Sylvia Gazal v Aliza Sassoon; The Estate of the Najiya Gazal; Gazal v Sassoon [2016] NSWSC 1652 | Case summary

Supreme Court of NSW|2016-11-02|Before: Slattery J

EX TEMPORE Judgment

The plaintiff is the registered proprietor of a property in Bellevue Hill. She is the widow of the late Sassoon Jacob Gazal ("Sassoon"), who died recently. Prior to her husband's death, the plaintiff and her husband were joint tenants of the Bellevue Hill property, which was their home for some thirty nine years until her husband died.
The plaintiff exchanged contracts for the sale of the Bellevue Hill property on 22 January 2016. The contract is due for completion by no later than Monday 7 November. The evidence clearly supports the need for this matter to be resolved one way or another by some interim or final orders, either today or tomorrow, so that the settlement date can be preserved.
The plaintiff seeks orders in the first of the two proceedings before the Court today that Caveat No. AK843569K recorded on Folio identifier 1/965262 be withdrawn by the defendant by 2:00pm today (hereinafter referred to as "the Caveat proceedings").
The defendant lodged the Caveat against the Bellevue Hill property asserting the following caveatable interest: "As I Aliza Sassoon, daughter of Najiya Gazal, am the only survivor of my mother's will dated 15 November 2004... ... I need to stop the sale."
The text of the caveat then goes to refer to the will of her late mother, Najiya Gazal. On its face, the caveatable interest claimed does not fall into any recognised category of equitable interest. On its face the caveat appears unsupportable.
The proceedings were commenced on Monday in the Equity Duty list and time for service was abridged to 12 noon yesterday. The Summons was made returnable at 10:00am today.
After being served in accordance with the Court's orders, the defendant appeared today and put argument against the making of the orders. But the defendant first made a number of submissions in support of an adjournment of these proceedings. The Court declined an adjournment. Some further background is required to explain the Court's consideration of that issue.

The Application for Adjournment

The defendant is the sister of the plaintiff's late husband, Sassoon. Both Sassoon and the defendant were the only children of the late Najiya Gazal ("Najiya") who died in August 2012. She left a will dated November 2004 appointing Sassoon as executor and gifting her estate equally to both Sassoon and the defendant.
Probate of Najiya's will was granted to Sassoon and administration of her estate commenced.
The uncontested evidence is that at no time was the Bellevue Hill property part of Najiya's estate. Even if one were to take the broadest view of the description of the equitable interest the defendant claims here, it is difficult to understand how it arises. The property has always been owned by Sassoon and the plaintiff. Neither the defendant nor her late mother had any interest in the property, according to the evidence.
The Court asked the defendant to explain how she claimed an interest in the property that might be supported by the caveat she had lodged. Her answers to the Court are clearly matters of abiding concern to her. They were to the effect, "I don't have a home," and "Sylvia took my home from me," and "Sylvia took my mother." The plaintiff firmly contests all of these allegations.
But the matters so raised do not identify any further fact which would allow the Court to infer that the defendant may have some recognisable equity in this property.
The Court was concerned that the defendant, who appears today without legal representation, may wish to seek an adjournment for legal advice. The Court asked the defendant during the course of her submission whether she wished to seek an adjournment for that purpose.
The Court explained to the defendant that the Court may be prepared to consider a very short period of adjournment to allow her to obtain legal advice, if she was prepared to accept some money which had been paid into Court for her benefit in the other proceedings concerning Najiya's estate described later in these reasons ("the Estate proceedings"). The Court suggested she could perhaps take the money out of Court, engage a lawyer overnight and return with legal representation tomorrow. But the defendant indicated to the Court that she was neither prepared to accept the money available to her in the Estate proceedings nor to engage a lawyer.
After some further submissions, the defendant eventually indicated to the Court that she was prepared to accept the money in Court. But she stated that she was still unwilling to engage a lawyer. The defendant said that she wished the Court to make a recommendation that she be able to take advantage of the Court's pro bono scheme. The Court explained to the defendant that the Court was not prepared to make an order referring her to any pro bono scheme. Such schemes are available in the public interest for people who cannot afford to pay for a lawyer. The defendant is not such a person.
The Court pointed out to her that because she has a fund in Court of approximately $200,000 for her benefit which she could use immediately, she therefore has ample funds to be able to engage a lawyer at short notice overnight to deal with the issues about her caveat. The defendant then submitted to the Court that she would not be prepared to engage a lawyer, even were an adjournment to be granted.
The plaintiff submitted to the Court in reply. Ms Evans contended that there is a history in the related Estate proceedings of the defendant either not appearing or not taking advantage of opportunities to get legal advice. Notwithstanding Ms Evans' submissions in that regard, I would have been prepared to allow an adjournment for twenty-four hours, whatever the history may be. But the attitude the defendant has taken has meant that an adjournment should not be granted. The Court must do what is just and reasonable in the circumstances, in light of the defendant's refusal to obtain legal advice and her other frequent statements that "no lawyer will take my case".
In those circumstances, the Court declined an adjournment. The Court called upon the defendant to continue in her submissions before the Court gave judgment.
There were funds in Court, which are payable out of Court to the defendant in the Estate proceedings, numbered 2012/00323491. It is necessary to digress now to shortly mention the Estate proceedings.

The Estate Proceedings - the Money in Court

When Najiya's estate was being administered, the defendant launched proceedings for family provision against her estate under Succession Act 2006, Chapter 3. When these family provision proceedings came on for hearing before Darke J on 20 June 2014 the plaintiff did not appear. His Honour gave an ex tempore judgment that day dismissing the proceedings.
Najiya's estate continued to be administered absent that claim. Estate administration reached the point by mid-October this year that a distribution to the beneficiaries was ready to be made. But the defendant refused to accept her distribution from the estate. Consequently, judicial advice was sought by the executor as to what should be done with the defendant's share. The advice given was that it could be paid into Court, and it was.
With accumulated interest the sum in Court is now $211,182.39. I have indicated to the defendant that it is in her interest to receive this money, as she is entitled to it. She has now indicated to the Court that she is prepared to have it paid to her.
With the assistance today of the Court officer, for whose assistance in this regard the Court is most grateful, during the short adjournment for morning tea the defendant attended a nearby bank and verified her bank account details in the event that the funds in Court could be paid to her in the Estate proceedings, were such orders to be made.

Disposition of the Caveat and the Estate Proceedings

The Court is prepared to make orders, to pay the funds out of Court in the Estate proceedings subject to one matter.
The availability of those funds is the reason why the Court has put to the defendant in the Caveat proceedings the need for her to commit to obtaining legal advice overnight, because she clearly has the means to do that. But she has declined to do so.
In these circumstances, the Court saw no basis for the continuation of the caveat. Given the reasoning above the Court will make orders under Real Property Act 1900, s 74MA as sought and grant an injunction to restrain the lodging of further caveats.
The only remaining question is the mechanics of the orders to be made and the question of costs. The Court allowed the parties until 2 o'clock to think about those two remaining issues.
The Court has a general duty to resolve proceedings. If the opportunity to deal with all these matters is available to the Court, the Court sees no reason why it should not make orders now in both proceedings, the Caveat proceedings and the Estate proceedings. Everyone in both proceedings is before the Court.
Other incidental issues now arise: as to the payment out of monies out of Court and whether or not a gross sum costs order should be made under Civil Procedure Act 2005, s 98(4)(c).

Mechanics of the Payment of Funds out of Court

To effect the payment out of Court in the Estate proceedings, the defendant supplied to the Court the bank account details, which became Exhibit 3.
I am satisfied that the defendant before the Court today is the defendant in both the Caveat proceedings and the Estate proceedings and she is entitled to these funds in Court in the Estate proceedings and that there is no other reason for them not to be paid out to her. There is no other claimant to those funds and the defendant is absolutely entitled to them. Her bank accounts and BSB number details will not be reproduced in this judgment. But I am satisfied that in all respects Exhibit 3 represents a bank account in her name and is the place to which the funds in Court should be remitted.
The amount paid into court in the Probate proceedings was $211,182.39. That principal sum may have accumulated a small amount of interest since it was paid into court on 11 October.

Costs

But the plaintiff seeks costs. She also seeks an assessment of those costs on a gross sum basis under Civil Procedure Act 2005, s 98(4)(c).
The first question is whether an order for costs should be made. In my view, there is no reason why the ordinary consequence of the plaintiff's success should not follow in this case. The costs should follow the event under Uniform Civil Procedure Rules, r 42.1. There is no basis, in my view, for the Court to "make some other order". I will order the defendant to pay the plaintiff's costs on the ordinary basis.
Ms Evans, on behalf of the plaintiff, put a submission that the defendant be required to pay those costs on an indemnity basis. But she was not seeking more than the precise amount of $6,039.94 set out in her affidavit of 2 November 2016. It has become clear to the Court from the way the proceedings have unfolded that more lawyer's time and some more additional disbursements will be required to be expended today in addition to the amount of $6,039.94 in costs being claimed. If a gross sum costs order was made I am inclined to make it in the amount claimed, because it does not represent the full amount of costs that have been incurred which, were the costs of the matter to be assessed in full, could easily be claimed.
The plaintiff seeks the payment of the following costs and disbursements: (a) Disbursements: i. Summons Filing Fee $1,078.00 ii. Fee for Copy of Order date 31.1016 59.00 iii. Title Search on Property 18.64 iv. Photocopying 150.00 v. Withdrawal of caveat Lodgement Fee 136.30 (b) Costs i. Solicitors costs from 31.10.16 to 10am 2.11.16 as per attached schedule Annexed hereto and marked "A" 3,080.00 ii. Anticipated costs for appearing before Duty Judge on 2.11.16, attending to the registration of the withdrawal of caveat, communicating with client and her conveyancing solicitor 1,100.00 GST 418.00 TOTAL COSTS $6,039.94
The Court has broad jurisdiction to make a gross sum costs order under Civil Procedure Act, s 98(4)(c). The nature of the discretion has been confirmed in many cases (see for example: Harrison & Anor v Schipp (2002) 54 NSWLR 738; NSWCA 213 ("Schipp") and Hadid v Lenfest Communications Inc [2000] FCA 628 ("Lenfest")).
The Court can make a broad brush impressionistic assessment of costs on a gross sum basis in conformity with these authorities.
Going now to the detail. There is no reason why the plaintiff should not recover all her disbursements. The calculation of her profit costs, including for Ms Evans' appearance before the duty judge today, is $1,100. This represents an attendance time probably only half of the time already spent in the Court. And there is still some time to go to give effect to the Court's orders, by filing the orders with Land and Property Information NSW. Moreover, Ms Evans has conducted the matter herself rather than briefing counsel, thereby reducing the burden of legal costs.
In those circumstances, the Court makes a gross lump sum order in the amount of $6,039.94. I will direct that that sum be paid out of the defendant's funds before those funds are paid out of Court in the Estate proceedings.

Conclusion and Orders

Accordingly, the Court makes the following orders, notations and directions in proceedings numbered 2016/324697 ("the Caveat proceedings") and in proceedings numbered 2012/323491 ("the Estate proceedings"): Order in the Caveat proceedings: 1. Order that Caveat No. AK843569K recorded on Folio Identifier 1/965262 be withdrawn by the Defendant by 2.00pm today, Wednesday, 2 November 2016. 2. Note that Order 1 was not complied with by 2.00pm today. 3. Order pursuant to Real Property Act, s 74MA(3) that Caveat No. AK843569K lapse upon the service of a copy of these Orders on the Registrar General. 4. Order that the defendant is restrained from lodging any further Caveat on the plaintiff's property [address not published], Bellevue Hill in the State of New South Wales, being the whole of the land comprised in Folio Identifier 1/965262, other than with the leave of the Court. 5. The defendant pay the plaintiff's costs of these proceedings. 6. Order pursuant to Civil Procedure Act, s 98(4)(c) that the plaintiff is entitled to a gross sum instead of assessed costs in the amount of $6,039.94. Order in the Probate proceedings: 1. Order that in respect of the funds paid into Court on 11 October 2016 in the sum of $211,182.39, together with any accumulated interest ("the funds in Court") that the sum of $6,039.94 be paid out to the solicitors for the plaintiff in the caveat proceedings. 2. That the balance of the funds in Court be paid forthwith to the defendant in the Probate proceedings directly into her bank account [not published]. 3. Grant liberty to apply in relation to the implementation of these orders. 4. Order that Exhibit 3 be returned.

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: 28 November 2016

Sylvia Gazal v Aliza Sassoon; The Estate of the Najiya Gazal; Gazal v Sassoon

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