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.
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.
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.
Bar-Mordecai v The Attorney-General for the State of New South Wales [2020] NSWSC 1217 | Case summary | Zoe
The proposed amended defence in relation to proceedings 2019/162728 is as follows:
1. The Defendant admits paragraph 1 and 2 of the Plaintiffs Statement of Claim.
2. The Defendant admits paragraph 2 of the Plaintiffs Statement of Claim but the said last Will and Testament of the Deceased dated 27.07.2016 was aged, and did not reflect the Deceased's testamentary intentions in and from late November, 2018, to the date of her death, on 30.01.2019, in light of the following conduct by the Deceased:
a. In having requested her solicitor, Ms Rutstein:
(i) In early December, 2018, to return to her, her two Certificates of Title to her two properties, in circumstances that she was going to terminate soon thereafter, her solicitor's [Ms Rutstein'sl retainer on 9.12.2018;
(ii) In early December, 2018, to return to her, the draft copy of her last Will and Testament, that Ms Rutstein had prepared in late 2018;
(iii) In early December, 2018, to prepare an account for her legal services, so that her solicitor could be paid, in full, by the testatrix;
(iv) To remove her executor, Mr Samuel Benjamin from her last Will and Testament, because she hated him for having betrayed her trust in several ways;
(v) To remove her executrix, Ms Yael Shudnow from her last Will and Testament because the testatrix hated her for causing her untold grief;
b. In having requested the Plaintiffs solicitor, Mr White, to request by telephone, from Ms Rutstein on 22.01.2019, to release her two Certificates of Title to the Plaintiffs solicitor, namely, Mr Peter White:
c. In having signed the two transfer forms on 22.01.2019 to gift the Plaintiff, Unit 5 & 7 in the presence of the Plaintiffs solicitor, namely Peter White:
d. In having requested the Plaintiffs (sic) friend, Ms Paula Carew to request her solicitor [Mr Webeck] to speak to Ms Rutstein on 23.01.2019. in order to release the Deceased's two Certificates of Title to Mr Webeck. On 24.01.2019 Mr Webeck sent an Email to Ms Rutstein requesting her to release the two Certificates of Title to his law firm, with a note for Ms Rutstein to confirm his instruction with the Deceased:
e. In having paid Ms Rutstein and then terminated her retainer on 9.12.2018.
f. Having arranged to have her two properties valued on 21.01.2019. by a property valuer prior to gifting her two properties to the Plaintiff, As a consequence, the late Seemah Morris discharged all her obligations in gifting unit 7 of 79 O'Donnell Street, North Bondi NSW 2020 to the Defendant.
3. The Defendant admits to paragraph 3 of the Plaintiffs Statement of Claim but in response to paragraph 3, the Defendant says, that, on 22.01.2019, the Deceased gifted the property at 7/79 O'Donnell Street, North Bondi [Unit 7] to the Defendant.
4. The Defendant admits the first 13 words in paragraphs 4, and denies the rest of the rest of paragraph 4, and paragraphs 5 & 6 of the Plaintiffs Statement of Claim, and says that Keren Kayemeth Leisrael [KKL] has never been known as the Jewish National Fund, or the Jewish National Fund of Australia. The Defendant claims that the two charities were and are situated in different countries, and are two totally different legal entities, with one charity having nothing to do with the other, by design and intent in having two different Articles of Association to the two charities.
4a. The Defendant admits paragraph 5 of the Plaintiff's Statement of Claim, but says that the two Executors of the Seemah Morris Estate, criminally conspired with the Plaintiff, to wrongly distribute the property [Unit 7] to the Plaintiff (as a non-inheritor), instead of Keren Kayemeth Leisrael [KKL] being the true inheritor. The Plaintiff failed to obtain a letter of consent from the KKL in having declared that it relinquished its ownership to Unit 7 by way of its inheritance in Seemah Morris' will.
4b. The Defendant admits paragraphs 6 of the Plaintiffs Statement of Claim but says that the Plaintiff [by conspiracy and fraud with the criminal assistance of the executors of the Seemah Morris Estate] wrongly became the registered proprietor of the property known as Unit 7.
4c. In relation to paragraph 7 The Defendant does not admit to the paragraph, as the Defendant has been in part time occupation of the property since 8 December 2018, when the Deceased gave him the key to reside in her home.
5. Paragraphs 8, 9 and 10 of the Plaintiffs Statement of Claim are denied.
10. 6. Paragraph 10 of the Plaintiffs Statement of Claim is denied.
In answer to the Plaintiffs whole Statement of Claim, the Defendant pleads as follows;
The Deceased took the following steps to perfect her property gift to the Defendant. Those steps were;
a. Requested her solicitor, Ms Rutstein in early December, 2018, to return to her, her two Certificates of Title to her two properties, in circumstances that she was going to terminate soon thereafter, her solicitor's [Ms Rutstein's] retainer on 9.12.2018;
a1. From early mid-December 2018, the Late Seemah Morris took steps to cash her two term deposits in the St George Bank ($50,000) and the National Australia Bank ($80,000). About a month later, she opened a new account with the Defendant as the second account holder in the Commonwealth Bank. She transferred her money from the NAB and St George Accounts to the Commonwealth Bank. The money transfers were completed on 24.01.2019. and then the Defendant withdrew the money and transferred the money, as instructed, to a third party. By doing so, the Deceased arranged for the Defendant to have the funds to pay the necessary Stamp Duty within 3 months of registration of the property with the Land Title Office;
b. The Deceased directed the Defendant to obtain from her home, a copy of her Certificate of Title to her property at 7/79 O'Donnell Street, North Bondi. The Defendant secured the documents a copies of her Certificate of Title from the Deceased's home to be able to give it to his solicitor, for the purposes of conveyancing of the two properties;
c. The Deceased directed the Defendant to obtain a property evaluation of her home. On 21.01.2019, the Deceased had the property at 7/79 O'Donnell Street, North Bondi evaluated valued and paid the valuation charges, so that the transfer of the property could be registered with the Land Title Office of NSW by the Defendant's solicitor;
d. At about 8.00am on 22.01.2019, the Deceased was visited by Ms Paula Carew. The Deceased signed the transfer form to transfer her home to the Defendant in the present presence of her witness, Miss Paula Carew on that date.
e. At about 10.00am on 22.01.2019 Ms Paula Carew gave the signed Transfer form by the Deceased, to the Defendant;
f. At 11.30am on 22.0.1.2019 the Defendant had a conference with his solicitor, Mr Peter White, and gave him the signed transfer form by the Deceased to complete, along with the copy of the Certificate of Title to the Deceased's home and the evaluation valuation certificate of her home, in order to effect the property transfer at the Land Title Office. During the conference, the Solicitor White refused to complete the Transfer form, that the Deceased had signed with Paula Carew, as her witness, and refused to lodge the Transfer Document and the other necessary documents with the Land Title Office in order to register the transfer, as Ms Carew did not know how to complete that Transfer form prior to having the transferor sign that Transfer form.
g. In compliance with Mr Peter White's advice, the Defendant instructed his solicitor, to visit the Deceased, and have her resign the same transfer form to be witnessed by Mr White and to request on 22.01.2019. the Certificates of Title from Ms Rutstein to complete his conveyancing;
h. On 22.01.2019, at about 1.50pm the Deceased was visited on instruction of the Defendant by his solicitor, Mr Peter White for 5 10-12 minutes. The Deceased:
(i) Signed the same transfer form to transfer her home to the Defendant for the second time that day, on request of Mr Peter White;
(ii) Gave her particulars to Mr Peter White to record by hand, by supplying him with her NSW Service Identity Card as her Proof of Identity;
(iii) Gave her former solicitor's particulars to Mr Peter White to record, by supplying him with her copy of her former solicitor, Ms Debbie Rutstein's professional card, and advised him to obtain the Certificate of Title from her former solicitor, in order to lodge it with the Land Title Office;
(iv) Instructed the Plaintiffs solicitor, to request from her former solicitor, Ms Rutstein, the release of her two Certificates of Title to Mr White.
(v) Ms Rutstein had her own agenda for Seemah Morris' estate, by having conspired with the Plaintiff and had wilfully misled Mr White by saying to him the following. [on 22.01.2019, without the knowledge of consent of her client, the Deceased, and in circumstances that her retainer had been terminated by the Deceased on 9.12.20181:
"I wouldn't he doing anything at this stage. "
Ms Rutstein's agenda was to undermine the property transfer to the Plaintiff by wilfully not complying with the Deceased's multiple instructions to her and misleading Mr White with the following sentence that was knowingly false:
"There may he issues with Seemah's capacity.''
j. On 23.01.2019 the Deceased directed Mr Webeck, a solicitor, to obtain her two Certificates of Title from her former solicitor, Ms D. Rutstein. Mr Webeck on 24.01.2019 sent an email to Ms Rutstein in order to obtain Seemah Morris' two Certificates of Title and requested Ms Rutstein to confirm his telephone instructions with the late Seemah Morris.
k. The Deceased took all the necessary steps to perfect the property [7/79 O'Donnell Street, North Bondi] gift to the Defendant.
l. At about 2.45pm On 22.01.2019 Mr White telephoned the Deceased former sacked solicitor, Ms Rutstein in the presence of Seemah Morris, to obtain the Certificate of Title from that solicitor.
m. Prior to 4.30pm on 24.01.2019, the late Seemah Morris had capacity to make her own financial decisions.
k n. The Defendant was appointed as with an Enduring Power of Attorney signed by the Deceased on 20.12.2018, such that the Defendant had authority to sign the transfer form himself. In order to transfer the property Seemah Morris owned at 7/79 O'Donnell Street, North Bondi to his own name, from 21 December 2018 to 30 January 2019, i.e. the date that the Deceased committed suicide.
k o. The Defendant's solicitor, Mr Peter White blatantly lied to the Defendant, lacked credibility, was negligent, breached his fiduciary duty to the Defendant and misconducted himself not in good-faith while acting as the Defendant's legal representative in the transfer of the property in-relation to the late Seemah Morris.
l. p. The Plaintiff, by instructions to its various employees between the dates of 1.1.2012 to 15.01.2014 along with instructions to its solicitors at Diamond Conway Lawyers swindled the late Seemah Morris of her brother's estate valued at Probate on 14.01.2014 at $1,286,571.94.
n q. The Deceased belatedly realised that the Plaintiff had swindled her of her brother's estate in 2013, by the execution of her brother's Will, that did not embody his testamentary intentions, and coercing her brother to sign a Will that her brother did not have capacity to give instructions to engross to any solicitor because of his dementia;
o r. One of the executors, Mr Samuel Benjamin, of the Deceased's last Will and Testament of 2016, refused to return that document to her letters of request of 09.12.2018 and 10.12.2018 to do so, so that she could revoke it her last Will and Testament by destroying it.
7. The Defendant claims:
A. An Order that the Plaintiffs Statement of Claim be struck out until he Equity Division of the Supreme Court grants completion of the property gift, in circumstances that the late Seemah Morris discharged all her obligations with the gifting of the property at 7/79 O'Donnell Street. North Bondi to Michael Bar-Mordecai; as the Plaintiff has sought to commandeer the Unit 7 property by conspiracy and fraud [same as it commandeered the Unit 5 property] and was not entitled to be registered as Unit 7's proprietor because it was not an inheritor of unit 7;
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 continued occupation and possession of the property known as 7/79 O'Donnell Street, North Bondi to the Defendant, until the Equity Division of the Supreme Court perfects the property gift to the donee, namely Michael Bar-Mordecai.
D. Further and other Orders.
Section 15 of the Vexatious Proceedings Act provides:
15 Dismissing application for leave
(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:
(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or
(b) the proceedings are vexatious proceedings, or
(c) there is no prima facie ground for the proceedings.
(2) The application may be dismissed:
(a) even if an oral hearing is not held, or
(b) even if the applicant does not appear at any hearing of the application.
Section 6 of the Act defines "vexatious proceedings" as follows:
6 Meaning of "vexatious proceedings"
In this Act, vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
The affidavits and submissions prepared by Mr Bar-Mordecai in support of the present summonses were sworn and prepared in May 2020. In that way, they take no account of what has occurred in both sets of proceedings to enable the hearing of the notices of motion by JNF for summary judgment. For example, the submissions say that there have been no interlocutory hearings in the matter and that neither timetables nor hearings have been fixed. While true at the time, that is no longer the position. A number of direction hearings has been held, and motions by JNF have been fixed for hearing on 16 September 2020.
The proposed applications suffer from a number of other difficulties. First, the matters raised in the proposed amendments were issues that were canvassed in the earlier notices of motion by Mr Bar-Mordecai that I determined in my judgment of 15 April 2020. Secondly, it is apparent from the submissions in each of the proceedings that the applications to amend are a collateral attack on my judgment of 15 April 2020. For example, the submissions say that I incompetently, without power to do so, and contrary to s 14 of the Vexatious Proceedings Act determined the earlier notices of motion. Subsequent to my judgment, Mr Bar-Mordecai filed two further summonses seeking leave to appeal against my judgment. He raised those same matters in his proposed grounds of appeal and in his submissions in support of those summonses. On 24 June 2020 Ierace J refused leave for Mr Bar-Mordecai to institute proceedings seeking leave to appeal against my judgment and dismissed his summonses: Application of Bar-Mordecai [2020] NSWSC 796. In that way, also, the present summonses are a collateral attack on the judgment of Ierace J.
Thirdly, as is apparent from the proposed amendments, Mr Bar-Mordecai effectively seeks to withdraw admissions that he made when he first filed a defence to the statements of claim of JNF seeking possession of the properties.
In his earlier application to amend his defences Mr Bar-Mordecai also effectively sought to withdraw admissions that he had earlier made. I discussed that aspect of his earlier application at [102]-[105] of my earlier judgment. Nothing has changed from the position that obtained at that time to justify any reconsideration of the issue of withdrawing admissions.
I am satisfied that the present applications identified in the two summonses are an abuse of the process of the Court, are instituted without reasonable ground and are instituted for the wrongful purpose of challenging my earlier judgment in circumstances where an application for leave to appeal has been refused, and for the wrongful purpose of challenging the judgment of Ierace J in refusing leave for Mr Bar-Mordecai to file a summons for leave to appeal to the Court of Appeal.
Accordingly, I make the following orders:
(1) In proceedings 2020/229578:
(a) Refuse leave to institute proceedings.
(b) Dismiss the summons.
(2) In proceedings 2020/229550:
(a) Refuse leave to institute proceedings.
(b) Dismiss the summons.
[2]
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Decision last updated: 11 September 2020
Parties
Applicant/Plaintiff:
Bar-Mordecai
Respondent/Defendant:
The Attorney-General for the State of New South Wales