020 of the deceased – Defendant disputes validity of the 2020 Will – Allegation of lack of testamentary capacity, lack of knowledge and approval, and undue influence – Application by Plaintiffs for leave to issue subpoenas to produce documents – Where leave opposed – Whether legitimate forensic purpose established – Documents sought irrelevant to issues in proceedings as no dispute that if 2020 Will invalid, the deceased died intestate – Subpoena may lack a legitimate forensic purpose if sought for a spurious reason – Improper purpose where no "conceivable relation" with the proceedings – Leave refused Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) s 140 Uniform Civil Procedure Rules 2005 (NSW) rr 3.14, 7.3(1), 7.3(2), 33.2 Succession Act 2006 (NSW) s 60 Cases Cited: Attorney General v Collier [2022] NSWSC 323 Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Boyse v Rossborough (1857) 10 ER 1192 Craig v Lamoureux [1920] AC 349 Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 Liristis v Gadelrabb [2009] NSWSC 441 Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 Monteiro v State of New South Wales [2022] NSWSC 148 NHB Enterprises v Corry (No 4) [2020] NSWSC 426 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Roberts-Smith v Fairfax Media Publications Pty Limited (No 16) [2021] FCA 584 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Texts Cited: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) Category: Procedural rulings Parties: G P Wehbe (first Plaintiff/first Applicant) S C Wehbe (second Plaintiff/second Applicant) M Giotopoulos (Defendant/first Respondent) D Shad (second Respondent) Representation: Counsel: P Muscat (Defendant/first and second Respondents)