plaintiff. Extension of time to seek review granted on terms. Registrar's costs order of 2 September 2019 left undisturbed. Preliminary discovery ordered in relation to Swaab Attorneys' file on preparation of...
Key principles
Preliminary discovery under UCPR r 5.3 requires only that it appear the applicant 'may' be entitled to make a claim for relief; the threshold is low and does not require a prima...
UCPR r 5.3 does not authorise preliminary discovery against a party for the purpose of deciding whether to sue a third party who is not a prospective defendant to the...
UCPR r 5.2 is limited to discovery to ascertain the identity or whereabouts of a prospective defendant and cannot be used to obtain documents concerning the merits of a potential...
The court has a discretion when ordering preliminary discovery and may impose conditions to protect defendants, including payment on account of costs and security for compliance...
Issues before the court
Whether the Registrar's dismissal of a summons for preliminary discovery under UCPR Pt 5 should be reviewed out of time.
Whether UCPR r 5.3 permits preliminary discovery to obtain documents concerning a potential negligence claim against the deceased's solicitors who...
Plain English Summary
The minors Joel and Sam, by their tutor, sought the deceased solicitor's firm file to investigate possible claims challenging the January 2016 will. The Registrar refused discovery; the tutor sought review and an extension. The Supreme Court (Parker J) granted the extension and ordered limited preliminary discovery of the firm's file on the low 'may' threshold of UCPR r 5.3, but refused discovery to enable a decision about suing the firm's solicitors (because r 5.3 cannot be used to obtain documents for potential claims against non‑parties). Because the claim to revoke probate on knowledge and approval grounds was weak but not hopeless, discovery was ordered on protective terms to mitigate defendants' prejudice: the tutor must pay $18,500 on account of costs and provide security as required, and the registrar's costs order stands. The matter was adjourned for further directions.
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Deep Dive
1,821 words · generated 27/07/2026
Whether Joel and Sam (through their tutor) 'may' have a claim to challenge probate on grounds of lack of knowledge and approval so as to justify...
Whether a tutor acting for minors should be required to give security for defendants' costs or pay money on account before obtaining disclosure.
Cited legislation
3 cited instruments linked from this judgment.
What happened
Facts and procedural history in brief. The deceased, Mr Frederick Swaab, a senior solicitor, made a will in January 2016 that created two discretionary testamentary trusts and included cl 6.4 allowing his widow, Judith, to take residuary assets directly with the agreement of one co‑executor (Ms Pott) (see facts summarised in the judgment). Probate in common form of that will issued in June 2016. Judith invoked cl 6.4, the trusts were not constituted and much of the estate passed to her. Two grandchildren, Joel (born 2004) and Sam (born 2007), brought an originating summons (by their tutor, Collin Levi) seeking preliminary discovery from Swaab Attorneys: copies of instructions, conferences, the solicitor's file and former wills to investigate possible claims, including (i) solicitor negligence in preparing the will, (ii) a challenge to the grant of probate on grounds the deceased lacked knowledge and approval of the will, and (iii) rectification under s 27 of the Succession Act 2006 (NSW). The Registrar in Equity dismissed the preliminary discovery application on 2 September 2019 and ordered costs against the plaintiffs. The tutor sought review of the Registrar's decision and an extension of time to seek that review. Parker J heard the extension and merits issues on 12 and 18 August 2020, ultimately granting conditional review relief: he ordered preliminary discovery of the firm file relating to the January 2016 will but only on terms designed to protect the executors (notably a payment on account of costs of $18,500 and prospective requirements for security), and left the Registrar's costs order intact. Proceedings were adjourned to 6 October 2020 for further directions (see final orders).
Why the court decided this way
Two distinct legal pathways determined the outcome.
Threshold for preliminary discovery (UCPR r 5.3). The court emphasised the low threshold of r 5.3: the applicant need only show that it 'may' be entitled to bring a claim; the rule does not require a prima facie or pleadable cause ([Knowledge and approval] section). Parker J stressed that the rule should be beneficially construed, and that discretion serves as the brake against excess (he cites the Federal Court and appellate authorities and warns against mechanically adopting a stricter test from federal jurisprudence) (see the judgment's discussion at paragraphs addressing Hely J's approach, Hatfield and O'Connor). On the evidence available to him at the review hearing, the judge concluded the challenge to the grant of probate for lack of knowledge and approval was weak but not so insubstantial as to be incapable of satisfying the r 5.3 'may' threshold. Accordingly, preliminary discovery to investigate that possible claim was permissible.
Limits of r 5.3 and appropriate scope of relief. The court applied Morton v Nylex to hold that r 5.3 cannot be used to obtain documents from a third party with a view to deciding whether to sue that third party when that third party is not a prospective defendant to the existing proceedings. In consequence, the proposed preliminary discovery to decide whether to sue Swaab Attorneys (the firm) could not properly proceed under r 5.3 or r 5.2 (which is limited to identifying the identity or whereabouts of a prospective defendant). The court therefore refused discovery insofar as it was directed at enabling a decision on suing the firm. However, discovery narrowly directed to assessing whether Joel and Sam 'may' have a claim against the executors (and indirectly whether the grant of probate could be challenged or the residue recovered from a beneficiary under Diplock principles) was permissible.
Exercise of discretion and protective terms. Even though the 'may' threshold was crossed, Parker J placed weight on the defendants' prejudice: probate had issued; assets had largely been distributed; there were no liquid estate funds to meet defence costs; and the Registrar had already ordered costs which remained unpaid. The plaintiffs sued by a tutor, a self‑appointed representative, and costs would be ordered against the tutor. These features justified conditioning discovery, specifically requiring an on‑account payment and security for compliance, so that defendants were not left unprotected by an arguably weak claim. The court therefore granted restrained relief: discovery of the firm file but on terms (payment on account of $18,500 and likely security for costs), and left the Registrar's costs order intact.
Before and after state of the law
Before: Authorities such as Morton v Nylex drew limits around preliminary discovery, particularly where the applicant sought documents to decide whether to sue third parties not already prospective defendants. Federal decisions (Hely J’s approach in St George Bank v Rabo) had sometimes been read to require an inclination of mind towards the proposed cause of action; that is a stricter threshold than the UCPR text.
After: Parker J reaffirmed that UCPR r 5.3's text requires only that it appear the applicant "may" have a claim, a comparatively low threshold. He warned that federal tests should not be mechanically imported into the NSW UCPR context. At the same time, the decision reiterates that r 5.3 does not permit preliminary discovery to facilitate deciding whether to sue a third party who is not a prospective defendant (Morton affirmed in the NSW context). The practical upshot: broader access to a prospective defendant's documents where the applicant 'may' have a claim, but courts will exercise discretion to protect defendants, particularly where proceedings are brought by a tutor and where estate assets have been distributed, by imposing security or payment-on-account conditions.
Key passages with plain-English translation
UCPR r 5.3 quotation (judgment): the court printed the rule and then said the rule requires only that the applicant 'may' have a claim. Plain English: the gate to preliminary discovery is low. If there is a real possibility, not proof, the applicant may get documents to decide whether to sue.
On Morton v Nylex (judgment): "Rule 5.3 does not authorise ... to enable a plaintiff to decide whether to sue third parties." Plain English: you cannot use r 5.3 to force a non‑party (a third‑party solicitor in this case) to produce its file simply to see whether you'll sue them; r 5.3 targets prospective defendants to existing proceedings.
On discretion and protective terms: "I think the best course is to make the order he seeks, but on terms calculated to give the executors reasonable, if not complete, protection on costs." Plain English: the judge will give the plaintiffs some access to the documents, but only if they first put up money and likely security so the executors do not suffer unpaid defence costs.
On the weak but arguable nature of the claim: the judge itemises standing issues, the discretionary structure of the will, and the deceased’s obvious professional competence, all pointing to a weak challenge; yet he concluded the claim was not so feeble as to fail the 'may' test. Plain English: though the case is unlikely to succeed on the evidence, it's not hopeless, so disclosure can proceed subject to cost protections.
What fact patterns trigger this precedent
Cases where a potential beneficiary (or person acting for a prospective beneficiary) seeks preliminary discovery of a solicitor’s file or other documents to investigate whether to challenge a will on knowledge/approval grounds, but the will has already been admitted to probate and assets distributed.
Situations where the applicant sues by a tutor or other representative for minors, and there is a real risk that defendants will incur defence costs which cannot be met from estate funds.
Applications where the identity of the prospective defendant for a different cause of action (for example, suing the drafting solicitor) is known, but the applicant attempts to use r 5.3 to obtain documents to decide whether to sue that third party.
Any preliminary discovery application fitting the r 5.3 'may' standard but where defendants face clear prejudice from unpaid costs or dissipated estate assets, calling for protective terms.
How later courts have treated it
As this is a single Supreme Court ex tempore decision (Parker J), its treatment will depend on subsequent citation. The judgment does three things that lower and appellate courts will note: (1) affirms the low 'may' threshold for r 5.3 in NSW; (2) confirms Morton v Nylex's limitation about not using r 5.3 to decide whether to sue third parties who are not prospective defendants; and (3) demonstrates practical judicial willingness to impose cost‑protective conditions, including payments on account and security for compliance, particularly where a tutor sues on behalf of minors. Later courts will likely follow this approach when balancing access to documents against defendants' potential costs prejudice. Where cases involve similar facts (probate already granted, assets distributed, tutor acting, possible weak substantive claim), judges can be expected to impose payment/security terms prior to disclosure.
Still-open questions
Precise limits on discovery aimed at third parties: While Parker J applied Morton v Nylex to refuse discovery to decide whether to sue a non‑party solicitor, there remains room for argument about situations where the documentary file held by a prospective defendant (for example, an executor) could reveal third‑party wrongdoing. Distinguishing those situations from the Morton scenario could produce further litigation.
Quantum and form of security: Parker J required a lump sum on account ($18,500) and signalled potential future security for costs but did not fix a formula. Subsequent cases will need to develop guidance about how much constitutes reasonable protection and whether personal undertakings, bank guarantees or other forms of security are appropriate particularly when applicants are minors represented by a tutor.
Interaction with Probate Act protections: The court noted that PAA s 92 protects executors from liability for distributions unless they had 'notice' of a claim at the time of distribution. The judgment observed that whether distributions after May 2018 were protected would be a contentious factual/legal matter. How discovery and interim orders interact with s 92 and with the question of 'notice' remains ripe for further authoritative rulings.
Conduct and standing of self‑appointed tutors: Parker J was critical of a self‑appointed tutor acting against the wishes of the custodial parent. The scope of judicial control over who may act as tutor and when courts will require additional safeguards for such tutors needs further refinement.
Relationship between r 5.3 and r 5.4 (third‑party discovery): The judgment treated r 5.4 as not applicable to preliminary discovery, citing Kimberley Securities. More detailed treatment of when r 5.4 or other discovery mechanisms may be invoked in overlapping contexts might be required.
Practical takeaways for practitioners: when seeking preliminary discovery in probate contexts, frame the application tightly to show a real possibility a prospective defendant's documents relate to a claim (meet the 'may' test), be prepared for the court to impose cost‑protective conditions (especially if suing by a tutor or where estate funds are low), and do not expect r 5.3 to be a vehicle to compel documents from third parties simply to decide whether to sue them.
Judgment (11 paragraphs)
[1]
Judgment - EX TEMPORE
Revised from transcript; issued 24 August 2020
12 August 2020:
Before the Court is an application to review a decision of the Registrar in Equity dismissing the plaintiff's application for preliminary discovery under Pt 5 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The application is out of time, and an extension of time is therefore sought as well.
The potential claims to which the plaintiff's application for preliminary discovery related concerned the testamentary arrangements of the late Frederick Swaab. He was a solicitor and the senior partner of the Sydney firm Swaab Attorneys. He died of cancer in March of 2016. In the rest of this judgment, I will refer to him as "the deceased".
The deceased was survived by his widow, Judith Swaab, whom he married in 1972. Together, they had two daughters, Nicole Lisa Levi and Jessica Anne Kawalsky. Nicole married Mark Darren Levi. Together, they have two sons. Joel Simon Levi was born in August 2004. Sam Levi was born in May 2007. For convenience, and without disrespect, I will refer to the members of the deceased's family by their given names.
Joel and Sam are the named plaintiffs in these proceedings. Both are under the age of eighteen, and the proceedings have been brought by Collin Levi as their tutor. Collin Levi is Mark Levi's father, and thus grandfather to Joel and Sam.
The defendants in the proceedings are the deceased's widow Judith, and Ms Bronwyn Pott. Under the deceased's last will, which was made in January 2016, they were appointed as his executors. Probate of the will, in common form, was granted to them in June 2016. Ms Pott was a longstanding friend of the deceased, and had worked with him at Swaab Attorneys.
[2]
Facts, evidence and procedural history
The terms of the deceased's last will are lengthy. Clause 5 contained some specific gifts of jewellery, personal effects, motor vehicles, and household contents. The residue of the estate was divided into half shares, each to be held in accordance with the terms of a trust established under the will.
The two trusts were referred to in the will as the Frederick Swaab No 1 and No 2 Testamentary Trusts. Both were discretionary trusts giving the trustee full power to appoint capital or income to any one of a class of defined beneficiaries. For the No 1 trust, the beneficiaries were:
(1) Judith;
(2) Nicole;
(3) any child or descendant of Nicole;
(4) any corporation or trust in which an individual beneficiary was a director or held a share or other entitlement or interest.
The trustee under the No 1 trust was named as Judith. There were complicated alternative provisions in the event that she was unable or unwilling to act. Apart from referring to Jessica rather than Nicole, the No 2 trust was in the same terms.
Clause 6.4 of the will had the effect that, despite these elaborate provisions, the trusts were potentially defeasible. The clause provided that if Judith so requested, and the deceased's executors (that is, Judith and Ms Pott) agreed, Judith should be entitled to take, by direct payment or transfer as a specific gift, the whole or any part of the residue of the deceased's estate that was intended for the trust in question. The trust would not come into existence at all if Judith requested, and the executors agreed to her taking, the whole of the assets intended for that trust.
The effect of these provisions was to give Judith a very great degree of control, if not total control, over the assets of the deceased's estate. As trustee of each of the trusts, she was able to appoint any or all of the assets of the trust to herself at any point. The provisions of cl 6.4 allowed her, subject only to Ms Pott's agreement, to take the assets directly from the estate without the interposition of the trust at all. The will also purported to confer on Judith, as trustee, absolute discretion in the exercise of her powers and the entitlement to exercise any power or discretion given to her under the will as if she were not a trustee and were under no fiduciary obligation in exercising such power or discretion.
The major asset owned by the deceased was a half share of the matrimonial home which was registered in his and Judith's name as joint tenants. In the inventory of assets sworn for the purpose of the grant of probate, the property was valued at $6.6 million.
In the inventory there was an estimated further $3.5 million in assets belonging to the deceased in his own right. About $1.8 million of that represented four million shares in a company called Pure Profile Limited. It also included a home unit at Batehaven on the south coast of New South Wales and a one quarter interest in what appears to be a commercial property at Bondi Junction. The share of the Bondi Junction property was estimated to be worth $250,000. It is unnecessary to set out in detail any of the other assets, apart from noting that they included loans to various people, including a loan of approximately $90,000 to Nicole and Mark Levi.
[3]
Extension of time
Counsel for the executors made three main points in answer to the application for an extension. The first concerned the length of the extension sought.
As I have mentioned, the Registrar's decision was given on 2 September last year. The "material date" for the purpose of challenge to that decision by way of review was 28 days after the date of the decision, namely 30 September: UCPR r 49.20(2). The application was not filed until 23 December, almost three months after that date had expired. Counsel submitted, correctly in my view, that, having regard to the nature of the application, this was a relatively long delay.
Counsel's second point concerned the explanation offered by Mr Levi for his failure to bring review proceedings within the time prescribed by the rules. Counsel submitted that, even taking into account Mr Levi's state of mind following his wife's death, and his hospitalisation in November, the evidence did not really explain why it had taken almost four months to bring the application.
Counsel submitted that the loss of three months was not fully accounted for. Counsel pointed out also that over this period there had been correspondence, first to Mr Balasubramanian and then to Mr Levi himself, about the costs of the proceedings which had been awarded by the Registrar.
Mr Levi cannot have been unaware that he had failed in the proceedings, or that he was being pursued for costs. That was something which would ordinarily have encouraged a litigant to consider whether there was a right of review or appeal. But there is no evidence at all from Mr Levi or from Mr Balasubramanian about what passed between them over the period between the delivery of the Registrar's decision and the filing of the review application.
Counsel's third point concerned the costs of the proceedings. There are two aspects to this.
First, the executors face the difficulty, so far as payment of their own costs are concerned, that there are no liquid funds in the estate. It should be emphasised that defending the estate's interests is not a matter of choice for the executors, it is their obligation. The fact that there are no liquid funds to do so is a source of prejudice to the executors, and prolongation of the proceedings will only make that worse.
The second point, which compounds the prejudice, is that the executors have been awarded costs which have not been paid.
[4]
Preliminary discovery application
Although the summons had sought other documents, the focus of the application, as it was pressed before me, concerned Swaab Attorneys' file on the preparation of the January 2016 will. The principal basis of the application was UCPR r 5.3. That relevantly provides:
Discovery of documents from prospective defendant
(1) If it appears to the court that -
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
Counsel for Mr Levi identified three claims for relief for the purposes of r 5.3(1)(a). These were:
(1) a claim against Swaab Attorneys for negligence in the preparation of the will;
(2) a claim against the executors contesting the deceased's knowledge and approval of the terms, or all of the terms, of the will; and
(3) a claim for rectification of the will under the Succession Act 2006, s 27.
[5]
Solicitors' negligence
In Morton v Nylex Ltd [2007] NSWSC 562 at [27], White J (as his Honour then was) said:
Rule 5.3 does not authorise the making of an order for preliminary discovery to enable a plaintiff to decide whether to sue third parties. The order can only be made against a prospective defendant where it appears that the applicant may be entitled to make a claim against that person.
Counsel for the executors submitted, based on this reasoning, that r 5.3 was not available for the purpose of obtaining documents concerning a potential claim against Swaab Attorneys. That form is not a defendant in these proceedings.
Counsel for Mr Levi submitted that r 5.3 was not so limited. He relied on sub-rule (4) which relevantly provides:
This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.
But in my opinion, this sub-rule covers the situation where a party to existing proceedings wishes to decide whether or not to bring a cross-claim against a third party. That is not the present case. Applying what White J said in Morton v Nylex Ltd, r 5.3 is inapplicable.
Counsel for Mr Levi relied in the alternative on r 5.2. That rule relevantly provides:
Discovery to ascertain prospective defendant's identity or whereabouts
(1) This rule applies if it appears to the court that -
(a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and
(b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.
The difficulty with relying on this rule in the present case is that the rule is limited to obtaining information to ascertain the identity or whereabouts of the prospective defendant. In the present case, the identity of the prospective defendant is quite clear. Swaab Attorneys is available to be sued if Mr Levi chooses to do so. An order for the production of documents concerning a potential claim against that firm cannot be made under r 5.2.
[6]
Knowledge and approval of will
As I have already mentioned, probate in common form has already been granted for the January 2016 will. Most, but not necessarily all, of the assets in the deceased's estate have been distributed to the deceased's widow, Judith, pursuant to the terms of that will.
In the course of submissions, counsel for Mr Levi explained how the claim would be pursued in practice. The first step would be to bring proceedings against the executors seeking to have the grant of probate revoked in whole or in part.
So far as partial revocation is concerned, counsel referred to Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. That case concerned a will containing a provision which, through the gift of a majority shareholding in a family company, gave practical control of the assets of the estate to one of the deceased's children, to the exclusion of the other. Robb J found that the deceased lacked the capacity to satisfy the requirement of knowledge and approval of the provision in question. His Honour made an order admitting the will, but not the offending provision, to probate.
Counsel submitted that in the present case the provisions giving Judith complete discretionary control over the assets of the estate, including cl 6.4, could be excluded from probate, leaving the testamentary trusts to operate for the benefit of Nicole and her children.
As it seems that the assets remaining in the estate are of limited value, this would not, of itself, make a great deal of difference from Joel and Sam's point of view. And counsel accepted that, on the face of it, the executors would be protected by the Probate and Administration Act 1898 (NSW) ("PAA"), s 92, from any claim by Joel and Sam with respect to assets already distributed. But that section does not apply to a claim of which the executors, at the time of distribution, had "notice". As I understood counsel's submission, he did not concede that distributions made after May 2018, when Mr Balasubramanian first wrote to Ms Ross-Maranik, would be protected by s 92.
Should there come to a debate about this question, it is likely to be controversial. It would be a matter for argument as to whether, even now, the potential claim by Joel and Sam has been articulated clearly enough that it could be said that the executors have "notice" of it. But it is not necessary to pursue this any further.
[7]
Rectification claim
It is not necessary to say much about this potential claim. It is similar in nature and in its potential outcome to the claim based on lack of knowledge or approval.
Counsel for the executors pointed out that the one year limitation period on the claim has now expired and an extension would be required. This would create yet a further level of difficulty in pursuing the claim. But since, for practical purposes, it adds little to a challenge to knowledge and approval, I do not propose to address it any further.
[8]
Review of Registrar's decision
I must of course take account of the fact that I am considering the application for preliminary discovery by way of review of the Registrar's earlier decision. The parties agreed that the principles I should apply are those stated in Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [52]. The Court has a discretion as to whether, and if so how, to intervene in the Registrar's decision. There is an onus on Mr Levi to make out a case, in the interests of justice, for doing so. An appealable error in the decision would be a good reason for intervening, but it is not always necessary to demonstrate error. And in the case of a decision which finally determines a party's rights, or which has a decisive impact on those rights, the Court may be more willing to intervene.
In the present case I do not know what the grounds for the Registrar's decision were. Although either party might have obtained the transcript and put it before me, I think that counsel for the executors is correct in submitting that the onus lay on Mr Levi, as the party seeking review, to do so. In the circumstances I cannot be satisfied that there was any error either of principle or of fact in the Registrar's decision.
On the other hand, I think that, as a matter of substance, the Registrar's decision should be seen as one affecting the parties' rights. The evidence of Mr Balasubramanian was that he felt unable to advise on the bringing of any claim until he had obtained the documents in question. In those circumstances the dismissal of the application effectively meant the end of the potential claim.
Another relevant factor is that there was further evidence from both sides on the hearing before me which was not before the Registrar. It is also reasonable to suppose the application may have been argued with more precision.
On balance, I have decided that I should deal with the application on its merits as they appear to me. But that has one immediate practical consequence. As I am not satisfied that there was any error on the part of the Registrar, having regard to the evidence and argument before her, I see no reason, even if I decided to grant the relief sought in the summons, why I would disturb the costs order she made. That order should stand whatever the outcome of this application.
[9]
Security for costs of proceedings brought by tutor
Before proceeding further I should say something about the implications for the exercise of my discretion of the fact that these proceedings have been conducted by Mr Levi as tutor for Joel and Sam. So too, presumably, would any claim ultimately made against the executors as a result of obtaining the documents in question.
In argument counsel for the executors referred to UCPR r 42.21(1)(e). That rule provides:
[T]hat a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so
Counsel for the executors submitted that, as Mr Levi does not benefit personally from proceedings he brings as tutor, the rule applies to such proceedings. Accordingly the Court has power to order Mr Levi to provide security for the costs of such proceedings.
In response, counsel for Mr Levi argued that the "plaintiff" for the purpose of such proceedings is not Mr Levi, but Joel and Sam. I have some reservations about this. As we will see, any costs order made in these proceedings will be made against Mr Levi, not against Joel and Sam. It would be strange if Mr Levi were the person against whom any costs order is made, but were not treated as the plaintiff for the purpose of providing security for those same costs. Ultimately, however, I do not need to resolve the debate.
The Court has power to appoint and remove a tutor. In that sense the tutor conducts proceedings under the ultimate control and authority of the Court. The tutor's position is analogous to that of a trustee: Murray v Kirkpatrick (1940) 57 WN (NSW) 162 at 163.
In my view it follows that the Court has inherent power to see that any proceedings on behalf of Joel and Sam are properly and responsibly conducted by Mr Levi as tutor. Obviously this involves ensuring that such proceedings are conducted strictly in the interests of Joel and Sam, without regard to any personal interests which Mr Levi or his son Mark may have. But there are also the interests of the executors as defendants to consider. I have no doubt that in a proper case the Court could require a tutor acting as plaintiff to give security for the defendant's costs so as to avoid the proceedings operating oppressively.
[10]
Exercise of discretion
This brings me back to the merits of the application, and in particular to the exercise of my discretion. For reasons I have given, the potential claim is not a strong one. I am also troubled by the prejudice to the executors in having to meet the costs of defending a claim against the estate when most if not all of the assets have been distributed, especially when there is a question-mark over Mr Levi's ability to meet any costs which might be awarded against him. And if it is likely that Mr Levi would be required to provide security for the executors' costs of any proceedings which he might bring (and counsel for the executors indicated that an application would be made if any such proceedings were commenced), one may ask what would be the point of ordering the production of documents when there is no evidence that he would be able to put up such security.
In the end, however, I am not prepared to use my discretion to shut Mr Levi out completely. I think the best course is to make the order he seeks, but on terms calculated to give the executors reasonable, if not complete, protection on costs. I proceed on the basis that the power under r 5.3 is discretionary and this allows the Court in the exercise of its discretion to impose conditions upon the grant of relief. In any event terms can be imposed on the grant of the necessary extension of time.
The terms I consider should be imposed are twofold. First, Mr Levi should pay a sum of money to the executors on account of the costs orders made against him in these proceedings. This would include any costs awarded against Mr Levi on the extension application itself, as well as the costs order already made by the Registrar. Second, Mr Levi should be required to provide security for the cost of compliance with the order.
I do not propose at this stage to impose any terms concerning the costs of proceedings ultimately brought. If that point is reached, then, as I have mentioned, there will be an application for security for costs and the matter can be dealt with then.
(The proceedings were adjourned to allow counsel for Mr Levi to obtain instructions on his client's willingness to submit to the terms foreshadowed.)
18 August 2020:
The application has returned before me today for the purpose of making final orders. The first issue that I must determine is the question of the costs of the application.
[11]
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: 24 August 2020
Extension of time to seek review granted on terms. Registrar's costs order of 2 September 2019 left undisturbed. Preliminary discovery ordered in relation to Swaab Attorneys' file on preparation of the January 2016 will, but granted on protective terms: the plaintiff (tutor) ordered to pay $18,500 on account of costs to the defendants, and the proceedings adjourned to 6 October 2020; further security for costs may be required if substantive proceedings commence.
At some point after the deceased's death, Judith decided to invoke the defeasance procedure under cl 6.4 of the will. She requested Ms Pott's agreement to transfer to her all of the residuary assets, with the result that neither trust would be constituted. Ms Pott gave her agreement. Apparently she took the view that the level of control Judith would have even if the trusts were established meant that there was no real point in doing otherwise.
During the deceased's lifetime, Mark Levi had a long-running dispute with ASIC. He is, or was, a liquidator, and ASIC took some form of disciplinary action against him. The deceased assisted him with advice and encouragement in the litigation with ASIC, which began in 2010 and lasted for about seven years.
Nevertheless, the evidence suggests that the deceased had some reservations about Mark's influence over Nicole. He also appeared to have had some doubts about whether the marriage would last. In cl 9 of his will, the deceased said that he intended that, given "recent legal and financial difficulties involving" Mark, Mark would not receive any benefit from the estate and he would never have control of either testamentary trust.
As it happened, Nicole challenged the will by way of a family provision claim. As part of her claim she alleged that her mother had agreed to give her $2 million. In pursuing the claim, she appears to have been supported, if not encouraged, by Mark. According to Ms Pott, Judith was very upset by some of the texts which Nicole and Mark sent her (the texts themselves were not in evidence, but it does not appear to be disputed that the relationship broke down).
Meanwhile, Mark and Nicole's marriage was failing. Eventually, Nicole left Mark and reconciled with her mother. She withdrew her family provision application. Nicole retained custody of Joel and Sam but there were disputes with Mark about custody and access arrangements which became the subject of family law proceedings.
The reconciliation, and resulting withdrawal of Nicole's family provision application, appears to have occurred at some point between February and May 2018. On 15 May, acting on instructions from Mr Collin Levi, Mr Bharath Balasubramanian of Marsdens Law Group wrote to Ms Monica Ross-Maranik of Keypoint Law, the solicitor for the executors. The letter stated:
We refer to the above and advise we act for Joel and Sam Levi.
…
Could you please provide us with:
1. copies of any earlier Wills of the deceased; and
2. copies of any instructions provided by Mr Swaab relating to the 13 January 2016 Will.
We look forward to your prompt response.
Ms Ross-Maranik responded by email on the same day. She wrote:
We acknowledge receipt of your letter. As both of your clients are minors, please advise the identity of the alleged tutor upon whose instructions you are acting.
Your 'clients' are not eligible persons within the meaning of section 57 of the Success Act (NSW).
We are not instructed to comply with your request for the following reasons:
1. We do not accept the documents you seek are captured by section 54 of the Succession Act, which we assume is the legislative basis for your request; and
2. We do not hold any copies of any will instructions of the deceased for any wills prepared by or on behalf of the deceased.
In responding as she did, Ms Ross-Maranik seems to have assumed that the purpose of the request was to gather information for the purposes of a possible family provision application on behalf of Joel and Sam. Hence her reference to their not being eligible persons under s 57 (which appears to have been correct). Section 54 of the Succession Act 2006 (NSW), to which Ms Ross-Maranik referred, provides a mechanism whereby certain classes of person, including the deceased's family members, may obtain inspection, or a copy, of any will of the deceased. Again, Ms Ross-Maranik appears to have been correct in stating that documents recording the deceased's instructions concerning the January 2016 will were not covered by s 54.
Mr Balasubramanian did not respond to the request to identify the tutor on whose instructions he was acting. In fact he did not reply at all.
More than nine months later, on 1 March 2019, Mr Balasubramanian filed the originating summons in these proceedings. The documents sought in the summons were:
(a) All documents … (including but not limited to correspondence) within their power, possession or control, whether in hard copy or in electronic form, relating to:
(i) Instructions provided for the drafting of the last will and testament (the Will) of the Late Fredrick Swaab;
(ii) Any conferences with the Late Fredrick Swaab regarding the Will or his testamentary intentions.
(b) The file maintained by the solicitors relating to the Will.
(c) Any former wills and/or testaments of the Late Fredrick Swaab.
In support of the application affidavits were filed from Mr Levi and Mr Balasubramanian. Mr Levi's affidavit deposed, in a generalised form, to having been told by Mark and Nicole about the deceased's treatment for cancer from 2015 until his death in March 2016. The affidavit stated that Mr Levi had been told that:
…
(e) In later 2015 and early [the deceased] was in hospital and was in and out of consciousness and was on many drugs including morphine and was hallucinating.
(f) In one instance [the deceased] thought he was at a birthday party instead of being in the hospital and was upset that none of the people had invited him.
(g) On another occasion [the deceased] told Nikki and Mark that all the nurses were out to kill him and to get him.
In his affidavit, Mr Balasubramanian stated that he had been instructed to investigate whether Joel and Sam "have grounds to make a claim on the estate and any other causes of action". Mr Balasubramanian went on to say that he lacked sufficient information to determine whether Joel and Sam did have a claim "against the estate". The affidavit contained no details of the contemplated cause or causes of action.
In response, Ms Pott swore an affidavit denying that the deceased suffered from any lack of testamentary capacity and setting out the history of the various wills which he had made. It emerged from this that the deceased had previously, in 2015, made a will in almost the same terms as the one which he made in March 2016. Before that, in 2010, the deceased had made a will in favour of Judith. There were earlier wills which it is not necessary to go into. At no stage did the deceased make any direct provision for Joel and Sam (or his other grandchildren).
Judith also swore an affidavit in June 2019. That affidavit contained updated information about the assets which had been in the deceased's name (ownership of the former matrimonial home at Bellevue Hill would have passed to Judith by survivorship and the deceased's share would not have formed part of the estate).
According to the affidavit, the Batehaven property had been sold and the proceeds paid over to Judith as beneficiary. The deceased's quarter share of the Bondi Junction property had not been sold; instead it was intended to transfer the share into Judith's name as beneficiary. The affidavit estimated the share's value to be between $150,000 and $170,000.
The affidavit stated that the 4 million shares in Pure Profile Limited were still registered in the deceased's name but would be transferred to Judith. There had been a dramatic decline in their value and they were now estimated to be worth only $100,000. One of the loans had been repaid but another (apart from small amounts) had not and was unlikely to be repaid. The $90,000 loan to Mark and Nicole had not been repaid and the affidavit noted that they were embroiled in family law proceedings.
The affidavit recorded that a bank account had been established for the estate at an earlier point but that, before the preliminary discovery proceedings had been commenced, the remaining funds had been paid over to Judith and the account had been closed. The estate thus had no liquid funds to meet the costs of the proceedings.
The hearing of the summons was allocated to the Registrar and fixed for 2 September 2019. Written submissions were provided in advance of the hearing, which are in evidence before me. The Registrar heard the application and dismissed it with costs.
The Registrar did not deliver formal reasons for judgment, either orally or in writing. But I was informed that she made extensive observations about the merits of the application which would have been recorded on the transcript. However, neither party had the transcript taken out and it was not in evidence before me.
On 27 September, Ms Ross-Maranik wrote to Mr Balasubramanian noting the costs order which had been made by the Registrar and offering, on behalf of the executors, to accept payment of $18,800. This was calculated at 70 per cent of the solicitor/client costs incurred by the executors, and 100 per cent of counsel's fees. When, after a follow up on 6 November, there was no response from Mr Balasubramanian, and having noted that he appeared no longer to be acting for Mr Levi, Ms Ross-Maranik directly wrote to Mr Levi on 27 November, seeking payment.
Mr Levi did not respond. Instead, on 23 December, after the end of law term, Mr Balasubramanian filed the notice of motion for review of the Registrar's decision, and for an extension of time, that is before me. Ms Ross-Maranik wrote again to Mr Levi in January but again received no response and the costs ordered by the Registrar remain unpaid.
In support of the application for an extension of time, Mr Levi has filed a further affidavit. The affidavit recorded that Mr Levi's wife, who had been ill with cancer for some time, stopped responding to her treatment in 2019 and died on 11 August, shortly before the hearing before the Registrar. Mr Levi also recorded that he had his own heart condition to deal with. He said:
Because of my grief over my wife's passing and my heart condition, I was distracted and not paying attention to matters to do with the litigation. Whilst I was aware generally that the Court had declined to make an order for the Estate to discover documents, during September 2019 I did not appreciate that I had a limited time to exercise a right to review that decision. With the benefit of hindsight, it is evident to me that I was not thinking clearly at that time, having then recently buried my wife, grieving and then being concerned with treatment for my own heart condition, and did not appreciate the fact a review ordinarily had to be filed within 28 days.
The affidavit went on to record that Mr Levi had surgery for his heart condition on 6 November. He stated that he gave instructions to Mr Balasubramanian concerning the application for review and extension "in December".
Mr Levi's affidavit also contained further evidence in support of the existence of a claim against the deceased's estate by Joel and Sam. Mr Levi said that he was told by Mark that, in the course of encouraging Mark to contest the proceedings brought against him by ASIC, the deceased told Mark that he intended that Nicole and the children would be looked after in the deceased's will. Shortly before the hearing of the application, an affidavit was filed by Mark giving direct evidence of these alleged conversations, and of the alleged effect the deceased's cancer treatment had on the deceased's mental capacities, as recounted in hearsay form in Mr Levi's earlier affidavit. Mark's account was denied in an affidavit sworn by Nicole.
As part of the preparation for these proceedings, affidavits were served on behalf of the executors going to the financial capacity of Mr Levi to pay the costs so far awarded against him. The relevant parts of the affidavits were not ultimately read and so are not in evidence on this application. But there is no evidence that Mr Levi has the ability to meet the costs which have been awarded against him or which may be awarded against him in future proceedings. And as I understood counsel for Mr Levi, he invited me to infer that the proceedings are being conducted by Mr Levi's legal representatives on a contingency basis.
I feel the force of the points made by counsel for the executors. But I must say that the last one involves a prejudice that is to some extent self-inflicted.
As I will explain shortly, I think that it would probably have been possible for the executors, when the proceedings were originally commenced against them, to obtain some form of security for the costs of their defence. Indeed I was informed from the Bar Table, without objection, that at an early stage of the proceedings a timetable was agreed which specifically allowed for the executors to make such an application. But they did not make one. The unpaid costs order made by the Registrar therefore cannot be a source of prejudice so far as the extension application is concerned.
Similarly, it would have been open to the executors to argue that the extension application should not be entertained unless security had first been provided for the further costs associated with the review application. But no application of that sort was made either. Instead, the case was listed before me on the basis that it would be a concurrent hearing on the extension application and, contingently, the merits of the review application. I quite understand why that may have been a convenient and cost‑effective course for the executors to follow, but it means that the possibility of the executors incurring further unpaid costs on the review application cannot be a weighty discretionary factor.
On balance, and with hesitation, I have decided that I should grant the extension sought, but the grant will be on terms designed to protect the executors from further prejudice in terms of costs. I will return to this question when I have considered the discretionary factors which apply to the review application itself.
Counsel for Mr Levi also faintly relied on r 5.4, but the rule does not deal with preliminary discovery at all, rather it permits third party discovery to be made in the course of existing proceedings: Kimberley Securities Ltd v Byrne [2008] NSWSC 1214.
For these reasons, I consider there is no justification for the production of documents by way of preliminary discovery so far as a potential claim against Swaab Attorneys is concerned.
The main thrust of counsel's submission concentrated on what came next. Counsel contended that even if the estate assets could not be recovered from the executors, they could, under the principle in Re Diplock [1948] Ch 465, be recovered from Judith as a wrongly paid beneficiary. This principle only applies where the plaintiff has exhausted his or her rights against the executors, but, presumably, to the extent that the executors are protected by PAA s 92, there would be an available claim.
Counsel for the executors argued that a claim contesting the deceased's knowledge and approval of the will was not maintainable, or at least was so weak as to be negligible. In particular, counsel submitted that Joel and Sam would have no standing to bring such a claim. Counsel pointed out that before the deceased made the January 2016 will he had made a will in very similar terms in the previous year. According to counsel's submission, therefore, the interests of Joel and Sam's interests were not relevantly affected by the 2016 will. And if one went back beyond the 2015 will, to the will made in 2010, Joel and Sam would have no interest at all in the estate.
Counsel for the executors added, as I understood his argument, that the evidence in support of the claim was weak and the likelihood of obtaining revocation of the will sufficient to remove the dominant position of Judith was non-existent. Counsel also observed that even if a challenge to the will succeeded, then it would only open up the possibility of Judith making a family provision application herself.
The test under r 5.3 is not a demanding one so far as the strength of the potential claim is concerned. All that is required is that it should "appear to the Court" that the applicant "may be entitled to make a claim for relief". It is well established that the Court does not need to be satisfied that there is a pleadable claim, let alone a prima facie one.
Counsel for the executors relied on the test formulated by Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 at [26(d)] (citations omitted):
[B]elief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action.
This passage was quoted by the Court of Appeal in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 at [49]. But Hely J was applying the Federal Court rule, which is in different terms. It requires that there be "reasonable cause to believe that the applicant has or may have the right to obtain relief".
This difference was noted by the Court of Appeal in O'Connor v O'Connor [2018] NSWCA 214 at [27]-[28]. The Court also emphasised that deciding whether the applicant "may" have a claim should not result in a mini-trial concerning the merits of the proposed claim; including, it seems, its legal merits: see at [70]; see also Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 257 FCR 62 at [119].
In my view, a judge sitting at first instance in this Court must now be very cautious about applying the test formulated by Hely J. There is a risk that mechanical application of that test will result in the Court taking too narrow a view of what is required under the terms of its own rules. The simple fact is that under UCPR r 5.3 all that is required is a possibility, namely, that the applicant "may" have a claim. I invited counsel for the executors to refer me to authority in which the Court had concluded that a claim was so insubstantial that it failed to pass this attenuated test, but counsel was unable to do so.
Another point which Hely J referred to in St George Bank v Rabo concerned the role of discretion in a preliminary discovery application. He said at [26(a)] (citations omitted):
[T]he Rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case
This principle of construction does not depend upon the particular terms of the rule being applied. What Hely J said was quoted with approval by the Court of Appeal in Hatfield (at [52]) and O'Connor (at [27]). As I understand it, the principle requires the court to take a broad view of what is required to satisfy the requirement that the applicant "may" have a claim, and to deal with any injustice which may result from that broad view by way of the exercise of the court's discretion.
I think there is great force in the submissions by counsel for the executors about the difficulties which would face a potential challenge to the deceased's knowledge and approval of the January 2016 will. For me, three points stand out.
First, there is the question of standing. It must be remembered that Joel and Sam derive their status as potential objects of the deceased's bounty through their mother, Nicole. It is far from clear that even if the deceased had in mind that they should ultimately benefit from his estate, this would have resulted in specific bequests to them, as distinct from making provision for their mother, Nicole, on the assumption that she in turn would provide for them.
The second point concerns the structure of the 2016 will (and its predecessor, the 2015 will). That structure was aggressively discretionary. It is very difficult to see how the Court could achieve the effect of giving Joel and Sam vested interests in some part of the deceased's estate simply by drawing a blue pencil through clauses or words in the will.
The third difficulty, to my mind, is the sheer unlikelihood that an experienced and successful solicitor such as Mr Swaab, assisted as he was by members of his firm, could have come to make a will which he did not properly understand or approve of. I appreciate that Mr Swaab was undergoing treatment for cancer for the last months of his life, but it is well known that people facing that disease and who have several months to prepare for their deaths are able to get their testamentary affairs in order. The mere allegation that there were times that Mr Swaab was affected by his medication (which Nicole relevantly disputes) hardly amounts to a likely case for saying that no will prepared in the three months before his death could have been valid.
Despite these difficulties, however, I think that it would go too far to decide that the potential claim is so feeble that the requirement in the rule is not satisfied. I propose to proceed on the basis that Joel and Sam "may" have a claim for revocation of the grant of probate in whole or in part, and to address the weakness of the claim, along with other factors, when I come to consider the exercise of my discretion.
In the course of argument counsel for Mr Levi asserted that if the proceedings were unsuccessful, costs would be awarded directly against Joel and Sam, but counsel clarified his position in a later written submission. As I understand it, counsel accepts that any costs orders made in the proceedings would be made against (or in favour of) Mr Levi as tutor. Mr Levi would have a right of indemnity against any assets that Joel and Sam might have, but only for costs which have been properly and reasonably incurred: Shapiro v Jacobson [2014] NSWSC 1960 at [35].
This means that if the proceedings ultimately succeed, it is likely that Mr Levi would obtain a right of indemnity against Joel and Sam's assets. But if the proceedings fail the chances of indemnity are unlikely: compare Re Beddoe [1893] 1 Ch 547.
This underlines the unusual circumstances in which these proceedings are being conducted by Mr Levi. He is acting as a self-appointed representative of Joel and Sam, in circumstances where he is not their guardian and the bringing of the proceedings is presumably contrary to the wishes of Nicole, Joel and Sam's mother, who is the custodial parent. To the extent that costs are incurred in defending the proceedings which are not recovered from Mr Levi, those costs will ultimately fall on the residual assets of the estate and reduce the benefit from that estate to Joel and Sam's grandmother, with whom their mother has now reconciled.
In my view on the face of it there is a strong argument that if Mr Levi wishes to intrude into, and try to disturb, the deceased's testamentary arrangements in this way, the Court should require him to ensure that, if he is unsuccessful, that does not result in loss being imposed on the estate. I think that if Mr Levi were to obtain the documents he seeks and were to commence proceedings, it can be expected that he would be required to provide security for the executors' costs of defending those proceedings.
In my judgment of 12 August I indicated that I propose to leave the costs order made against Mr Levi by the Registrar on 2 September 2019, that he pay the executor's costs of the proceedings, stand. Counsel for Mr Levi submits that I should clarify, if not vary, that proposed order. Counsel contends that the executors should bear the general costs of the proceedings on the ground that Mr Levi has eventually been successful in obtaining relief.
Counsel submits that this means that Mr Levi should pay the defendant's costs of the earlier proceedings, limited to the costs of the hearing before the Registrar on 2 September 2019, but that the executors should otherwise pay Mr Levi's costs of the proceedings. The result of this would be two costs orders which would be set off against each other. It seems that counsel assumes that if such orders were made the balance, if anything, would be in Mr Levi's favour.
I think there are three points to make by way of response to these submissions.
The first is that it would be too narrow to limit the portion of the costs order that stands to the costs of the hearing before the Registrar on 2 September 2019 only. Consider, for instance, the costs of preparing the affidavits which were put before the Registrar at the hearing. Those affidavits proved inadequate to satisfy the Registrar, on the arguments that were presented, that a preliminary discovery order should be made. That decision has not been challenged. If I were to make an order in the form sought by Mr Levi's counsel, those "general" costs of the proceedings would be borne by the executors. I do not think that that would be right.
The second point is that it is an accepted principle that where a party requires an extension of time, the costs of the application for that extension will be borne by that party unless the respondent's opposition is wholly unreasonable: Holt v Wynter (2000) 49 NSWLR 128 at [121]. As I pointed out in my earlier judgment, the explanation offered by Mr Levi for the failure to commence the review application in time was not really adequate. Mr Levi succeeded only by the skin of his teeth in obtaining the extension which he sought. The executors' resistance to the application was reasonable and, accordingly, the executors should also recover at least the costs of the further proceedings attributable to the extension application.
The third point is that although Mr Levi succeeded in obtaining a preliminary discovery order, again, it was a success only by the skin of his teeth. As I explained in my earlier judgment, there are manifest difficulties with the proposed cause of action which ultimately form the basis for my conclusion that the plaintiff had satisfied the requirements of rule 5.3. Had I been applying a test which required me to be satisfied as a matter of probability, or even an inclination of mind, that the proposed claim is viable, I would not have decided to order preliminary discovery. I only did so because I considered that the plaintiff had, barely, satisfied the undemanding test of making it appear to the Court that Joel and Sam "may" have a claim of the sort foreshadowed.
Counsel for the executors has not sought any costs order in their favour apart from leaving the costs order made by the Registrar to stand. In the circumstances, I think justice will be done if that order, covering as it does the general costs up to 2 September 2019, is allowed to stand, and I make no order for the costs of the proceedings after that date.
(The Court intimated that it would fix an amount to be paid on account of the costs liability. Counsel addressed on quantum and on whether an undertaking should be required to pay the sum in question. The Court agreed that rather than requiring an undertaking, orders should be made fixing the sum to be paid on account of costs and the date of payment, and adjourning the proceedings for the making of final orders after the date for payment.)
The orders of the Court are:
I order that the plaintiff pay to the defendants the sum of $18,500 on account of costs to be ordered in these proceedings.
I adjourn the further hearing of the proceedings to 6 October 2020 at 9.30am.