Nobarani v Mariconte [2016] NSWCA 175 | Case summary

Nobarani v Mariconte [2016] NSWCA 175 | Case summary | Zoe

Judgment

EMMETT AJA: On 22 May 2015, a judge of the Equity Division (the primary judge) ordered the grant of probate in respect of the last will of the late Iris McLaren (the Deceased). The orders were made in a probate suit brought by Ms Teresa Mariconte, the respondent in these proceedings, against Mr Homayoun Nobarani, the appellant in these proceedings. In the probate suit, Ms Mariconte sought the grant of probate in solemn form in respect of the Deceased's will, following the filing of a caveat by Mr Nobarani, who had sought to propound an earlier will. After a two day trial, the primary judge found that Mr Nobarani was not a credible witness and ultimately ordered him to pay the costs of the probate suit.
On 18 June 2015, Mr Nobarani filed notice of intention to appeal from the orders of the primary judge and, on 21 August 2015, he filed a notice of appeal. The notice of appeal clearly does not comply with the rules and makes no attempt to specify grounds of appeal. On 18 September 2015, Ms Mariconte filed a notice of motion seeking an order that the appeal be dismissed as incompetent. Mr Nobarani filed notices to produce in the appeal proceedings. Ms Mariconte filed an amended notice of motion on 23 November 2015 seeking, in addition to an order that the appeal be dismissed as incompetent, orders that the notices to produce be set aside.
The amended notice of motion came before Tobias AJA on 14 December 2015, when his Honour ordered that the notices to produce be set aside. However, his Honour did not regard the notice of appeal as incompetent, since Mr Nobarani had standing to file the notice of appeal, he did not need leave to file it and it was filed in time. Nevertheless, his Honour was of the view that the notice of appeal failed to comply with the provisions of r 51.18 of the Uniform Civil Procedure Rules (UCPR), which required that the notice of appeal state briefly but specifically the grounds relied on in support of the appeal. Rather, as his Honour observed, the notice of appeal was more in the form of a narrative submission responding to practically every paragraph of the judgment of the primary judge.
Tobias AJA therefore ordered that the notice of appeal filed on 21 August 2015 be struck out, but granted leave to Mr Nobarani to file an amended notice of appeal complying with the rules. Such amended notice of appeal was to be filed on or before 2 February 2016.
On 2 February 2016, Mr Nobarani filed a further document entitled "Notice of Appeal". Not only did the second document exhibit the same faults as the first, it contained additional material and not less material. Accordingly, by notice of motion filed on 2 March 2016, Ms Mariconte sought an order that that notice of appeal be dismissed as incompetent. The second notice of motion also sought an order that leave be refused to allow any further amended appeals, and, in addition, sought orders under the Vexatious Proceedings Act 2008.
I am not persuaded that the conduct of Mr Nobarani warrants intervention under the Vexatious Proceedings Act 2008 and I do not propose to make an order in that regard. Indeed, it would be fair to say that counsel for Ms Mariconte did not press unduly heavily for such an order.
On the other hand, it is clear that the notice of appeal filed on 2 February 2016 should not be permitted to stand and I propose to order that it be struck out. The only question is whether or not Mr Nobarani should be given leave to file a third notice of appeal, and if so, upon what terms.
One matter that leads me to conclude that it would be appropriate to give leave is that, in the course of the hearing before Tobias AJA on 14 December 2015, Mr Nobarani said that he had made eight attempts to obtain the transcript of the hearing before the primary judge. There is some dispute as to whether or not those attempts were made. However, I will for the moment assume that some attempt had been made before 14 December 2015, although it may be that the attempts that had been made up to that time were to obtain copies of the recordings of the proceedings rather than a transcription of the recordings.
In the course of argument on 14 December, Tobias AJA asked counsel for Ms Mariconte whether it was possible to provide Mr Nobarani with a copy of the transcript of the hearing before the primary judge and was told that it was. His Honour addressed the solicitor then instructing counsel for Ms Mariconte, and said that it was a burden but asked whether, in order to resolve the matter, it would be possible for a copy of the transcript to be made and given to Mr Nobarani. The response was that the solicitor thought he could get it by email and could forward it through the email system. The matter ended by his Honour observing, "That solves that".
However, it appears that, upon the change of solicitors for Ms Mariconte, instructions were given that a copy of the transcript was not to be made available to Mr Nobarani. The reason for that is not clear. It may be, of course, that to do so may have infringed copyright and that a transcript is provided only on the payment of a not insubstantial sum.
Be that as it may, the transcript was not provided and the second notice of appeal was filed on 2 February 2016. By that stage, of course, Mr Nobarani was well aware that he was not going to be provided with the transcript. He made no further application to the Court for an extension of time to file the amended notice of appeal.
On 25 February 2016 Ms Mariconte's solicitors wrote to Mr Nobarani confirming his attendance at Court on 24 February 2016 when a fixture was made by the registrar for the hearing of any application to strike out the amended notice of appeal. The letter specifically said that Mr Nobarani should further amend his notice of appeal and should do so as soon as possible and should have that ready at Court on 14 March 2016.
On 1 March 2016, the solicitors wrote again to Mr Nobarani confirming that it was clear from the decision of the primary judge that the will of the Deceased had been proved and that probate had been granted to Ms Mariconte. The letter indicated that there were deficiencies in the grounds of appeal contained in the notice of 2 February 2016. Specifically, Mr Nobarani was told that the notice of appeal: "(1) failed to state the basic nature of the challenge to the judgment; (2) failed to comply with UCPR pt 51, r 51.18; (3) failed to identify the real issues; (4) failed to identify any error of law; (5) failed to identify the findings that the primary court should have made; (6) failed to state the nature of any contentious evidence that was the subject of wrongful admission or rejection; and (7) failed to state any reasonable grounds which showed that the primary judge was wrong in refusing to grant an adjournment."
That appears to have prompted some further steps on the part of Mr Nobarani to endeavour to obtain the transcript. He had, during February, received three emails concerning the transcript and the mechanism that had to be adopted in order to obtain the transcript. He gave oral evidence that he provided details of a credit card and bank account on 3 March 2016 and that the cost for the transcript was debited to his bank account on 4 March 2016. He asserted that, notwithstanding that debit, he has not yet received the transcript. Nevertheless, he made no application for any extension of time within which to comply with the orders made by Tobias AJA on 14 December 2015.
When the motion was called on for hearing this morning, Mr Nobarani sought an adjournment. I declined the adjournment on the basis that the only questions were whether the notice of appeal should be struck out and if so, whether Mr Nobarani should have leave to file a third version. The transcript was not relevant to that question, although it may be relevant to the question of the grounds for a third version of the notice of appeal.
In all of the circumstances, I consider that the appropriate course is to strike out the notice of appeal filed on 2 February 2016 but to grant Mr Nobarani leave to file a third version of the notice of appeal, being a second amended notice of appeal. I consider that it is appropriate to do so on terms that he pay the costs thrown away by the two amendments and that the proceedings be stayed until the costs have been paid.
However, Mr Nobarani said from the bar table that he is not in a position to pay any order for costs. Accordingly, I will reserve to him the right to make an application, supported by proper evidence, to vary the terms of the orders that I propose, if he is so disposed.
The orders that I make are as follows.
Order that the notice of appeal filed on 2 February 2016 be struck out.
Order the appellant to pay the costs thrown away by the two amendments of the notice of appeal and of the notice of motion for striking out of the notices of appeal.
Direct that any amended notice of appeal be filed no later than 4 April 2016.
Order that the proceedings be stayed, other than for the purposes of filing the second amended notice of appeal or for the purposes of assessing or taxing the costs referred to in Order 2.
Grant leave to the appellant, if so disposed, to apply to vary the terms of the stay referred to in Order 4.
Order that the respondent's notice of motion be otherwise dismissed.

Nobarani v Mariconte

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