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Representation: Counsel: A McInerney SC (Justin McCarthy and
Hulak Foundation Pty Ltd as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation (New Foundation))
N Kulkarni (Anthony Atkinson and Stephen Farr)
J Svelha (EA & N Hulak Foundation Pty Ltd as trustee of the Ernest Anton & Natalia Hulak Foundation (Existing Foundation))
S Balafoutis SC/R Clark (Chief Commissioner of State Revenue)
P Singleton (Attorney General for New South Wales)
Solicitors: MacRae Lawyers (Justin McCarthy and
Hulak Foundation Pty Ltd as trustee of the Ernest Anton Hulak & Natalia Oglesnev-Hulak Foundation (New Foundation))
Dempseys Law Firm (Anthony Atkinson and Stephen Farr)
MWA Lawyers (EA & N Hulak Foundation Pty Ltd as trustee of the Ernest Anton & Natalia Hulak Foundation (Existing Foundation))
Crown Solicitor (Chief Commissioner of State Revenue)
Crown Solicitor (Attorney General for New South Wales)

File Number(s): 2025/470242
2025/483164
2026/0129322

Publication restriction: None

EX TEMPORE JUDGMENT (REVISED)

1. The Court has before it three motions, with the primary issue being whether a separate question should be determined as to the proper construction and, if necessary, rectification of the will of the late Ernest Anton Hulak made on 22 December 2017, with codicils not presently relevant.

2. Mr Hulak died on 30 April 2019 and probate of the will and codicils was granted on 5 July 2019 to the executors, being Mr Stephen Farr (Mr Hulak's longstanding accountant) and Mr Anthony Atkinson (Mr Hulak's longstanding solicitor and the draftsman of the will).

3. Mr Hulak was of Ukrainian origin and was obviously successful in business. The sworn value of Mr Hulak's estate for probate was $133 million, consisting largely of 83 properties, valued at $89 million. After specific devises totalling, on my rough calculation, something less than $10 million, the residue of the estate was bequeathed, putting it loosely, to a charitable company to be applied for charitable purposes. Those charitable purposes - again speaking at a high level of generality - include the support of the arts and the relief of child poverty both in Australia and the Ukraine. The fact that these proceedings concern a substantial charitable trust is an important factor in the exercise of the Court's discretion on the present applications.

4. It is an understatement to say that the issues that have arisen in relation to the will and its charitable gift are complex. Apart from judicial advice applications, there are five substantive proceedings before the Court. These are referred to by the parties and the Court as the indemnity proceedings (in which I am currently reserved), the construction suit, the executors' proceedings, the trust administration proceedings, and the duty appeal proceedings.

5. The active parties and their representatives are:

6. Messrs Atkinson and Farr as the executors and trustees under the will, for whom Mr N Kulkarni of Counsel appears;

7. What is referred to as the "Existing Foundation", for which Mr J Svehla of Counsel appears;

8. Mr Justin McCarthy (who was appointed an additional trustee by Messrs Atkinson and Farr and then purportedly removed in disputed circumstances) and what is referred to as the "New Foundation", for whom Mr A McInerney of Senior Counsel appears;

9. the Chief Commissioner of State Revenue, for whom Mr S Balafoutis of Senior Counsel appears with Mr R Clark of Counsel;

10. the Attorney-General for New South Wales (as guardian of charities), for whom Mr P Singleton of Counsel appears.

11. The Existing Foundation and the executors press for separate question****s as to the construction and, if necessary, rectification of the will (although Mr Svehla for the Existing Foundation seemed to suggest that some additional issues relating to the duty dispute with the Chief Commissioner should also be included). The primary argument was advanced by Mr Kulkarni for the executors, supported by Mr Svehla. The other parties opposed the separate questions and urged the Court that all issues should be finally determined at the one hearing. The Court has had the advantage of written submissions and a half-day of oral argument.

12. For the reasons which follow, the Court will not order the separate questions and will commit the resolution of the construction suit, the executors' proceedings, and the trust administration proceedings to be heard together at one final hearing, the date for which I will fix today. I will do so because, without criticising anyone, the history of the proceedings to date suggests that their efficient preparation will be facilitated by the parties now having the certainty of appointed hearing dates to work towards.

13. Four preliminary points should be noted.

14. First, the idea of the separate questions has an initial attraction. However, as I next develop, that attraction does not survive closer analysis in the circumstances of this case.

15. Second, part of that attraction is that the hearing of the separate questions would take two days, whereas a hearing of all issues is likely to take up to ten. I have given weight to that as a matter in favour of the separate questions.

16. Third, there was no dispute about the applicable principles in relation to the ordering of separate questions under UCPR Part 28 r 28.2.

17. Fourth, Mr Atkinson, as the person who took Mr Hulak's instructions and drafted the will, will be the critical witness on the rectification suit. He will also be a very important witness in relation to the other issues raised in the various proceedings.

18. Without disrespect to Mr Kulkarni's thorough submissions, they may be distilled into two propositions. First, answers to the separate questions in favour of his clients would render all the other issues raised by the various proceedings otiose, thereby achieving a likely final outcome in two days rather than ten. Second, the evidentiary scope of the separate questions was limited, especially insofar as cross-examination of Mr Atkinson would be concerned, if that cross-examination was confined to the evidence immediately relevant to the separate questions (both as to time period – a matter of months – and subject matter).

19. The reasons the Court does not accept those submissions and agrees with those advanced by the opponents of the separate questions are as follows.

20. First, the discretion to order the separate questions must be exercised to give effect to the overriding purpose (see Civil Procedure Act 2005 (NSW), s 56). The prospect of a shorter hearing is not of itself always in accord with the overriding purpose. A longer hearing, carefully case managed to focus on the real issues in dispute, can accord with that purpose. This case is an example of the latter. The fact that half a day has been occupied in extensive argument about whether or not there should be separate questions (and I make no criticism of counsel) fortifies me in the conclusion that, to use James Joyce’s words, “longest way round is shortest way home”.

21. Second, the Court starts with the presumption that all issues should be determined in the one hearing. Persuasive reasons are required to depart from that presumption, and the Court is entitled to take into account, as it does, its own experience of the success or otherwise of separate questions. Certainly in my experience, they are only successful when they are very limited as to scope and rarely should be allowed where there is a prospect that the same witness will be cross-examined both on the separate questions and then, if necessary, in relation to the balance of the issues. That proposition applies with all the greater force where the witness is a critical witness such as Mr Atkinson.

22. Third, given what is at stake, an appeal from the determination of the separate questions is inevitable. A remitter to deal with the balance of the issues is not out of the question. That will be avoided by a single hearing at first instance. Where the litigation concerns a charity, and in this case such a substantial one, in my respectful opinion there is a strong public interest in having all issues resolved at once and multiple hearings at first instance and on appeal avoided. Especially given the purposes of this charity and the current situation in the Ukraine, if this charity is to get on with its work, the less time it is paralysed by litigation and the sooner it is put into a position of certainty, the better.

23. Fourth, while the Court has no final view, at least at a high level there is force in two submissions advanced by Mr Singleton for the Attorney-General:

24. While certainly far from unarguable, the positions advanced on construction and rectification by their proponents are not the obvious ones, having regard to the evidence to which the Court has been taken today.

25. The outcome in this case is not necessarily a binary choice between the Existing Foundation and the New Foundation. The fate of the residue comprising the charitable gift may fall between the two as a matter of fact even on a consideration of the separate questions, which would then require a number of difficult issues to be addressed.

26. Fifth, there will be cases, such as those referred to by Mr Kulkarni (see, for example, the decision of Parker J in Camilleri v Kane [2020] NSWSC 447), where cross-examination and credit findings on a limited issue of a critical witness, such as Mr Atkinson, would not count against separate questions where that witness would have to be cross-examined again in a later hearing. Dispositively against the present applications, the Court accepts the submissions of the opponents, especially those put by Mr McInerney of Senior Counsel, that this is not such a case, for at least two reasons.

27. First, the scope of the factual inquiry on both construction and rectification with Mr Atkinson (and Mr Farr potentially) will be much wider than the limited time period and file notes concerning the preparation of the will that was suggested by Mr Kulkarni. This submission was focussed on matters of substance that would be put to Mr Atkinson and was not directed to matters going to credit.

28. Second, the Court would not confine any cross-examination of Mr Atkinson on the separate questions to the limited scope suggested by Mr Kulkarni. For example, it would be completely unrealistic and unfair to the other parties for the Court to, as it were, unsee or ignore the serious issues raised about Mr Atkinson's administration of the charitable trust under the will in the trust administration proceedings and prevent those being explored both as to matters of substance and credit in his evidence about the construction and rectification of the will.

29. In other words, the Court is well satisfied that the cross-examination of Mr Atkinson on the separate questions would inevitably traverse evidence relevant to the balance of the issues raised in the various proceedings. Mr Atkinson's evidence in chief and his cross-examination should, for that reason, only happen once and the Court should make its findings about the reliability of that evidence (whether as a whole or as to its parts) against the background of all of the evidence being led and tested.

30. For these reasons, the application for the determination of separate questions will be dismissed. I will hear the parties as to costs and discuss suitable dates for the final, combined hearing of the construction suit, the executors' proceedings, and the trust administration proceedings. I will reserve to the next directions hearing further consideration of whether the duty appeal proceedings can and should also be heard with the other three proceedings.

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Amendments

03 August 2026

correction of solicitors name in representation