Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 571

Supreme Court New South Wales

Medium Neutral Citation: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 571 Hearing dates: Monday, 23 May 2011 Decision date: 23 May 2011 Jurisdiction: Equity Division - Probate List Before: Brereton J Decision: Plaintiffs and defendants not to alienate or encumber certain real property without notice to other's solicitors. Plaintiffs to pay defendants costs fixed at $100,000. Catchwords: INJUNCTIONS - Preservation of subject matter pending appeal - needs of parties liable to fluctuate - flexible approach necessitated - parties to not deal with real property without notice - liberty to apply to court. COSTS - Defendants successful - ordinary position that costs follow the event - exception in probate litigation where circumstances lead reasonably to investigation of will - defendants put untruthful account to court - untruthful account fundamental to initiation and ongoing prosecution of certain claims - defendants' incurred some additional costs as result of plaintiff's conduct of case - defendants would have incurred some costs regardless of own misconduct - defendants' entitled to portion of costs - plaintiffs to pay defendants costs fixed at $100,000. Legislation Cited: (NSW) Civil Procedure Act 2005, s 98 (NSW) Family Provision Act 1982, s 7 (NSW) Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Moore v Moore [2004] NSWSC 597 Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 Tobin v Ezekiel - Ezekiel Estate [2008] NSWSC 1108 Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 Category: Costs Parties: Evelyn Tobin (first plaintiff) Clara Ezekiel (second plaintiff) Morris Exekiel (first defendant) Albert Ezekiel (second defendant) Representation: Counsel: Mr J Gormly SC (plaintiffs) Mr T Hale SC w Mr J Tobin (defendants) Counsel: Mr J Gormly SC (plaintiffs) Mr T Hale SC w Mr J Tobin (defendants) File Number(s): 2006/275504