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

New South Wales Supreme Court

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

HEARING DATE(S) : 3 November 2009 JURISDICTION : Equity Division Probate List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 3 November 2009

DECISION : Applicant's claim for caveatable interest dismissed

CATCHWORDS : REAL PROPERTY – caveat – claim for caveatable interest - where a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest

CATEGORY : Procedural and other rulings

CASES CITED : Guardian Trust and Executors of New Zealand v Hall [1938] NZLR 1020 Re Savage's Caveat [1956] NZLR 118

Robert Stephen Angyal (Applicant) Evelyn Tobin (First Plaintiff) PARTIES : Clara Ezekiel (Second Plaintiff) Morris Ezekiel (First Defendant) Albert Ezekiel (Second Defendant)

FILE NUMBER(S) : SC 106746/06

Mr R Parsons (applicant) COUNSEL : Mr T Kelly (sol) (plaintiffs) Mr T Hale SC w Mr J Tobin (defendants)

Keith Hurst & Associates (applicant) SOLICITORS : T.D. Kelly & Co (plaintiffs) McLachlan Chilton (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

BRERETON J

Tuesday 3 November 2009

106746/06 Evelyn Tobin & anor v Morris Ezekiel & anor; The Estate of Lily Ezekiel JUDGMENT (ex tempore – Application for Costs of Mediator) 1 HIS HONOUR: I regret that in my view it is plain that there is no tenable claim to a caveatable interest in this case. It is well-established that a right to share in the surplus of a deceased estate, after liabilities have been discharged, is not a caveatable interest (See Re Savage's Caveat [1956] NZLR 118; Guardian Trust and Executors of New Zealand v Hall [1938] NZLR 1020). The claim of a creditor of the estate – which is, after all, what the applicant's status really is – is in worse plight than that of a beneficiary of the estate in that respect. It cannot logically make any difference that the only remaining asset of the estate is land. 2 The order that the costs of the mediation be paid out of the estate, made at a time when no mediator had been identified, could not possibly have created an interest in land owned by the estate such as to found a caveat by the mediator. The application for an order extending the operation of the caveat is, therefore, doomed to fail, and there is no point in permitting the applicant to intervene in the proceedings for the purpose of enabling that application to be pursued.