Rogers v Ribes

Medium Neutral Citation: Rogers v Ribes [2025] NSWSC 1616

Hearing dates: 19 December 2025

Date of orders: 19 December 2025

Decision date: 19 December 2025

Jurisdiction: Equity – Probate and Family Provision List – Family Provision

Before: Bennett J

Decision: The Court:
(1) Grants leave to the defendant in proceedings 2023/00461721 (the Family Provision proceedings) to orally move on the motion to vacate the hearing date.
(2) Dismisses the defendant’s application to have the hearing of the Family Provision proceedings vacated.
(3) Lists proceedings 2025/00260849 (the s 66G proceedings) for hearing on 16-17 February 2026, together with proceedings 2023/00461721 (the Family Provision proceedings) before Bennett J.
(4) Makes the Usual Order for Hearing in Practice Note SC Eq 1 in relation to proceedings 2025/00260849 (the s 66G proceedings).
(5) Orders that evidence in one proceeding be evidence in the other proceeding.
(6) Costs of the application to vacate are reserved.

Catchwords: CIVIL PROCEDURE — Hearings — Vacation of hearing date — Where application for a family provision order is originally listed for final hearing on an estimate of 2 days — Defendant in family provision proceedings commences proceedings seeking orders under s 66G of the Conveyancing Act 1919 (NSW) for the sale of real property forming part of the deceased estate to which family provision proceedings relates — Application of defendant in family provision proceedings to vacate final hearing until the property the subject of the s 66G application is sold, or the s 66G proceedings are otherwise resolved — Whether hearing of family provision proceedings should be vacated in the circumstances — No issue of principle

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58, 66

Cases Cited: The Estate of Tabain (No 2) [2025] NSWSC 985

Category: Procedural rulings

Parties: Proceeding 2023/00461721:
Ruben Doone Sidney Furner Rogers (Plaintiff)
Julie-Anne Tabitha Ribes (Defendant)
Proceeding 2025/00260849:
Julie-Anne Tabitha Ribes (Plaintiff)
David Milan Predny (Defendant)

Representation: Counsel:
R Antill (Plaintiff in Proceeding 2023/00461721; Defendant in Proceeding 2025/00260849)
J Armfield (Defendant in Proceeding 2023/00461721; Plaintiff in Proceeding 2025/00260849)
Solicitors:
Fowler Predny Legal (Plaintiff in Proceeding 2023/00461721; Defendant in Proceeding 2025/00260849)
Bateman Battersby Lawyers (Defendant in Proceeding 2023/00461721; Plaintiff in Proceeding 2025/00260849)

File Number(s): 2023/00461721; 2025/00260849

Publication restriction: Nil

JUDGMENT (ex tempore, revised)

Procedural Background

1. Two sets of proceedings were listed before me for directions this morning, Friday, 19 December 2025, the last day of the law term. These proceedings were (with abbreviation):

2. Rogers v Ribes, proceedings 2023/00461721 (the Family Provision proceedings); and

3. Ribes v Predny, proceedings 2025/00260849 (the s 66G proceedings).

4. Mr J Armfield appeared for the plaintiff in the s 66G proceedings and the defendant in the Family Provision proceedings. Mr R Antill appeared for the defendant in the s 66G proceedings and for the plaintiff in the Family Provision proceedings.

5. The Family Provision proceedings are listed for hearing before me on 16 and 17 February 2026. This listing was made on 11 September 2025. Noting that today is the last day of the law term, I note that the hearing is to take place in the third week following the commencement of the 2026 law term.

6. On Wednesday, 17 December 2025, by email at 4:35pm, the defendant in the Family Provision proceedings (who is also the plaintiff in the s 66G proceedings) provided my Chambers with a set of written submissions, together with affidavits which set out the orders the defendant proposes to seek in relation to both sets of proceedings. The legal representatives for the plaintiff in the Family Provision proceedings were copied in on that email.

7. In these reasons, and for consistency, I will refer to the moving party on the application, Julie-Anne Ribes, as the defendant, noting that she is the defendant in the Family Provision proceedings only. I will refer to Ruben Rogers as the plaintiff. That is, references to the plaintiff and the defendant below are references to the parties in the Family Provision proceedings.

Orders sought

6. In the defendant’s written submissions, the orders sought were set out at paragraph [3] and are as follows:

“Ms Ribes seeks the following directions:

i) An order that the s 66 proceeding be heard prior to the [Family Provision (FP)] proceedings;

ii) An order that the hearing of the FP proceedings on 16 and 17 February 2026 be vacated;

iii) An order that the FP proceedings be adjourned pending the sale of the property at 108 Yarrawonga Park Road, Yarrawonga Park (the Yarrawonga Park property);

iv) Alternatively to orders (i) to (iii) that the s 66G proceedings be heard together with the FP proceedings.”

7. Notwithstanding the provision of submissions and an indication as to the orders sought, no formal Notice of Motion had been filed. At the commencement of the hearing, I granted leave to the defendants to move orally on the motion to vacate the hearing date. Counsel for the plaintiff did not object to that course being taken and indicated he was able to deal with the application this morning.

8. Before the commencement of the formalities of the application, counsel for the plaintiff indicated that whilst the plaintiff opposed the orders in relation to vacating the hearing date, he did not oppose to the making of proposed order (iv), that is, an order for the s 66G proceedings to be heard at the same time as the Family Provision proceedings.

9. The reading of the affidavit evidence and tendering of documents, together with oral submissions, took place this morning. I indicated to the parties that I would provide my decision and give oral reasons for that decision at 3:00pm this afternoon.

10. In relation to the value of the estate, which is the subject of the Family Provision proceedings, there is agreement between the parties that the estimated net distributable estate of Arthur’s (Arthur Doone Rogers) estate is in the order of $278,000.

11. Having regard to the evidence before me, the submissions made by each of the parties and applying the relevant legal principles, I am of the view that it is in the interests of justice to reject the defendant’s application to vacate the hearing date and I propose to order that the s 66G proceedings be heard at the same time as the Family Provision proceedings.

12. I note that this outcome was the alternative sought by the defendant in any event and the orders were not opposed by the plaintiff.

13. To follow are the reasons for my decision. I have sought to deliver these reasons as expeditiously as possible and without the benefit of the transcript, given today is the last day of term and once the new law term starts there are only a further two weeks before the hearing of these matters commences. Accordingly, in providing these reasons I will focus on the main issues in contention between the parties, and on the concerns of the Court going to what is just, quick and cheap and in the interests of the administration of justice.

Factual background

14. Part of the relevant background has been set out in the written submissions of the defendant. The submissions refer to the parties and other persons relevant to events by their first name. I will also do that without any intended disrespect or undue familiarity. I will refer to that summary, however, noting that most of the fundamental background facts are not in dispute.

15. At paragraph [6] of the defendant’s written submissions, it was said:

“The FP [Family Provision] proceedings involve an application by Ruben for a family provision order out of the estate/notional estate of Arthur.”

I would add that Ruben made the application nearly two years ago, filing his Summons on 20 December 2023.

16. At paragraph [7] of the defendant’s written submissions, it was said:

“Arthur’s estate consists of

i) A 50% interest in the Yarrawonga Park property [a property at 108 Yarrawonga Park Road, Yarrawonga Park] with Mr Predny in his capacity as the executor of the estate of Arthur’s wife Evelyn;

ii) A 50% interest in the property at 16 McArdle Street, Molong (“the Molong property”) as tenant in common with Mr Predny in his capacity executor of Evelyn’s estate;

iii) His interest as beneficiary under Evelyn’s [Evelyn Thelma Rogers] will. Evelyn made her last will and testament on 12 June 2018. Probate of that was granted to Mr Predny on 1 August 2022. A copy of the grant of probate is Annexure B to Ms Ribes affidavit of 14 August 2025.”

That affidavit, amongst others, was read in these proceedings today.

17. Paragraph [8] of the defendant’s written submissions says:

“Evelyn left her entire estate to Arthur. After Evelyn’s death, her son Artie brought a family provision claim against Artie’s estate [sic]. Hallen J made orders on 14 November 2022 disposing of those proceedings. … The orders are Annexure D to Ms Ribes’ affidavit of 14 August 2025.”

The parties are well acquainted with those orders and I will not repeat them here.

18. Paragraph [9] of the defendant’s written submissions says:

“The residue of Evelyn[‘]s estate, which passes to Arthur’s estate, consists of 50% of the proceeds of sale of both the Yarrawonga Park property and the Molong property, and 1000 shares in NIB, less the provision ordered in favour of Artie, Mr Predny’s costs of Artie’s FP proceedings and his cost of administering Evelyn’s estate.”

19. Paragraph [10] of the defendant’s written submissions says:

“The Molong property has been listed for sale by Mr Predny but not sold.”

Legal principles

20. Neither party addressed me on the legal principles to be applied when considering the issues before the Court.

21. Having said that, the legal principles to be applied when a party makes an application to vacate a hearing date are unlikely to be in dispute. I have set out those principles, which are to be applied here, in The Estate of Tabain (No 2) [2025] NSWSC 985 (Tabain). At [93] I said:

“The statutory power to adjourn the hearing of proceedings comes from s 66 of the [Civil Procedure Act 2005 (NSW) (CPA)]: O’Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839 (O’Keefe) at [49] (Meek J). In deciding whether or not to vacate the hearing dates, it is well settled that the Court is required to have regard to the matters set out in ss 56-58 of the CPA: O’Keefe at [50]-[53]; In the matter of Elsmore Resources Ltd [2016] NSWSC 884 at [11]-[14] (Black J). …”

22. In relation to those provisions of the Civil Procedure Act 2005 (NSW) (CPA), in Tabain, I said this:

“[80] The overriding purpose of the CPA and the [Uniform Civil Procedure Rules 2005 (NSW) (UCPR)] in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA s 56(1). The court must seek to give effect to that overriding purpose when it exercises any power in the CPA or the UCPR: CPA s 56(2).

[81] In seeking to give effect to the overriding purpose, the Court must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: CPA s 57(1).

[82] In deciding whether to make an order or direction for the management of proceedings, including an order of a procedural nature, the court must seek to act in accordance with the dictates of justice: CPA s 58(1). By operation of s 58(2) of the CPA, the determination of the dictates of justice in a particular case requires the Court to have regard to ss 56 and 57 of the CPA. The Court may also have regard to such of the following matters or other matters it considers relevant:

(1) the degree of difficulty or complexity to which the issues in the proceedings give rise;

(2) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities;

(3) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;

(4) the degree to which the respective parties have fulfilled their duties under s 56(3);

(5) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; and

(6) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

For the recent application of these principles in the context of case management, see Pallas v Lendlease Corporation Limited (No 2) [2025] NSWSC 7.”

Should the Family Provision proceedings be heard prior to the sale of the Yarrawonga Park property?

23. At paragraph [14] of her written submissions, the defendant submits that:

“It is not appropriate to hear the FP proceedings prior to the sale of the Yarrawonga Park property. This is because it is the major asset of Arthur’s estate and its value should be ascertained by sale not valuation.”

24. At paragraph [15(a)] of her written submissions, the defendant submits that proceeding on the basis of a valuation runs the real risk of prejudice to the beneficiaries of Arthur’s estate because:

“There is no guarantee that the Yarrawonga Park property would be sold for the price in the valuation. It should be ascertained by the market. This is demonstrated by the significant disparity between the market price referred to in the valuation and the market price referred to in the market appraisals for the Yarrawonga Park property …”

25. I do not accept this submission. Most broadly, family provision and much other litigation regularly proceeds on the basis of estimates of the value of property rather than the market price actually paid following a sale. This is so even when the property is the main asset of an estate.

26. More specifically, I do not accept that there is a significant disparity between the market price referred to in the valuation to which the defendant refers and the market price referred to in the market appraisals for the Yarrawonga Park property.

27. I accept the submissions of the plaintiff on this issue. There is one valuation by an accredited valuer before the Court which estimates a value of $580,000. For her part, the defendant has provided a market appraisal as recently as 18 December 2025, which gives an estimate of the sale price in the range of $600,000 to $650,000. In my view, if you take an average of that range as $625,000, I do not consider that estimate to be materially or concerningly different from the valuation of $580,000 such as to doubt the estimate of the value of either the valuation or the appraisal.

28. At paragraphs [15(b), (c) and (d)] of her written submissions, the defendant makes the following submissions:

“15. Proceeding on the basis of a valuation runs the real risk of prejudice to the beneficiaries of Arthur’s estate because:

…

b. If Ruben is allowed to purchase Arthur’s 50% interest in the Yarrawonga Park property by paying an amount based on the valuation, he acquires the major asset of Arthur’s estate and leaves the estate with the 50% interest in the Molong property, which thus far has not attracted a purchaser.

c. It will not solve the problem of the sale of Evelyn’s interest in the Yarrawonga Park property, which is not an asset of Arthur’s estate, and from which Mr Predney’s costs must be paid.

d. In any event there will have to be a default mechanism providing for a sale and distribution of the estate if Ruben didn’t pay the amount required to acquire the interest within a specified period.”

29. I note the submissions of both the defendant and of the plaintiff on the issues raised in paragraphs [15(b), (c) and (d)] of the defendant’s written submissions, and I accept they raise issues of considerable complexity. I do not accept, however, having regard to both sets of submissions, that any of these issues will be solved by deferring the hearing of the Family Provision proceedings.

30. Both parties agree that the issues are complicated, and I agree with those submissions.

31. The defendant submitted that all of the outcomes are complicated and that any decision will only result in the “least worst result” and I agree with that also.

32. Given this, I do not propose to set out the terms of the various submissions in relation to paragraphs [15(b), (c) and (d)]. I do find, however, that the issues are complex and, as I have already said, I accept the submission of the defendant that all of the outcomes will still be complicated.

Other relevant submissions and consideration

33. The plaintiff opposes the application to vacate the hearing date submitting, amongst other things, that it is two years since the Summons was filed. The hearing date for the Family Provision proceedings has been set down since 11 September 2025.

34. In further support of his opposition, I was taken by the plaintiff to evidence going to the earlier views held by the defendant in relation to the mediation and the hearing, as expressed in communications between the parties, the transcript of what was said in Court on previous occasions and the written submissions.

35. I am of the view that a material issue, when I come to consider this application, is that this is the first formal application on the part of the defendant, and at a relatively late stage, that has been made to have the hearing date vacated. This is a factor which I consider militates against the granting of the application to vacate.

36. The plaintiff also drew the Court’s attention to the size of the likely net distributable estate, being in the order of $278,000. Whilst it is clearly regrettable that the parties have not been able to settle this matter, I am of the view that the small size of the estate also militates against vacating the hearing dates, which will just further delay the hearing of the matter and where there will likely be costs incurred already in preparation for that hearing.

Conclusion

37. Having regard to the evidence before me and the submissions made by each of the parties, and having regard to the relevant legal principles, I am of the view it is in the interests of the administration of justice that I reject the application to vacate the hearing date. I propose to order that the s 66G proceedings be heard at the same time as the Family Provision proceedings.

38. Accordingly, the Court:

39. Grants leave to the defendant in proceedings 2023/00461721 (the Family Provision proceedings) to orally move on the motion to vacate the hearing date.

40. Dismisses the defendant’s application to have the hearing of the Family Provision proceedings vacated.

41. Lists proceedings 2025/00260849 (the s 66G proceedings) for hearing on 16-17 February 2026, together with proceedings 2023/00461721 (the Family Provision proceedings) before Bennett J.

42. Makes the Usual Order for Hearing in Practice Note SC Eq 1 in relation to proceedings 2025/00260849 (the s 66G proceedings).

43. Orders that evidence in one proceeding be evidence in the other proceeding.

44. Costs of the application to vacate are reserved.

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Amendments

16 February 2026

Amendment to catchwords