Daniel's Estate
10There was no issue about the value and identity of the major assets of Daniel's estate. Will.doc referred to most but not all of these assets. The extent to which and the manner in which Will.doc deals with these various assets is relevant to the contested issues.
11The descriptions here of the estate assets does not include precise title details, addresses or bank account numbers, to reduce risk of identity theft arising out of the publication of this judgment. If that information is required by the parties it may be obtained from the Court's file. Those assets and the liabilities of the estate follow. Daniel's most valuable assets were his real estate interests and the three restaurant businesses, which are considered first.
12Residential and Commercial Real Estate. Daniel had interests in real estate in Paddington, in Queens Park and in Surry Hills. The Paddington and Queens Park properties were family residences; the Surry Hills property was a base for the restaurant businesses.
13First, on 17 January 2008 Daniel purchased a property in Stewart Street, Paddington ("the Paddington property") as tenants-in-common with his brother Matthew. At the time of Daniel's death, Matthew was living in this Paddington property. Daniel was its registered proprietor. But he held it in trust as to one half share for Matthew. The Paddington property was valued at $1,300,000 and was subject to a mortgage with ING Bank of $1,040,000. Thus, the net value of Daniel's share in this property was $130,000 (being $1,300,000 less $1,040,000, divided by 2).
14Secondly, in February 2009 Daniel purchased another property in Ashton Street, Queens Park ("the Queens Park property") with Matthew. At the time of his death, Daniel was living in the Queens Park property. Mathew was its registered proprietor. But reversing the ownership structure the brothers had created for the Paddington property, this Queens Park property was held in trust as to one half share for Daniel. The Queens Park property was valued at $1,700,000, and was subject to a mortgage with the Commonwealth Bank of Australia of $1,100,000. Thus Daniel's equity in this property was $300,000 (being $1,700,000 less $1,100,000, divided by 2).
15Thirdly, Daniel held a one-third interest in a further property at 526 Crown Street, Surry Hills ("the Surry Hills property") as tenants-in-common with both Alan and Matthew. The brothers' restaurant businesses were administered from this property, which was valued at $1,500,000, and subject to a mortgage to the National Australia Bank for $650,000. Daniel's equity in the Surry Hills property was $283,333.32, being $1,500,000 less $650,000, divided by 2).
16Fourthly, Daniel was the registered proprietor of a property at Lorna Avenue, Blakehurst ("the Blakehurst property") which he held on trust for his parents. The Blakehurst property was valued at $1,000,000 and was subject to a mortgage with the Commonwealth Bank of Australia of $689,203.98.
17Japanese Restaurant Businesses. Daniel was the part owner with Alan and Matthew of three restaurants specialising in Japanese cuisine. The brothers first opened "Toko - Sushi on Oxford" in February 2001, which as its name suggests, was located in Oxford Street, Paddington. They next launched "Toko Surry Hills" in 1 February 2007, which was located at Shops 1 and 2, at an address in Crown Street, Surry Hills. The third restaurant "Tokonoma" opened two years later, in December 2009, at Shop 3 at the same address in Crown Street, Surry Hills. Daniel, Alan and Matthew jointly oversaw the operations of Toko - Sushi on Oxford, Toko Surry Hills and Tokonoma, which restaurants comprise what in these reasons will conveniently be called the "Toko Group".
18The Yazbek brothers held their restaurant businesses through three private companies. The first, Phoenix Apartments Pty Ltd operates Toko - Sushi on Oxford. Another company, Equus Holdings Australia Pty Ltd operates Toko Surry Hills. The third company, Cedar Group Australia Pty Ltd operates Tokonoma. Daniel held a one-third share in the brothers' partnership represented by these companies, a partnership which at the time of his death was valued at $3,200,000. Daniel's one third share was thus worth $1,066,667.
19Bank Accounts. At the time of his death Daniel had an interest in several bank accounts, some held with his brothers and some solely in his name. He had a Westpac Bank account with Alan and Matthew, with a balance of $2,248.56, his share thus being $749.52. He had two separate Westpac Bank accounts with Matthew, with balances of $12,109.83 and $282.33 respectively; his share in these therefore being $6,054.91 and $141.16 respectively. He also had a Commonwealth Bank account as a joint-tenant with Alan and Matthew, with a balance of $15,547.79, his share being $5,182.59. He had a number of accounts in his own name: two at Westpac Bank, with a balance of $827.51 and $149.84; and a Commonwealth Bank account, with a balance of $641.30.
20Superannuation. With Matthew, Daniel controlled a joint self managed superannuation fund and a joint bank account with Westpac, used solely in conjunction with this superannuation fund.
21Cash and Chattels. Daniel had an interest in chattels including furniture, watches, jewellery, guitars and books, with an estimated value of $30,000. He also had an estimated $100 cash on hand at the time of his death.
22Vehicles. Daniel owned two motor vehicles, a 2009 Jeep Wrangler, valued at $25,000, and a 2007 Vespa, valued at $3,000. The Jeep vehicle was subject to a business finance lease with Sutton Motors Finance of $37,590.42.