Bar-Mordecai v The Attorney-General for the State of New South Wales

Judgment

1. On 6 August 2020 Mr Bar-Mordecai filed two further summonses in relation to proceedings 2019/162728 and 2019/96140. These are two sets of proceedings brought by the Jewish National Fund of Australia ("JNF") against Mr Bar-Mordecai seeking possession of units 5 and 7 at 79 O'Donnell Street, North Bondi. The background to the proceedings is set out in my judgment of 15 April 2020 in respect of applications by Mr Bar-Mordecai to amend his defences and file cross-claims in each of those proceedings: Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384.
2. Mr Bar-Mordecai was declared to be a vexatious litigant by Patten AJ on 25 February 2005: Attorney General v Bar-Mordecai [2004] NSWSC 1277. In each case, therefore, he needs leave pursuant to the Vexatious Proceedings Act 2008 (NSW) to bring any notice of motion within those possession proceedings. That is because of the provisions of ss 4, 5 and 6 of the Vexatious Proceedings Act.
3. In respect of proceedings 2019/96140 the proposed amended defence is as follows: 1. The Defendant admits paragraphs 1, 2, 3, 4, 5, and 6 and does not admit to paragraphs 2, 3, 4, 5, and 6 of the Plaintiffs Statement of Claim, 1a. As to paragraph 2 in the Plaintiffs Statement of Claim, the Defendant does not admit to that pleading, on the basis that the Deceased lacked capacity to instruct a solicitor to make a Will, and did not make a Will, but executed a Will on 8.01.2013 while he suffered from fully blown dementia and a low IQ from birth, wherein instructions for the preparation of the testator's Will were given by the Plaintiff to its solicitors. Probate was wrongly granted by the Registrar of the Supreme Court, as Seemah Morris, as the executrix of her brother's will, had not signed each page of her brother's Will. The Defendant concurs that Probate was granted to Mrs Morris on her brother's Will on 14.01.2014. 1b. As to paragraph 5 in the Plaintiffs Statement of Claim, the Defendant does not admit to that pleading, on the basis that clause 4 directs the executrix to the "full details" in clause 8 (b) of the Testator's Will. Such that the major beneficiary was Keren Kayemeth Leisrael [KKL] and not the Plaintiff. The writer of the Will, having been the Plaintiffs employee, Mr Mahemoff (and not the testator who executed that Will while suffering from dementia in 2013) wrongly gave instructions to the Plaintiff's solicitors, to wrongly include in the testator's will that the KKL "was also known as the Jewish National Fund" which was totally incorrect, as the two Charities are situated in different countries and have different Articles of Associations. Hence, the estate in remainder was left to KKL and not to the Plaintiff. 1c. As to paragraph 6 in the Plaintiffs Statement of Claim, the Defendant does not admit to the last 10 words of that sentence, on the basis that clause 8b of the Testator's Will left to the major beneficiary, the KKL the estate in remainder and not to the Plaintiff. 2. The Defendant admits the following words in paragraph 7 "Mrs Morris died on 30 January, 2019" and denies the rest of paragraph 7 that "the Plaintiff became entitled to possession of the Property". After the death of the late Seemah Morris, the KKL and not the Plaintiff became entitled to possession of the property. 3. The Defendant does not admit to paragraph 8. After 8 December 2018, the Defendant commenced occupation of that property, at the request of the late Seemah Morris, who gave the Defendant one of two keys to her life estate property. 4. The Defendant does not admit to paragraph 9 and the sentence: "The acts of the Defendant, since 30 January 2019, constituted and continue to constitute a trespass by the Defendant by reason of which the Plaintiff has been deprived of... on the grounds that the Plaintiff that the Plaintiff was not the inheritor of Unit 5 property but the KKL was the true inheritor. The Plaintiff conspired with the executrix of the Elias Cohen estate. Ms Yael Shudnow. for her to wrongly distribute the Elias Cohen Estate (including Unit 5) to the Plaintiff, instead of the KKL. Such that, although the Plaintiff is the registered owner by the operation of conspiracy and fraud, with the Executrix of the Elias Cohen Estate, Ms Yael Shudnow, actually, the KKL should have become the registered owner of Unit 5, such that there has been no trespass by the Defendant on the Plaintiffs property that was not willed to it, as the Plaintiff was not the inheritor of that property since 2014 when probate was wrongly granted to the late Seemah Morris. 5. The Defendant does not admit to paragraph 10. The Plaintiff, by the operation of conspiracy and deceit with the Executrix of the Elias Cohen Estate, wrongly became the registered proprietor of the Property (unit 5), which must be reversed by the Supreme Court. 6. The Defendant denies paragraph 11 and 12. 6a. The Defendant denies paragraph 11. The Plaintiff is not entitled to immediate possession of Unit 5 Property, because it was not the beneficiary of Unit 5. but the KKL was the beneficiary of that property. On that basis, the Plaintiffs claim for possession must fail, and the claim for trespass must also fail. 6b. The Defendant denies paragraph 12 and the Court cannot grant the Plaintiff the relief claimed, as the Plaintiff was not entitled to commandeer the Unit 5 property or the Elias Cohen estate, as the Plaintiff was not a beneficiary of the Elias Cohen estate. 7. The late Seemah Morris died on 30.01.2019 as a consequence of having committed suicide as a result of abuses by the Montefiore Nursing home staff together with abuses perpetrated by the Public servants employed in the Office of the Public Guardian, so as to terminate her suffering. 8. The late Seemah Morris left a last Will and testament that did not embody the testamentary intentions of the Deceased at the date of her death. In further answer to the whole of the claim, the Defendant says that the late Seemah Morris transferred all her cash savings to the Plaintiff [about $118,000.00] and gifted the 2 units she owned to the Plaintiff on 22.01.2019 for his kindness to her over many years in-the seven weeks prior to her successful suicide at the Montefiore Nursing home due to the perpetration of multiple abuses by Ms Jankelowitz (social worker) e.g. food deprivation, incarceration in a locked ward facility, no visitors, no telephone calls from the Defendant (primary Next of Kin) or other well wishers. The gift of the two properties was made null and void by the Defendant's Solicitor, Mr Peter White who put a line through the Defendant's name and address as the transferee on the two transfer forms. A statement of Claim has been filed against 3 defendants to remedy the completion of the gift by the Equity Division of the Supreme Court of NSW as the Deceased discharged all her obligations with the transfer of the two properties to the Defendant on 22.01.2019. 8. The Defendant claims: A. An Order that the Plaintiffs Statement of Claim be struck out if the Equity Division of the Supreme Court grants completion of the two property gifts in circumstances that the late Seemah Morris discharged all her obligations with the gifting of the property at 5/79 O'Donnell Street, North Bondi; as the Plaintiff commandeered the Unit 5 property by conspiracy and fraud and was not entitled to be registered as its proprietor of the unit 5 Property; B. An Order that the Plaintiff pay the Defendant's costs of his Amended Defence on an indemnity basis; C. An Interlocutory Order in favour of the Defendant granting immediate occupation and possession of the property known as 5/79 O'Donnell Street, North Bondi to the Defendant, until the Equity Division of the Supreme Court resolves whether to Order that the Plaintiff transfer the property [Unit 5] to the rightful owner, namely the KKL or Order that the Public Trustee have the estate of the late Elias Cohen, completes the property gifts. D. Further and other Orders.