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[2026] NSWCA 207
respondent. The summons seeking leave to appeal and the notice of motion were dismissed, there was no order as to costs, and the Court declined to stay its orders.
The Court of Appeal refused to let Emad and Ragaie appeal the orders that would replace them as administrators of their parents’ estates with an independent administrator. It considered that they had been warned in advance that removal was possible and had a chance to respond at the hearing. The immediate concern was how they communicated with a beneficiary and her lawyers. Because the replacement orders were stayed while their conduct could be assessed, the Court found no sufficiently arguable injustice to justify an appeal. The related stay motion was dismissed, and no costs order was made.
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2,328 words · generated 08/10/2026
This judgment concerns a leave application, not a full appeal on the merits. Emad and Ragaie Awad asked the New South Wales Court of Appeal for permission to appeal orders made by Slattery J on 6 May 2026. Those orders revoked their interim appointments to administer the estates of their parents, Gaber Awad and Ognee Mikheil, and appointed Andrew Fleming as an independent administrator with full plenary powers. The replacement orders were stayed, initially until 3 July 2026, and the stay was later extended to 2 October 2026 ([7], [31], [37]).
4 cited instruments linked from this judgment.
The estate dispute arose against a background of conflict among the four siblings. Nahed propounded Gaber’s 2022 will, which left his estate to her. Marciel said Gaber had described his 2019 will as his final will; that will provided for the Blacktown house to be divided equally among the four siblings ([5]-[6]). The property was mortgaged, the loans were in default, and the judgment recorded default interest accruing at an effective rate of 11.5 per cent per month ([6]). Those circumstances formed part of the broader estate-management setting, but the Court of Appeal’s leave decision focused on the basis for the administrators’ replacement and the fairness of the process.
Emad and Ragaie had been appointed joint interim administrators on 25 November 2025, with authority over specified administrative matters, including preserving assets, paying ordinary liabilities, keeping accounts and potentially selling the Blacktown property after notice ([18]). On 3 March 2026, the court below required them to provide information and reports and expressly noted that their performance of the timetable would be relevant to whether they should be removed and an independent professional administrator appointed ([24]).
At the hearing on 6 May, the primary judge raised possible non-compliance but then considered the administrators’ communications with Nahed and her lawyers, including their position that emails sent to a different address did not need a response. The judge described those communications as “unacceptably bad” and said the administrators should engage objectively with beneficiaries ([29]). The judge revoked their appointments and appointed Mr Fleming, but stayed the orders to allow further assessment of the administrators’ conduct ([30]-[31]).
The Court of Appeal dismissed the leave summons and the related notice of motion. It made no order as to costs ([70]-[71]).
The applicants needed leave because the challenged orders were interlocutory: s 101(2)(e) of the Supreme Court Act 1970 (NSW) applied ([49]). The Court restated the familiar threshold: leave generally requires an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something merely arguable. It also emphasised reluctance to grant leave in matters of practice and procedure, reflecting the delay and cost of challenging interlocutory discretionary decisions ([50]).
The Court found no issue of principle or public importance ([57]). It then assessed whether the applicants had shown reasonably clear injustice, including their procedural-fairness arguments. The relevant fairness principle was that a person whose legal rights and interests may be adversely affected should receive adequate prior notice of the critical issues and factors, so they can address them. The Court cited Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd for that proposition ([60]).
The Court considered the notice adequate for two related reasons. First, the 3 March orders expressly identified removal and appointment of an independent administrator as a possible consequence of the administrators’ performance. Second, at the 6 May hearing the primary judge repeatedly raised possible removal, allowed short adjournments, and gave the applicants opportunities to respond ([24], [29], [60]). The Court also noted that neither applicant sought an adjournment of that hearing, and that Emad and, to a lesser extent, Ragaie participated in it ([60]).
A key point was the distinction between the issues initially raised and the basis ultimately relied on. The applicants acknowledged that the removal decision was not based on a finding that they had failed to comply with the 3 March orders. Instead, the concern that emerged at the hearing was the breakdown in relations and the administrators’ handling of communications with Nahed and her lawyers, together with the dispute about her alleged possessions in the property ([56], [60]). The Court therefore regarded proposed evidence on broader matters, including accounts, preservation work, insurance, the AFCA complaint and potential professional-administrator costs, as beside the point to the procedural-fairness complaint ([60]).
The stay mattered to the Court’s assessment. The interim appointments continued while the removal and replacement orders were suspended. The applicants therefore had an opportunity to demonstrate that they could perform their responsibilities properly before replacement took effect ([60]). The Court also recorded the primary judge’s awareness of estate costs, including his observation that the estate could not afford to appoint an independent person to resolve the immediate dispute ([60]).
The Court distinguished Nobarani v Mariconte. There, the hearing changed from a caveat motion to a trial of a probate claim on only three business days’ notice. The appellant was not a party to the probate summons, had been told the trial would be confined to the caveats, faced a one-clear-business-day deadline for a defence and evidence, and made unsuccessful adjournment applications ([61]). The Court considered this case materially different because of the earlier warning, the March orders, the conduct of the May hearing, and the applicants’ opportunity to address the concerns ([62]).
Finally, the Court rejected the proposed discretionary-error grounds. It considered the transcript showed that the primary judge had considered the relevant matters; alternatives now relied upon had not been advanced below; and the orders could coherently combine immediate revocation with a stay and later review ([64]-[69]).
The judgment does not announce a new general rule about probate administration or the powers of an administrator. Its significance lies in applying established leave, procedural-fairness and appellate-review principles to an interlocutory dispute concerning estate administration.
Before this decision, as expressed in the authorities cited by the Court, leave to appeal was generally associated with an issue of principle, a question of public importance, or a reasonably clear injustice going beyond a merely arguable complaint. The Court also referred to the traditional reluctance to grant leave in practice and procedure disputes, especially where the challenged decision involved an interlocutory discretion ([50]). Those principles are not rigid or exhaustive: the Court cited DLaw Pty Ltd v Croft Developments Pty Ltd for that qualification ([50]).
The judgment also restates the House v The King framework for appellate intervention in discretionary decisions. The applicant must identify a material error in fact-finding, an error concerning relevant matters, or another error of principle. In the absence of a specific error, intervention may be justified if the decision is unreasonable or plainly unjust ([50]). The Court did not alter that framework; it concluded that the grounds advanced here did not show an arguable error within it ([64]-[69]).
On procedural fairness, the Court applied the notice-and-opportunity principle cited from Alphaone. Its application was contextual: the Court considered the earlier 3 March warning, the judge’s repeated explanations at the hearing, the adjournments, the applicants’ participation, and the subject that ultimately drove the decision ([60]-[62]). The judgment does not establish that a general warning in earlier case-management orders will always suffice. Its conclusion rests on the particular sequence described in the reasons.
The judgment’s after-state is therefore an application of existing principles rather than a stated change in the law. It provides an example of how a stay, an opportunity to respond, and the actual focus of the decision may be relevant when assessing procedural fairness and arguable injustice in an interlocutory leave application.
At [50], the Court said leave generally requires “the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”. In plain English, an applicant ordinarily needs more than a claim that the first-instance judge might have been wrong. The Court must be satisfied that the case meets the leave threshold, while recognising that the relevant principles are not rigid ([50]).
At [60], the Court stated that adequate prior notice must be given of the critical issues or factors on which an adverse decision is likely to turn. It then found that notice had been provided through both the 3 March orders and the way the 6 May hearing was conducted. The practical significance is that notice was assessed across the procedural history and the hearing itself, rather than by looking only at the hearing’s formal listing description.
At [60], the Court identified the administrators’ communications with Nahed and her lawyers as the relevant basis for the orders. That meant the applicants’ proposed reliance on other areas of estate administration did not answer the central point. In plain terms, the Court asked whether they had a fair chance to address the concern that actually mattered to the primary judge, not every matter that could potentially have been discussed.
At [62], the Court said the circumstances were “far removed” from those in Nobarani. That passage explains why the Court did not treat the earlier probate case as controlling the outcome. It compared the short notice and sharply altered hearing in Nobarani with the warning, adjournments and participation described here.
At [65], the Court said the primary judge could hardly be in error for not considering alternatives that had not been put to him. The passage illustrates the importance the Court placed on what was actually advanced at first instance when later alleging discretionary error. It does not state that a judge can never consider an unargued alternative; it explains why the particular ground did not establish error on this record.
The decision is relevant to a leave application arising from interlocutory orders where the asserted error concerns practice, procedure or an exercise of discretion. The Court’s reasoning is particularly connected to a situation where an earlier order expressly warns that a party’s performance may lead to removal, the judge raises the possible consequence during the hearing, and the affected parties are given time and a chance to respond ([24], [29], [60]).
It is also relevant where a procedural-fairness claim relies on lack of advance notice but the complaint is assessed against the whole procedural sequence. Here, the Court considered not only what happened on the day, but also prior hearings, the March warning, the applicants’ participation and their decision not to seek an adjournment ([10]-[24], [60]-[62]).
The case may assist in analysing a claim that a discretionary decision failed to consider alternatives or relevant factors. The Court examined whether the alternatives had been put to the judge and whether the transcript showed consideration of relevant matters ([65]). It also treated the stay and opportunity for later review as relevant to the practical effect of the orders ([60], [65]).
The judgment does not establish that every administrator who communicates poorly should be removed, or that a stayed removal order necessarily cures any procedural unfairness. The result is tied to the Court’s assessment of this record and this leave threshold. Nor does the decision determine the validity of any will, the mortgage dispute, or the merits of the AFCA complaint.
The supplied judgment contains no later judicial treatment of Awad v Awad (No 2). It is dated 30 September 2026, and the materials provided do not identify subsequent decisions citing, following, distinguishing or otherwise considering it. No conclusion about its later precedential treatment can therefore be drawn from this source.
The judgment itself explains its relationship to earlier authorities. It cites Alliance Living, Illawarra Basketball Club, DLaw and Mohareb when setting out the leave jurisdiction and the limited purpose of the leave gateway ([50]-[51]). It applies the House v The King approach to the proposed discretionary-error grounds ([50], [64]-[69]), applies the procedural-fairness principle from Alphaone ([60]), and distinguishes Nobarani on its facts ([61]-[62]).
For practitioners considering later treatment, the source-grounded point is limited: this decision is an application of existing authorities to its own procedural history. Whether another court subsequently adopts or limits its reasoning cannot be established from the judgment supplied here.
The judgment leaves the substantive probate contest unresolved. It does not determine which of the competing wills should be admitted to probate, the beneficiaries’ final interests, or how either estate should ultimately be distributed. It also does not resolve the validity or enforceability of the AIMS Home Loans mortgage, or the substantive allegations concerning the lending arrangements. The court below had made procedural orders concerning a proposed cross-claim and AFCA process, but those merits were not decided by this leave judgment ([30], [54], [65]).
The practical operation of the replacement orders remained dependent on later proceedings. The Court noted that the interim appointments continued under the stay and that the question of any further stay beyond 2 October 2026 was for the court below ([60], [70]). The judgment does not report what occurred at that later listing.
The Court also did not decide whether a different notice process, more detailed advance notice, or particular alternative protective arrangements would be sufficient in another case. Its conclusion rested on the warning in the March orders and what happened at the May hearing ([60], [62]). Similarly, although the Court treated the administrators’ proposed alternatives as matters not advanced below, it did not set out a general checklist for what a judge must consider when replacing estate administrators ([65]).
Finally, because leave was refused, the proposed appeal grounds were not adjudicated after a full appeal hearing. The Court’s conclusion was that the grounds did not cross the leave threshold on the material before it, not that every factual or legal contention had been finally resolved in a full appeal ([51], [57]-[70]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Awad v Awad (No 2) [2026] NSWCA 207
Hearing dates: 28 September 2026
Date of orders: 30 September 2026
Decision date: 30 September 2026
Before: Payne JA and Griffiths AJA
Decision: 1. The summons seeking leave to appeal filed 24 June 2026 is dismissed.
2. The notice of motion filed 24 June 2026 is dismissed.
3. No order as to costs.
Catchwords: CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal — Leave to appeal from interlocutory orders including removal of interim joint administrators and appointment of independent administrator to administer estates but those orders stayed — Leave to appeal refused — No issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable — Notice of motion filed 24 June 2026 seeking a further stay dismissed
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited: Alliance Living Pty Ltd v Arch-System Fabrication Pty Ltd [2026] NSWCA 157
Awad v Awad [2026] NSWCA 196
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
DLaw Pty Ltd v Croft Developments Pty Ltd [2026] NSWCA 205
House v The King (1936) 55 CLR 499; [1936] HCA 40
Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
The Estate of Gaber Ekladious Awad; The Estate of Ognee Abd Elkodious Mikheil [2025] NSWSC 1346
Category: Principal judgment
Parties: Emad Awad (first applicant)
Ragaie Awad (second applicant)
Nahed Awad (first respondent) (no appearance)
Marciel Awad (second respondent)
Representation: First applicant (self-represented)
Second applicant (self-represented)
First respondent (self-represented)
Second respondent (self-represented)
File Number(s): 2026/00229276
Publication restriction: Nil
By summons filed 24 June 2026, the first applicant, Emad Awad, and the second applicant, Ragaie Awad, seek leave to appeal from orders made by Slattery J on 6 May 2026 and entered on 14 May 2026 in Supreme Court proceedings 2025/00312914 (Gaber proceedings) and 2025/00312915 (Ognee proceedings). The two proceedings relate to the estates of Gaber Awad and Ognee Mikheil. They had four children: Marciel Awad (the second respondent), Nahed Awad (the first respondent), Emad and Ragaie. Up until 23 February 2026, each of the four siblings represented themselves but, from around that time, the first respondent to the summons (Nahed, who is the plaintiff in both the proceedings below) has up until recently had legal representation.
Also on 24 June 2026, the first and second applicants filed a notice of motion seeking a stay of some or all of the orders made on 6 May 2026. In particular, the applicants sought to stay the appointment of a replacement administrator and to preserve the powers and functions of the applicants as joint interim administrators. They also sought an order restraining specified dealings with the property which is described at [6] below.
Without intending any disrespect, we will refer to the parties and the other members of the Awad family by their first names.
Ognee died on 9 July 2022, ostensibly leaving wills dated 19 December 2017 and 22 August 2005. She appears to have given her estate to her husband, Gaber, who died on 7 October 2024 and ostensibly left wills dated 23 September 2022, 12 April 2019 and 23 August 2005.
Nahed propounds Gaber’s 2022 will which gave the whole of his estate to her and that Ognee’s second will also substantially benefits her.
Marciel contends that Gaber described his 2019 will to her as his “final will”. That will directs that his house in Blacktown (said to be valued between $950,000 and $1.3 million) should be divided equally among Marciel, Nahed, Emad and Ragaie. The Blacktown property is mortgaged to AIMS Home Loans, with Perpetual Trustee Co Ltd acting as the mortgagee. The mortgage secures two loans which were apparently taken out by Gaber and Ognee during their lifetimes. Both loans are in default and monthly default interest is accruing at an effective interest rate of 11.5% per month. The current equity in the property will likely be eroded during the parties’ current conflict unless something is done to stop default interest accruing.
Significant to the present application for leave to appeal is the appointment of Emad and Ragaie as the interim administrators of Gaber and Ognee’s estates on 25 November 2025: see [18] below. In light of the poor relations between the siblings and the “unacceptably bad” communications between the interim administrators and the plaintiff’s lawyers, Slattery J subsequently made orders on 6 May 2026 which, inter alia, revoked the grant of interim letters of administration of the estates made in favour of Emad and Ragaie and appointed an independent administrator, Mr Andrew Fleming, with full plenary powers to administer Ognee and Gaber’s estates. Significantly, however, those orders and the associated consequential orders were stayed until 3 July 2026: see [30] below. That stay was later extended until 30 July 2026, then until 18 August 2026 and then again to 2 October 2026 or further order of the Court: see [37] below. As we will explain, this has implications for the notice of motion filed on 24 June 2026, as mentioned at [2] above.
Both the proceedings below were commenced by Nahed on 15 August 2025. Various orders and directions were made in either one or both of the proceedings between 12 September 2025 and 17 November 2025.
From an early stage in the litigation it was apparent there was a distinct lack of cooperation (if not animosity) between some of the parties, all of whom are beneficiaries under their parents’ estates. The transcript of the hearing before Lindsay J as the Probate List Judge on 18 September 2025 is particularly revealing. All four parties appeared and all were self-represented. The transcript records Emad as saying that he was a “retired lawyer and barrister from law”.
The transcript is some 33 pages in length, which is surprising for a matter arising in the Probate List. A considerable amount of time was taken up with Nahed and Emad exchanging personal allegations and accusations against each other. For example, it emerged that Nahed had lodged a complaint with the Australian Financial Complaints Authority (AFCA). Emad is recorded as saying several times that the complaint was based on “false information” provided by Nahed and that she was “misleading” the Court in her submissions. In view of the level of personal animosity between Nahed and Emad in particular, Lindsay J urged all four siblings to obtain legal representation.
The transcript records Lindsay J becoming increasingly frustrated as Nahed and Emad continued to exchange personal allegations and accusations. His Honour interrupted one such exchange between Nahed and Emad and said:
HIS HONOUR: Stop. Everybody, stop. All right? I am not a referee, all right? I may be a social worker but I am not a referee [this is a reference to an earlier comment by his Honour in which he said he was “beginning to feel like an unpaid social worker”]. I am telling you what the legal structure of your disputation is. I am inviting you to consider ways forward. My guess is if you guys don’t, to some extent, learn to forgive and forget, you will end up with no benefit from your parent’s home. The only way to do that, to get something, is to be very focused on what you have to do…
HIS HONOUR: The first thing you need to do is to get somebody to represent the estate, right, and it’s not going to be any of you, because you can’t get on**,** right? And it’s going to cost money, and if you –
FIRST DEFENDANT: Totally understand, your Honour. I understand.
HIS HONOUR: And if you get somebody, if you agree that the costs of the administrator be paid out of the estate, you solve a lot of problems. Get somebody else to make the decisions, because you can’t yourselves. But what will inevitably follow will be that the property will be sold, and then you can fight over the proceeds.
PLAINTIFF: Okay.
… But if you’re still fighting about everything except what’s going to move forward then you’re not going to move forward and I do invite you to move forward if you possibly can, okay.
After the 18 September 2025 hearing, each of Nahed and Emad asked the Court to make a pro bono referral under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).
On 17 November 2025, Slattery J published reasons explaining why he would make something less than a formal pro bono referral: see The Estate of Gaber Ekladious Awad; The Estate of Ognee Abd Elkodious Mikheil [2025] NSWSC 1346. His Honour made the following orders (noting in particular order 2):
1. REFER the reasons published today to the Registrar in Equity with request that she provide a copy of them to the Chief Executive of the Bar Association and the President of the Law Society with a copy of these reasons to see if counsel or solicitor in the early years of practice might be engaged act for the applicants, not on a pro bono basis, but nevertheless at favourable rates.
2. ORDER that the parties to these proceedings show cause, when the matter is next before the Probate List Judge, why an independent administrator should not be appointed to administer this estate.
3. ORDER that these proceedings be adjourned before the Probate List Judge on Tuesday, 25 November 2025.
4. NOTE that no legal costs have been incurred in these applications.
Given the additional knowledge about this estate that is now available and is recorded [in] this judgment, the Court has decided to require the parties to refocus on the prescient warnings given by Lindsay J and now to require the parties to show cause why an independent administrator should not be appointed to administer the estate. An independent administrator will facilitate objective communication with Marciel in Egypt, so that she has proper information to protect her legal interests in the melee of these Australian warring parties.
1. NOTE that the proceedings (respectively numbered 2025/00312914 in relation to the estate of the father, Gaber Awad and 2025/00312915 in relation to the estate of the mother Ognee Mikheil) are being case managed together.
2. NOTE that the mother died on 9 July 2022 ostensibly leaving wills dated respectively 19 December 2017 and 22 August 2005.
3. NOTE that the father died on 7 October 2024 ostensibly leaving wills dated respectively 23 September 2022 and 23 August 2005.
4. NOTE that the father and the mother were married only once.
5. NOTE that there were four children of their marriage, in order of seniority:
(a) a daughter, Marcel born on 18 September 1957;
(b) a daughter, Nahed born on 19 March 1959;
(c) a son, Emad born on 20 September 1960; and
(d) a son, Ragaie born on 25 October 1962.
6. NOTE that the principal asset of the estates comprises the residence known as XXX, Blacktown, formerly the family home and presently registered in the names of the deceased parents as tenants-in-common in equal shares.
7. NOTE that, on the information presently available to the Court, it appears that the family home is the subject of a first registered mortgage in favour of Perpetual Trustee Company Limited, possibly as trustee for AIMS Home Loans Pty Ltd, ostensibly securing a debt of the order of $300,000 or thereabouts.
8. NOTE the notations and orders made by Lindsay J on 16 and 18 September 2025 and the reasons for judgment published by Slattery J as [2025] NSWSC 1346 on 17 November 2025.
9. NOTE that the plaintiff (Nahed Awad), as recorded in MFI P4, consents to the appointment of the first defendant (Emad Awad) and the second defendant (Ragaie Awad) as interim administrators of the estates.
10. ORDER (up to and including 30 June 2026 or earlier grant of probate or administration or further order of the Court) that administration of the estate of Gaber Ekladious Awad, who died on 7 October 2024, be granted to the first defendant (Emad Awad) and the second defendant (Ragaie Awad) jointly, limited to:
(a) collection and preservation of all assets of the deceased;
(b) payment of liabilities of the deceased, or of the estate of the deceased, incurred in the ordinary course of business, including rates and taxes and insurance premiums;
(c) establishment, and operation, in the ordinary course, of a bank account or accounts in the name of the estate of the deceased;
(d) keeping an account of all receipts and disbursements in administration of the estate of the deceased;
(e) leasing for a period of no more than 12 months real estate comprising part of the estate of the deceased;
(f) on no less than 2 months written notice to each of the parties to these proceedings collectively the four children of the deceased selling the property of the deceased (in co-ownership with the estate of Ognee Abd Elkodious Mikheil) known as XXX, Blacktown;
(g) appointment of an agent (including a solicitor, accountant or real estate agent) to do any business that the administrators are unable to do or that it is unreasonable to expect the Administrators to do in person; and
(h) doing all such other things as are incidental to the powers hereby conferred.
11. NOTE that nothing in order 10 of these orders authorises the Administrators to make a distribution of the estate of the deceased, or any part thereof, without the leave of the Court
12. ORDER that any requirement for:
(a) publication of notice of intention to apply for this interim grant of administration;
(b) an administration bond or sureties;
(c) further compliance with the Probate Rules be dispensed with.
13. NOTE that the current directions relating to case management of these proceedings are directions made by the Probate Registrar (Lynda Gerritsen) on or about 10 November 2025 and entered on JusticeLink on 11 November 2025, providing for the production of original wills, the filing and service of disclosure statements and discovery affidavits and pleadings, as well as a directions hearing before the Probate Registrar on 24 March 2026.
14. NOTE that, by parallel orders today made in the associated proceedings numbered 2025/00312915, the administers are appointed also as interim administrators of the estate of their mother Ognee Abd Abd Elkodious Mikheil.
15. NOTE that at the conclusion of the proceedings today the second defendant (via AVL) consented to his appointment as a joint administrator of the estate of the deceased.
16. RESERVE all questions of costs.
17. ORDER that these orders be entered forthwith.
The transcript of the hearing on 25 November 2025 records the appearance of all four siblings but Nahed then left the courtroom because she was apparently unwell. She subsequently filed an affidavit on 11 December 2025 which attached two medical certificates regarding her medical condition on 25 November 2025.
On 27 November 2025, Lindsay J made additional orders, including that, if Nahed wished to vary the orders made on 25 November 2025 so that she be included as a third interim administrator of the estates, she needed to file and serve a notice of motion.
On 16 December 2025, Lindsay J dismissed Nahed’s notice of motion filed 11 December 2025 seeking to be appointed as an additional interim administrator. It is notable that the transcript of that hearing makes clear that the dismissal was based on Lindsay J’s concerns that there was “a horrible conflict between Nahed and at least Emad” and they could not get on together. The orders made on 25 November 2025 appointing Emad and Ragaie as interim administrators continued in operation.
On 16 January 2026, Richmond J made orders in the Gaber proceedings, including orders for the filing and serving of a statement of claim and any defence and cross-claim.
On 9 February 2026, the Registrar listed both proceedings for further directions before the Registrar in Probate on 5 May 2026.
On 3 March 2026, Slattery J made the following orders in both proceedings, noting in particular para 11, which put the joint administrators on clear notice that their compliance with the timetabled matters in orders 6 to 10 would be a relevant factor in the Court’s consideration of whether or not to remove them and appoint an independent professional administrator. This fact is relevant to the applicants’ complaint of procedural unfairness in relation to some of the orders made by Slattery J on 6 May 2026:
1. EXTEND time for the plaintiff and the defendants to produce an original will of Gaber Ekladious Awad of 23 August 2005 from his or her possession, custody or control to the Court and to provide a copy to the other parties to 10 March 2026.
2. EXTEND time for the plaintiff and the first and second defendants to file and serve disclosure statements verified as identified in paragraph 19 of SC Eq 7 to 12 noon on 6 March 2026, noting that this is an independent obligation and that if one party does not provide a disclosure statement that does not excuse another party from filing theirs.
3. NOTE the plaintiff has filed her Statement of Claim.
4. EXTEND time for the first and second defendants to file and serve any Defence and Cross Claim to on or before 30 March 2026.
5. EXTEND time for the plaintiff to file and serve any reply to the Defence and any Defence to the Cross Claim to 21 April 2026.
6. ORDER the first and second defendants as administrators of the estate (“the administrators”) to provide to the plaintiff and the third defendant by 16 March 2026 a report as to the commercial viability of the administrators’ financial plan to rent the Blacktown property, noting that if the plan is not commercially viable the Court may order the sale of the property.
7. ORDER on a monthly basis, commencing on 31 March 2026, the administrators to provide to the plaintiff and the third defendant accounts of their estate receipts and expenditure, together with a copy of all substantiating invoices and receipts.
8. DIRECT the administrators to file and serve by 30 March 2026 a mutually agreed plan, or if not agreed the plaintiff shall file her separate plan, for the removal of any personal possessions of the deceased in the Blacktown property to permit it to be rented out in the near term.
9. DIRECT the first and second defendants to provide by 30 March 2026 a list of estate assets that are in the Blacktown property, together if necessary with photographs of those assets.
10. DIRECT the plaintiff to provide by 30 March 2026 copies of all current utility statements, mortgage notices and rate notices for the Blacktown property to the first and second defendants.
11. NOTE the performance of this timetable by the administrators will be a relevant consideration as to whether or not the Court will remove the administrators and appoint an independent professional administrator of the estate.
12. NOTE that if the plaintiff defaults on the timetable she will be required to show cause why her pleadings should not be struck out.
13. GRANT liberty to apply.
On 27 March 2026, Slattery J made additional orders, which were intended to confirm that the joint administrators had authority on behalf of the estates to lodge complaints with AFCA regarding the AIMS loans (which complaints were in fact subsequently lodged).
On 24 March and 29 April 2026 respectively, Emad attempted to file notices of motion which highlighted alleged defects in Nahed’s pleadings. Emad also applied to postpone the filing fees for these motions. He was informed on 1 May 2026 that his application was refused. On 4 May 2026, he sought a review of that decision, which remained unresolved as at 5 and 6 May 2026.
On 5 May 2026, both proceedings came before the Registrar. Although there is no transcript available for that hearing, it is evident from the transcript for the directions hearing before Slattery J on the following day (copies of which were provided to the parties on 14 September 2026), that Nahed was legally represented (by Ms Green of counsel). The motions dated 24 March and 29 April 2026 remained unsealed, presumably because of the non-payment of the filing fees. At Ms Green’s request, the Registrar referred the motions to the Probate List Judge (Slattery J) the following morning.
Both proceedings came before Slattery J at 9.30 am on 6 May 2026. Ms Green of counsel appeared for Nahed in both proceedings. Each of Emad, Ragaie and Marciel was self-represented. Mr Sherrard appeared for the mortgagee, Perpetual Trustee.
The hearing before Slattery J went for some time, as is reflected in the fact that the transcript totals 38 pages. In light of the applicants’ complaint of procedural unfairness concerning the revocation and replacement orders made that day, it is necessary to summarise at some length the key relevant parts of the transcript, which are as follows:
The primary judge noted at the commencement of the hearing that the matter had been referred to him because of “continuing conflict between these parties”. He then immediately said that he had reviewed the 3 March 2026 orders and that he was “concerned [that] there has been noncompliance with those orders”. The parties were then told that the primary judge expected the 3 March 2026 orders to be obeyed and, unless that had happened, he said that “I am thinking of appointing an independent administrator to this estate”. After referring to the note at para 11 in the 3 March 2026 orders, his Honour said he wanted a report from all the parties on the implementation of those orders. His Honour said that because the Court was ultimately supervising the administration of the estates, non-compliance with the Court’s orders would not be acceptable.
Significantly, his Honour then foreshadowed a 10-to-15-minute adjournment to enable the parties to reflect on what he had said. Before adjourning, his Honour broadly outlined the nature of the 3 March 2026 orders. He said that he wanted the joint administrators to tell him “objectively, without argument of any hostile kind to anybody else” whether they had complied with the orders. His Honour then added that, if this did not occur, he “might remove you and replace you with an independent administrator, do you understand?”. Emad responded affirmatively, but added that the joint administrators may not have all the documents with them “because I was not prepared to answer those questions today”. After his Honour pointed out to Emad that he was an administrator and had duties, Emad responded by stating that he did not have the file with him “that’s all, but everything is done”. After the primary judge then pointed out that it was “a serious error” for an administrator to come to Court without knowledge or without the file, Emad said that it was his understanding that the hearing was for the purpose of setting a timetable for the motions he had filed. There was then a series of further exchanges, including a statement by the primary judge that he did not “want to take you by surprise” and that he was testing whether the joint administrators could be entrusted with the administration notwithstanding the plaintiff’s opposition. Emad acknowledged that he understood this and that the joint administrators “complied with everything that were [sic] in the orders”.
I will note that the communication issues between the administrator and the lawyers for the plaintiff in this case are unacceptably bad.
The Court expects notwithstanding the poor relations between the parties to these proceedings that the administrator has been appointed to behave with objectivity in relation to all beneficiaries, including the plaintiff.
The Court further notes that disputes about email addresses and where emails should be sent, and declining to answer emails that have been sent to the wrong address, is an unacceptable distraction and not in accordance with the Court’s expectations under the Civil Procedure Act section 56(3) for the parties to assist the Court in resolving the real issues in these proceedings.
For this reason the Court has decided that it will appoint an independent administrator to these proceedings and the Court will remove the defendants, because of this conduct, but that the Court will stay this order until the next occasion to see how the defendants conduct themselves.
The Court will appoint an independent administrator ‑ I will take one from the Law Society’s website and I will put the name in later ‑ with full plenary powers to administer this estate for the benefit of the beneficiaries, but I will stay that order temporarily and I will review whether that stay will continue on the next occasion.
I will give you the date. Mr Awad, or both Messrs Awad, what I witnessed this morning is completely unacceptable. I have made orders removing you, but I have stayed those orders. They won’t operate straightaway. I will. But whether I remove the stay will depend upon your performance between now and 3 July.
1. STRIKE out the plaintiff’s Amended Statement of Claim.
2. GRANT leave to the plaintiff to file and serve an Amended Statement of Claim by 20 May 2026, which must clearly plead the plaintiff’s entitlement to probate of the wills of the deceased’s parents.
3. ORDER the plaintiff to provide to the administrators by 22 May 2026 copies of any documents that she has in her possession that relate to mortgage or borrowing transactions between either of the parents Gaber Ekladious Awad and Ognee Abd Elkadious Mikheil and Perpetual Trustee and AIMS Home Loans.
4. GRANT leave to issue a subpoena to Perpetual Trustee for documents in relation to the mortgage made between the deceased and AIMS Home Loans or Perpetual Trustee, returnable before the Registrar on 27 May 2026.
5. GRANT leave to the defendants to file and serve a cross claim claiming relief to set aside the AIMS Home Loans mortgage and to join Perpetual Trustee by 19 June 2026.
6. NOTE that on the available information before it the Court does not have confidence that the process which has been initiated by the defendants with the Australian Financial Complaints Authority (“AFCA”) will finally resolve the issues between AIMS Home Loans and the estate and is likely to delay the administration of this estate and therefore the Court will make orders to advance the Cross Claim.
7. GRANT leave to the defendants to file and serve by 19 June 2026 an affidavit with such evidence as is available to them to set aside the mortgage, in support of the Cross Claim against Perpetual Trustee.
8. EXTEND the time for the defendants to file and serve their Defence and Cross Claim against the Plaintiff to 14 June 2026.
9. NOTE the performance of this timetable by the administrators will be a relevant consideration as to whether the Court will remove the administrators and appoint an independent professional administrator of the estate.
10. ADJOURN these proceedings for further directions before Slattery J at 9.30am on Friday, 3 July 2026.
11. DIRECT that any email which the administrators are using for the administration of the estate must be provided to the Court as one of their addresses for service, may not be changed without the leave of the Court, and if any party sends an email to an address other than that address which is in respect of administration business, the administrators may not refuse to deal with it if they are aware of it.
12. DIRECT that if the administrators do not respond to the beneficiaries in a timely and co-operative way, the administrators are likely to be removed as administrators.
13. ORDER that each party is to co-operate to facilitate all communications with the administration of this estate.
14. NOTE that the quality of communication between the administrator and the lawyers for the plaintiff are unacceptable and the Court expects, notwithstanding the poor relations between the parties, for the administrators to engage with objectivity with all beneficiaries, including the plaintiff.
15. NOTE that disputes about email addresses and where emails should be sent and declining to respond to emails that have been sent to wrong address are unacceptable distractions and not in accordance with the Court’s expectations of the parties’ performance of their duties under Civil Procedure Act 2005, s 56(3) for the parties to assist the Court to decide the real issues in these proceedings.
16. REVOKE the grant of interim letters of administration of the estates made in favour of the administrators.
17. APPOINT as an independent administrator, Mr Andrew John Fleming of Fleming Law with full plenary powers to administer the estates of both deceased for the benefit of the beneficiaries.
18. STAY ORDERS 16 and 17 and their related consequential orders, ORDERS 21 to 25, until 3 July 2026.
19. NOTE that a copy of these orders will be provided to Mr Andrew Fleming to ascertain if he consents to being appointed as an independent administrator of the estates.
20. ORDER that Mr Andrew Fleming, as independent administrator, has the following powers and duties, namely to:
a. collect, get in, manage and preserve all assets of the estates;
b. collect any funds of the estates held by the parties;
c. engage accountants and persons in any professional or other capacity as the administrator sees fit and on terms as he deems appropriate to assist with the administration of the estates;
d. operate all and any estate bank accounts;
e. identify and pay or satisfy any liabilities, including tax or other regulatory liabilities of the estate;
f. attend to any taxation or other regulatory filings or statutory obligations of the estates;
g. keep estate accounts and proper financial records of all receipts and disbursements on behalf of the estates; and
h. do all such acts and things, and execute all such documents, as are incidental to the powers hereby conferred on the interim administrator by these orders or that are reasonably necessary to progress the orderly administration of the estates.
21. ORDER the parties to do all things reasonably necessary to hand over estate assets to Mr Andrew Fleming as interim administrator and to assist him to assume that office.
22. ORDER that Mr Fleming may charge his usual professional fees in his role as a professional independent administrator as notified to the Court.
23. NOTE that the independent administrator would be justified in taking a more summary approach to estate administration and the determination of estate liabilities due to the small size of this estate.
24. REMIT the matter to the Registrar in Probate to complete the grant.
25. NOTE request Dentons Lawyers to supply an address for service to the Associate to Slattery J so that they may be copied into further correspondence in relation to these proceedings.
Orders were made in both proceedings on 23 June 2026, 3 July 2026, 30 July 2026, and 11 August 2026. It is not necessary to summarise those orders, other than to note that the transcript of the hearing before Slattery J on 30 July 2026 records the matter being adjourned because, although Nahed had appeared, she said that she was unwell.
In the proceedings before this Court, orders were made by the Registrar on 6 July 2026 and 3 August 2026, some of which related to case management of the applicants’ notice of motion filed 24 June 2026, which sought to stay the 6 May 2026 orders pending determination of the applicants’ summons seeking leave to appeal also filed 24 June 2026. (That motion is now otiose and will be dismissed.)
On 3 July 2026 and 17 August 2026, Marciel filed two affidavits affirmed by her on 3 July 2026 and 16 June 2026 respectively. She expressed her support for Emad and Ragaie continuing as joint administrators as well as supporting their notice of motion filed 24 June 2026 and expressed strong opposition to the appointment of an independent administrator. She asked for that motion to be determined urgently. She said that she supported “a later timetable for preparation of the leave application and appeal after transcripts and reasons are obtained”.
On 17 August 2026, Marciel also filed an outline of written submissions which substantially reflected the contents of her affidavit. She said that she supported the applicants’ application for leave to appeal. She also contended that, although she had participated in the 6 May 2026 hearing by audiovisual link from Egypt, the primary judge did not ask her any questions concerning the proposed replacement of the joint administrators nor was she given a proper opportunity to express her views regarding the appointment of an independent administrator. She said that she relied on those matters as supporting the applicants’ procedural fairness complaint.
Also on 17 August 2026, Nahed filed written submissions (drafted without legal assistance). Relevantly, she said that she opposed the appointment of an independent administrator and would provide further submissions after receiving pro bono legal assistance. Nahed also made various personal allegations against Emad, Ragaie and Marciel, which are unnecessary to summarise.
It is relevant to note the following orders made by Lindsay J on 18 August 2026, in both proceedings, as they provide a helpful overview of the position at that date:
- NOTE that these associated proceedings (2025/00312914 and 2025/00312915) concern administration of the estates of Gaber Ekladious Awad (the father/husband) and Ognee Abd Elkodious Mikheil (the mother/wife).
2. NOTE that on 25 November 2025 the first and second defendants (Emad and Ragaie Awad) were appointed as interim administrators of the deceaseds’ [sic] estates.
3. NOTE that, by orders 17 and 18 of the orders made on 6 May 2026, Slattery J made orders the effect of which was to order that Emad and Ragaie Awad be removed as interim administrators and be replaced by Andrew John Fleming as an independent interim administrator of both estates, subject to a stay which (after extension) operates up to and including today (18 August 2026).
4. NOTE that the parties inform the Court that Emad and Ragaie have applied to the Court of Appeal (in proceedings numbered 2026/229276) for leave to appeal against the orders made by Slattery J on 6 May 2026, such proceedings being listed on 2 September 2026 (for directions) and 16 September 2026 (for hearing of the leave application).
5. ORDER, subject to further order, that the orders made by Slattery J on 6 May 2026 for the removal of Emad and Ragaie Awad as interim administrators, and for the replacement of them by Andrew John Fleming, be stayed up to and including 2 October 2026 or further order of the Court.
6. ORDER that a copy of these orders be provided to Andrew John Fleming by Emad and Ragaie Awad no later than 20 August 2026.
7. NOTE that on 11 August 2026 Kunc J made orders referring the plaintiff (Nahed Awad) to the Prothonotary for the purpose of seeking assistance for her from the Pro Bono Panel.
8. NOTE that Emad and Ragaie Awad object to that order and reserve such, if any, entitlement they may have to be heard against it.
9. NOTE that, as presently advised, the Court does not propose to revoke or vary the order made by Kunc J, but reserves such, if any, rights the other parties to the proceedings have to object to continuance of the order at some future time.
10. ORDER, subject to further order, that these proceedings be placed in the Probate List on 2 October 2026 for further consideration, or directions, as the nature of the case might require.
11. ORDER that no party without legal representation be permitted to access the Court file without an order of a judge.
12. ORDER that these orders be entered forthwith.
Finally, brief mention should be made of the hearing before us on 16 September 2026. The hearing occurred in circumstances where the Court had previously refused (on 14 September 2026) an application by the applicants for an adjournment. The Court indicated that it would publish reasons for that decision in due course.
Late on 15 September 2026, Nahed applied for the hearing to be adjourned, based on her medical condition. The Court granted that application. The Court’s reasons for refusing the applicants’ adjournment application but granting Nahed’s adjournment application were given in Awad v Awad [2026] NSWCA 196.
The hearing of the summons seeking leave to appeal and the notice of motion filed 24 June 2026 were adjourned for final hearing on 28 September 2026. Directions were made for the filing of supplementary submissions.
The applicants provided supplementary submissions on 23 September 2026 in compliance with the Court’s directions. The applicants indicated that they did not wish to amend their existing summons, nor vary any aspect of their summary of argument, affidavits and reply submissions filed 31 August 2026. They did indicate, however, that they would rely on a copy of the transcript of the hearing before Slattery J on 6 May 2026 which, they contend, supports the grant of leave to appeal.
On Friday 25 September 2026, Nahed emailed the Court requesting an adjournment of the hearing listed on 28 September 2026. She said that she was “under treatment and strong medication” and she annexed a Medical Certificate signed by Dr Ashraf Aboud from the Quality Medical Practice in Merrylands. Dr Aboud certified that Nahed “is receiving medical treatment and for the period Friday, 25 September 2026 to Friday, 9 October 2026 inclusive”, she “will be unfit for court”.
The Court was not satisfied with the detail provided in support of this application and the parties were informed that the hearing would proceed as listed on Monday 28 September 2026. Nahed was informed that she could appear by AVL and could make an application for an adjournment at that time but the Court would require her medical practitioner to be available to give further detail of her medical condition, including any inability to appear by AVL.
That is not the end of the matter. At 4.43 am on the day of the scheduled hearing (28 September 2026), Nahed sent another email to the Court stating that she was “at the hospital and I will provide medical certificate”, then reiterating her adjournment request.
After considering this request, the parties were informed that it was rejected and that the final hearing would proceed as scheduled. The Court reiterated its position that if Nahed wished to make a further application for adjournment the Court required the medical practitioner certifying her unfitness for Court to be present at 10.15 am to explain the medical reasons for Nahed’s inability to participate in the hearing, even by AVL.
Dear court
I am still at the hospital until now and cannot deal with the court ,
My doctors was not opening the weekend
I am having fracture with several pain and strong medication and back to hospital by ambulance again
See the medical certificate it maybe the hospital provide more details
Thank you
Nahed Awad
Nahed emailed a Medical Certificate dated 28 September 2026 at and prepared at 9.02 am, which was signed by an intern at Blacktown Hospital Emergency Department, Dr Madeleine Sullivan. Dr Sullivan certified that Nahed “has attended Blacktown Hospital as an Emergency and will be unfit for work/school from 28-SEP-2026 and will be fit to resume work/school on 04-OCT-2026”.
This belated request for an adjournment was refused. The Medical Certificate was completely unacceptable. It failed to provide sufficient detail of Nahed’s medical condition or explain why she could not appear by AVL. Moreover, no medical practitioner appeared to explain the Certificate, notwithstanding the earlier indications that this was necessary.
The applicants require leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW) because the challenged orders are interlocutory in nature.
The relevant principles guiding the discretion to grant leave to appeal, which are well known, were recently summarised in Alliance Living Pty Ltd v Arch-System Fabrication Pty Ltd [2026] NSWCA 157 at [24]-[25] per Ball JA (Payne and Adamson JJA agreeing):
Generally, a grant of leave to appeal “requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”: see Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ, with whom Ward P and Basten AJA agreed), and cases cited there. Moreover, where, as here, the subject of the appeal relates to matters of practice and procedure, there is a well-known reluctance to grant leave to appeal, which reflects the undesirability of the delay and cost associated with challenges to exercises of discretion in interlocutory applications: see In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189 at [65] …
Finally, to the extent that the primary judge’s decision was discretionary, appellate intervention will only be warranted in accordance with the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. To succeed, Alliance must establish material error in the making of a finding of fact upon which the decision is based, in the taking or not taking into account of material factors or in some other matter of principle. If no specific error can be established, error may be inferred if the decision is unreasonable or plainly unjust.
See also Illawarra Basketball Club Pty Ltd v National Basketball League Pty Ltd [2026] NSWCA 182 at [52]-[55] per Bell CJ (Leeming JA and Griffiths AJA agreeing). These general principles are not exhaustive and are not to be rigidly applied: DLaw Pty Ltd v Croft Developments Pty Ltd [2026] NSWCA 205 at [7] per McHugh JA (Kirk and Stern JJA agreeing).
Deciding whether to grant leave to appeal is an interlocutory decision: Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1982) 149 CLR 147 at 152-153. It is not an appeal. It does not finally determine the legal issues at stake. The Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. In this context, in general, the Court need not give extensive reasons for dismissing an application for leave to appeal. They should be sufficient to articulate for the benefit of the parties and, if special leave is sought, the High Court, the core reasons why the Court was not persuaded to exercise its discretion to grant leave to appeal. They can be short. To require extensive reasons — eg addressing in detail all arguments made or grounds raised by an applicant — would be to defeat the very purpose of having a leave gateway: see eg La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2015] NSWCA 254 at [9]-[10].
The applicants rely on the following affidavits:
Emad’s affidavits affirmed 22 June 2026 and 3 August 2026; and
Ragaie’s affidavit affirmed 17 June 2026.
As noted above at [34], Marciel affirmed two affidavits dated 16 June 2026 and 3 July 2026 (the latter having been filed in the proceedings below on JusticeLink). In brief, she supported the position of the joint administrators.
The applicants’ draft notice of appeal raises 14 proposed grounds of appeal which considerably overlap. In brief, the proposed grounds concern the following complaints:
There was procedural unfairness in the making of the 6 May 2026 orders because the applicants were not given adequate prior notice that their removal and replacement would be determined at that hearing (grounds 1 and 4). The applicants also complain that the primary judge erred in making such orders in circumstances where the applicants’ motions dated 24 March and 29 April 2026 were not available on JusticeLink (ground 3). They also complain that the revocation and replacement orders were made without any sufficient evidentiary or legal basis (ground 5) and that the primary judge failed to consider or give adequate weight to the following matters (ground 7):
(a) the administrators’ compliance or substantial compliance with the orders made on 3 March 2026;
(b) the estate accounts, rental viability plan, inventory, photographs, removal of deceased personal possessions plan and other estates preservation work;
(c) the absence of substantial available liquid estate funds;
(d) the likely professional fees, legal costs and disbursements of an external professional administrator;
(e) the modest size and financial position of the estates;
(f) the prejudice to beneficiaries if estates value were dissipated by professional and litigation costs; and
(g) the interests and position of all persons potentially beneficially entitled to the estates.
(a) distinguishing between the Defendants' personal capacities and their representative capacities as Joint Interim Administrators;
(b) identifying that any estates claim against the lender would be prosecuted for and on behalf of the estates;
(c) considering the active AFCA complaint and its relevance as a no-cost estates protection process;
(d) considering the absence of a pleaded lender claim before the Court;
(e) considering how lender litigation would be funded by estates with no available liquid funds;
(f) considering whether lender litigation should proceed separately from the contested probate proceedings; and
(g) considering the additional delay, duplication and professional costs caused by bringing a mortgage dispute into the probate proceedings.
They contend that the primary judge erred by appointing an external professional administrator without adequately considering costs and the risk that the value of the estate available to the beneficiaries would be substantially diminished (ground 11).
Another proposed ground is that the 6 May 2026 orders are uncertain in that the existing administration expired on 30 June 2026 but the order appointing the replacement administrator was stayed until 3 July 2026 and the proceedings were then listed after expiration of the existing administration (ground 12).
They claim that the primary judge failed to exercise the Court’s protective probate jurisdiction consistently with such matters as the due preservation of the estate and the interests of all potential beneficiaries (ground 13).
They claim that the primary judge’s discretion miscarried having regard to the wide range of errors identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (ground 14).
They argue that the primary judge erred by prematurely exercising his discretion (ground 6).
Finally, in addition to these proposed grounds of appeal raised by the joint administrators, the draft notice of appeal also claims that Emad was denied procedural fairness in his personal capacity as first defendant (as opposed to his status as joint administrator) by making substantial orders affecting his rights and denying him a fair opportunity to be heard regarding his motions dated 24 March and 29 April 2026 (ground 2).
As noted above, the applicants rely on their summary of argument dated 24 June 2026, their reply submissions filed 31 August 2026, and their supplementary submissions dated 23 September 2026. We have taken account of all that material, together with the affidavits filed by the applicants and the transcript of the hearing dated 6 May 2026.
The primary points made in the applicants’ supplementary submissions may be summarised as follows:
Although the hearing before Slattery J on 6 May 2026 is recorded in the transcript as being for “directions”, the primary judge required the applicants to provide an immediate account of their compliance with the orders dated 3 March 2026.
The applicants acknowledged that two short adjournments were granted on 6 May 2026 for them to collect their thoughts and respond to the possibility of their removal and replacement as administrators. They emphasised, however, that their procedural fairness complaint is that they were not provided with adequate advance notice of the possibility of the Court making revocation and replacement orders at that hearing.
Significantly (and correctly), the applicants also acknowledged that the revocation and replacement orders were not based on any finding that they had failed to comply with the 3 March 2026 orders. They acknowledged that, at the 6 May 2026 hearing, the focus shifted to matters relating to effective communication between beneficiaries and themselves as interim administrators, as well as matters relating to the identification and return of Nahed’s possessions located at the Bankstown property.
Sufficient notice of the matters the subject of orders 16 and 17 was provided here, not only by the express terms of the note at para 11 of the orders dated 3 March 2026, but also by the manner in which the hearing was conducted by the primary judge on 6 May 2026. As noted above, his Honour went to some length to inform the parties several times of the orders he was minded to make and several adjournments were given to enable the parties to consider and prepare their responses.
In these circumstances, the applicants’ complaint that, had they received notice of the possibility of immediate removal and replacement, they would have prepared evidence relating to a wide range of matters (such as their compliance with the 3 March 2026 orders, accounts of the estates, property preservation, insurance, council and water matters, the AFCA complaint and the likely effect on the value of the estate if a professional administrator was appointed) is beside the point. This is because those matters were not the basis for the relevant orders.
As to the last of those matters, it should also be added that the transcript clearly reveals that the primary judge was very conscious of the costs to the estate of appointing an independent person. Indeed, the transcript records his Honour saying that, while he would normally resolve the issues by appointing an independent person, “this estate can’t afford that”. That is plainly part of the reason why, having revoked the appointment of the joint administrators and appointing an independent administrator, his Honour stayed those orders (for an initial period until 3 July 2026) in order to give the joint administrators an opportunity to address the primary judge’s concerns regarding their lack of objectivity.
Whether or not the interim joint administrators have complied with the other orders and notes made on 6 May 2026 will be a matter for consideration on 2 October 2026. Procedural fairness requirements will also apply at that stage of the decision-making process. But the procedural fairness afforded by the primary judge at the earlier stage, on 6 May 2026, was sufficient to meet procedural fairness requirements at that particular time.
The applicants relied on the High Court’s decision in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38]-[47], where the High Court concluded that there was procedural unfairness in the conduct of probate litigation. But that case is distinguishable. There, with only three business days’ notice, the hearing was changed from one directed to a caveat motion to a trial of the statement of claim. The appellant, a litigant in person, had filed caveats against the grant of probate but was not a party to the respondent’s summons for probate and was not named in the respondent’s statement of claim. Accordingly, he proceeded on the basis that he was not an active participant in the trial of the claim for probate. He was also told by the trial judge that the trial would be confined to the respondent’s challenge to his caveats. It was in these particular circumstances that the appellant was then informed that the trial commencing three business days later would relate to the claim for probate. The appellant was directed to file and serve a defence and any supplementary evidence within one clear business day. Moreover, the appellant made several unsuccessful adjournment applications.
The position here is very different with particular reference to the procedural history outlined above, including the proceedings before Lindsay J on 18 September 2025 and 16 December 2025, the note at para 11 of the 3 March 2026 orders and the conduct of the hearing itself on 6 May 2026 where the applicants were repeatedly put on notice of the primary judge’s concerns. We consider that the applicants were afforded ample opportunity to address those concerns. Furthermore, the applicants never sought an adjournment of that hearing despite its change in direction and the focus on the parties’ acrimonious relationship. The circumstances here are far removed from those in Nobarani.
For similar reasons, we reject Emad’s complaint of procedural unfairness to himself personally, which complaint is based on similar matters to those raised by the joint administrators. Similarly, we see no arguable basis for any claim that Ragaie was himself denied procedural fairness.
The applicants’ claim in proposed ground 14 that the primary judge’s discretion miscarried with reference to the full range of errors identified in House v The King also lacks any arguable substance. Most of the alleged errors simply reiterate earlier proposed grounds of appeal relating to such claims as insufficient evidence (ground 5); premature exercise of discretion (ground 6); failure to consider material matters (ground 7); failure to consider the position of affected defendants and beneficiaries (ground 8); failure to consider less restrictive alternatives (ground 9); errors concerning the future involvement of the lender and the making of a mortgage cross-claim (ground 10); inadequate consideration to the effect on the value of the estate of appointing a professional administrator (ground 11); uncertainty created by the orders (ground 12); and the failure to exercise the Court’s protective probate jurisdiction consistent with the due preservation of the estates etc (ground 13).
For all these reasons, the summons seeking leave to appeal filed 24 June 2026 will be dismissed. The notice of motion filed 24 June 2026 is otiose and will also be dismissed. The question whether there should be a further stay beyond 2 October 2026 of the relevant orders dated 6 May 2026 is a matter for determination on 2 October 2026, when the proceedings are currently listed before Lindsay J.
In circumstances where the first respondent (Nahed) represented herself and the second respondent (Marciel) did not oppose the summons, there will be no order as to costs.
We see no basis for staying our orders as requested by the applicants in their supplementary submissions.
**********
Awad
Awad (No 2)
[2026] NSWCA 157
[2026] NSWCA 196
[2026] NSWCA 205
[1936] HCA 40
[2026] NSWCA 182
(1994) 49 FCR 576
(1936) 55 CLR 499
(2018) 265 CLR 236
(2022) 108 NSWLR 342
(1982) 149 CLR 147
The summons seeking leave to appeal and the notice of motion were dismissed, there was no order as to costs, and the Court declined to stay its orders.
Before highlighting relevant aspects of the transcript of the directions hearing which culminated in the making of the 6 May 2026 orders, it is necessary to set out some of the procedural history of the two proceedings below as it bears upon the applicants’ complaints of procedural unfairness.
At this point in the hearing before Slattery J, Mr Sherrard (who appeared for the mortgagee) said that the outstanding amount owing to the mortgagee was approximately $340,000 and that interest in the amount of approximately $23,000 had accumulated since the judgment dated 17 November 2025. The primary judge reiterated that he was “seriously thinking today of appointing an independent administrator” if he was not satisfied that there had been compliance with the Court’s orders. Mr Sherrard said that the Blacktown property had been valued recently at around $1.1 million.
Immediately before the adjournment, the primary judge arranged for Emad to email to his Chambers a copy of the joint administrators’ financial plan the subject of order 6 made on 3 March 2026, which was directed to the issue of the financial viability of the Blacktown property being leased rather than sold.
When the hearing resumed, the primary judge said that, having reviewed the joint administrators’ financial plan, renting the property was not a viable proposition having regard to the substantial differential between rental return and the high interest on the mortgage loan. Emad responded saying that he expected the interest rate to change as a result of the complaint to AFCA alleging “unconscionable conduct in the lending”.
Mr Sherrard then clarified that the complaint was in fact more limited and sought to have AFCA direct the mortgagee to give up possession of the property in circumstances where the mortgagee had taken possession of the property in November 2025 using self-help and the locks had then subsequently been re-changed denying the mortgagee access.
His Honour then invited the parties to address the issue of compliance with the 3 March 2026 orders. In the course of that discussion, the primary judge said that he would strike out the plaintiff’s statement of claim and that it would have to be re-pleaded. Accordingly, the joint administrators achieved the outcome they sought in the unsealed notices of motion.
After reiterating that he considered that the plan to lease the property was not commercially viable, his Honour observed that, although he had not “done a complete audit” he considered that “a reasonable attempt to do this clearly has been made”. His Honour then indicated that while he was not inclined to replace the joint administrators because they had made a reasonable attempt to comply with the orders, he was minded to appoint trustees for sale and he invited and received detailed submissions from Emad on that possibility.
There was then a series of exchanges with the parties regarding the time for the plaintiff to file an amended statement of claim and other case management issues concerning Emad’s claim of unconscionability and the need to join the mortgagee. His Honour said that he would give leave to the joint administrators to issue a subpoena to Perpetual Trustee for the production of documents concerning the mortgage and the issue of unconscionable conduct. His Honour said that he did not have confidence that the AFCA complaint process itself would resolve the issues regarding unconscionability and would also delay the administration of the estates.
Attention then turned to order 9 of the 3 March 2026 orders, in which the joint administrators were directed to provide by 30 March 2026 a list of estate assets in the Blacktown property. His Honour noted that the joint administrators had provided a report but he had not looked closely at it yet. Ms Green then told the Court that the plaintiff had sent to the joint administrators a list of her possessions in the Blacktown property but they had refused to read any email or correspondence which was not sent to a particular email address, that address being different from the address for service previously provided on Court documents. Emad sought to defend the refusal to deal with correspondence from the plaintiff unless it was sent to a new and different email address. His Honour was highly critical of this lack of cooperation. He said that unless the joint administrators responded to beneficiary emails in a timely way, they would be removed as administrators. The primary judge also recorded his frustration at the Court having to become involved in matters such as this which ordinarily should be resolved between the joint administrators and the beneficiary. This is reflected in his Honour’s statement to the joint administrators that they were “wasting the Supreme Court’s time about who will send emails to which address. This is completely excessive, oppressive and inappropriate”. The primary judge told the joint administrators that, if this continued, they would be removed.
There was then a further series of exchanges regarding compliance with order 9. Ms Green confirmed that the joint administrators had provided the plaintiff with a list of estate assets and that the plaintiff responded by providing a list of what she claimed to be her possessions, which she wanted to collect and she proposed a date for this to occur. Ms Green then added that the only response received from the joint administrators was one which said that the plaintiff had used the wrong email address. At this point the primary judge said that he would take a further brief adjournment so that the joint administrators could respond to the plaintiff’s list. His Honour said that if the joint administrators did not give the Court “a cooperative plan to deal with this, I am going to remove you this morning”.
When the hearing resumed, Ms Green informed the Court that the joint administrators said that none of the plaintiff’s items were in the house in Blacktown and they did not know where they were located. Ms Green then made detailed submissions regarding the plaintiff’s list of her possessions in the property when compared with the joint administrators’ list. It emerged that there was a dispute as to whether the plaintiff had paid for some doors in the property. When the primary judge pressed Emad to state unequivocally whether any of the 21 items on the plaintiff’s list were in the property, Emad ultimately said that none of the items other than those on the joint administrators’ list were in the property. When the issue of the doors was raised by his Honour, Emad said that he disagreed that the plaintiff had purchased the doors. At this point the primary judge is recorded as stating that, as there was a “stand-off”, normally the resolution would be to appoint an independent person to sort it out but that the estate could not afford that process. His Honour then told the parties what he would do. He explained in clear terms why he would make orders removing and replacing the joint administrators but would stay those orders. Significantly, the stated basis for these orders related to “unacceptably bad” communications between the joint administrators and Nahed’s lawyers, with particular reference to the dispute regarding the sending and receipt of emails which was raised during the course of the hearing itself:
The Court received yet another adjournment request in an email sent by Nahed at 10.35 am, being 20 minutes the hearing had commenced. The email was read out in open court and is as follows (without alteration):
The applicants contended that the transcript confirms that there was “very little focused consideration of [Ragaie’s] individual conduct or a practical opportunity for him to address why his own appointment should be revoked”.
The applicants reiterated that their procedural unfairness complaint is not that Emad was prevented from speaking. Rather, they say that there was only “a short oral exchange on possession [and this] was not equivalent to a prepared opportunity to place the communications record, administrator-capacity evidence, cost consequences and alternative protective orders before the Court before final removal was decided”.
The applicants reiterated their contention that there is an internal inconsistency created by order 9 made on 6 May 2026 which states that performance of the new timetable would be a relevant consideration as to whether the Court would remove them as administrators and appoint an independent professional administrator, yet orders were then made revoking and replacing them immediately “subject only to the temporary stay in Order 18”.
The applicants reiterated their complaints that Slattery J failed to consider “less disruptive alternatives” to appointing an independent administrator and that the appointment of such a person with full plenary powers and authority to charge usual professional fees was disproportionate.
The applicants contended that, in declining to permit Emad to provide more information regarding his complaint to AFCA, Slattery J relied on “incomplete and evolving information without first hearing the administrator who filed the complaint”.
Finally, the applicants confirmed that they pressed the notice of motion filed 24 June 2026 and the “preservative relief” sought therein. They added that, if leave to appeal was refused, this Court should grant a stay comprising of “a short preservative period of 28 days, so that there is no immediate irreversible transfer of estates control before reasons are received and any available further rights are considered”.
For the following reasons, we are not satisfied that there should be a grant of leave to appeal. First, there is no issue of principle or question of public importance so as to warrant a grant of leave.
Secondly, for reasons which we will explain, we are not persuaded that the applicants have identified any reasonably clear injustice going beyond something that is merely arguable.
Thirdly, our decision that it is not in the interests of justice to grant leave to appeal reflects the traditional reluctance to grant such leave in relation to matters of practice and procedure involving the exercise of discretionary powers in interlocutory applications.
For the following reasons, the applicants’ complaints of procedural unfairness lack sufficient substance to warrant a grant of leave to appeal.
The relevant principle is that a person whose legal rights and interests are likely to be affected by an adverse decision is entitled to be given adequate prior notice of the critical issues or factors on which the decision is likely to turn so that they may address those matters (see, for example, Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591).
For the following reasons, none of these grounds is sufficiently arguable to warrant leave to appeal.
As to ground 5, it was well open to the primary judge to take the course which he did on 6 May 2026 having regard to the matters which emerged on that day relating to the conduct of the joint administrators concerning what was an appropriate email address and how they engaged with the plaintiff concerning her alleged personal possessions in the Bankstown property.
As to the claim in proposed ground 7 regarding an alleged failure to consider the matters which are set out at [54(1)] above, the transcript confirms that each of these matters was in fact considered by the primary judge. It was well open to his Honour to give each of those matters the weight which he did.
The applicants’ claim in proposed ground 8 that the primary judge failed adequately to consider the positions of the first, second and third defendants before making the revocation and replacement orders is inconsistent with the transcript which records the primary judge giving careful consideration to their positions.
The applicants’ complaint raised by proposed ground 9 that the primary judge failed to consider less restrictive alternatives to appointing a replacement administrator is misconceived. That is primarily because the applicants did not advance any of the less restrictive alternatives which are now set out in this ground. The primary judge can hardly be in error in not considering matters which were not put to him. In any event, as has been emphasised, by staying the revocation replacement orders, the applicants were afforded the opportunity to demonstrate to the Court by their subsequent conduct that there was no need ultimately for their appointments to be revoked and replaced.
The matters raised by proposed ground 10 also lack substance. Many of the matters were not raised by the applicants below. We also consider that it was well open to the primary judge to take the course which he did, having regard to what he was told at the hearing on 6 May 2026 concerning the applicants’ claims of unconscionability and the limited scope of the existing AFCA proceeding.
We have already explained why we consider that the applicants’ complaints regarding the primary judge’s decision to appoint an external professional administrator, also raised by proposed ground 11, lack arguable substance.
Proposed ground 12 lacks any arguable substance. By order 10 dated 25 November 2025, the applicants were appointed joint administrators up to and including 30 June 2026. By order 18 dated 6 May 2026, the orders revoking the interim appointments and the appointment of an independent administrator were stayed until 3 July 2026. The proceedings were then adjourned for further directions on 3 July 2026, meaning that there was potentially a three-day gap between the expiration of the interim appointments and that directions hearing. But if this was a matter of concern to the applicants, it was always open to them to have the matter relisted so as to remove any uncertainty or anomaly.
Finally, there is insufficient substance in proposed grounds 3 and 6. Proposed ground 3 is extraordinary. It complains that the primary judge made the orders on 6 May 2026 when Emad’s motions dated 24 March 2026 and 29 April 2026 were not available on JusticeLink and his request for review of the fee-postponement refusal was unresolved. But these matters are simply irrelevant in circumstances where the primary judge proceeded on 6 May 2026 to strike out the plaintiff’s statement of claim, which was the very objective of those motions.
Proposed ground 6 is equally untenable. There is no internal inconsistency between the making of orders 16 and 17 and the primary judge stating that the joint administrators’ future performance would be relevant to whether they ultimately would be removed. Having regard to the events which emerged at the hearing on 6 May 2026, this was an appropriate course for the primary judge to take, leaving it to the joint administrators to demonstrate capacity to fulfil their obligations and ultimately avoid their replacement by an independent administrator.