Nobarani v Mariconte [2016] NSWCA 214

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nobarani v Mariconte [2016] NSWCA 214 Hearing dates: 12 August 2016 Date of orders: 12 August 2016 Decision date: 18 August 2016 Before: Meagher JA at [1]; Simpson JA at [2]; Sackville AJA at [30] Decision: 1. Set aside the stay order numbered 4 made by Emmett AJA on 14 March 2016. 2. Allow the appeal to proceed on the basis of the Notice of Appeal of 4 April 2016. 3. Direct the parties to approach the registrar for directions as to the preparation of the appeal. 4. Dismiss the respondent's notice of motion dated 23 May 2016. 5. Order that the costs of the two motions dated 29 March 2016 and 23 May 2016 be costs in the appeal. Catchwords: PRACTICE AND PROCEDURE – Notice of Motion – stay of proceedings pending payment of costs of interlocutory application – order for stay sought to be set aside – stay order set aside

PRACTICE AND PROCEDURE – Notice of Motion – deficiencies in Notice of Appeal – application to strike out Notice of Appeal as incompetent – appeal not incompetent – application for orders under Vexatious Proceedings Act 2008 (NSW) – no basis for orders – application for summary dismissal – whether any arguable grounds of appeal – exclusion of evidence – evidence capable of being relevant to issue of testamentary capacity – exclusion arguably erroneous – inappropriate to order summary dismissal – appeal to proceed on filed Notice of Appeal – Notice of Motion dismissed Legislation Cited: Uniform Civil Procedure 2005 (NSW) rr 13.4, 14.28, 51.1, 51.18 Vexatious Proceedings Act 2008 (NSW), s 8(1) Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Homayoun Nobarani v Teresa Anne Mariconte (NSWCA, 14 December 2015, unreported) Nobarani v Mariconte [2016] NSWCA 175 Re: the Estate of Iris McLaren; Mariconte v Nobarani [2015] NSWSC 667 Category: Principal judgment Parties: Homayoun Nobarani (Appellant) Teresa Anne Mariconte (Respondent) Representation: Counsel: In person (Appellant) C Alexander (Respondent)