Jewish National Fund of Australia Ltd v Bar-Mordecai

Proceedings 2019/96140 - Unit 5

1. On 18 October 2013 Elias Cohen died. He had made a will dated 8 January 2013, of which probate was granted to Seemah Morris on 4 January 2014. At the time of his death, Mr Cohen was the registered proprietor of Unit 5, 79 O'Donnell Street, North Bondi. In clause 4 of his will he gave a life estate in that property to Ms Morris and the estate in remainder to the plaintiff.
2. By a transmission application dated 14 August 2017, Ms Morris became the registered proprietor of a life estate and the plaintiff of an estate in remainder.
3. On 30 January 2019 Ms Morris died.
4. In the plaintiff's statement of claim filed 27 March 2019 all of those matters were alleged and, in a defence filed 8 April 2019, the defendant admitted all of those matters. The plaintiff also asserted that from about 30 January 2019 it became entitled to possession of the property, and that from that time the defendant commenced occupation of the property. The defendant denied that the plaintiff was entitled to possession but did not admit that he had been in occupation of the property.
5. On 30 August 2019 Hamill J made the following order: 1. The Defendant is to file, by 13 September 2019, a Notice of Motion seeking: a. If necessary, leave pursuant to ss 14-16 of the Vexatious Proceedings Act 2008 (NSW) to file and rely on a cross-claim in proceedings 2019/96140; b. Leave to file an amended defence in those proceedings; and c. Leave to file a cross-claim in the proceedings.
6. On 11 September 2019 the defendant filed a notice of motion seeking those three orders and, notwithstanding that no leave was given to do so, he sought six orders that the plaintiff and various employees be penalised under various provisions of the Crimes Act 1900 (NSW) for what the defendant alleged were crimes committed by them including conspiracy, dishonesty and deception. Further, without leave the defendant sought an order that the Court grant leave to him to issue subpoenas to St Vincent's Hospital Darlinghurst, St Vincent's Hospice Darlinghurst, Dr Phillip Redelman and Dr Tom Glaser "to prove clinically that the late Elias Cohen suffered from severe dementia in 2012". He also sought the following orders: 11. An order that the Supreme Court direct that the SIX leave applications for the Defendant to issue 6 subpoenas as a litigant in person, filed on 27.05.2019 in Court, and the determinations that issued (if such determinations were made) be made available to the Defendant more than 4 months later. 12. An order that the Plaintiff return to the Defendant the new front door key to Unit 5, 79 O'Donnell Street, as the Plaintiff is not the owner of the unit, as the unit was registered wrongly in the Plaintiff's name, and the Statement of Claim for possession by the Plaintiff was incompetent in its pleadings and must fail. 13. An order that Indemnity Costs be awarded to the Defendant against the Plaintiff for this Notice of Motion dated 11.09.2019 following the Determination of the Notice of Motion post haste.
7. The paragraphs of the defence filed 8 April 2019 which do other than admit, not admit or deny paragraphs in the statement of claim are these: 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 [an employee at the home] 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.

The proposed amended defence

1. The defendant's proposed amended defence admits paragraphs 1, 3 and 4 of the statement of claim, as well as paragraph 6 but with a qualification. In that way the defendant seeks impliedly to withdraw the admissions to paragraphs 2 and 5 of the statement of claim. Those paragraphs pleaded that Elias Cohen made a will dated 8 January 2013 of which probate was granted to Ms Morris on 14 January 2014, and that clause 4 of the will "divested" [scil. devised] a life estate in the property to Ms Morris with the estate in remainder to the plaintiff.
2. The defendant, in lieu of those paragraphs, pleads as follows: 2. In response to paragraph 2 of the Plaintiff's Statement of Claim: a. The Deceased purported to make a will dated 08.01.2013 ("the Will). However, the Will was invalid because: (i) The late Elias Cohen lacked testamentary capacity to make the Will; (ii) The Will was not prepared according to the Deceased's instructions and the Deceased did not understand or consent to the Will he signed; (iii) The witnesses to the Will, namely, Mr Leonard Mahemoff was an employee of the Plaintiff at the time, and the other witness was an employee solicitor of the Plaintiffs legal representative, Diamond Conway Lawyers and had a conflict of Interest In having been witnesses to the Will of the Deceased: b. The Grant of Probate was invalid because: (i) The executrix, the Late Seemah Morris did not sign each page of the Will - but only signed the first page of her brother's Will: (ii) The executrix, Ms Yael Shudnow did not sign any of the pages of her cousin's Will. … 5. In response to paragraph 5: a. The Defendant denies that the Will was valid for reasons pleaded in paragraph 2 above: b. The Defendant admits that the Will all be it [scil. albeit] invalid, purported to give the use of the Property to Mrs Morris during her lifetime: c. The Defendant denies that the Will purported to divest (sic) the estate in remainder to the Plaintiff, and says that the Will purported to divest (sic) the Estate in remainder to Keren Kayemeth Leisrael - which is a separate legal entity and was not the Plaintiff.
3. Paragraph 6 of the statement of claim alleges that by a transmission application dated 14 August 2017 Ms Morris became the registered proprietor of a life estate and the plaintiff of an estate in remainder. The defendant admits that paragraph, but says that the plaintiff was not entitled to an estate in remainder because Keren Kayemeth Leisrael, which was a different legal entity, was the inheritor of the property and not the plaintiff. The remainder of the proposed amended defence merely repeats a number of those allegations in answers to other paragraphs of the statement of claim.

The proposed cross-claim

1. The proposed cross-claim which the defendant initially sought to file was annexed to an affidavit he swore on 30 November 2019. On the morning of the hearing of his motion, the defendant said that the form of the proposed cross-claim that he wished to file was an annexure to an affidavit he had sworn on 6 March 2020. That form of the cross-claim differs only in one respect from the earlier form; the second sentence of paragraph 15 is omitted in the new iteration.
2. The proposed cross-claim names not only the plaintiff as a cross-defendant but also Keren Kayemeth Leisrael (second cross-defendant) and Yael Shudnow nee Musleah (third cross-defendant). In the section headed "Parties to the cross-claim", Peter White is named as a fourth cross-defendant. However, in the section headed "Details about cross-defendants that are new parties", Samuel Benjamin is said to be the fourth cross-defendant and Peter White is said to be the fifth cross-defendant.
3. Yael Shudnow was one of two executors of Seemah Morris's will. Yael Shudnow was also one of two alternative executors of Elias Cohen's will, in the event that the named executor, Seemah Morris, was unable or unwilling to act. The other alternative executor was the president of the plaintiff. Samuel Benjamin was the other executor of Seemah Morris's will. Peter White was the defendant's solicitor who struck out the defendant's name on the two transfers executed by Ms Morris.
4. The general import of the proposed cross-claim can be discerned from the relief claimed which is as follows: 1. An Order that probate of the Will of the Late Elias Rahamim Cohen dated 08.01.2013 and Probate granted on 14.01.2014 be revoked because: a. The late Elias Rahamim Cohen did not have testamentary capacity at the time that his Will was prepared in 2012 by Diamond Conway solicitors on instruction of the First Cross Defendant, and the Deceased lacked capacity to understand the Will he signed on 8.01.2013 due to his dementia, then that Will having been the subject of the Grant of Probate on 14.01.2014; b. The Will was not prepared according to the instructions of the Late Elias Rahamim Cohen, because he lacked testamentary capacity due to his dementia; c. The Will was not signed by the executrix, the late Seemah Morris on all three pages prior to the grant of Probate; d. The Will was not signed by the executrix, Yael Shudnow on all three pages prior to the grant of Probate; 2. An Order that the late Elias Cohen's last Will and Testament dated 08.01,2013 be revoked because of 1 a. & b. above. 3. An Order that the Probate granted to the late Seemah Morris on 14.01.2014 on her brother's Will, the late Elias Cohen's last Will and Testament dated 08.01,2019 be revoked because of 1c above. 4. A Declaration that the late Elias Cohen died intestate. 5. An order that the Third Cross-Defendant be removed as executrix of the Will of the late Elias Cohen for her negligence for wrongly distributing the Property of the late Elias Cohen from her custody to First Cross-Defendant unlawfully, instead of distributing it to the inheritor, namely, Keren Kayemeth Leisrael [KKL], and allowing it to be registered illegally in the name of the First Cross-Defendant between the dates of 15.01.2014 and mid-2017. 6. An order that the Third Cross-Defendant repay the Elias Cohen Estate for wrongly transferring the estate to a non-inheritor, from assets in her own estate, or else, the Court Order the First Cross-Defendant to return the assets it received from the Elias Cohen Estate back to the Elias Cohen Estate. 7. An Order that the Cross-Claimant, as the late Elias Cohen's first cousin once removed, be appointed the Administrator and Beneficiary of the Elias Cohen Estate and receiver of the real estate of the Deceased, pendente lite, and he be entitled to remuneration out of the personal monetary assets and real estate of the Deceased as the Court deems appropriate. 8. An Order that the First Cross-Defendant pay the Cross-Claimant's costs of his Defence, Amended Defence and Cross-Claim on the indemnity basis; 9. In the alternative to Order 5 hereof, an Order that the Cross-Claimant's and Defendant's costs of these proceedings be paid out of the Elias Cohen Estate. 10. An Order that the First Cross-Defendant return to the Cross-Claimant, the new front door key to Unit 5, 79 O'Donnell Street, North Bondi, NSW (the Property) on the grounds that: a. The First Cross-Defendant was not the inheritor of Unit 5 (the Property); b. The property was wrongly transferred to the First Cross-Defendant; c. The property was unlawfully registered in the First Cross-Defendant's name; d. The Statement of Claim for possession by the Plaintiff [First Cross-Defendant] was incompetent in its pleadings and must fail; 11. An Order that the First Cross-Defendant takes steps to: a. Transfer the Property [Unit 5 of 79 O'Donnell Street, North Bondi] from the First Cross-Defendant's name (wrongly designated the current owner on the Certificate of Title) to the Cross-Claimant's name, Michael Jacob Bar-Mordecai, as the newly appointed beneficiary; b. Transfer the cash asset of about $486,571.94 in 14.01.2014 supplemented with Supreme Court interest from 14.01.2014 to date from the First, Second or Third Cross-Defendant's Bank Accounts to the First Cross-Claimant's bank account at the ANZ Bank BSB 012-390 and account number 5634-66939 in Sydney, Australia. 12. An Order that the Second, Third and Fourth Cross Defendants pay indemnity costs for the Cross-Claimant's Cross-Claim against each of them. 13. An order that the Fourth Cross-Defendant [scil. Fifth Cross-Defendant] be held financially accountable for making the two transfer forms null and void by negligently putting a line through the transferee's name and address on the two forms and pay the Cross-Claimant damages and compensation for his negligence in crossing out the name of the transferee's (the Cross Claimant's) name and address on the two transfer forms, to make those two transfer forms null and void - contrary to the Cross Claimant's instructions to the Fourth (sic) Cross-Defendant on 23.01.2019. 14. Further or other Orders.
5. In the prayers for relief and in the pleading, there is no mention of a fifth cross-defendant. It seems clear that the "Fourth Cross-Defendant" mentioned in prayer 13 is Peter White because there is reference to the striking out of the defendant's name on the two transfers executed by Ms Morris. Whether he or Mr Benjamin is the intended "Fourth Cross-Defendant" referred to in prayer 12 is unclear. Neither Mr White nor Mr Benjamin is mentioned anywhere in the pleading itself. That is sufficient in itself to refuse leave to file the cross-claim against both of those parties because no cause of action is disclosed.
6. It is not necessary to set out the pleading. It is sufficient to note the headings within it. They, together with the relief claimed, fairly clearly indicate what the cross-claim is asserting and seeks to achieve. Those headings are: Application for revocation of probate and will of the late Elias Cohen. Application for the Removal of the Third Cross-Defendant as executrix of the late Elias Cohen's Will Application for the Cross-Claimant to inherit the Estate of his first cousin once removed, the late Elias Cohen Declaration that the late Elias Cohen died intestate The Cross-Claimant's Entitlement to the Estate of the late Elias Cohen
7. At the hearing of the motion, the defendant said that he was not pursuing orders 4 to 9 of the orders sought in his notice of motion. Those paragraphs concerned the claims that various persons be penalised for breaches of the criminal law.
8. The defendant relied on five affidavits in chief in support of his notice of motion. The plaintiff relied on a number of affidavits setting out the background, including its relationship with Mr Cohen and Ms Morris, and explaining what the plaintiff was, including its relationship to Keren Kayemeth Leisrael. The defendant filed an affidavit in reply, annexing the updated iteration of the cross-claim he wished to file. The affidavit also, unnecessarily, repeated all of the information required by s 14(3) of the Vexatious Proceedings Act which had been included in an earlier affidavit.
9. Much of the material in the defendant's affidavits was repetitive. Considerable portions of it involved slanderous and scandalous allegations against a number of persons including the Prothonotary. Objection was taken by counsel for the plaintiff to what was said to be inadmissible material in the affidavits. Bearing in mind the strictures in s 56 of the Civil Procedure Act 2005 (NSW), I said that I did not intend to go through each of the affidavits determining which parts contained admissible material and which parts did not. I indicated that I would read all of the material, according appropriate weight to the material dependent on whether or not it was admissible or in appropriate form. I indicated to the defendant that I would not take into account any of the paragraphs that contained the slanderous and scandalous material.
10. The defendant filed submissions dated 3 September and 21 November, and two separate submissions dated 29 November 2019. In his affidavit of 2 December 2019 he said that he withdrew all of those submissions. On 5 December he filed submissions with regard to matters relating to s 192E of the Crimes Act. However, as noted earlier, he said at the hearing that he did not press those prayers for relief.
11. He subsequently, and without leave to do so, filed further submissions on 28 February 2020, 2 March 2020 (two different submissions) and 5 March 2020 (two different submissions).

Proceedings 2019/162728 - Unit 7

1. Seemah Morris died on 30 January 2019 having made a will dated 27 July 2016 of which probate was granted to Samuel Benjamin and Yael Shudnow on 15 April 2019. Ms Morris was the owner of Unit 7 at 79 O'Donnell Street. By clause 4 of her will she left that property to the plaintiff, described as follows: "Keren Kayemeth Leisrael, Jerusalem, Israel (also known as the "Jewish National Fund") represented in Australia by the Jewish National Fund of Australia Inc",
2. On 15 April 2019 the property vested in the executors, and on 10 May 2019 by a transmission application, the plaintiff became the registered proprietor of the property.
3. In his defence to that statement of claim the defendant admitted all of those matters, although he said that on 22 January 2019 Ms Morris gifted Unit 7 to him.
4. The plaintiff also alleged that from about 30 January 2019 the defendant had been in occupation of the property. The defendant answered that by saying that he had been in part time occupation since 8 December 2018 to the time of filing his defence on 14 June 2019.
5. The defendant filed a notice of motion on 16 September 2019 seeking leave pursuant to ss 14-16 of the Vexatious Proceedings Act to file and rely on a cross-claim in these proceedings and seeking leave for the filing of that cross-claim and an amended defence. Unlike in proceedings 2019/96140 it does not appear that any leave was given to the defendant to file that notice of motion. The notice of motion sought similar orders for the penalisation of the plaintiff for acting contrary to ss 192B, 192D, 192E and 342 of the Crimes Act and for bribing Peter White to pervert the course of justice. The notice of motion also sought leave for the defendant to be able to issue subpoenas to Telstra to produce all telephone calls made by a number of persons "to prove that the plaintiff bribed Mr Peter White to pervert the course of justice".
6. The defendant's existing defence, in addition to admitting the matters I have detailed, asserts that he is entitled to Unit 7 because it was gifted to him by Ms Morris and that she took all necessary steps to perfect that gift to him before her death. Those steps alleged included the following: (a) Ms Morris had appointed him her Enduring Attorney on 20 December 2018 "such that the Defendant had the authority to sign the transfer form himself, in order to transfer the property … to his own name"; (b) Ms Morris had signed two transfers, one in respect of unit 5 and one in respect of unit 7; (c) Ms Morris transferred two amounts totalling $130,000 to the defendant for him to pay the stamp duty on the transfers; (d) Ms Morris directed the defendant to obtain a valuation of unit 7.
7. The defence, alleges that the solicitor, Peter White, lied to the defendant, was negligent, breached his fiduciary duty and misconducted himself while acting as the defendant's solicitor. It does not, however, plead the material facts showing what the acts and omissions of Mr White were that enable those allegations to be made. The defence then went on to make allegations that the plaintiff had "swindled" Ms Morris of Mr Cohen's estate.
8. The defendant's proposed amended defence purports to withdraw the admissions made by him that Ms Morris made a will of which probate was granted to the executors, by asserting that the will did not reflect Ms Morris's testamentary intentions. It also sought to withdraw the admission that clause 4 of her will bequeathed the property to the plaintiff and that by a transmission application the plaintiff became the registered proprietor of the property. The latter is said to be because Keren Kayemeth Leisrael became the registered proprietor. That is plainly not so, and the allegation should probably be understood as saying that Keren Kayemeth Leisrael should have become the registered proprietor.
9. The proposed defence then omits the pleading in the original defence that the defendant has the Enduring Power of Attorney of Ms Morris and had the authority to sign the transfer form to himself. It also withdrew the allegations against Mr White. The defence then purported to add a paragraph which asserted that Ms Morris's executor, Mr Samuel Benjamin, wrongly disclosed her financial assets to an employee of the nursing home where Ms Morris resided, refused to return monies to Ms Morris, and refused to return her will to her so that she could revoke it.
10. Some two weeks after I reserved my judgment in these matters, the defendant forwarded a letter to the Court giving notice that he withdrew the relief in paragraphs 1 and 3 of his notice of motion. Those prayers sought leave under the Vexatious Proceedings Act and generally to file a cross-claim.
11. The defendant relied upon six affidavits in chief sworn by him in these proceedings. The plaintiff relied on a number of affidavits including one from Mr White and one from Ms Rutstein. Shortly before the hearing, and without any direction of the Court permitting him to do so, the defendant forwarded to the Court a folder containing seven further affidavits, six of which the defendant swore, and one from a Julia Zhu. These affidavits were said to be in reply to affidavits filed and served by the defendant. In the circumstances, I permitted the defendant to rely on all of the affidavits except that of Julia Zhu. Not only was that affidavit not an affidavit in reply, but its content consisted entirely of hearsay conversations between the defendant and Ms Zhu.
12. As with the other proceedings, the evidence in each affidavit after the first was largely repetitious of the material in the preceding affidavit(s). Much of what appeared in the affidavits alleged criminality including bribery and conspiracy, as well as other wrong-doing against the plaintiff and its employees, Mr White, Mr Benjamin, Ms Rutstein, the Montefiore Home where Ms Morris resided and its employees, as well as the Prothonotary and deputy registrars of the Court. Very little of the affidavits contained admissible evidence by reason of its form, its conclusionary nature and the expression of the defendant's irrelevant beliefs.
13. The defendant relied on five sets of submissions filed between 1 November 2019 and 24 December 2019. Shortly before the hearing the defendant served and sought to rely on six further sets of submissions, said to be in reply to affidavits filed by the plaintiff. As with the affidavits, the material in those submissions was largely repetitious of what had been said previously. However, because the litigant was appearing for himself, I gave him leave to rely on all of those submissions.

Legislation

1. The Vexatious Proceedings Act 2008 (NSW) relevantly provides: 4. Meaning of "proceedings" In this Act, proceedings includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and … (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and … 5 Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and … … 14 Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section - as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. … (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. … 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. 16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must: (a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and (b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate. (4) However, the court may grant leave only if it is satisfied that: (a) the proceedings are not vexatious proceedings, and (b) there are one or more prima facie grounds for the proceedings. (4A) A grant of leave to institute proceedings made under this section includes leave to make interlocutory applications, and other procedural applications, in connection with or incidental to those proceedings, unless the grant of leave specifies otherwise. (4B) However, a grant of leave to institute proceedings does not include leave to make the following applications (unless the grant of leave specifically extends to such applications): (a) an application to join a new party to the proceedings, (b) an application to introduce into the pleadings for the proceedings a substantially new cause of action based on facts different from those already pleaded, (c) an application to remove the proceedings from one court or tribunal to another. (5) In this section: relevant person, in relation to the applicant for leave to institute proceedings, means each of the following persons: (a) the person against or in relation to whom the applicant proposes to institute the proceedings, (b) the Attorney General, (c) the Solicitor General, (d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant, (e) any person referred to in section 8 (4) (d) or (e): (i) who applied for a vexatious proceedings order in relation to the applicant, and (ii) who the appropriate authorised court dealing with the application considers should be served, (f) any person: (i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and (ii) who the appropriate authorised court dealing with the application considers should be served.

Application for recusal

1. At the outset of the hearing of the defendant's notices of motion, the defendant asked me to recuse myself, as a result of a judgment I had given involving him on 3 March 2011: Attorney -General of NSW v Bar -Mordecai [2011] NSWSC 100. The defendant asserted that I had adjudicated two matters involving him where my determinations were found to be wrong. On that basis the defendant said that I lacked objectivity to adjudicate on any matter involving him.
2. I am only aware of one matter in which I adjudicated, being the matter identified above. In that matter I was asked to answer, on a separate question application, two questions formulated by the Attorney-General in relation to the procedure to be followed involving ss 14-16 of the Vexatious Proceedings Act. The questions involved a construction of the Act. The Court of Appeal took a different view of s 14 of the Act. In giving its judgment, the Court of Appeal said that the questions formulated by the Attorney-General which I answered were inapt: Bar-Mordecai v Attorney General (NSW); Bar-Mordecai v State of New South Wales [2012] NSWCA 207. My determination was adverse to the defendant only inasmuch as I determined that leave was necessary for the filing of additional evidence to the affidavit required by s 14(3) of the Act. The Court of Appeal said leave was not necessary.
3. I informed the defendant that I would not recuse myself because the matter I adjudicated concerned only procedural and construction matters, and did not involve the determination of credit or substantive issues.

Requirements of the Vexatious Proceedings Act

1. No consideration was given by the parties to the application of s 14 of the Act in relation to the notices of motion. The term "proceedings" is defined in s 4 as including "any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings". Further, "institute" under s 5 includes "the taking of a step". In that way the defendant needed to make an application under s 14 as a preliminary to filing the present notices of motion.
2. It is not clear from the record of proceedings before Hamill J whether his Honour undertook that exercise before making the orders that he did. But, in any event, no such orders were made in proceedings 2019/162728.
3. In fairness to the defendant it should be said that in each of the proceedings he filed an affidavit on 30 November 2019 which, on its face, complies with s 14(3). However the affidavit, contrary to s 14(4), was served on the plaintiff.
4. In the light of the way the applications were conducted by the parties, I do not consider that any failure in that regard should deprive the defendant of his right to make the applications in the notices of motion. The parties seem to have accepted that, in the first instance, I was conducting the hearing referred to in s 16 of the Act, and that I had to apply the requirements of s 16(4) to the evidence and submissions heard at the hearing. If that gateway was passed, I was then considering the motions having regard to general principles relevant to amendment of pleadings and the issuing of subpoenas by litigants in person. It is also clear from the Court of Appeal's decision in Bar-Mordecai at [63] that the defendant is entitled to rely on evidence in addition to the s 14(3) affidavit.

The defendant's evidence

1. As I have said earlier, much of the material in the defendant's affidavits was in inadmissible form. However, for the purpose of understanding what the defendant seeks to achieve on his motions, I will summarise it generally without regard to its admissibility.
2. The defendant says that Elias Cohen did not have testamentary capacity when he executed his will. The basis for that is said to be a mental state examination which the defendant conducted of Mr Cohen in 2012. The defendant qualified as a medical doctor and practised for some years until he was struck off the medical roll in 2000. The defendant said that he only recorded the results of the examination in November 2019. He diagnosed Mr Cohen as suffering from dementia.
3. It is on that basis the defendant says that probate of Mr Cohen's will should be revoked, and it should be held that he died intestate because he did not have the capacity to make any will. The defendant says that he should be granted letters of administration on intestacy. On intestacy, the defendant says that the whole of his property would have passed to Ms Morris as his only living relative who would take on intestacy. The defendant says that in those circumstances he would be entitled to both Units 5 and 7 on the basis that Ms Cohen gave him both properties in December 2018. It is in that way the two sets of proceedings are intertwined.
4. The defendant's account of the gift by Ms Morris is that she gave to him two transfers signed by her. He said they had been signed in front of a person called Paula Carew. Ms Carew's signature did not appear on the transfers. For that reason, the defendant consulted Peter White. He asked Mr White to transfer the properties to him, but Mr White said that he needed to witness Ms Morris's signatures.
5. The defendant then drove Mr White to the Montefiore home where Ms Morris lived. The defendant did not go into the home with Mr White.
6. The defendant then gives inadmissible evidence about what is supposed to have occurred. He claims that Ms Morris's former solicitor, Deborah Rutstein, rang Ms Morris and told her not to transfer the properties to the defendant. He claims that Ms Morris signed the transfers again. He claims that Mr White rang Ms Rutstein to obtain the certificates of title to the units. He claims that Ms Rutstein then rang someone at the Montefiore home to tell them that Mr White had requested the certificates of title. He claims that Ms Rutstein rang someone at the plaintiff to inform them that Mr White had requested the certificates of title. He claims that someone from the plaintiff then rang Mr White and arranged for him to accept a bribe to make the two transfers null and void.
7. The Defendant claims that he went to see Mr White the next day to obtain the transfers. The defendant says that he said to Mr White: "You failed to sign as a witness the two transfer forms", to which Mr White replied, "Give them to me and I will sign them as the witness". The defendant says that Mr White took the transfer forms and drew a line through the defendant's name and address in the box entitled "Transferee".
8. Mr White sent a letter to the defendant on 23 January 2019 saying: We confirm that you do not wish us to anything further in this matter and now therefore return your Valuation Reports for the above property. We also enclose our account.
9. The defendant also put into evidence a letter he received from Mr White dated 8 April 2019 which was said to be in response to letters written by the defendant to Mr White of 20 and 25 March 2019. The letter relevantly said: At all times I acted as the solicitor for Mrs Seemah Morris and not as your solicitor. On 22 January 2019 you personally requested me to contact Mrs Morris direct. On 22 January 2019 I personally attended Mrs Seemah Morris at Montefiore. Her instructions to me were: 1. Do not transfer any of her property to Montefiore. 2. She wanted to give her property to Jewish charitable interests. 3. She did not mention your name as a Beneficiary. Clearly there would have been a Conflict of Interest to act for both you and Mrs Seemah Morris. Therefore at no time was I acting for you in these transactions.

Other evidence

1. Mr White swore an affidavit in the proceedings 2019/162728. He said that when the defendant consulted him and showed him the two transfers, each of them had a signature below the space for "Signature of Transferor" but there was no witness signature. He said the particulars of the land in each transfer were blank and the name of the "Transferee" was also blank. Mr White said that at some stage he filled in the particulars of the land and the name and address of the defendant in the box headed "Transferee".
2. Mr White said that when he went to the Montefiore home and spoke to staff at reception, he was directed to the deceased's room which was located in the Dementia Care Unit. During his conference with Ms Morris, Mr White said to her: Michael has given me these forms. He says that you signed them earlier. They have not been witnessed. I will need to see your ID before I can witness your signature. Ms Morris showed Mr White appropriate ID and proceeded to sign below the signature that she had signed earlier. Mr White then signed his signature as the witness. Mr White said to her: These forms deal with who you want to give your properties to.
3. Ms Morris said: Yes I don't want Montefiore to get their hands on it. They are to go to Jewish interests.
4. Mr White said that at no stage during his conversation with Ms Morris did she name the defendant as a beneficiary of her assets. Mr White asked her if she had a will setting out who she wanted to leave her assets to, and Ms Morris replied: Yes. My solicitor, Debbie Rutstein, prepared my Will. I have left my properties to Jewish interests.
5. Mr White said that he realised at that point that Ms Morris did not want to transfer her assets to the defendant and he crossed out the defendant's name in the "Transferee" section of the transfers. At some stage during the conference, Ms Morris's telephone rang, and she told Mr White that it was her solicitor Ms Rutstein. Ms Morris provided him with Ms Rutstein's information.
6. The following day Mr White contacted Ms Rutstein. He said to her that he understood she acted for Ms Morris. He told her that he went to see Ms Morris at Montefiore the day before, after the defendant had asked him to witness re-execution of the transfer forms giving her properties to the defendant. Ms Rutstein told Mr White that she had prepared two wills for Ms Morris and that the defendant had not been named as a beneficiary under either of those wills.
7. Subsequently, Mr White received a telephone call from the defendant who asked him to lodge caveats on Ms Morris's property to protect his interests. Mr White said he could not do that and he was unable to assist the defendant further. Later that day, the defendant came in to Mr White's office. Mr White handed to the defendant the letter he had written of 23 January together with his tax invoice.
8. Mr White annexed to his affidavit two letters of the defendant of 20 and 25 March 2019 to which Mr White replied in his letter of 8 April 2019. Those letters generally accused Mr White of acting against the defendant's instructions and acting negligently in having crossed out the defendant's names on the transfers.
9. In his affidavit Mr White said that he believed that at all times he was acting as Ms Morris's solicitor.
10. Ms Rutstein swore an affidavit in proceedings 2019/162728. She first gave evidence about the preparation and execution of Ms Morris's will of 27 July 2016 which was ultimately admitted to probate. Immediately after that time Ms Morris instructed Ms Rutstein to obtain all her significant documents including title deeds from persons or organisations who Ms Morris thought were holding the documents on her behalf. One of the documents Ms Rutstein received was a copy of the will of Mr Cohen. It was only when she saw that will that she came to know that Ms Morris only had a life interest in Unit 5.
11. Thereafter Ms Rutstein had little contact with Ms Morris until late October 2018. Ms Morris telephoned her and said that she wanted to get out of the Montefiore home. Ms Rutstein visited her there on 1 November 2018 and noted that her room was in the Dementia Unit.
12. Ms Rutstein told her that apart from wanting to get out of the home, she wanted to change her will to give the proceeds of the contents of Mr Cohen's unit to a friend in Israel who would give the money to undernourished and poor children. She also wanted to give the proceeds of the contents of her unit to the widows of servicemen and those who died in terrorist attacks.
13. When Ms Rutstein saw Ms Morris almost three weeks later they discussed the will. Ms Morris said she did not want Yael [Shudnow] to be her executor anymore because she was one of the people responsible for keeping Ms Morris in the home. When Ms Rutstein asked if she had anyone else in mind to act with Sam Benjamin, Ms Morris suggested another person from the Sephardi Synagogue.
14. She then said that she wanted to give a number of pecuniary legacies totalling some $195,000 to various persons and Jewish institutions, and said she wanted anything left over to go to the Guide Dogs. She still wanted the units to pass to the plaintiff.
15. Ms Rutstein said that during that meeting she started having doubt about Ms Morris's decision making ability because she wanted the Guide Dogs to be the residuary beneficiary in place of the Sephardi Synagogue, and it was the first time Ms Rutstein had heard her mention the Guide Dogs. Ms Rutstein was not aware that Ms Morris had ever been involved or associated with them. In the time Ms Rutstein had known her Ms Morris was always concerned to leave her estate to Jewish interests.
16. On about 28 December 2018 Ms Rutstein received a telephone call from Ms Morris asking her to remove Sam Benjamin as an executor, but when Ms Rutstein asked if she had anyone else in mind she said she couldn't think of anyone.
17. On about 9 December 2018 Ms Rutstein received a typed up letter containing Ms Morris's handwriting and signature giving notice that Ms Rutstein's legal services were no longer required, and containing a directive that Ms Rutstein was not to visit her again at the Montefiore home. The following day she received a telephone call from Ms Morris saying that she wanted to collect the will that Ms Rutstein had been working on. Later that day the defendant came to Ms Rutstein's home office and asked to collect Ms Morris's draft will. Ms Rutstein refused to give it to the defendant but went to speak to Ms Morris who was in the defendant's car. She gave her the draft will and Ms Morris wrote a cheque for her fees.
18. Ms Rutstein said on about 22 January 2019 she received a phone call from a solicitor named Peter White. Mr White said that Ms Morris had told him that Ms Rutstein held the title deeds to her two units. Mr White said that the defendant and another woman had come to see him saying that Ms Morris wanted to transfer the units to the defendant. Ms Rutstein said to Mr White: I wouldn't be doing anything at this stage. There may be issues with Seemah's capacity.
19. On 23 January 2019 she received a phone call from a Mr Ganon at the Public Guardian's Office asking if she would be prepared to be Ms Morris's lawyer for the purpose of an urgent applicant for financial management orders.

Determination

1. In relation to Unit 5, to succeed on his cross-claim and show that he has an entitlement to the unit, it would be necessary for the defendant to have the probate of Elias Cohen's will revoked, he would have to prove that Elias Cohen died intestate, and he would have to prove that Ms Morris did all within her power to perfect the gift of that unit. In relation to unit 7, the defendant would similarly have to prove that Ms Morris did all within her power to perfect the gift.
2. The defendant faces a number of difficulties in this regard. First, it is entirely inappropriate in proceedings seeking possession against the defendant for a cross-claim to be brought to obtain the revocation of a grant of probate. Any application for revocation of a grant would need to be made in separate proceedings by the filing of a statement of claim, presumably naming the executors of Mr Cohen's estate as defendants: Pt 78 r 48 Supreme Court Rules 1970 (NSW).
3. Secondly, the statement of claim must allege facts that, if proved, would show that the present defendant has standing to commence those proceedings: SCR Pt 78 r 48. In Gertsch v Roberts; The Estate of Gertsch (1995) 35 NSWLR 631 Powell J (as his Honour then was) said at 634: 2. Litigation in the Probate Division of the Court is what might be called "interest litigation", it following that, unless a person has a relevant "interest" in the estate of the particular deceased, he has no title to commence, and ought not to be made a party to, any proceedings in this Division in relation to the relevant deceased: … 3. Accordingly, although it is clear that, in an appropriate case, the Court, on the application of some person having a relevant "interest" in the relevant estate, may revoke a grant of Probate earlier made …, the person invoking the court's jurisdiction to do so must have a relevant "interest" at the time of his filing his process, in default of which his proceedings will be dismissed. (Citations omitted)
4. In Gardiner v Hughes [2017] VSCA 167, the Victorian Court of Appeal (McLeish JA, Tate and Kyro JJA agreeing) said: [89] Several principles emerge from this survey of the authorities. [90] First, in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the applicant's rights would or might be affected if the grant were to be revoked. The bare possibility of an interest will suffice. [91] Secondly, where the validity of more than one will is in issue, the applicant must establish standing by showing that his or her rights would or might be affected if the grant were to be revoked and the disputed wills were found to be invalid. Conversely, if there is a prior, undisputed will under which the applicant would derive no benefit, the applicant will lack standing to challenge the grant made in respect of the later will. [92] Finally, although an application for revocation is made in the proceeding in which probate or letters of administration were granted, there are cases in which the validity of more than one will has been put in issue in the same proceeding. Alternatively, prior wills might be in dispute in separate proceedings. By whatever procedural means the dispute has been raised, the principles stated above operate in the same manner. (Citations omitted)
5. Mr Cohen made a number of wills prior to the will now sought to be challenged by the defendant. Those wills were made (in reverse order) on 27 March 2012, 16 August 2010, 5 August 2010, 25 May 2009 and 27 March 2003. All of those wills were prepared by lawyers acting for Mr Cohen. In none of those wills was any gift made to the defendant.
6. There was no evidence from the defendant relating to Mr Cohen's capacity to make any of those earlier wills, even if the mental state examination he claims to have conducted in 2012 was admitted into evidence. The highest the evidence goes is a statement purporting to be part of the mental state examination that Mr Cohen was born with a low IQ, but that information was said by the defendant to come from Ms Morris who, in turn, obtained the information from her mother. In any event, the defendant does not plead in his proposed cross-claim that these earlier wills are challenged by the defendant, or that they are susceptible to challenge.
7. Even if all of those wills were open to challenge, it is clear from the evidence that the defendant's familial relationship with the deceased is not a relationship recognised by the laws of intestacy.
8. When I pointed out the defendant's lack of standing to challenge Mr Cohen's probate, the defendant appeared to accept that the only basis he could put forward for endeavouring to do so was that he was a whistle blower and that, in the circumstances, it was morally wrong for the probate not to be revoked.
9. Thirdly, the only evidence put forward by the defendant to suggest that Mr Cohen lacked testamentary capacity is an asserted examination that the defendant himself conducted in 2012 but made no notation of until, it would seem, the present proceedings commenced. The defendant could not be regarded in the circumstances as an expert witness, partly because of his lack of qualifications as a psychologist or a psychiatrist, partly because at the time of the examination he was struck off as a medical practitioner and, significantly, because he has a substantive interest in the outcome. I note that the evidence is not put forward as expert evidence because there is no reference to its having been prepared in accordance with the expert witness code of conduct.
10. Fourthly, the test for determining testamentary capacity is found in Banks v Goodfellow (1870) 5 QB 549. In that case, Cockburn LCJ said at 565: It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property, and bring about a disposal of it which, if the mind had been sound, would not have been made. The matters alleged to have been ascertained by the defendant on the mental state examination do not address the matters set out in that passage.
11. Fifthly, even if the defendant was able to demonstrate that Mr Cohen died intestate with the result that his property, including Unit 5, passed to Ms Morris absolutely, the defendant would need to establish that he has a right to that property as a result of Ms Morris's imperfect gift of it to him. The gift was imperfect at law in the sense that the defendant had not become the registered proprietor of the land. The issue is whether the gift was complete in equity.
12. In Corin v Patton (1990) 169 CLR 540 Mason CJ and McHugh J said at 559-560: Accordingly, we conclude it is desirable to state that the principle is that, if an intending donor of property has done everything which it is necessary for him to have done to effect a transfer of legal title, then equity will recognise the gift. So long as the donee has been equipped to achieve the transfer of legal ownership, the gift is complete in equity. "Necessary" used in this sense means necessary to effect a transfer. From the viewpoint of the intending donor, the question is whether what he has done is sufficient to enable the legal transfer to be effected without further action on his part. … The question is then whether Mrs Patton did all that it was necessary for her to do in order to effect a transfer. Two obstacles are suggested to completion of the gift. First, the certificate of title remained throughout with the mortgagee and Mrs Patton took no steps to arrange for its production for the purposes of registration. Secondly, it is not clear whether or not Mr Smallwood held the executed transfer on Mrs Patton's instructions or those of Mr Corin. Whether or not it is correct to say that the production of a certificate of title is "necessary" to achieve registration of a transfer of Torrens system land, it is apparent that a gift of such land cannot be regarded as complete in equity while the donor retains possession or control of the certificate of title: Dixon J in Brunker, Scoones v Galvin and the Public Trustee. That is because it can scarcely be said that the donor has done everything necessary to be done by him if he has retained the certificate of title, by virtue of the possession of which the gift might well be thwarted.
13. In Stone v Registrar of Titles [2012] WASC 21 Simmonds J said: [116] For there to have been a perfect gift, the donor must have done everything which it was necessary for him to have done to effect a transfer of legal title. See Bradbrook et al [12.365] quoting from Corin (559) (Mason CJ and McHugh J) and (582) (Deane J, discussing rule in detail). If the donor's conduct has failed to meet that standard, then the gift is imperfect and equity will not make its remedies available to perfect the gift, remedies which include recognition of an equitable interest in the donee. See Corin (557) (Mason CJ and McHugh J). [117] Further, for there to have been a perfect gift, the donor must have done what the donor did with the intention of parting with the donor's interest so that as against the donor the donee is entitled to obtain the legal title to the donor's interest. See Public Trustee v Jones [2007] SASC 390 [53]-[54] (Layton J), referring to Cope v Keene (1968) 118 CLR 1 at 6-7 (Kitto J, McTiernan J agreeing). [118] For the donor to have done everything which it is necessary for him to have done to effect a transfer of legal title requires the donor to have placed the effecting of the transfer within the control of the donee and beyond the control, recall, intervention or need for further assistance of the donor. See Corin (582-583) (Deane J), (559) (Mason CJ and McHugh J).
14. Although the defendant pleaded in his proposed cross-claim in proceedings 2019/96140 that Ms Morris completed all the prerequisites to make the gift complete, he accepted in his oral submissions that he could not show that Ms Morris actually requested Ms Rutstein to return the certificates of title to both units which she held. The following exchange occurred: HIS HONOUR: In relation to the proceedings number 728, which relates to the will of Seemah Morris, you say that she in effect gifted you unit 7 and she did everything within her power to perfect that gift before she died? DEFENDANT: No I don't say that now your Honour. She did most of the things but there's one contentious issue, can I explain it to you now? … … What's unknown to me is that if Seemah actually requested - requested her former solicitor Ms Rutstein to return two certificates of title or hand them over to Mr White, that's unknown to me. That would need come under cross-examination of Mr White and Ms Rutstein and also we could get copies of the telephone conversation between them on that date. So the transfer saw Seemah Morris at the age of 94, didn't do everything she should have done.
15. The evidence of both Mr White and Ms Rutstein demonstrates that at no stage was a request made by anyone to Ms Rutstein to return the certificates of title to Ms Morris.
16. Even if it is accepted that Ms Morris intended to make a gift of both Units 5 and 7, assuming that she believed that she owned Unit 5 absolutely, she did not do everything necessary for her to have done to effect a transfer of legal title to those units.
17. Moreover, the defendant gave evidence that in December 2018, Ms Morris said to him: I have decided to gift you my home being unit 7, 79 O'Donnell Street, North Bondi, by signing for you a transfer form in your favour with myself as the transferor, and you as the transferee. If you at some future date are able to prove to the Supreme Court, that I had been swindled of my brother's estate by Mr Mahemoff, an employee/gift adviser of the JNF, I will also gift you my brother's unit at 5/79 O'Donnell Street, North Bondi, by signing for you a transfer form in your favour with myself as the transferor, and you as the transferee, by way of signing two transfer forms to that effect.
18. It is clear, therefore, that any gift in relation to unit 5 was conditional on the defendant establishing in Supreme Court proceedings that Ms Morris "had been swindled of [her] brother's estate". The defendant has never fulfilled the condition. This Court has never held that Ms Morris was swindled out of her brother's estate. The gift of unit 5 fails on that basis also.
19. Finally, in the case of unit 5, the defendant cannot demonstrate that he has the requisite interest to challenge Mr Cohen's will by reason of the gift from Ms Morris. His right is only one to claim an order from the court for transfer of unit 5. The distinction between such a right and an interest sufficient to challenge a will was made clear in Whiteley v Clune and Anor The Estate of Brett Whiteley (19 March 1993, SCNSW Powell J, Unrep) and Poulos v Pellicer [2004] NSWSC 504.
20. In Whiteley, the deceased's wife had obtained an order from the Family Court after his death which gave her rights to certain assets from the deceased's estate. She sought to be appointed as an administrator of the deceased's estate on the basis of the Family Court order. Powell J (as his Honour then was) said: Put compendiously, a person will show that he, or she, will have a relevant interest if he, or she, is able to show that his, or her rights will, or may be, affected by the grant, or grants, sought in the litigation (see, for example, In re Devoy: Fitzgerald v Fitzgerald (1943) QSR 137). Thus, the executor of, or a beneficiary under, any Will other than that propounded has a relevant interest; as also do the next of kin, unless there are other Wills than that propounded, the validity of which other Wills is not impugned. However, a creditor does not have a relevant interest unless he has obtained a grant of administration (see Burroughs v Griffiths (1754) 1 Lee 544; 161 ER 201; Dabbs v Chisman (1810) 1 Phill. 159; 161 ER 946; Menzies v Pulbrook (1841) 2 Curt. 845; 163 ER 605). Although Mrs Whiteley has, pursuant to an Order, or Orders, made by Rowlands J in the Family Court in October, or November, 1992, certain rights against the Estate of the Deceased, which rights, as I understand it, are a right to choose a number of the Deceased's paintings and a right to share in the proceeds of sale of others of the Deceased's paintings, in the events which have happened, she has no rights under either the May 1989 Will - the original validity of which is not subject to challenge - or under either of the two informal Wills, if they were in fact made. Such rights as Mrs. Whiteley has against the Estate of the Deceased being akin to those of a judgment creditor, and not derived from a Will made by the Deceased, and still less being those of one of the next of kin of the Deceased, it follows that she has no relevant interest in these proceedings.
21. In Poulos, Windeyer J identified the issue in that case in these terms, at [1]: The question for decision is whether a wife of a man, whose mother has died leaving a will giving all of her very large estate to a niece, which will has the effect of revoking a former will giving everything to her son, has an interest so as to entitle her to defend proceedings for a grant of letters of administration with the will annexed of the later will, the wife being engaged in property adjustment proceedings against the husband in the Family Court of Australia.
22. It was agreed that if the son inherited the whole estate from his mother, there would be a substantial sum of money out of which the Family Court would be able to make an order for the benefit of the wife. Justice Windeyer considered Whiteley and a number of other cases, and said: [19] It might seem to follow from these decisions the defendant caveator in the present case has no interest entitling her to contest the will of the deceased. Her interest in the estate, if it could be said to be that, is even one step further away from the interest of Mrs Whiteley. Mrs Whiteley had an entitlement to part of the assets of the estate pursuant to a court order. The defendant has the possibility of obtaining an order that part of any moneys which Mr John Culina may receive from the estate of his mother should go to her. It is not a direct or even an indirect interest in the estate.
23. His Honour then discussed a number of other cases including Gertsch, and concluded at [24]: None of these conclusions can assist the defendant in this action. Her interest is far more remote. It is a claim for an order for transfer of property from her husband to herself and the expectation of a more favourable order if her husband inherits the estate of his mother. In terms of the cases discussed it is not direct or indirect or derivative. It is conditional upon an order being made which may not be made. It is a hope without assignment. I consider it is too remote.
24. In the same way in the present case, the defendant's interest is a claim for an order that the units be transferred to him on the basis that Ms Morris had done all within her power to perfect the gift of the units. His interest is conditional on that order being made, and it may not be made. It is not an interest in the estate of Mr Cohen.
25. In relation to the defendant's application to file a cross-claim in proceedings 2019/96140, the defendant does not demonstrate that there is a prima facie ground for bringing that cross-claim for the reasons I have given. In those circumstances I am obliged to dismiss the application pursuant to the provisions of s 15 of the Vexatious Proceedings Act. Even if the defendant did not need to overcome that hurdle, the position is that the proposed cross-claim does not disclose a reasonable cause of action. In such circumstances it would be futile to permit the defendant to proceed with it.

Proceedings 2019/96140

1. As far as the proposed amended defence in proceedings 2019/96140 is concerned, the following matters lead to the conclusion that the proposed amendments should not be allowed. First, the proposed amended defence seeks to withdraw admissions earlier made.
2. The principles associated with withdrawal of admissions are set out in Drabsch v Switzerland General Insurance Co Ltd (Supreme Court of NSW, Santow J, 16 October 1996, unreported). In Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Rogers CJ Comm D held that even if admissions were made in error in some cases leave may not be given to withdraw them. His reliance in that case on Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Full Court of Supreme Court of Victoria, 8 April, 1988, unreported) suggests that if admissions are made by self-induced mistake that may justify a refusal to grant leave to withdraw them - see at 744D, 748G and 749. A failure to explain properly why the admissions was wrongly made may be fatal - see at 749-750; and see also Maile v Rafiq [2005] NSWCA 410 at [95]. Nor will it be essential for the other side to show prejudice if the admission is withdrawn: Coopers Brewery at 746.
3. I also note what was said by Campbell J in Candy v GIO General Ltd [2013] NSWSC 810 at [53] to [64] about the change in approach which has taken place since the Civil Procedure Act 2005 (NSW) came into force, by reason of ss 56 to 58, coupled with the High Court's decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Campbell J points out that some of the earlier statements, particularly by Santow J in Drabsch, minimising the weight that is to be given to court efficiency and case management may no longer be good law. I have also had regard to what was said by Ward J in Le Meilleur Pty Ltd v Jin Heung Mutual Savings Bank Co Ltd [2011] NSWSC 1115 at [307] - [312].
4. The defendant has not provided any explanation of why he made the admissions that he did and what information was available to him, nor why the admissions that he made were not true.
5. Secondly, the amended defence relies upon the claim that Mr Cohen's will was invalid and the grant of probate was invalid. For the reasons I have earlier given, there is no evidence to justify either a claim being made on that basis or the present proceedings being defended on that basis.
6. Thirdly, the defendant now wants to assert that the plaintiff is not the true or correct owner of the property because both the will of Mr Cohen and the will of Ms Morris left the units to Keren Kayemeth Leisrael. The evidence of the plaintiff (and indeed the wills on their face themselves) demonstrate that Keren Kayemeth Leisrael and the plaintiff are relevantly the same organisation. In any event, the plaintiff is the registered proprietor of the two units and the defendant does not have standing to challenge its right to possession of the land.
7. Finally, the High Court said in Aon at [103]: The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings [Queensland v J L Holdings (1997) 189 CLR 146]. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.
8. I note that Queensland v J L Holdings (1997) 189 CLR 146 was a decision relied on by the defendant on the present applications. However, no explanation has been offered for why, some five months after the defendant filed and served his defence, the present application is brought to amend the defence. It is not discernible from any evidence relied upon by the defendant that the matters he now seeks to raise were not known to him at the time his original defence was filed.
9. I would not, for this reason alone, have rejected the defendant's application to amend, but the lack of any explanation is a further consideration leading to my determination that leave to amend should be refused.

Proceedings 2019/162728

1. In relation to the proposed amended defence in proceedings 2019/162728, the defendant purports to withdraw admissions of the matters alleged in paragraphs 2, 4 and 6 of the statement of claim. For reasons earlier given, the defendant should not be permitted to withdraw those admissions.
2. The defendant wishes to add sub-paragraph (p) in that proposed defence. Those sub-paragraphs are said to be the steps taken by Ms Morris to perfect her gift of the property to the defendant. Paragraph (p) reads as follows: The Deceased's executor Mr Samuel Benjamin, a part-time clerk at the Sephardi Synagogue: (i) Breached the Deceased's trust on 5.12.2018, by disclosing her financial assets to the Montefiore social worker, and the Deceased in response on 10.012.2018 revoked his Power of Attorney. (ii) Refused to return to the Deceased, her monies of $36,000.00 wherein she had changed her mind, and did not want the celebration of her Jewish funeral rites following her death to be orchestrated by him or anyone else; (iii) Refused to return to the Deceased, her Last Will and Testament so that she could revoke it, so to circumvent his refusal and to circumvent her last Will, the Deceased gifted her money and Property to the Defendant during her lifetime in January 2019.
3. The defendant should not be given leave to add this paragraph to the defence. He now accepts that Ms Morris did not do everything within her power to perfect the gift of the property. In any event, the matters contained in sub-paragraph (p) do not touch on steps that she needed to take to perfect the gift, and they otherwise do not provide any defence to the claim for possession of the unit.
4. The proposed defence also purports to omit two sub-paragraphs relating to the defendant's appointment as Enduring Power of Attorney and in relation to assertions of wrongdoing on the part of Mr White. It is not necessary for an amended defence to be filed for the defendant to withdraw reliance on those sub-paragraphs. In any event, they also fall within the group of paragraphs said to be steps whereby Ms Morris perfected her gift to the defendant.
5. Minor changes are made to two other sub-paragraphs listed amongst those steps. Where the defendant accepts that the gift was not perfected, these amendments should not be permitted.
6. Finally, no explanation is given for the delay and why the amendments are sought.

Subpoenas

1. In proceedings 2019/96140 the defendant also seeks in the notice of motion for leave to issue subpoenas "to prove clinically that the late Elias Cohen suffered from severe dementia in 2012". It should be noted, first, that he sought leave from a Deputy Registrar in respect of three of those subpoenas, and was refused leave. His only remedy in that regard is to seek a review of the Deputy Registrar's decision.
2. However, leave should not be given either to issue the other subpoenas nor to review the Deputy Registrar's decision because, not only would the issue of the subpoenas be futile, the defendant would be engaging in a fishing expedition. It would be futile because proof that Mr Cohen was suffering from dementia in 2012 would not throw any light on his position when he made all of the earlier wills I have detailed. It would result in a fishing expedition because the defendant does not have admissible evidence of a lack of testamentary capacity to justify a perusal of the medical records held by the various doctors and hospitals concerning Mr Cohen's condition.
3. In proceedings 2019/162728, the defendant seeks leave to issue subpoenas to Telstra in relation to a large number of phone calls made between phones belonging to Ms Morris, Ms Rutstein, Mr White, Mr Benjamin, Ms Shudnow, the Chief Executive of the plaintiff and the employee of Montefiore Homes to whom Ms Rutstein spoke. The issue of the subpoenas is said in the notice of motion "to prove that the plaintiff bribed Mr Peter White to pervert the course of justice and cross out the name of the defendant, as transferee". There is no evidence that provides any basis for an allegation either that the plaintiff bribed Mr Peter White nor that they together or separately engaged in a perversion of the course of justice. Those matters are baseless conclusions the defendant has reached as a result of Mr White crossing out his name on the transfers.
4. Mr White's actions are only relevant to the cross-claim that was previously sought by the defendant to be brought in these proceedings, and also to his claim in the defence in those proceedings that Ms Morris had taken all necessary steps to perfect the gift. The cross-claim has now been abandoned, and the defendant has now abandoned his claim that Ms Morris perfected the gift.
5. The basis, in any event, for the subpoenas appears to be a belief on the part of the defendant that Telstra actually records what is said in every telephone call made through its network. Such is not the case. If it was so, Telstra would be constantly in breach of s 7 of the Surveillance Devices Act 2007 (NSW).
6. Leave to issue the subpoenas should be refused.

Conclusion

1. I make the following orders: 1. In proceedings 2019/96140, 1. The defendant's notice of motion filed 11 September 2019 is dismissed. 2. The defendant is to pay the plaintiff's costs. 1. In proceedings 2019/162728, 1. The defendant's notice of motion filed 16 September 2019 is dismissed. 2. The defendant is to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2020