Erem v Moussa; The Estate of Mary Moussa [2023] NSWSC 536

Supreme Court New South Wales

Medium Neutral Citation: Erem v Moussa; The Estate of Mary Moussa [2023] NSWSC 536 Hearing dates: 15 and 16 May 2023 Date of orders: 16 May 2023 Decision date: 22 May 2023 Jurisdiction: Equity Before: Meek J Decision: Hearing dates vacated. Costs of the vacation of the hearing dates be the respondent's costs in the cause, but not including cancellation fees Catchwords: CIVIL PROCEDURE — Hearings — Estate litigation — Principally probate issues focussing on deceased's capacity and rectification of a Will though other relief sought regarding property including an alternative family provision claim — Adjournment — Applicable principles — Vacation of hearing dates — Illness of counsel — First Defendant's counsel suffers several medical episodes requiring hospitalisation and investigations — Initial episodes not of sufficient moment at that stage to require the applicant then and there to apply to vacate the hearing dates — Counsel's discussion with medical specialist on 12 May 2023 indicating imperative for counsel to be hospitalised the decisive event to prompt application to vacate hearing dates — Various considerations applicable to decision to vacate — A significant consideration being the volume and complexity of materials for any new counsel who might have been available to have been briefed to consider — Materials in Court Book and Additional Document Bundle exceed 2,500 pages, including recently incorporated set of over 1,400 pages of hospital, healthcare and medical records — Materials include reports of over 20 medical practitioners and specialists spanning a period of over 20 years COSTS — Principles where adjournment not arising by fault of the applicant — Meaning of costs to be a particular party's costs in the cause — Discussion regarding cancellation fees SUCCESSION — Cancellation fees in estate litigation — Probate, Will rectification and family provision costs orders — The particular nature of probate, Will rectification and family provision proceedings is a relevant consideration for the Court in exercising its discretion on costs — No evidence concerning practice regarding cancellation fees or the reasonable need for such fees to be recoverable from another party in probate and estate litigation — On particular facts of the case direction made that cost orders not include cancellation fees Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 Ballam & Ors v Ferro & Anor (No 2) [2022] NSWSC 1358 Carey v Robson (No 2) [2009] NSWSC 1199 Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882 Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 Forsyth v Sinclair (No 2) [2010] VSCA 195 Galvan v Galvan [2011] FamCA 1033 Haertsch v Whiteway (No 2) [2020] NSWCA 287 Harkness v Harkness (No 2) [2012] NSWSC 35 Hoho Property Pty Ltd v Bass Finance No 37 Pty Ltd [2022] NSWSC 1062 Juniper Property Holdings No 15 Pty Ltd v Caltabiano [2015] QSC 95 Kelly v Council of the City of Lake Macquarie (Supreme Court (NSW), Malpass M, 27 May 1997, unrep) Lawrence v Hannaford (Supreme Court (NSW), Malpass M, 26 March 1997, unrep) Levy v Bergseng (2008) 72 NSWLR 178; [2008] NSWSC 294 Long v Long; Estate of Ethel Edith Long (No 2) [2004] NSWSC 1114 O'Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839 Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd (No 2) [2014] WASC 345 (S) R v Carbone (No 2) [2017] NSWSC 346 Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92 Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 St George Bank v Hammer [2015] NSWSC 957 Tuggeranong Town Centre Pty Ltd v Brenda Hungerford Pty Ltd (No 3) [2017] ACTSC 301; (2017) 325 FLR 436 Vasiljkovic v O'Connor [2011] FCAFC 112 Wilkie v Gordian Runoff [2005] NSWSC 873 Zeltner v Deputy Registrar of the Supreme Court [2022] ACTCA 34 Texts Cited: Dal Pont, GE, 'Lawyer Cancellation Fees' (2020) 46(2) Monash University Law Review 52 Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis) Category: Procedural rulings Parties: Ali Erem (Plaintiff) Marcel Aziz Moussa aka Marcel Alnabulsi (First Defendant) NSW Trustee & Guardian (Second Defendant) Representation: Counsel: K Morrissey (Plaintiff / Respondent) P Bates (First Defendant / Applicant)